with questions regarding FRA applicability.

To set this up, all the following questions relate to hypothetical situations outside the confines of an amusement park boundary:

If a small gauge (say 24" or 36") park railroad (non-FRA compliant) were to cross a public road (say, a state highway) does the park railroad come under FRA jurisdiction? (Let's assume here that the equipment used by the park is not old narrow gauge equipment, but commercially available gas, diesel or steam powered locomotives and cars designed for park ride use.)

If this hypothetical line also managed to arrange a crossing at grade of a lightly used standard gauge railroad, would the crossing at grade require FRA compliance by the small gauge park operation? What if the line crossed over or under without physical contact, either by bridge over or tunnel under the other line.

What about bridging over a stream or river?

Does FRA in any way have jurisdiction over a park-type operation if any of these conditions were to exist?

From previous posts here and elsewhere, my initial thought is that the FRA has no jurisdiction over a park railroad ride, even if it were extended outside the confines of the park proper. Although it seems unlikely that a railroad would permit a crossing at grade with a non-FRA compliant small gauge operation, what would happen if it was allowed? These situations raise questions.

Thanks for your ponderings.

FRA specifically excludes railroads under 24" gage. Use 60CM stuff - a common metric industrial railway gage.

I'd question the intelligence of any officer of a common carrier allowing a park train ride to cross his ROW - the potential for liability, much less regulatory hell from whatever entity does regulate park rides and amusements, and doesn't care what FRA has to say about it.

So, I'd use hypothetical 60 CM gage trains, without a common carrier at grade crossing, and be real careful about public highway crossings - smaller access roads and city streets maybe, but not 4 lane major thouroughfares.

Still a lot of hypothetical regulatory bother.

dave

There is a new document out from TSA which I believe is the Transportation Security Admin - and this is more fallout from 9/11. I have not read it but was informed that even if you are totally insular, there are significant new rules if you cross any public road, or even come within 30 feet of a regular standard gauge railroad. Historic rr operations are specifically INCLUDED.

So, FRA may not apply, but surely there will be other eyes watching, sometime soon.

Would be nice to hear from someone firsthand who has actually looked at it and condensed the over 100 pages down to a few paragraphs that will be important to preservation ops.

Bob Kutella

Regardless of what the FRA says about 24 inch or less, there are some other hypothetical questions that must be asked. In so doing, remember, the Code of Federal Regulations is a “Standard” by which our society lives. So, hypothetically speaking: When you find yourself in court defending the 24 inch railroad, the prosecuting attorney will ask……”By what Federal Standard is this railroad subject to?” You may be able to answer in an honest way…..none. The next question is: “Why would you not adhere to the CFR even if you were not held subject to it?” Now……answer that question! I must ask…..if a standard exists, why not apply it?

Here is a simple fact. Attorneys have and hold in their offices all public law. This includes Federal, State and local laws that apply to the area in which he/she practices law. Regardless of size, when you find yourself in court, defending yourself, you will answer to the Code of Federal Regulations……it is a recognized standard for railroad safety (sometimes regardless of the size.).

If I were in your shoes, I would read very carefully the 49 Code of Federal Regulations Part 200 to 399 (Transportation). In so doing, I would ask myself……could I be held to this standard if something went wrong? The answer to that is YES…..you could very well be held to that standard….even if the FRA does not hold you to it. Goofy as it may sound, you will have a hard time convincing a court that the rule does not apply to you…..again, regardless of size!

If it were me, I would apply as much of the code as possible. I would review it and understand it to the extent possible. I would seek third party reviews of my interpretation of the rule. After all of that, I would simply submit a letter to the FRA explaining my position, and then asking if my interpretation of the rule is correct. They will respond!

Further, it has been our experience as we have dealt with this in the past: that parks which are operated by a City or County will hold you to the CFR. This is due to the fact that in most cases, Federal or State monies are being used to fund the project. As such, it is usually required by the City or County (State or Feds) that the RR in question meets all applicable rules and guild lines. This again takes you to the CFR…..regardless of size.

