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 Post subject: 49 CFR 209 App A, FRA Safety Jurisdiction
PostPosted: Mon Jan 09, 2012 4:14 pm 

Joined: Thu Nov 22, 2007 5:46 am
Posts: 2463
Location: S.F. Bay Area
Among RyPN participants, there is great confusion about FRA jurisdiction. The definitive document on this subject is a section deep inside 49 CFR 209 Appendix A, which itself is a very long thesis on a variety of enforcement topics. Because it is buried deep inside a seemingly irrelevant document, I suspect that few have ever laid eyes on the relevant text. It is also impossible to "link to" for reference. Thus, I am posting it here, both for clarity and for linkability.
Please note that FRA also restates these very same things in their 2010 Tourist Railway Letter, found here
http://www.fra.dot.gov/pages/2348.shtml
The remainder of this post is the FRA text, verbatim, misspellings and all. I have added only hyperlinks.


The Extent And Exercise Of FRA's Safety Jurisdiction

The Safety Act and, as amended by the RSIA, the older safety statutes apply to “railroads.” Section 202(e) of the Safety Act defines railroad as follows:

The term “railroad” as used in this title means all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including (1) commuter or other short-haul rail passenger service in a metropolitan or suburban area, as well as any commuter rail service which was operated by the Consolidated Rail Corporation as of January 1, 1979, and (2) high speed ground transportation systems that connect metropolitan areas, without regard to whether they use new technologies not associated with traditional railroads. Such term does not include rapid transit operations within an urban area that are not connected to the general railroad system of transportation.

Prior to 1988, the older safety statutes had applied only to common carriers engaged in interstate or foreign commerce by rail. The Safety Act, by contrast, was intended to reach as far as the Commerce Clause of the Constitution (i.e., to all railroads that affect interstate commerce) rather than be limited to common carriers actually engaged in interstate commerce. In reporting out the bill that became the 1970 Safety Act, the House Committee on Interstate and Foreign Commerce stated:

The Secretary's authority to regulate extends to all areas of railroad safety. This legislation is intended to encompass all those means of rail transportation as are commonly included within the term. Thus, “railroad” is not limited to the confines of “common carrier by railroad” as that language is defined in the Interstate Commerce Act.

H.R. Rep. No. 91–1194, 91st Cong., 2d Sess. at 16 (1970).

FRA's jurisdiction was bifurcated until, in 1988, the RSIA amended the older safety statutes to make them coextensive with the Safety Act by making them applicable to railroads and incorporating the Safety Act's definition of the term (e.g.,45 U.S.C. 16, as amended). The RSIA also made clear that FRA's safety jurisdiction is not confined to entities using traditional railroad technology. The new definition of “railroad” emphasized that all non-highway high speed ground transportation systems—regardless of technology used—would be considered railroads.

Thus, with the exception of self-contained urban rapid transit systems, FRA's statutory jurisdiction extends to all entities that can be construed as railroads by virtue of their providing non-highway ground transportation over rails or electromagnetic guideways, and will extend to future railroads using other technologies not yet in use. For policy reasons, however, FRA does not exercise jurisdiction under all of its regulations to the full extent permitted by statute. Based on its knowledge of where the safety problems were occurring at the time of its regulatory action and its assessment of the practical limitations on its role, FRA has, in each regulatory context, decided that the best option was to regulate something less than the total universe of railroads.

For example, all of FRA's regulations exclude from their reach railroads whose entire operations are confined to an industrial installation (i.e., “plant railroads”), such as those in steel mills that do not go beyond the plant's boundaries. E.g., 49 CFR 225.3(a)(1) (accident reporting regulations). Some rules exclude passenger operations that are not part of the general railroad system (such as some tourist railroads) only if they meet the definition of “insular.” E.g., 49 CFR 225.3(a)(3) (accident reporting) and 234.3(c) (grade crossing signal safety). Other regulations exclude not only plant railroads but all other railroads that are not operated as a part of, or over the lines of, the general railroad system of transportation. E.g., 49 CFR 214.3 (railroad workplace safety).

