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[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR211]

[Page 64-81]
 

TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 211--RULES OF PRACTICE


                           Subpart A--General

Sec.
211.1 General.
211.3 Participation by interested persons.
211.5 Regulatory docket.
211.7 Filing requirements.
211.9 Content of rulemaking and waiver petitions.

                    Subpart B--Rulemaking Procedures

211.11 Processing of petitions for rulemaking.
211.13 Initiation and completion of rulemaking proceedings.
211.15 Notice and participation.
211.17 Publication and contents of notices.
211.19 Petitions for extensions of time to comment.
211.21 Consideration of comments received.
211.23 Additional public proceedings.
211.25 Hearings.
211.27 Publication of adopted rules and withdrawal of notices.
211.29 Petitions for reconsideration of a final rule.
211.31 Proceedings on petitions for reconsideration of a final rule.

                           Subpart C--Waivers

211.41 Processing of petitions for waiver of safety rules.
211.43 Processing of other waiver petitions.

                       Subpart D--Emergency Orders

211.47 Review procedures.

    Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries

211.51 Tests.
211.53 Signal applications.
211.55 Special approvals.
211.57 Petitions for reconsideration.
211.59 Proceedings on petitions for reconsideration.
211.61 Informal safety inquiries.

    Subpart F--Interim Procedures for the Review of Emergency Orders

211.71 General.
211.73 Presiding officer; powers.
211.75 Evidence.
211.77 Appeal to the Administrator.

Appendix A to Part 211--Statement of Agency Policy Concerning Waivers 
          Related to Shared Use of Trackage or Rights-of-Way by Light 
          Rail and Conventional Operations

    Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 
CFR 1.49.

    Source: 41 FR 54181, Dec. 13, 1976, unless otherwise noted.

                           Subpart A--General

Sec. 211.1  General.

    (a) This part prescribes rules of practice that apply to rulemaking 
and waiver proceedings, review of emergency orders issued under 45 
U.S.C. 432, and miscellaneous safety-related proceedings and informal 
safety inquiries. The specific time limits for disposition of 
proceedings apply only to proceedings initiated after December 31, 1976, 
under the Federal Railroad Safety Act of 1970 (45 U.S.C. 421 et seq.). 
When warranted, FRA will extend these time limits in individual 
proceedings. However, each proceeding under the Federal Railroad Safety 
Act shall be disposed of within 12 months after the date it is 
initiated. A proceeding shall be deemed to be initiated and the time 
period for its disposition shall begin on the date a petition or 
application that complies with the requirements of this chapter is 
received by the person designated in Sec. 211.7.
    (b) As used in this part--

[[Page 65]]

    (1) Administrator means the Federal Railroad Administrator or the 
Deputy Administrator or the delegate of either of them.
    (2) Waiver includes exemption.
    (3) Safety Act means the Federal Railroad Safety Act of 1970, as 
amended (45 U.S.C. 421 et seq.).
    (4) Docket Clerk means the Docket Clerk, Office of Chief Counsel, 
Federal Railroad Administration, 1120 Vermont Avenue, N.W., Mail Stop 
10, Washington, D.C. 20590 or the Docket Clerk, Department of 
Transportation Central Docket Management System, Nassif Building, Room 
Pl-401, 400 Seventh Street, S.W., Washington, D.C. 20590-0001.
    (5) Railroad Safety Board means the Railroad Safety Board, Office of 
Safety, Federal Railroad Administration, Washington, DC 20590.
    (c) Records relating to proceedings and inquiries subject to this 
part are available for inspection as provided in part 7 of this title.

[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]

Sec. 211.3  Participation by interested persons.

    Any person may participate in proceedings and inquiries subject to 
this part by submitting written information or views. The Administrator 
may also permit any person to participate in additional proceedings, 
such as informal appearances, conferences, or hearings at which a 
transcript or minutes are kept, to assure informed administrative action 
and protect the public interest.

Sec. 211.5  Regulatory docket.

    (a)(1) Records of the Federal Railroad Administration created after 
November 1, 1998, concerning each proceeding subject to this part are 
maintained in current docket form by the DOT Docket Management System. 
These records include rulemaking and waiver petitions, emergency orders, 
notices, comments received in response to notices, hearing transcripts, 
final rules, denials of rulemaking petitions, grants and denial of 
waiver and other petitions. Also included are records pertaining to 
applications for special approval under Sec. 211.55 and Sec. 238.21 of 
this chapter, petitions for grandfathering approval under Sec. 238.203 
of this chapter, signal applications under parts 235 and 236 of this 
chapter, and informal safety inquiries under Sec. 211.61.
    (2) Any person may examine docketed material created after November 
1, 1998:
    (i) At the DOT Docket Management System, room Pl-401 (plaza level), 
400 Seventh Street, S.W. Washington, D.C. 20590. Copies of docketed 
materials may be obtained upon payment of the fees prescribed by the 
Docket Management System, or
    (ii) Through the Internet at http://dms.dot.gov. All docketed 
materials are available for viewing and may be downloaded for electronic 
storage or printing. There is no charge for this service.
    (b) Records of the Federal Railroad Administration created before 
November 1, 1998, concerning each proceeding subject to this part are 
available in FRA's Docket Office, seventh floor, 1120 Vermont Avenue, 
Washington, DC 20590. Any person may examine docketed material at that 
location during normal business hours. Copies of docketed material may 
be obtained upon payment of the fees prescribed in part 7 of this title.
    (c) Any person may examine docketed material in the office where it 
is maintained. Copies of docketed material other than commercially 
prepared transcripts may be obtained upon payment of the fees prescribed 
in part 7 of this title.

[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]

Sec. 211.7  Filing requirements.

    (a) Any person may petition the Administrator for issuance, 
amendment, repeal or permanent or temporary waiver of any rule or 
regulation. A petition for waiver must be submitted at least 3 months 
before the proposed effective date, unless good cause is shown for not 
doing so.
    (b)(1) All petitions and applications subject to this part, 
including applications for special approval under Sec. 211.55 and 
Sec. 238.21 of this chapter, petitions for grandfathering approval under 
Sec. 238.203 of this chapter, and signal applications under parts 235 
and 236 of

[[Page 66]]

this chapter, shall be submitted in triplicate to the FRA Docket Clerk. 
Each petition received shall be acknowledged in writing. The 
acknowledgment shall contain the docket number assigned to the petition 
or application and state the date the petition or application was 
received. Within 60 days following receipt, FRA will advise the 
petitioner or applicant of any deficiencies in its petition or 
application.
    (2) All comments submitted in response to a notice and other 
material pertaining to proceedings subject to this part, including 
comments submitted in response to requests for special approval under 
Sec. 211.55 and Sec. 238.21 of this chapter, petitions for 
grandfathering approval under Sec. 238.203 of this chapter, and signal 
applications under parts 235 and 236 of this chapter, shall be submitted 
to the DOT Central Docket Management System and shall contain the 
assigned docket number for that proceeding. The form of such submissions 
may be in written or electronic form consistent with the standards and 
requirements established by the Central Docket Management System and 
posted on its web site at http://dms.dot.gov.

[64 FR 70195, Dec. 16, 1999]

Sec. 211.9  Content of rulemaking and waiver petitions.

    Each petition for rulemaking or waiver must:
    (a) Set forth the text or substance of the rule, regulation, 
standard or amendment proposed, or specify the rule, regulation or 
standard that the petitioner seeks to have repealed or waived, as the 
case may be;
    (b) Explain the interest of the petitioner, and the need for the 
action requested; in the case of a petition for waiver, explain the 
nature and extent of the relief sought, and identify and describe the 
persons, equipment, installations and locations to be covered by the 
waiver;
    (c) Contain sufficient information to support the action sought 
including an evaluation of anticipated impacts of the action sought; 
each evaluation shall include an estimate of resulting costs to the 
private sector, to consumers, and to Federal, State and local 
governments as well as an evaluation of resulting benefits, quantified 
to the extent practicable. Each petition pertaining to safety 
regulations must also contain relevant safety data.

                    Subpart B--Rulemaking Procedures

Sec. 211.11  Processing of petitions for rulemaking.

    (a) General. Each petition for rulemaking filed as prescribed in 
Secs. 211.7 and 211.9 is referred to the head of the office responsible 
for the subject matter of the petition to review and recommend 
appropriate action to the Administrator. No public hearing or oral 
argument is held before the Administrator decides whether the petition 
should be granted. However, a notice may be published in the Federal 
Register inviting written comments concerning the petition. Each 
petition shall be granted or denied not later than six months after its 
receipt by the Docket Clerk.
    (b) Grants. If the Administrator determines that a rulemaking 
petition complies with the requirements of Sec. 211.9 and that 
rulemaking is justified, he initiates a rulemaking proceeding by 
publishing an advance notice or notice of proposed rulemaking in the 
Federal Register.
    (c) Denials. If the Administrator determines that a rulemaking 
petition does not comply with the requirements of Sec. 211.9 or that 
rulemaking is not justified, he denies the petition. If the petition 
pertains to railroad safety, the Administrator may also initiate an 
informal safety inquiry under Sec. 211.61.
    (d) Notification; closing of docket. Whenever the Administrator 
grants or denies a rulemaking petition, a notice of the grant or denial 
is mailed to the petitioner. If the petition is denied, the proceeding 
is terminated and the docket for that petition is closed.