By letter of the law as written, the CFR may not be applicable to you. By good practice and common sense, why would you not use it as a standard and guild line? That is the question! Unless, of course you have a higher standard to follow.

You can see and read more about or evaluation of one such park train on our web page at:

www.wasatch-rr-contractors.com

Go to Projects….Pokey Smokey

John E. Rimmasch

Busch Gardens - Tampa Bay used to have a standard gauge spur coming into the park to pick up loads of beer from the brewery. The Trans-Veldt Railway, which is the narrow gauge loop throughout the park, used to have a diamond with the standard gauge spur, and I remember when I was a kid the train we were riding had to wait for some switching to be completed which was fouling the diamond. The tracks coming into the park have been ripped out but, when it was in place, this may be an example you are looking for which is not so hypothetical.

I would have to answer yes if you read this piece from the CFR 49. This section deals with grade crossings.


Sec. 234.3 Application.



This part applies to all railroads except:

(a) A railroad that exclusively operates freight trains only on

track which is not part of the general railroad system of

transportation;

(b) Rapid transit operations within an urban area that are not

connected to the general railroad system of transportation; and

(c) A railroad that operates passenger trains only on track inside

an installation that is insular; i.e., its operations are limited to a

separate enclave in such a way that there is no reasonable expectation

that the safety of the public--except a business guest, a licensee of

the railroad or an affiliated entity, or a trespasser--would be affected

by the operation. An operation will not be considered insular if one or

more of the following exists on its line:

(1) A public highway-rail crossing that is in use;

(2) An at-grade rail crossing that is in use;

(3) A bridge over a public road or waters used for commercial

navigation; or

(4) A common corridor with a railroad, i.e., its operations are

within 30 feet of those of any railroad.

I didn't see any implication in Stephen's question that it was based on an effort to avoid having standards and practices - just to assure they were appropriate ones.

CFR according to FRA may not be the most appropriate for a little amusement park train ride, just as they may not be applicable to the 7.5" gage live steamer clubs line, or the HO gage operation under your tree.

Standards specifically for park rides have been developed, and are "out there" somewhere - if not federal, certainly state, or simply industry standards. Perhaps somebody with specific knowledge can contribute?

Mixing an operation designed to be operated under those standards with one designed and operated under FRA standards is setting yourself up for dueling regulators and a strong likelihood of mututally exclusive unenforceable standards from any POV. I ran across this sort of thing frequently in my previous life - but then it was different departments of OSHA each with their own agenda, and different standards which were mutually exclusive. All we could do is whatever the particular inspector du jour wanted done, and try to get along with the job at hand despite their interference.

So John, I have to agree that a good system of appropriate standards is important to any safe operation, but as to which are appropriate - here is where there is room for speculation. I think park operators know more about operating park rides safely than regulators of mainline, predominantly freight railroads do, and I'd be much more inclined to accept their standards as a result.

Of course, you could pick and choose - crossing protection might be a good place to defer to FRA, for example, especially if a public road is involved, and park regulations don't deal with that specific issue. That doesn't, and shouldn't imply that AAR wheel profile, for example, is applicable to the 15" gage park line.

Can't we be sensible here?

dave

Good morning!

I am going to add a little more information regarding John's excellent post. Please take my comments with a grain of salt since I am only a 3rd year law student.

You can use the defense of complying with existing law or current business practices when defending yourself for liability. However, some courts have looked at best practices when analyzing liability. This situation will arise when there is a new technology or practice that could reduce injury and a reasonable person would use this technology or practice.

I vaguely remember a case from my 1st year regarding a barge accident. The company was held liable because they could have used new technology on their boats. I think the new technology was radio equipment. The equipment would have helped prevent or mitigate the injuries in the case. Only a minority of businesses were currently using this technology. However, it was shown that the use of the technology was reasonably prudent.