By “general railroad system of transportation,” FRA refers to the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas. Much of this network is interconnected, so that a rail vehicle can travel across the nation without leaving the system. However, mere physical connection to the system does not bring trackage within it. For example, trackage within an industrial installation that is connected to the network only by a switch for the receipt of shipments over the system is not a part of the system.

Moreover, portions of the network may lack a physical connection but still be part of the system by virtue of the nature of operations that take place there. For example, the Alaska Railroad is not physically connected to the rest of the general system but is part of it. The Alaska Railroad exchanges freight cars with other railroads by car float and exchanges passengers with interstate carriers as part of the general flow of interstate commerce. Similarly, an intercity high speed rail system with its own right of way would be part of the general system although not physically connected to it. The presence on a rail line of any of these types of railroad operations is a sure indication that such trackage is part of the general system: the movement of freight cars in trains outside the confines of an industrial installation, the movement of intercity passenger trains, or the movement of commuter trains within a metropolitan or suburban area. Urban rapid transit operations are ordinarily not part of the general system, but may have sufficient connections to that system to warrant exercise of FRA's jurisdiction (see discussion of passenger operations, below). Tourist railroad operations are not inherently part of the general system and, unless operated over the lines of that system, are subject to few of FRA's regulations.

The boundaries of the general system are not static. For example, a portion of the system may be purchased for the exclusive use of a single private entity and all connections, save perhaps a switch for receiving shipments, severed. Depending on the nature of the operations, this could remove that portion from the general system. The system may also grow, as with the establishment of intercity service on a brand new line. However, the same trackage cannot be both inside and outside of the general system depending upon the time of day. If trackage is part of the general system, restricting a certain type of traffic over that trackage to a particular portion of the day does not change the nature of the line—it remains the general system.

Of course, even where a railroad operates outside the general system, other railroads that are definitely part of that system may have occasion to enter the first railroad's property (e.g., a major railroad goes into a chemical or auto plant to pick up or set out cars). In such cases, the railroad that is part of the general system remains part of that system while inside the installation; thus, all of its activities are covered by FRA's regulations during that period. The plant railroad itself, however, does not get swept into the general system by virtue of the other railroad's activity, except to the extent it is liable, as the track owner, for the condition of its track over which the other railroad operates during its incursion into the plant. Of course, in the opposite situation, where the plant railroad itself operates beyond the plant boundaries on the general system, it becomes a railroad with respect to those particular operations, during which its equipment, crew, and practices would be subject to FRA's regulations.

In some cases, the plant railroad leases track immediately adjacent to its plant from the general system railroad. Assuming such a lease provides for, and actual practice entails, the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant, the lease would remove the plant railroad's operations on that trackage from the general system for purposes of FRA's regulations, as it would make that trackage part and parcel of the industrial installation. (As explained above, however, the track itself would have to meet FRA's standards if a general system railroad operated over it. See 49 CFR 213.5 for the rules on how an owner of track may assign responsibility for it.) A lease or practice that permitted other types of movements by general system railroads on that trackage would, of course, bring it back into the general system, as would operations by the plant railroad indicating it was moving cars on such trackage for other than its own purposes (e.g., moving cars to neighboring industries for hire).

FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system. There are two exceptions: (1) operations of less than 24-inch gage (which, historically, have never been considered railroads under the Federal railroad safety laws); and (2) operations that are off the general system and “insular” (defined below).

Insularity is an issue only with regard to tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist operation to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public'except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser'would be affected by the operation. A tourist operation will not be considered insular if one or more of the following exists on its line:

•A public highway-rail crossing that is in use;

•An at-grade rail crossing that is in use;

•A bridge over a public road or waters used for commercial navigation; or

•A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.

When tourist operations are conducted on the general system, FRA exercises jurisdiction over them, and all of FRA's pertinent regulations apply to those operations unless a waiver is granted or a rule specifically excepts such operations (e.g., the passenger equipment safety standards contain an exception for these operations, 49 CFR 238.3(c)(3), even if conducted on the general system). When a tourist operation is conducted only on track used exclusively for that purpose it is not part of the general system. The fact that a tourist operation has a switch that connects it to the general system does not make the tourist operation part of the general system if the tourist trains do not enter the general system and the general system railroad does not use the tourist operation's trackage for any purpose other than delivering or picking up shipments to or from the tourist operation itself.