Sec. 211.13  Initiation and completion of rulemaking proceedings.

    The Administrator initiates all rulemaking proceedings on his own 
motion by publishing an advance notice of proposed rulemaking or a 
notice of proposed rulemaking in the Federal Register. However, he may 
consider the recommendations of interested persons

[[Page 67]]

or other agencies of the United States. A separate docket is established 
and maintained for each rulemaking proceeding. Each rulemaking 
proceeding shall be completed not later than 12 months after the initial 
notice in that proceeding is published in the Federal Register. However, 
if it was initiated as the result of the granting of a rulemaking 
petition, the rulemaking proceeding shall be completed not later than 12 
months after the petition was filed as prescribed in Secs. 211.7 and 
211.9.

Sec. 211.15  Notice and participation.

    (a) Except as provided in paragraph (c) of this section, or when the 
Administrator finds for good cause that notice is impractical, 
unnecessary, or contrary to the public interest (and incorporates the 
findings and a brief statement of the reasons therefore in the rules 
issued), an advance notice or notice of proposed rulemaking is published 
in the Federal Register and interested persons are invited to 
participate in the rulemaking proceedings with respect to each 
substantive rule.
    (b) Unless the Administrator determines that notice and public 
rulemaking proceedings are necessary or desirable, interpretive rules, 
general statements of policy, and rules relating to organization, 
procedure, or practice, including those relating to agency management or 
personnel, are prescribed as final without notice or other public 
rulemaking proceedings.
    (c) An advance notice or notice of proposed rulemaking is issued and 
interested persons are invited to participate in rulemaking proceedings 
with respect only to those procedural and substantive rules of general 
applicability relating to public property, loans, grants, benefits, or 
contracts which the Administrator has determined to be of substantial 
public interest.

Sec. 211.17  Publication and contents of notices.

    Each advance notice or notice of proposed rulemaking is published in 
the Federal Register and includes--
    (a) A statement of the time, place and nature of the proposed 
rulemaking proceeding;
    (b) A reference to the authority under which it is issued;
    (c) A description of the subjects or issues involved or the 
substance or terms of the proposed rule;
    (d) A statement of the time within which written comments must be 
submitted and the required number of copies; and
    (e) A statement of how and to what extent interested persons may 
participate in the proceeding.

Sec. 211.19  Petitions for extensions of time to comment.

    (a) Any person may petition the Administrator for an extension of 
time to submit comments in response to an advance notice or notice of 
proposed rulemaking. The petition must be received by the FRA Docket 
Clerk not later than 10 days before expiration of the time stated in the 
notice and must contain reference to the FRA docket number for the 
proceeding involved. The filing of the petition does not automatically 
extend the time for petitioner's comments.
    (b) The Administrator grants the petition only if the petitioner 
shows a substantive interest in the proposed rule and good cause for the 
extension, and if time permits and the extension is in the public 
interest. Extensions will not be granted unless time permits and will 
not exceed one month. If an extension is granted, it is granted as to 
all persons and a notice of the extension is published in the Federal 
Register.

[41 FR 54181, Dec. 13, 1976, as amended at 64 FR 70195, Dec. 16, 1999]

Sec. 211.21  Consideration of comments received.

    All timely comments are considered before final action is taken on a 
rulemaking proposal. Late-filed comments will be considered so far as 
possible without incurring additional expense or delay.

Sec. 211.23  Additional public proceedings.

    The Administrator may conduct other public proceedings that he finds 
necessary or desirable. For example, he may invite interested persons to 
present oral arguments, participate in

[[Page 68]]

conferences, or appear at informal hearings.

Sec. 211.25  Hearings.

    (a) A hearing will be held if required by statute or the 
Administrator finds it necessary or desirable.
    (b) Except for statutory hearings required to be on the record--
    (1) Hearings are fact-finding proceedings, and there are no formal 
pleadings or adverse parties;
    (2) Any rule issued in a proceeding in which a hearing is held is 
not based exclusively on the record of the hearing; and
    (3) Hearings are conducted in accordance with section 553 of title 
5, U.S.C.; section 556 and 557 of title 5 do not apply to hearings held 
under this part.
    (c) The Administrator conducts or designates a representative to 
conduct any hearing held under this part. The Chief Counsel serves or 
designates a member of his staff to serve as legal officer at the 
hearing.

Sec. 211.27  Publication of adopted rules and withdrawal of notices.

    Whenever the Administrator adopts a final rule or withdraws an 
advance notice or notice of proposed rulemaking, the final rule or a 
notice of withdrawal is published in the Federal Register.

Sec. 211.29  Petitions for reconsideration of a final rule.

    (a) Any person may petition the Administrator for reconsideration of 
any rule issued under this part. Except for good cause shown, such a 
petition must be submitted not later than 60 days after publication of 
the rule in the Federal Register, or 10 days prior to the effective date 
of the rule, whichever is the earlier. The petition must contain a brief 
statement of the complaint and an explanation as to why compliance with 
the rule is not possible, is not practicable, is unreasonable, or is not 
in the public interest.
    (b) If the petitioner requests consideration of additional facts, he 
must state the reason they were not presented to the Administrator 
within the allotted time.
    (c) The Administrator does not consider repetitious petitions.
    (d) Unless the Administrator specifically provides otherwise, and 
publishes notice thereof in the Federal Register, the filing of a 
petition under this section does not stay the effectiveness of a rule.

[41 FR 54181, Dec. 13, 1976, as amended at 42 FR 27593, May 31, 1977]

Sec. 211.31  Proceedings on petitions for reconsideration of a final 
          rule.

    (a) The Administrator may grant or deny, in whole or in part, any 
petition for reconsideration of a final rule without further 
proceedings. Each petition shall be decided not later than 4 months 
after its receipt by the Docket Clerk. In the event he determines to 
reconsider a rule, the Administrator may amend the rule or initiate a 
new rulemaking proceeding. An appropriate notice is published in the 
Federal Register.
    (b) Whenever the Administrator determines that a petition should be 
granted or denied, a notice of the grant or denial of a petition for 
reconsideration is sent to the petitioner. When a petition is granted, a 
notice is published in the Federal Register.
    (c) The Administrator may consolidate petitions relating to the same 
rule.

                           Subpart C--Waivers

Sec. 211.41  Processing of petitions for waiver of safety rules.

    (a) General. Each petition for a permanent or temporary waiver of a 
safety rule, regulation or standard filed as prescribed in Secs. 211.7 
and 211.9, is referred to the Railroad Safety Board for decision and 
decided not later than 9 months after receipt.
    (b) Notice and hearing. If required by statute or the Administrator 
or the Railroad Safety Board deems it desirable, a notice is published 
in the Federal Register, an opportunity for public comment is provided, 
and a hearing is held in accordance with Sec. 211.25, before the 
petition is granted or denied.
    (c) Grants. If the Railroad Safety Board determines that the 
petition complies with the requirements of Sec. 211.9 and that a waiver 
is justified, it grants the petition. Conditions may be imposed on the 
grant of waiver if the

[[Page 69]]

Board concludes they are necessary to assure safety or are in the public 
interest.
    (d) Denials. If the Railroad Safety Board determines that the 
petition does not comply with the requirements of Sec. 211.9 or that a 
waiver is not justified, it denies the petition.
    (e) Notification. Whenever the Railroad Safety Board grants or 
denies a petition, a notice of that grant or denial is sent to the 
petitioner. When a petition has been decided, interested persons are 
also notified or a notice is published in the Federal Register.
    (f) Petition for reconsideration. Any person may petition for 
reconsideration of the grant or denial of a waiver under procedures set 
forth in Sec. 211.57. Each petition shall be processed in accordance 
with Sec. 211.59.

Sec. 211.43  Processing of other waiver petitions.

    (a) General. Except as provided in Sec. 211.41, each petition for a 
permanent or temporary waiver of a rule, regulation or standard shall be 
filed and processed as prescribed in Secs. 211.7 and 211.9.
    (b) Notice and hearing. If required by statute or the Administrator 
deems it desirable, a notice is published in the Federal Register, an 
opportunity for public comment is provided, and a hearing is held in 
accordance with Sec. 211.25, before the petition is granted or denied.
    (c) Grants. If the Administrator determines that the petition 
complies with the requirements of Sec. 211.9 and that a waiver is 
justified, he grants the waiver. Conditions may be imposed on the grant 
of waiver if the Administrator concludes they are necessary to achieve 
the purposes of programs affected by the grant of waiver or are 
otherwise in the public interest.
    (d) Denials. If the Administrator determines that the petition does 
not comply with the requirements of Sec. 211.9 or that a waiver is not 
justified, he denies the waiver.
    (e) Notification. Whenever the Administrator grants or denies a 
petition, a notice of the grant or denial is sent to the petitioner. 
When a petition has been decided, interested persons are also notified 
or a notice is published in the Federal Register.
    (f) Petitions for reconsideration. Any person may petition for 
reconsideration of the grant or denial of a waiver under procedures set 
forth in Sec. 211.57. Each petition shall be processed in accordance 
with Sec. 211.59.