In summary, I think that an organization should look at the FRA regulations, Code of Federal Regulations (CFR), and state regulations as the minimum level of compliance. The organization must incorporate new practices in both their specific industry and related industries that would be implemented by a reasonably prudent person.

Have a safe and joyous day!
Gary Drag
--
http:www.prairie-smoke.org
GaryDrag at sbcglobal dot net (reply to)
--

Note that the regulation is silent on having an under crossing of either the highway or rail line. It seems the prudent course here would be to arrange for the installation of 8' diameter culverts under either, and run the park line through those.

Item (1) can refer to both an overpass and an underpass, can't it? It seems to me when reading the definition of insular, that proximity to a public right-of-way or railroad, whether over, under, or at grade, is the deciding factor.

I found John’s comments very true. The limits of FRA jurisdiction are not designed to be a challenge to railroad operators to circumvent by operating a smaller gauge or limiting crossings. Even when subject to jurisdiction, railroads should use FRA rules as a baseline minimum for their own standards. That said, there are aspects of the FRA rules that have decreasing applicability as you go from an operation such as the Grand Canyon Railroad to a 7 ½” gauge live steam club railroad. I believe the gauge applicability limits of the FRA rule exist in recognition of this fact. That said, many FRA rules could be used as guidelines when a small gauge operation has a large-scale problem, such as grade crossings. Being able to show you used an established standard would greatly benefit your case. However, as seen in England with some recent grade crossing accidents, you may want to exceed the rule by a grade separation or barrier style gate.

http://news.bbc.co.uk/1/hi/england/kent/4670335.stm

It is interesting to note that a recently (1990’s) installed railway in Argentina, Ferrocarril Austral Fueguino (FCAF), "The Train at the End of the World," set their gauge to 500mm (19.68”) from 600mm (23.62”) to insure that they were well removed from federal railroad jurisdiction (Argentina’s rules were set up by the UK and are similar to ours.)

http://www.martynbane.co.uk/modernsteam/smcmahon/smfcaf.htm

It is also interesting to note that 15” gauge was used for small industrial railroads in the UK. It is a typical American mentality to build the biggest railroads and the biggest locomotives to get a job done. It seems, however, that for the purposes of amusement much less infrastructure is required, and this brings with it the opportunity to function under a more tailored rule structure and reduce capital and operating costs.

http://www.kirkleeslightrailway.com/content/home.php

Matt Janssen

If it were an under pass or over pass then that would bring the railroad under the FRA.
It is entirely up to the FRA as to whether or not they want to regulate someone and to what extent in a situation like this. But, by the law, given any one of the possible situations you spoke of the answer would be that of yes they could, not would...short of the crossing another regulated railroad.
One really good example is that of The Henry Ford Museum, their rail operations are within the minimum centerline to center line as well as having an active connection. Yet the FRA chooses to not regulate. There are a number of small operations I know of that have only their steam locomotives regulated even though all of the equipment does in fact pass over public crossings, and these same operations are not required to have an FRA ticket for engineers...meerly a training program.
Point of my long winded opinion, I feel there would be regulation but as to what extent is anyone guess.

I agree, there are statements like this in the FRA's section of the Code of Federal Regulations where they add that they have the right to regulate and might exercise that right in the future.

The following comments are from a Transportation Security Administration Notice of Proposed Rulemaking to add more to Title 49 of the Code of Federal Regulations in addition to the rules of the Federal Railroad Administration, Federal Transit Administration, and others. They do mention that the proposed new rules will also cover lines not subject to those administrations, or subject to only some of their rules. Of course, this is only the Transportation Security Administration's opinion, your lawyer may argue differently in front of the Supreme Court.

In some cases, you can be subject to FRA jurisdiction, but not to all of their rules.

Footnote \46\ might explain the case of the narrow gauge steam train with a grade crossing, but not connected to another railroad. The Steam Locomotive Inspection rules apply, but the Highly Visible passenger car marker light rules may not. East Broad Top could be an example.

