49 CFR Part 211 — Rules of Practice

PART 211—RULES OF PRACTICE Authority: 49 U.S.C. 20103, 20107, 20114, 20306, 20502-20504, and 49 CFR 1.89. Source: 41 FR 54181, Dec. 13, 1976, unless otherwise noted. Subpart A—General § 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. (b) As used in this part— (1) Administrator (2) Waiver (3) Safety Act et seq. (4) Docket Clerk (5) Railroad Safety Board (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; 74 FR 25171, May 27, 2009] § 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. § 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 Federal 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 §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, signal applications under parts 235 and 236 of this chapter, and informal safety inquiries under § 211.61. (2) Any person may examine docketed material created after November 1, 1998: (i) At the U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Copies of docketed materials may be obtained upon payment of the fees prescribed by the Federal Docket Management System, or (ii) Through the Internet at http://www.regulations.gov. (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, 1200 New Jersey Avenue, SE., 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; 74 FR 25171, May 27, 2009] § 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 §§ 211.55 and 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted 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 § 211.55 and § 238.21 of this chapter, petitions for grandfathering approval under § 238.203 of this chapter, and signal applications under parts 235 and 236 of this chapter, shall be submitted to the Federal 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 Federal Docket Management System and posted on its web site at http://www.regulations.gov. [64 FR 70195, Dec. 16, 1999, as amended at 74 FR 25171, 25172, May 27, 2009] § 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 § 211.11 Processing of petitions for rulemaking. (a) General. Federal Register (b) Grants. Federal Register. (c) Denials. (d) Notification; closing of docket. § 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. Federal Register. § 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 (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. § 211.17 Publication and contents of notices. Each advance notice or notice of proposed rulemaking is published in the Federal Register (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. § 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] § 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. § 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 conferences, or appear at informal hearings. § 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. § 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. § 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, (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, [41 FR 54181, Dec. 13, 1976, as amended at 42 FR 27593, May 31, 1977] § 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. § 211.33 Direct final rulemaking procedures. (a) Rules that the Administrator judges to be noncontroversial and unlikely to result in adverse public comment may be published in the final rule section of the Federal Register (1) Affect internal procedures of the Federal Railroad Administration, such as filing requirements and rules governing inspection and copying of documents, (2) Are nonsubstantive clarifications or corrections to existing rules, (3) Update existing forms, and (4) Make minor changes in the substantive rules regarding statistics and reporting requirements. (b) The Federal Register (c) If no adverse comment or request for oral hearing is received by the Federal Railroad Administration within the specified time of publication in the Federal Register, Federal Register (d) If the Federal Railroad Administration receives any written adverse comment or request for oral hearing within the specified time of publication in the Federal Register, Federal Register Federal Register. (e) An “adverse” comment for the purpose of this subpart means any comment that the Federal Railroad Administration determines is critical of the rule, suggests that the rule should not be adopted, or suggests a change that should be made in the rule. [72 FR 10087, Mar. 7, 2007, as amended at 84 FR 71733, Dec. 27, 2019] Subpart C—Waivers § 211.41 Processing of petitions for waiver of safety rules. (a) General. (b) Notice and hearing. Federal Register, (c) Grants. (d) Denials. (e) Notification. Federal Register. (f) Petition for reconsideration. § 211.43 Processing of other waiver petitions. (a) General. (b) Notice and hearing. Federal Register, (c) Grants. (d) Denials. (e) Notification. Federal Register. (f) Petitions for reconsideration. § 211.45 Petitions for emergency waiver of safety rules. (a) General. (b) Emergency Relief Docket. http://www.regulations.gov. Federal Register (c) Determining the existence of an emergency event or an emergency situation. (d) Notification. https://railroads.dot.gov/. (e) Content of petitions for emergency waivers. (f) Filing requirements. FRAWaivers@dot.gov. (g) FRA Handling and Initial Review. (h) Comments. (1) Email to FRA at: FRAWaivers@dot.gov; (2) Electronically via the internet at https://www.regulations.gov. (i) Request for hearing. (1) Arrange a telephone conference between all interested parties to provide an opportunity for oral comment; (2) Arrange a public hearing pursuant to the provisions contained in 49 CFR part 211; or (3) Determine that a public hearing is unnecessary, inconsistent with safety, or not in the public interest. (j) Decisions. (1) FRA reserves the right to reopen any docket and reconsider any decision made pursuant to these emergency