                       Subpart D--Emergency Orders

Sec. 211.47  Review procedures.

    (a) As specified in section 203, Public Law 91-458, 84 Stat. 972 (45 
U.S.C. 432), opportunity for review of Emergency orders issued under 
that section will be provided in accordance with section 554 of title 5 
of the U.S.C.. Petitions for such review must be submitted in writing to 
the Office of Chief Counsel, Federal Railroad Administration, 
Washington, DC 20590. Upon receipt of a petition, FRA will immediately 
contact the petitioner and make the necessary arrangements for a 
conference to be held at the earliest date acceptable to the petitioner. 
At this conference, the petitioner will be afforded an opportunity to 
submit facts, arguments and proposals for modification or withdrawal of 
the Emergency order. If the controversy is not resolved at the 
conference and a hearing is desired, the petitioner must submit a 
written request for a hearing within 15 days after the conference. The 
hearing will commence within 14 calendar days f receipt of the request 
and will be conducted in accordance with sections 556 and 575, title 5, 
U.S.C. Each petition for review shall be decided not later than 3 months 
after receipt.
    (b) Unless stayed or modified by the Administrator, the requirements 
of each Emergency order shall remain in effect and be observed pending 
decision on a petition for review.

    Subpart E--Miscellaneous Safety-Related Proceedings and Inquiries

Sec. 211.51  Tests.

    (a) Pursuant to the Department of Transportation Act (80 Stat. 931, 
49 U.S.C. 1651 et seq.), the Federal Railroad Safety Act of 1970 (84 
Stat. 971, 45 U.S.C. 421, 431-441), or both, the Administrator may 
temporarily suspend compliance with a substantive rule of the Federal 
Railroad Administration, if:

[[Page 70]]

    (1) The suspension is necessary to the conduct of a Federal Railroad 
Administration approved test program designed to evaluate the 
effectiveness of new technology or operational approaches or instituted 
in furtherance of a present or proposed rulemaking proceeding;
    (2) The suspension is limited in scope and application to such 
relief as may be necessary to facilitate the conduct of the test 
program; and
    (3) The suspension is conditioned on the observance of standards 
sufficient to assure safety.
    (b) When required by statute, a notice is published in the Federal 
Register, an opportunity is provided for public comment, and a hearing 
is held in accordance with Sec. 211.25, before the FRA approved test 
program is implemented.
    (c) When the Administrator approves suspension of compliance with 
any rule in connection with a test program, a description of the test 
program containing an explanatory statement responsive to paragraph (a) 
of this section is published in the Federal Register.

Sec. 211.53  Signal applications.

    Applications for approval of discontinuance or material modification 
of a signal system authorized by part 235 or waiver of a requirement of 
part 236 of this chapter must be submitted in triplicate to the 
Secretary, Railroad Safety Board, handled in accordance with procedures 
set forth in part 235 or 236, respectively, and decided not later than 9 
months after receipt. When a decision is issued, the applicant and other 
interested parties are notified or a notice is published in the Federal 
Register.

Sec. 211.55  Special approvals.

    Requests for special approval pertaining to safety not otherwise 
provided for in this chapter, must be submitted in triplicate to the 
Secretary, Railroad Safety Board; specifying the action requested. These 
requests shall be considered by the Board and appropriate action shall 
be taken not later than 9 months after receipt. When a decision is 
issued, the requestor and other interested parties are notified or a 
notice is published in the Federal Register.

Sec. 211.57  Petitions for reconsideration.

    (a) Any person may petition the Administrator for reconsideration of 
final action taken in proceedings subject to subpart C or E of this 
part.
    (b) The petition must specify with particularity the grounds for 
modification or revocation of the action in question.
    (c) The Administrator does not consider repetitious petitions.
    (d) Unless the Administrator specifically provides otherwise, and 
gives notice to interested parties or publishes notice in the Federal 
Register, the filing of a petition under this section does not stay the 
effectiveness of the action sought to be reconsidered.

Sec. 211.59  Proceedings on petitions for reconsideration.

    (a) The Administrator may invite public comment or seek a response 
from the party at whose request the final action was taken before 
deciding a petition for reconsideration submitted under Sec. 211.57.
    (b) The Administrator may reaffirm, modify, or revoke the final 
action without further proceedings and shall issue notification of his 
decision to the petitioner and other interested parties or publish a 
notice in the Federal Register. Each petition for reconsideration shall 
be decided not later than 4 months after receipt. Petitions for 
reconsideration relating to the same rule may be consolidated for 
decision. In the event the Administrator determines to reconsider a 
final action, and appropriate notice is published in the Federal 
Register.

Sec. 211.61  Informal safety inquiries.

    The Administrator may conduct informal safety inquiries to collect 
information on selected topics relating to railroad safety. A notice of 
each such inquiry will be published in the Federal Register outlining 
the area of inquiry and inviting interested persons to assist by 
submitting written material or participating in informal public

[[Page 71]]

conferences and discussions. Upon completion of the inquiry, the 
Administrator will review the information obtained and may, on his own 
motion, initiate a rulemaking proceeding under Sec. 211.13 or take 
whatever other action he deems appropriate.

    Subpart F--Interim Procedures for the Review of Emergency Orders

    Authority: Secs. 203 and 208(a), 84 Stat. 972, 974-975 (45 U.S.C. 
432, 437(a)) and 5 U.S.C. 554-559.

    Source: 44 FR 13029, Mar. 9, 1979, unless otherwise noted.

Sec. 211.71  General.

    (a) This subpart consists of interim procedures for the review of 
emergency orders issued under section 203 of the Federal Railroad Safety 
Act of 1970, supplementing Sec. 211.47 of this part.
    (b) Proceedings under this subpart are subject to the requirements 
of 5 U.S.C. 554-559.
    (c) Notwithstanding Sec. 211.1 of this part, as used in this subpart 
Administrator means the Federal Railroad Administrator or Deputy 
Administrator.

Sec. 211.73  Presiding officer; powers.

    (a) An administrative hearing for the review of an emergency order 
is presided over by the Administrator or by an administrative law judge 
designated at the request of FRA pursuant to 5 CFR 930.213.
    (b) The presiding officer may exercise the powers of the FRA to 
regulate the conduct of the hearing and associated proceedings for the 
purpose of achieving a prompt and fair determination of all material 
issues in controversy.
    (c) The final decision of the presiding officer shall set forth 
findings and conclusions based on the administrative record. That 
decision may set aside, modify or affirm the requirements of the 
emergency order under review.
    (d) Except as provided in Sec. 211.77, the decision of the presiding 
officer is administratively final.

Sec. 211.75  Evidence.

    (a) The Federal Rules of Evidence for United States Courts and 
Magistrates shall be employed as general guidelines for the introduction 
of evidence in proceedings under this subpart. However, except as 
provided in paragraph (b) of this section, all relevant and probative 
evidence offered by a party shall be received in evidence.
    (b) The presiding officer may deny the admission of evidence which 
is determined to be--
    (1) Unduly repetitive; or
    (2) So extensive and lacking in relevance or probative effect that 
its admission would impair the prompt, orderly, and fair resolution of 
the proceeding.

Sec. 211.77  Appeal to the Administrator.

    (a) Any party aggrieved by the final decision of a presiding officer 
(other than the Administrator) may appeal to the Administrator. The 
appeal must be filed within twenty (20) days from issuance of the 
presiding officer's decision and must set forth the specific exceptions 
of the party to the decision, making reference to the portions of the 
administrative record which are believed to support the exceptions. The 
notice of appeal and any supporting papers shall be accompanied by a 
certificate stating that they have been served on all parties to the 
proceeding.
    (b) [Reserved]

 Appendix A to Part 211--Statement of Agency Policy Concerning Waivers 
  Related to Shared Use of Trackage or Rights-of-Way by Light Rail and 
                         Conventional Operations

    1. By statute, the Federal Railroad Administration (FRA) may grant a 
waiver of any rule or order if the waiver ``is in the public interest 
and consistent with railroad safety.'' 49 U.S.C. 20103(d). Waiver 
petitions are reviewed by FRA's Railroad Safety Board (the ``Safety 
Board'') under the provisions of 49 CFR part 211. Waiver petitions must 
contain the information required by 49 CFR 211.9. The Safety Board can, 
in granting a waiver, impose any conditions it concludes are necessary 
to assure safety or are in the public interest. If the conditions under 
which the waiver was granted change substantially, or unanticipated 
safety issues arise, FRA may modify or withdraw a waiver in order to 
ensure safety.
    2. Light rail equipment, commonly referred to as trolleys or street 
railways, is not designed to be used in situations where there is a 
reasonable likelihood of a collision with