There are good reasons why some of the regulations only apply to Standard Gauge railroads. Do you really want to have the rule about minimum gauge at a switch frog applied to your narrow gauge line?

There are various ways to find this notice, or any of the existing regulations; I went to the Government Printing Office gpo.gov and searched the Federal Register for a Hyper Text Markup Language version. Here are the page numbers:
[Federal Register: December 21, 2006 (Volume 71, Number 245)] [Proposed Rules] [Page 76851-76888]
For existing regulations, try looking for Title 49 of the Code of Federal Regulations [49CFR] and poke around part numbers in the low 200's, especially the ones mentioned in footnote 46.

\44\ FTA's rules on rail fixed guideway systems do not apply to
any rapid transit systems or portions thereof subject to FRA's
rules.
---------------------------------------------------------------------------
TSA's authority over rail transit systems is not limited to rail
fixed guideway systems receiving or seeking to receive funds under
FTA's grant program, and is therefore broader than the scope of
coverage of FTA's regulation (49 CFR part 659). Accordingly, TSA's
authority extends to all rail transit systems regardless of whether the
system is subject to regulation by FTA, FRA, or neither agency.
4. Other Rail Operations
Some of the requirements in this NPRM would apply to tourist,
scenic, historic, and excursion passenger rail systems. Specifically,
these types of operations would be subject to inspection by TSA and DHS
officials and would be required to report significant security
concerns. See proposed 49 CFR 1580.5 and 1580.203. In addition, these
operations would be subject to the NPRM's requirement to designate and
use an RSC if TSA notifies the operation in writing that a security
threat exists concerning that operation. See proposed 49 CFR 1580.201.
TSA is including this requirement, because tourist, scenic, historic,
and excursion operations are potential terrorist targets, and so there
may be some situations where TSA wishes to inspect these operations to
assess their security.
With two exceptions, FRA exercises jurisdiction over tourist,
scenic, and excursion railroad operations whether or not they are
conducted on the general railroad system. The exceptions are: (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 railroad system of
transportation and ``insular.'' \45\ See Appendix A to 49 CFR part 209.
\45\ 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 operations. A tourist operation will not be
considered insular if one or more of the following exists on its
line: (1) A public highway-rail crossing that is in use; (2) An at-
grade rail crossing that is in use; (3) A bridge over a public road
or waters used for commercial navigation; or (4) A common corridor
with a railroad, i.e., its operations are within 30 feet of those of
any railroad.
---------------------------------------------------------------------------
A tourist operation is not part of the general system when the
operation is conducted on track used exclusively for tourist operation
purposes. If a tourist operation conducted off the general system is
insular, FRA does not exercise jurisdiction over it, and none of FRA's
rules apply. If a tourist operation conducted off the general system 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.\46\
\46\ 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 and 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 addition, these
operations would be subject to the NPRM's requirement to designate and
use an RSC if TSA notifies the operation in writing that a security
threat exists concerning that operation "

I do not know how likely we would be to have a security threat, but all of these judgements will now lie in somebody else's hands. So, what is an RSC??

I suppose another judgement call might be that we will be required to fence off and otherwise secure the right of way we use. All sorts of horror stories come to mind, many of which would not be able to be implemented financially.

One of the rules I was told is that we might need to publish and maintain a contact number available 24/7. That might be a real stretch in the winter off season or with 100% volunteer based operations.

Bob Kutella

RSC--Rail Security Coordinator
More detailed instructions for finding the whole proposal:
try gpoaccess.gov, then in the center of that page go down the column to the last 2 choices I list (there are more), choose 1 and go searching:
GPO Access Resources by Branch
Legislative Resources
• View All
• Congressional Bills
• Congressional Record
• Public and Private Laws
• United States Code
Executive Resources
• View All
• Code of Federal Regulations
• Federal Register
• Federal Register

Read it and you may not have to guess what they're up to. You will also find how to officially comment.