If a tourist operation off the general system is insular, FRA does not exercise jurisdiction over it, and none of FRA's rules apply. If, however, such an operation is not insular, FRA exercises jurisdiction over the operation, and some of FRA's rules (i.e., those that specifically apply beyond the general system to such operations) will apply. For example, FRA's rules on accident reporting, steam locomotives, and grade crossing signals apply to these non-insular tourist operations (see 49 CFR 225.3, 230.2 amd 234.3), as do all of FRA's procedural rules (49 CFR parts 209, 211, and 216) and the Federal railroad safety statutes themselves.

In drafting safety rules, FRA has a specific obligation to consider financial, operational, or other factors that may be unique to tourist operations. 49 U.S.C. 20103(f). Accordingly, FRA is careful to consider those factors in determining whether any particular rule will apply to tourist operations. Therefore, although FRA asserts jurisdiction quite broadly over these operations, we work to ensure that the rules we issue are appropriate to their somewhat special circumstances.

It is important to note that FRA's exercise of its regulatory authority on a given matter does not preclude it from subsequently amending its regulations on that subject to bring in railroads originally excluded. More important, the self-imposed restrictions on FRA's exercise of regulatory authority in no way constrain its exercise of emergency order authority under section 203 of the Safety Act. That authority was designed to deal with imminent hazards not dealt with by existing regulations and/or so dangerous as to require immediate, ex parte action on the government's part. Thus, a railroad excluded from the reach of any of FRA's regulations is fully within the reach of FRA's emergency order authority, which is coextensive with FRA's statutory jurisdiction over all railroads.


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 Post subject: Re: 49 CFR 209 App A, FRA Safety Jurisdiction
PostPosted: Tue Jan 10, 2012 2:55 pm 

Joined: Mon Aug 23, 2004 2:14 pm
Posts: 460
Location: Essex, Connecticut, USA
Robert:
Thank you for posting this.
We have refered to all of this previously, but it is good to see it all in one place.
J.David


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 Post subject: Re: 49 CFR 209 App A, FRA Safety Jurisdiction
PostPosted: Wed Jan 11, 2012 1:00 pm 

Joined: Sun Aug 22, 2004 7:23 am
Posts: 441
Location: Strasburg, PA
Under the new conductor certification, http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=1fef7cb1ab560841c0fbc4a70f5ec136&rgn=div5&view=text&node=49:4.1.1.1.36&idno=49, it appears that FRA is changing the scope of their jurisdiction with respect to plant railroads. If an industrial railroad customer starts fielding third-party carloads, look for the FRA construing them as part of the general system.

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 Post subject: Re: 49 CFR 209 App A, FRA Safety Jurisdiction
PostPosted: Wed Jan 11, 2012 9:53 pm 

Joined: Thu Nov 22, 2007 5:46 am
Posts: 2463
Location: S.F. Bay Area
S. Weaver wrote:
If an industrial railroad customer starts fielding third-party carloads, look for the FRA construing them as part of the general system.

That's not a change. If you handle a car for your customer, that puts you in the general system of transportation for the scope of that movement.

If you have a switch to live rail, that does not put you in the general system.
If you accept cars for your own use (GG1s, ballast cars, Amtrak excursion trains to your destination, etc.) that does not put you in the general system. If BNSF runs the length of your line to deliver those cars, that doesn't put you in the general system either.
However if the wind farm wants windmill parts delivered by rail, guess what. Handling those cars puts the relevant track in the general system, along with any equipment or crews which traverse that track. Makes it hell to run a mixed freight anymore. Waivers are your friend.

For instance, Indiana Railway Museum does just that. I believe they go from NS interchange at Huntingburg ++++++++ Dubois ++++++++ French Lick; they handle customer freight to Dubois.


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 Post subject: Re: 49 CFR 209 App A, FRA Safety Jurisdiction
PostPosted: Mon Jan 16, 2012 11:53 am 

Joined: Sun Aug 22, 2004 7:23 am
Posts: 441
Location: Strasburg, PA
Robert:

We basically said the same thing - no matter who one is, handling third-party carloads pulls one into Chapter 49.

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