[[Page 72]]

much heavier and stronger conventional rail equipment. However, existing 
conventional railroad tracks and rights-of-way provide attractive 
opportunities for expansion of light rail service.
    3. Light rail operators who intend to share use of the general 
railroad system trackage with conventional equipment and/or whose 
operations constitute commuter service (see Appendix A of 49 CFR part 
209 for relevant definitions) will either have to comply with FRA's 
safety rules or obtain a waiver of appropriate rules. Light rail 
operators whose operations meet the definition of urban rapid transit 
and who will share a right-of-way or corridor with a conventional 
railroad but will not share trackage with that railroad will be subject 
to only those rules that pertain to any significant point of connection 
to the general system, such as a rail crossing at grade, a shared method 
of train control, or shared highway-rail grade crossings.
    4. Shared use of track refers to situations where light rail transit 
operators conduct their operations over the lines of the general system, 
and includes light rail operations that are wholly separated in time 
(temporally separated) from conventional operations as well as light 
rail operations operating on the same trackage at the same time as 
conventional rail equipment (simultaneous joint use). Where shared use 
of general system trackage is contemplated, FRA believes a comprehensive 
waiver request covering all rules for which a waiver is sought makes the 
most sense. FRA suggests that a petitioner caption such a waiver 
petition as a Petition for Approval of Shared Use so as to distinguish 
it from other types of waiver petitions. The light rail operator should 
file the petition. All other affected railroads will be able to 
participate in the waiver proceedings by commenting on the petition and 
providing testimony at a hearing on the petition if anyone requests such 
a hearing. If any other railroad will be affected by the proposed 
operation in such a way as to necessitate a waiver of any FRA rule, that 
railroad may either join with the light rail operator in filing the 
comprehensive petition or file its own petition.
    5. In situations where the light rail operator is an urban rapid 
transit system that will share a right-of-way or corridor with the 
conventional railroad but not share trackage, any waiver petition should 
cover only the rules that may apply at any significant points of 
connection between the rapid transit line and the other railroad. A 
Petition for Approval of Shared Use would not be appropriate in such a 
case.

              I. Preliminary Jurisdictional Determinations

    Where a light rail operator is uncertain whether the planned 
operation will be subject to FRA's safety jurisdiction and, if so, to 
what extent, the operator may wish to obtain FRA's views on the 
jurisdictional issues before filing a waiver petition. In that case, the 
light rail operator (here including a transit authority that may not 
plan to actually operate the system itself) should write to FRA 
requesting such a determination. The letter should be addressed to Chief 
Counsel, Federal Railroad Administration, 1120 Vermont Ave., NW., Mail 
Stop 10, Washington, DC 20590, with a copy to the Associate 
Administrator for Safety at the same address at Mail Stop 25. The letter 
should address the criteria (found in 49 CFR part 209, appendix A) FRA 
uses to determine whether it has jurisdiction over a rail operation and 
to distinguish commuter from urban rapid transit service. A complete 
description of the nature of the contemplated operation is essential to 
an accurate determination. FRA will attempt to respond promptly to such 
a request. Of course, FRA's response will be based only on the facts as 
presented by the light rail operator. If FRA subsequently learns that 
the facts are different from those presented or have changed 
substantially, FRA may revise its initial determination.

 II. General Factors to Address in a Petition for Approval of Shared Use

    1. Like all waiver petitions, a Petition for Approval of Shared Use 
will be reviewed by the Safety Board. A non-voting FTA liaison to the 
Safety Board will participate in an advisory capacity in the Safety 
Board's consideration of all such petitions. This close cooperation 
between the two agencies will ensure that FRA benefits from the 
insights, particularly with regard to operational and financial issues, 
that FTA can provide about light rail operations, as well as from FTA's 
knowledge of and contacts with state safety oversight programs. This 
working relationship will also ensure that FTA has a fuller appreciation 
of the safety issues involved in each specific shared use operation and 
a voice in shaping the safety requirements that will apply to such 
operations.
    2. FRA resolves each waiver request on its own merits based on the 
information presented and the agency's own investigation of the issues. 
In general, the greater the safety risks inherent in a proposed 
operation the greater will be the mitigation measures required. While 
FRA cannot state in advance what kinds of waivers will be granted or 
denied, we can provide guidance to those who may likely be requesting 
waivers to help ensure that their petitions address factors that FRA 
will no doubt consider important.
    3. FRA's procedural rules give a general description of what any 
waiver petition should contain, including an explanation of the nature 
and extent of the relief sought; a description of the persons, 
equipment, installations, and locations to be covered by the

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waiver; an evaluation of expected costs and benefits; and relevant 
safety data. 49 CFR 211.9. The procedural rules, of course, are not 
specifically tailored to situations involving light rail operations over 
the general system, where waiver petitions are likely to involve many of 
FRA's regulatory areas. In such situations, FRA suggests that a Petition 
for Approval of Shared Use address the following general factors.
    A. Description of operations. You should explain the frequency and 
speeds of all operations on the line and the nature of the different 
operations. You should explain the nature of any connections between the 
light rail and conventional operations.
    [sbull]If the light rail line will operate on any segments (e.g., a 
street railway portion) that will not be shared by a conventional 
railroad, describe those segments and their connection with the shared 
use segments. If the petitioner has not previously sought and received a 
determination from FRA concerning jurisdictional issues, explain, using 
the criteria set out in 49 CFR part 209, Appendix A, whether the light 
rail operation is, in the petitioner's view, a commuter operation or 
urban rapid transit.
    [sbull]You should describe precisely what the respective hours of 
operation will be for each type of equipment on the shared use segments. 
If light rail and conventional operations will occur only at different 
times of day, describe what means of protection will ensure that the 
different types of equipment are not operated simultaneously on the same 
track, and how protection will be provided to ensure that, where one set 
of operations begins and the other ends, there can be no overlap that 
would possibly result in a collision.
    [sbull]If the light rail and conventional operations will share 
trackage during the same time periods, the petitioners will face a steep 
burden of demonstrating that extraordinary safety measures will be taken 
to adequately reduce the likelihood of a collision between conventional 
and light rail equipment to the point where the safety risks associated 
with joint use would be acceptable. You should explain the nature of 
such simultaneous joint use, the system of train control, the frequency 
and proximity of both types of operations, the training and 
qualifications of all operating personnel in both types of operations, 
and all methods that would be used to prevent collisions. You should 
also include a quantitative risk assessment concerning the risk of 
collision between the light rail and conventional equipment under the 
proposed operating scenario.
    B. Description of equipment. (1) You should describe all equipment 
that will be used by the light rail and conventional operations. Where 
the light rail equipment does not meet the standards of 49 CFR part 238, 
you should provide specifics on the crash survivability of the light 
rail equipment, such as static end strength, sill height, strength of 
corner posts and collision posts, side strength, etc.
    (2) Given the structural incompatibility of light rail and 
conventional equipment, FRA has grave concerns about the prospect of 
operating these two types of equipment simultaneously on the same track. 
If the light rail and conventional operations will share trackage during 
the same time periods, you should provide an engineering analysis of the 
light rail equipment's resistance to damage in various types of 
collisions, including a worst case scenario involving a failure of the 
collision avoidance systems resulting in a collision between light rail 
and conventional equipment at track speeds.
    C. Alternative safety measures to be employed in place of each rule 
for which waiver is sought. The petition should specify exactly which 
rules the petitioner desires to be waived. For each rule, the petition 
should explain exactly how a level of safety at least equal to that 
afforded by the FRA rule will be provided by the alternative measures 
the petitioner proposes.
    (1) Most light rail operations that entail some shared use of the 
general system will also have segments that are not on the general 
system. FTA's rules on rail fixed guideway systems will probably apply 
to those other segments. If so, the petition for waiver of FRA's rules 
should explain how the system safety program plan adopted under FTA's 
rules may affect safety on the portions of the system where FRA's rules 
apply. Under certain circumstances, effective implementation of such a 
plan may provide FRA sufficient assurance that adequate measures are in 
place to warrant waiver of certain FRA rules.
    (2) In its petition, the light rail operator may want to certify 
that the subject matter addressed by the rule to be waived is addressed 
by the system safety plan and that the light rail operation will be 
monitored by the state safety oversight program. That is likely to 
expedite FRA's processing of the petition. FRA will analyze information 
submitted by the petitioner to demonstrate that a safety matter is 
addressed by the light rail operator's system safety plan. Alternately, 
conditional approval may be requested at an early stage in the project, 
and FRA would thereafter review the system safety program plan's status 
to determine readiness to commence operations. Where FRA grants a 
waiver, the state agency will oversee the area addressed by the waiver, 
but FRA will actively participate in partnership with FTA and the state 
agency to address any safety problems.
    D. Documentation of agreement with affected railroads. Conventional 
railroads that will share track with the light rail operation need not 
join as a co-petitioner in the light

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rail operator's petition. However, the petition should contain 
documentation of the precise terms of the agreement between the light 
rail operator and the conventional railroad concerning any actions that 
the conventional railroad must take to ensure effective implementation 
of alternative safety measures. For example, if temporal separation is 
planned, FRA expects to see the conventional railroad's written 
acceptance of its obligations to ensure that the separation is achieved. 
Moreover, if the arrangements for the light rail service will require 
the conventional railroad to employ any alternative safety measures 
rather than strictly comply with FRA's rules, that railroad will have to 
seek its own waiver (or join in the light rail operator's petition).

   III. Waiver Petitions Involving No Shared Use of Track and Limited 
       Connections Between Light Rail and Conventional Operations

    Even where there is no shared use of track, light rail operators may 
be subject to certain FRA rules based on limited, but significant 
connections to the general system.
    1. Rail crossings at grade. Where a light rail operation and a 
conventional railroad have a crossing at grade, several FRA rules may 
apply to the light rail operation at the point of connection. If 
movements at the crossing are governed by a signal system, FRA's signal 
rules (49 CFR parts 233, 235, and 236) apply, as do the signal 
provisions of the hours of service statute, 49 U.S.C. 21104. To the 
extent radio communication is used to direct the movements, the radio 
rules (part 220) apply. The track rules (part 213) cover any portion of 
the crossing that may affect the movement of the conventional railroad. 
Of course, if the conventional railroad has responsibility for 
compliance with certain of the rules that apply at that point (for 
example, where the conventional railroad maintains the track and signals 
and dispatches all trains), the light rail operator will not have 
compliance responsibility for those rules and would not need a waiver.
    2. Shared train control systems. Where a light rail operation is 
governed by the same train control system as a conventional railroad 
(e.g., at a moveable bridge that they both traverse), the light rail 
operator will be subject to applicable FRA rules (primarily the signal 
rules in parts 233, 235, and 236) if it has maintenance or operating 
responsibility for the system.
    3. Highway-Rail Grade Crossings. Light rail operations over highway-
rail grade crossings also used by conventional trains will be subject to 
FRA's rules on grade crossing signal system safety (part 234) and the 
requirement to have auxiliary lights on locomotives (49 CFR 229.125). 
Even if the conventional railroad maintains the crossing, the light rail 
operation will still be responsible for reporting and taking appropriate 
actions in response to warning system malfunctions.
    In any of these shared right-of-way situations involving significant 
connections, the light rail operator may petition for a waiver of any 
rules that apply to its activities.

   IV. Factors to Address Related to Specific Regulations and Statutes

    Operators of light rail systems are likely to apply for waivers of 
many FRA rules. FRA offers the following suggestions on factors 
petitioners may want to address concerning specific areas of regulation. 
(All ``part'' references are to title 49 CFR.) Parts 209 (Railroad 
Safety Enforcement Procedures), 211 (Rules of Practice), 212 (State 
Safety Participation), and 216 (Special Notice and Emergency Order 
Procedures) are largely procedural rules that are unlikely to be the 
subject of waivers, so those parts are not discussed further. For 
segments of a light rail line not involving operations over the general 
system, assuming the light rail operation meets the definition of 
``rapid transit,'' FRA's standards do not apply and the petition need 
not address those segments with regard to each specific rule from which 
waivers are sought with regard to shared use trackage.

                   1. Track, structures, and signals.

    A. Track safety standards (part 213). For general system track used 
by both the conventional and light rail lines, the track standards apply 
and a waiver is very unlikely. A light rail operation that owns track 
over which the conventional railroad operates may wish to consider 
assigning responsibility for that track to the other railroad. If so, 
the track owner must follow the procedure set forth in 49 CFR 213.5(c). 
Where such an assignment occurs, the owner and assignee are responsible 
for compliance.
    B. Signal systems reporting requirements (part 233). This part 
contains reporting requirements with respect to methods of train 
operation, block signal systems, interlockings, traffic control systems, 
automatic train stop, train control, and cab signal systems, or other 
similar appliances, methods, and systems. If a signal system failure 
occurs on general system track which is used by both conventional and 
light rail lines, and triggers the reporting requirements of this part, 
the light rail operator must file, or cooperate fully in the filing of, 
a signal system report. The petition should explain whether the light 
rail operator or conventional railroad is responsible for maintaining 
the signal system. Assuming that the light rail operator (or a 
contractor hired by this operator) has responsibility for maintaining 
the signal system, that entity is the logical choice to file each signal 
failure report, and a waiver is very unlikely. Moreover, since a

[[Page 75]]

signal failure first observed by a light rail operator can later have 
catastrophic consequences for a conventional railroad using the same 
track, a waiver would jeopardize rail safety on that general system 
trackage. Even if the conventional railroad is responsible for 
maintaining the signal systems, the light rail operator must still 
assist the railroad in reporting all signal failures by notifying the 
conventional railroad of such failures.
    C. Grade crossing signal system safety (part 234). This part 
contains minimum standards for the maintenance, inspection, and testing 
of highway-rail grade crossing warning systems, and also prescribes 
standards for the reporting of system failures and minimum actions that 
railroads must take when such warning systems malfunction. If a grade 
crossing accident or warning activation failure occurs during light rail 
operations on general system track that is used by both conventional and 
light rail lines, the light rail operator must submit, or cooperate with 
the other railroad to ensure the submission of, a report to FRA within 
the required time frame (24 hours for an accident report, or 15 days for 
a grade crossing signal system activation failure report). The petition 
should explain whether the light rail operator or conventional railroad 
is responsible for maintaining the grade crossing devices. Assuming that 
the light rail operator (or a contractor hired by this operator) has 
responsibility for maintaining the grade crossing devices, that entity 
is the logical choice to file each grade crossing signal failure report, 
and a waiver is very unlikely. Moreover, since a grade crossing warning 
device failure first observed by a light rail operator can later have 
catastrophic consequences for a conventional railroad using the same 
track, a waiver would jeopardize rail safety on that general system 
trackage. However, if the conventional railroad is responsible for 
maintaining the grade crossing devices, the light rail operator will 
still have to assist the railroad in reporting all grade crossing signal 
failures. Moreover, regardless of which railroad is responsible for 
maintenance of the grade crossing signals, any railroad (including a 
light rail operation) operating over a crossing that has experienced an 
activation failure, partial activation, or false activation must take 
the steps required by this rule to ensure safety at those locations. 
While the maintaining railroad will retain all of its responsibilities 
in such situations (such as contacting train crews and notifying law 
enforcement agencies), the operating railroad must observe requirements 
concerning flagging, train speed, and use of the locomotive's audible 
warning device.
    D. Approval of signal system modifications (part 235). This part 
contains instructions governing applications for approval of a 
discontinuance or material modification of a signal system or relief 
from the regulatory requirements of part 236. In the case of a signal 
system located on general system track which is used by both 
conventional and light rail lines, a light rail operation is subject to 
this part only if it (or a contractor hired by the operator) owns or has 
responsibility for maintaining the signal system. If the conventional 
railroad does the maintenance, then that railroad would file any 
application submitted under this part; the light rail operation would 
have the right to protest the application under Sec. 235.20. The 
petition should discuss whether the light rail operator or conventional 
railroad is responsible for maintaining the signal system.
    E. Standards for signal and train control systems (part 236). This 
part contains rules, standards, and instructions governing the 
installation, inspection, maintenance, and repair of signal and train 
control systems, devices, and appliances. In the case of a signal system 
located on general system track which is used by both conventional and 
light rail lines, a light rail operation is subject to this part only if 
it (or a contractor hired by the operation) owns or has responsibility 
for installing, inspecting, maintaining, and repairing the signal 
system. If the light rail operation has these responsibilities, a waiver 
would be unlikely because a signal failure would jeopardize the safety 
of both the light rail operation and the conventional railroad. If the 
conventional railroad assumes all of the responsibilities under this 
part, the light rail operation would not need a waiver, but it would 
have to abide by all operational limitations imposed this part and by 
the conventional railroad. The petition should discuss whether the light 
rail operator or conventional railroad has responsibility for 
installing, inspecting, maintaining, and repairing the signal system.

                     2. Motive power and equipment.

    A. Railroad noise emission compliance regulations (part 210). FRA 
issued this rule under the Noise Control Act of 1972, 42 U.S.C. 4916, 
rather than under its railroad safety authority. Because that statute 
included a definition of ``railroad'' borrowed from one of the older 
railroad safety laws, this part has an exception for ``street, suburban, 
or interurban electric railways unless operated as a part of the general 
railroad system of transportation.'' 49 CFR 210.3(b)(2). The petition 
should address whether this exception may apply to the light rail 
operation. Note that this exception is broader than the sole exception 
to the railroad safety statutes (i.e., urban rapid transit not connected 
to the general system). The greater the integration of the light rail 
and conventional operations, the less likely this exception would apply.
    If the light rail equipment would normally meet the standards in 
this rule, there would

[[Page 76]]

be no reason to seek a waiver of it. If it appears that the light rail 
system would neither meet the standards nor fit within the exception, 
the petition should address noise mitigation measures used on the 
system, especially as part of a system safety program. Note, however, 
that FRA lacks the authority to waive certain Environmental Protection 
Agency standards (40 CFR part 201) that underlie this rule. See 49 CFR 
210.11(a).
    B. Railroad freight car safety standards (part 215). A light rail 
operator is likely to move freight cars only in connection with 
maintenance-of-way work. As long as such cars are properly stenciled in 
accordance with section 215.305, this part does not otherwise apply, and 
a waiver would seem unnecessary.
    C. Rear end marking devices (part 221). This part requires that each 
train occupying or operating on main line track be equipped with, 
display, and continuously illuminate or flash a marking device on the 
trailing end of the rear car during periods of darkness or other reduced 
visibility. The device, which must be approved by FRA, must have 
specific intensity, beam arc width, color, and flash rate 
characteristics. A light rail operation seeking a waiver of this part 
will need to explain how other marking devices with which it equips its 
vehicles, or other means such as train control, will provide the same 
assurances as this part of a reduced likelihood of collisions 
attributable to the failure of an approaching train to see the rear end 
of a leading train in time to stop short of it during periods of reduced 
visibility. The petition should describe the light rail vehicle's 
existing marking devices (e.g., headlights, brakelights, taillights, 
turn signal lights), and indicate whether the vehicle bears reflectors. 
If the light rail system will operate in both a conventional railroad 
environment and in streets mixed with motor vehicles, the petition 
should discuss whether adapting the design of the vehicle's lighting 
characteristics to conform to FRA's regulations would adversely affect 
the safety of its operations in the street environment. A light rail 
system that has a system safety program developed under FTA's rules may 
choose to discuss how that program addresses the need for equivalent 
levels of safety when its vehicles operate on conventional railroad 
corridors.
    D. Safety glazing standards (part 223). This part provides that 
passenger car windows be equipped with FRA-certified glazing materials 
in order to reduce the likelihood of injury to railroad employees and 
passengers from the breakage and shattering of windows and avoid 
ejection of passengers from the vehicle in a collision. This part, in 
addition to requiring the existence of at least four emergency windows, 
also requires window markings and operating instructions for each 
emergency window, as well as for each window intended for emergency 
access, so as to provide the necessary information for evacuation of a 
passenger car. FRA will not permit operations to occur on the general 
system in the absence of effective alternatives to the requirements of 
this part that provide an equivalent level of safety. The petition 
should explain what equivalent safeguards are in place to provide the 
same assurance as part 223 that passengers and crewmembers are safe from 
the effects of objects striking a light rail vehicle's windows. The 
petition should also discuss the design characteristics of its equipment 
when it explains how the safety of its employees and passengers will be 
assured during an evacuation in the absence of windows meeting the 
specific requirements of this part. A light rail system that has a 
system safety program plan developed under FTA's rule may be able to 
demonstrate that the plan satisfies the safety goals of this part.
    E. Locomotive safety standards (part 229). (1) This part contains 
minimum safety standards for all locomotives, except those propelled by 
steam power. FRA recognizes that due to the unique characteristics of 
light rail equipment, some of these provisions may be irrelevant to 
light rail equipment, and that others may not fit properly in the 
context of light rail operations. A waiver petition should explain 
precisely how the light rail system's practices will provide for the 
safe condition and operation of its locomotive equipment.
    (2) FRA is not likely to waive completely the provision (section 
229.125) of this rule concerning auxiliary lights designed to warn 
highway motorists of an approaching train. In order to reduce the risk 
of grade crossing accidents, it is important that all locomotives used 
by both conventional railroads and light rail systems present the same 
distinctive profile to motor vehicle operators approaching grade 
crossings on the general railroad system. If uniformity is sacrificed by 
permitting light rail systems to operate locomotives through the same 
grade crossings traversed by conventional trains with light arrangements 
placed in different locations on the equipment, safety could be 
compromised. Accordingly, the vehicle design should maintain the 
triangular pattern required of other locomotives and cab cars to the 
extent practicable.
    (3) FRA is aware that light rail headlights are likely to produce 
less than 200,000 candela. While some light rail operators may choose to 
satisfy the requirements of section 229.125 by including lights on their 
equipment of different candlepower controlled by dimmer switches, the 
headlights on the majority of light rail vehicles will likely not meet 
FRA's minimum requirement. However, based on the nature of the 
operations of light rail transit, FRA recognizes that waivers of the 
minimum candela requirement for transit vehicle headlights seems 
appropriate.

[[Page 77]]

    F. Safety appliance laws (49 U.S.C. 20301-20305). (1) Since certain 
safety appliance requirements (e.g., automatic couplers) are statutory, 
they can only be ``waived'' by FRA under the exemption conditions set 
forth in 49 U.S.C. 20306. Because exemptions requested under this 
statutory provision do not involve a waiver of a safety rule, 
regulation, or standard (see 49 CFR 211.41), FRA is not required to 
follow the rules of practice for waivers contained in part 211. However, 
whenever appropriate, FRA will combine its consideration of any request 
for an exemption under Sec. 20306 with its review under part 211 of a 
light rail operation's petition for waivers of FRA's regulations.
    (2) FRA may grant exemptions from the statutory safety appliance 
requirements in 49 U.S.C. 20301-20305 only if application of such 
requirements would ``preclude the development or implementation of more 
efficient railroad transportation equipment or other transportation 
innovations.'' 49 U.S.C. 20306. The exemption for technological 
improvements was originally enacted to further the implementation of a 
specific type of freight car, but the legislative history shows that 
Congress intended the exemption to be used elsewhere so that ``other 
types of railroad equipment might similarly benefit.'' S. Rep. 96-614 at 
8 (1980), reprinted in 1980 U.S.C.C.A.N. 1156,1164.
    (3) FRA recognizes the potential public benefits of allowing light 
rail systems to take advantage of underutilized urban freight rail 
corridors to provide service that, in the absence of the existing right-
of-way, would be prohibitively expensive. Any petitioner requesting an 
exemption for technological improvements should carefully explain how 
being forced to comply with the existing statutory safety appliance 
requirements would conflict with the exemption exceptions set forth at 
49 U.S.C. 20306. The petition should also show that granting the 
exemption is in the public interest and is consistent with assuring the 
safety of the light rail operator's employees and passengers.
    G. Safety appliance standards (part 231). (1) The regulations in 
this part specify the requisite location, number, dimensions, and manner 
of application of a variety of railroad car safety appliances (e.g., 
handbrakes, ladders, handholds, steps), and directly implement a number 
of the statutory requirements found in 49 U.S.C. 20301-20305. These very 
detailed regulations are intended to ensure that sufficient safety 
appliances are available and able to function safely and securely as 
intended.
    (2) FRA recognizes that due to the unique characteristics of light 
rail equipment, some of these provisions may be irrelevant to light rail 
operation, and that others may not fit properly in the context of light 
rail operations (e.g., crewmembers typically do not perform yard duties 
from positions outside and adjacent to the light rail vehicle or near 
the vehicle's doors). However, to the extent that the light rail 
operation encompasses the safety risks addressed by the regulatory 
provisions of this part, a waiver petition should explain precisely how 
the light rail system's practices will provide for the safe operation of 
its passenger equipment. The petition should focus on the design 
specifications of the equipment, and explain how the light rail system's 
operating practices, and its intended use of the equipment, will satisfy 
the safety purpose of the regulations while providing at least an 
equivalent level of safety.
    H. Passenger equipment safety standards (part 238). This part 
prescribes minimum Federal safety standards for railroad passenger 
equipment. Since a collision on the general railroad system between 
light rail equipment and conventional rail equipment could prove 
catastrophic, because of the significantly greater mass and structural 
strength of the conventional equipment, a waiver petition should 
describe the light rail operation's system safety program that is in 
place to minimize the risk of such a collision. The petition should 
discuss the light rail operation's operating rules and procedures, train 
control technology, and signal system. If the light rail operator and 
conventional railroad will operate simultaneously on the same track, the 
petition should include a quantitative risk assessment that incorporates 
design information and provide an engineering analysis of the light rail 
equipment and its likely performance in derailment and collision 
scenarios. The petitioner should also demonstrate that risk mitigation 
measures to avoid the possibility of collisions, or to limit the speed 
at which a collision might occur , will be employed in connection with 
the use of the equipment on a specified shared-use rail line. This part 
also contains requirements concerning power brakes on passenger trains, 
and a petitioner seeking a waiver in this area should refer to these 
requirements, not those found in 49 CFR part 232.

                         3. Operating practices.

    A. Railroad workplace safety (part 214). (1) This part contains 
standards for protecting bridge workers and roadway workers. The 
petition should explain whether the light rail operator or conventional 
railroad is responsible for bridge work on shared general system 
trackage. If the light rail operator does the work and does similar work 
on segments outside of the general system, it may wish to seek a waiver 
permitting it to observe OSHA standards throughout its system.
    (2) There are no comparable OSHA standards protecting roadway 
workers. The petition should explain which operator is responsible for 
track and signal work on the shared

[[Page 78]]

segments. If the light rail operator does this work, the petition should 
explain how the light rail operator protects these workers. However, to 
the extent that protection varies significantly from FRA's rules, a 
waiver permitting use of the light rail system's standards could be very 
confusing to train crews of the conventional railroad who follow FRA's 
rules elsewhere. A waiver of this rule is unlikely. A petition should 
address how such confusion would be avoided and safety of roadway 
workers would be ensured.
    B. Railroad operating rules (part 217). This part requires filing of 
a railroad's operating rules and that employees be instructed and tested 
on compliance with them. A light rail operation would not likely have 
difficulty complying with this part. However, if a waiver is desired, 
the light rail system should explain how other safeguards it has in 
place provide the same assurance that operating employees are trained 
and periodically tested on the rules that govern train operation. A 
light rail system that has a system safety program plan developed under 
FTA's rules may be in a good position to give such an assurance.
    C. Railroad operating practices (part 218). This part requires 
railroads to follow certain practices in various aspects of their 
operations (protection of employees working on equipment, protection of 
trains and locomotives from collisions in certain situations, 
prohibition against tampering with safety devices, protection of 
occupied camp cars). Some of these provisions (e.g., camp cars) may be 
irrelevant to light rail operations. Others may not fit well in the 
context of light rail operations. To the extent the light rail operation 
presents the risks addressed by the various provisions of this part, a 
waiver provision should explain precisely how the light rail system's 
practices will address those risks. FRA is not likely to waive the 
prohibition against tampering with safety devices, which would seem to 
present no particular burden to light rail operations. Moreover, blue 
signal regulations, which protect employees working on or near 
equipment, are not likely to be waived to the extent that such work is 
performed on track shared by a light rail operation and a conventional 
railroad, where safety may best be served by uniformity.
    D. Control of alcohol and drug use (part 219). FRA will not permit 
operations to occur on the general system in the absence of effective 
rules governing alcohol and drug use by operating employees. FTA's own 
rules may provide a suitable alternative for a light rail system that is 
otherwise governed by those rules. However, to the extent that light 
rail and conventional operations occur simultaneously on the same track, 
FRA is not likely to apply different rules to the two operations, 
particularly with respect to post-accident testing, for which FRA 
requirements are more extensive (e.g., section 219.11(f) addresses the 
removal, under certain circumstances, of body fluid and/or tissue 
samples taken from the remains of any railroad employee who performs 
service for a railroad). (FRA recognizes that in the event of a fatal 
train accident involving a transit vehicle, whether involving temporal 
separation or simultaneous use of the same track, the National 
Transportation Safety Board will likely investigate and obtain its own 
toxicology test results.)
    E. Railroad communications (part 220). A light rail operation is 
likely to have an effective system of radio communication that may 
provide a suitable alternative to FRA's rules. However, the greater the 
need for radio communication between light rail personnel (e.g., train 
crews or dispatchers) and personnel of the conventional railroad (e.g., 
train crews, roadway workers), the greater will be the need for 
standardized communication rules and, accordingly, the less likely will 
be a waiver.
    F. Railroad accident/incident reporting (part 225). (1) FRA's 
accident/incident information is very important in the agency's 
decisionmaking on regulatory issues and strategic planning. A waiver 
petition should indicate precisely what types of accidents and incidents 
it would report, and to whom, under any alternative it proposes. FRA is 
not likely to waive its reporting requirements concerning train 
accidents or highway-rail grade crossing collisions that occur on the 
general railroad system. Reporting of accidents under FTA's rules is 
quite different and would not provide an effective substitute. However, 
with regard to employee injuries, the light rail operation may, absent 
FRA's rules, otherwise be subject to reporting requirements of FTA and 
OSHA and may have an interest in uniform reporting of those injuries 
wherever they occur on the system. Therefore, it is more likely that FRA 
would grant a waiver with regard to reporting of employee injuries.
    (2) Any waiver FRA may grant in the accident/incident reporting area 
would have no effect on FRA's authority to investigate such incidents or 
on the duties of light rail operators and any other affected railroads 
to cooperate with those investigations. See sections 225.31 and 225.35 
and 49 U.S.C. 20107 and 20902. Light rail operators should anticipate 
that FRA will investigate any serious accident or injury that occurs on 
the shared use portion of their lines, even if it occurs during hours 
when only the light rail trains are operating. Moreover, there may be 
instances when FRA will work jointly with FTA and the state agency to 
investigate the cause of a transit accident that occurs off the general 
system under circumstances that raise concerns about the safety of 
operations on the shared use portions. For example, if a transit 
operator using the same light rail equipment

[[Page 79]]

on the shared and non-shared-use portions of its operation has a serious 
accident on the non-shared-use portion, FRA may want to determine 
whether the cause of the accident pointed to a systemic problem with the 
equipment that might impact the transit system's operations on the 
general system. Similarly, where human error might be a factor, FRA may 
want to determine whether the employee potentially at fault also has 
safety responsibilities on the general system and, if so, take 
appropriate action to ensure that corrective action is taken. FRA 
believes its statutory investigatory authority extends as far as 
necessary to address any condition that might reasonably be expected to 
create a hazard to railroad operations within its jurisdiction.
    G. Hours of service laws (49 U.S.C. 21101-21108). (1) The hours of 
service laws apply to all railroads subject to FRA's jurisdiction, and 
govern the maximum work hours and minimum off-duty periods of employees 
engaged in one or more of the three categories of covered service 
described in 49 U.S.C. 21101. If an individual performs more than one 
kind of covered service during a tour of duty, then the most restrictive 
of the applicable limitations control. Under current law, a light rail 
operation could request a waiver of the substantive provisions of the 
hours of service laws only under the ``pilot project'' provision 
described in 49 U.S.C. 21108, provided that the request is based upon a 
joint petition submitted by the railroad and its affected labor 
organizations. Because waivers requested under this statutory provision 
do not involve a waiver of a safety rule, regulation, or standard (see 
49 CFR 211.41), FRA is not required to follow the rules of practice for 
waivers contained in part 211. However, whenever appropriate, FRA will 
combine its consideration of any request for a waiver under Sec. 21108 
with its review under part 211 of a light rail operation's petition for 
waivers of FRA's regulations.
    (2) If such a statutory waiver is desired, the light rail system 
will need to assure FRA that the waiver of compliance is in the public 
interest and consistent with railroad safety. The waiver petition should 
include a discussion of what fatigue management strategies will be in 
place for each category of covered employees in order to minimize the 
effects of fatigue on their job performance. However, FRA is unlikely to 
grant a statutory waiver covering employees of a light rail operation 
who dispatch the trains of a conventional railroad or maintain a signal 
system affecting shared use trackage.
    H. Hours of service recordkeeping (part 228). This part prescribes 
reporting and recordkeeping requirements with respect to the hours of 
service of employees who perform the job functions set forth in 49 
U.S.C. 21101. As a general rule, FRA anticipates that any waivers 
granted under this part will only exempt the same groups of employees 
for whom a light rail system has obtained a waiver of the substantive 
provisions of the hours of service laws under 49 U.S.C. 21108. Since it 
is important that FRA be able to verify that a light rail operation is 
complying with the on- and off-duty restrictions of the hour of service 
laws for all employees not covered by a waiver of the laws' substantive 
provisions, it is unlikely that any waiver granted of the reporting and 
recordkeeping requirements would exclude those employees. However, in a 
system with fixed work schedules that do not approach 12 hours on duty 
in the aggregate, it may be possible to utilize existing payroll records 
to verify compliance.
    I. Passenger train emergency preparedness (part 239). This part 
prescribes minimum Federal safety standards for the preparation, 
adoption, and implementation of emergency preparedness plans by 
railroads connected with the operation of passenger trains. FRA's 
expectation is that by requiring affected railroads to provide 
sufficient emergency egress capability and information to passengers, 
along with mandating that these railroads coordinate with local 
emergency response officials, the risk of death or injury from accidents 
and incidents will be lessened. A waiver petition should state whether 
the light rail system has an emergency preparedness plan in place under 
a state system safety program developed under FTA's rules for the light 
rail operator's separate street railway segments. Under a system safety 
program, a light rail operation is likely to have an effective plan for 
dealing with emergency situations that may provide an equivalent 
alternative to FRA's rules. To the extent that the light rail 
operation's plan relates to the various provisions of this part, a 
waiver petition should explain precisely how each of the requirements of 
this part is being addressed. The petition should especially focus on 
the issues of communication, employee training, passenger information, 
liaison relationships with emergency responders, and marking of 
emergency exits.
    J. Qualification and certification of locomotive engineers (part 
240). This part contains minimum Federal safety requirements for the 
eligibility, training, testing, certification, and monitoring of 
locomotive engineers. Those who operate light rail trains may have 
significant effects on the safety of light rail passengers, motorists at 
grade crossings, and, to the extent trackage is shared with conventional 
railroads, the employees and passengers of those railroads. The petition 
should describe whether a light rail system has a system safety plan 
developed under FTA's rules that is likely to have an effective means of 
assuring that the operators, or ``engineers,'' of its equipment receive 
the necessary training and have proper skills to operate a light rail 
vehicle in

[[Page 80]]

shared use on the general railroad system. The petition should explain 
what safeguards are in place to ensure that light rail engineers receive 
at least an equivalent level of training, testing, and monitoring on the 
rules governing train operations to that received by locomotive 
engineers employed by conventional railroads and certified under part 
240. Any light rail system unable to meet this burden would have to 
fully comply with the requirements of part 240. Moreover, where a 
transit system intends to operate simultaneously on the same track with 
conventional equipment, FRA will not be inclined to waive the part 240 
requirements. In that situation, FRA's paramount concern would be 
uniformity of training and qualifications of all those operating trains 
on the general system, regardless of the type of equipment.

    V. Waivers That May be Appropriate for Time-Separated Light Rail 
                               Operations

    1. The foregoing discussion of factors to address in a petition for 
approval of shared use concerns all such petitions and, accordingly, is 
quite general. FRA is willing to provide more specific guidance on where 
waivers may be likely with regard to light rail operations that are 
time-separated from conventional operations. FRA's greatest concern with 
regard to shared use of the general system is a collision between light 
rail and conventional trains on the same track. Because the results 
could well be catastrophic, FRA places great emphasis on avoiding such 
collisions. The surest way to guarantee that such collisions will not 
occur is to strictly segregate light rail and conventional operations by 
time of day so that the two types of equipment never share the same 
track at the same time. This is not to say that FRA will not entertain 
waiver petitions that rely on other methods of collision avoidance such 
as sophisticated train control systems. However, petitioners who do not 
intend to separate light rail from conventional operations by time of 
day will face a steep burden of demonstrating an acceptable level of 
safety. FRA does not insist that all risk of collision be eliminated. 
However, given the enormous severity of the likely consequences of a 
collision, the demonstrated risk of such an event must be extremely 
remote.
    2. There are various ways of providing such strict separation by 
time. For example, freight operations could be limited to the hours of 
midnight to 5 a.m. when light rail operations are prohibited. Or, there 
might be both a nighttime and a mid-day window for freight operation. 
The important thing is that the arrangement not permit simultaneous 
operation on the same track by clearly defining specific segments of the 
day when only one type of operation may occur. Mere spacing of train 
movements by a train control system does not constitute this temporal 
separation.
    3. FRA is very likely to grant waivers of many of its rules where 
complete temporal separation between light rail and conventional 
operations is demonstrated in the waiver request. The chart below lists 
each of FRA's railroad safety rules and provides FRA's view on whether 
it is likely to grant a waiver in a particular area where temporal 
separation is assured. Where the ``Likely Treatment'' column says 
``comply'' a waiver is not likely, and where it says ``waive'' a waiver 
is likely. Of course, FRA will consider each petition on its own merits 
and one should not presume, based on the chart, that FRA will grant or 
deny any particular request in a petition. This chart is offered as 
general guidance as part of a statement of policy, and as such does not 
alter any safety rules or obligate FRA to follow it in every case. This 
chart assumes that the operations of the local rail transit agency on 
the general railroad system are completely separated in time from 
conventional railroad operations, and that the light rail operation 
poses no atypical safety hazards. FRA's procedural rules on matters such 
as enforcement (49 CFR parts 209 and 216), and its statutory authority 
to investigate accidents and injuries and take emergency action to 
address an imminent hazard of death or injury, would apply to these 
operations in all cases.
    4. Where waivers are granted, a light rail operator would be 
expected to operate under a system safety plan developed in accordance 
with the FTA state safety oversight program. The state safety oversight 
agency would be responsible for the safety oversight of the light rail 
operation, even on the general system, with regard to aspects of that 
operation for which a waiver is granted. (The ``Comments'' column of the 
chart shows ``State Safety Oversight'' where waivers conditioned on such 
state oversight are likely.) FRA will coordinate with FTA and the state 
agency to address any serious safety problems. If the conditions under 
which the waiver was granted change substantially, or unanticipated 
safety issues arise, FRA may modify or withdraw a waiver in order to 
ensure safety. On certain subjects where waivers are not likely, the 
``Comments'' column of the chart makes special note of some important 
regulatory requirements that the light rail system will have to observe 
even if it is not primarily responsible for compliance with that 
particular rule.

[[Page 81]]



   Possible Waivers for Light Rail Operations on the General Railroad System Based on Separation in Time From
                                             Conventional Operations
----------------------------------------------------------------------------------------------------------------
          Title 49 CFR part                Subject of rule          Likely treatment             Comments
----------------------------------------------------------------------------------------------------------------
Track, Structures, and Signals
----------------------------------------------------------------------------------------------------------------
213..................................  Track safety standards.  Comply (assuming light   If the conventional RR
                                                                 rail operator owns       owns the track, light
                                                                 track or has been        rail will have to
                                                                 assigned                 observe speed limits
                                                                 responsibility for it).  for class of track.
233, 235, 236........................  Signal and train         Comply (assuming light   If conventional RR
                                        control.                 rail operator or its     maintains signals,
                                                                 contractor has           light rail will have
                                                                 responsibility for       to abide by
                                                                 signal maintenance).     operational
                                                                                          limitations and report
                                                                                          signal failures.
234..................................  Grade crossing signals.  Comply (assuming light   If conventional RR
                                                                 rail operator or its     maintains devices,
                                                                 contractor has           light rail will have
                                                                 responsibility for       to comply with
                                                                 crossing devices).       sections concerning
                                                                                          crossing accidents,
                                                                                          activation failures,
                                                                                          and false activations.
213, Appendix C......................  Bridge safety policy...  Not a rule. Compliance
                                                                 voluntary..
--------------------------------------
Motive Power and Equipment
----------------------------------------------------------------------------------------------------------------
210..................................  Noise emission.........  Waive..................  State safety oversight.
215..................................  Freight car safety       Waive..................  State safety oversight.
                                        standards.
221..................................  Rear end marking         Waive..................  State safety oversight.
                                        devices.
223..................................  Safety glazing           Waive..................  State safety oversight.
                                        standards.
229..................................  Locomotive safety        Waive, except for        State safety oversight.
                                        standards.               arrangement of
                                                                 auxiliary lights,
                                                                 which is important for
                                                                 grade crossing safety.
231*.................................  Safety appliance         Waive..................  State safety oversight;
                                        standards.                                        see note below on
                                                                                          statutory
                                                                                          requirements.
238..................................  Passenger equipment      Waive..................  State safety oversight.
                                        standards.
--------------------------------------
Operating Practices
----------------------------------------------------------------------------------------------------------------
214..................................  Bridge worker..........  Waive..................  OSHA standards.
214..................................  Roadway worker safety..  Comply.................
217..................................  Operating rules........  Waive..................  State safety oversight.
218..................................  Operating practices....  Waive, except for        State safety oversight.
                                                                 prohibition on
                                                                 tampering with safety
                                                                 devices related to
                                                                 signal system, and
                                                                 blue signal rules on
                                                                 shared track.
219..................................  Alcohol and drug.......  Waive if FTA rule        FTA rule may apply.
                                                                 otherwise applies.
220..................................  Radio communications...  Waive, except to extent  State safety oversight.
                                                                 communications with
                                                                 freight trains and
                                                                 roadway workers are
                                                                 necessary.
225..................................  Accident reporting and   Comply with regard to    Employee injuries would
                                        investigation.           train accidents and      be reported under FTA
                                                                 crossing accidents;      or OSHA rules.
                                                                 waive as to injuries;
                                                                 FRA accident
                                                                 investigation
                                                                 authority not subject
                                                                 to waiver.
228**................................  Hours of service         Waive (in concert with   See note below on
                                        recordkeeping.           waiver of statute);      possible waiver of
                                                                 waiver not likely for    statutory
                                                                 personnel who dispatch   requirements.
                                                                 conventional RR or
                                                                 maintain signal system
                                                                 on shared use track.
239..................................  Passenger train          Waive..................  State safety oversight.
                                        emergency preparedness.
240..................................  Engineer certification.  Waive..................  State safety oversight.

----------------------------------------------------------------------------------------------------------------
* Safety Appliance Statute. Certain safety appliance requirements (e.g., automatic couplers) are statutory and
  can only be waived under the conditions set forth in 49 U.S.C. 20306, which permits exemptions if application
  of the requirements would ``preclude the development or implementation of more efficient railroad
  transportation equipment or other transportation innovations.'' If consistent with employee safety, FRA could
  probably rely on this provision to address most light rail equipment that could not meet the standards.
** Hours of Service Statute. Currently, 49 U.S.C. 21108 permits FRA to waive substantive provisions of the hours
  of service laws based upon a joint petition by the railroad and affected labor organizations, after notice and
  an opportunity for a hearing. This is a ``pilot project'' provision, so waivers are limited to two years but
  may be extended for additional two-year periods after notice and an opportunity for comment.


[65 FR 42546, July 10, 2000]

[[Page 82]]




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