procedures based upon its own initiative or based upon information or comments otherwise received. (2) FRA decision letters, either granting or denying a petition, will be posted in the appropriate ERD and will reference the document number of the petition to which it relates. (3) A waiver under this section may be issued for a period of not more that 60 days and may be renewed upon application to the Administrator only after notice and an opportunity for a hearing on the waiver. The Administrator will immediately revoke the waiver if continuation of the waiver would not be consistent with the goals and objectives of this part. (4) In granting a waiver under this section, the Administrator will consult and coordinate with other Federal agencies, as appropriate, for matters that may significantly impact such agencies. [74 FR 23335, May 19, 2009, as amended at 90 FR 28129, July 1, 2025] Subpart D—Emergency Orders § 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 § 211.51 Tests. (a) Pursuant to the Department of Transportation Act (80 Stat. 931, 49 U.S.C. 1651 et seq. (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, (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. § 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 accordance with § 211.7, 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. [41 FR 54181, Dec. 13, 1976, as amended at 74 FR 25171, May 27, 2009] § 211.55 Special approvals. Requests for special approval pertaining to safety not otherwise provided for in this chapter, must be submitted in accordance with § 211.7; specifying the action requested. These requests shall be considered by the Railroad Safety 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. [41 FR 54181, Dec. 13, 1976, as amended at 74 FR 25171, May 27, 2009] § 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, § 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 § 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. Federal Register. § 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 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. § 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 § 211.47 of this part. (b) Proceedings under this subpart are subject to the requirements of 5 U.S.C. 554-559. (c) Notwithstanding § 211.1 of this part, as used in this subpart Administrator § 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 § 211.77, the decision of the presiding officer is administratively final. § 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. § 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 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, 1200 New Jersey Avenue, SE., 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 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. •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. •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. •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. (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. (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. 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. 2. Shared train control systems. 3. Highway-Rail Grade Crossings. 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). B. Signal systems reporting requirements (part 233). C. Grade crossing signal system safety (part 234). D. Approval of signal system modifications (part 235). E. Standards for signal and train control systems (part 236). 2. Motive power and equipment. A. Railroad noise emission compliance regulations (part 210). If the light rail equipment would normally meet the standards in this rule, there would 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). C. Rear end marking devices (part 221). D. Safety glazing standards (part 223). E. Locomotive safety standards (part 229). (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. F. Safety appliance laws (49 U.S.C. 20301-20305). (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). (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). 3. Operating practices. A. Railroad workplace safety (part 214). (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 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). C. Railroad operating practices (part 218). D. Control of alcohol and drug use (part 219). E. Railroad communications (part 220). F. Railroad accident/incident reporting (part 225). (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 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). (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). I. Passenger train emergency preparedness (part 239). J. Qualification and certification of locomotive engineers (part 240). 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. 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 rail operator owns track or has been assigned responsibility for it) If the conventional RR owns the track, light rail will have to observe speed limits for class of track. 233, 235, 236 Signal and train control Comply (assuming light rail operator or its contractor has responsibility for signal maintenance) If conventional RR maintains signals, light rail will have to abide by operational limitations and report signal failures. 234 Grade crossing signals Comply (assuming light rail operator or its contractor has responsibility for crossing devices) If conventional RR maintains devices, light rail will have to comply with 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 standards Waive State safety oversight. 221 Rear end marking devices Waive State safety oversight. 223 Safety glazing standards Waive State safety oversight. 229 Locomotive safety standards Waive, except for arrangement of auxiliary lights, which is important for grade crossing safety State safety oversight. 231* Safety appliance standards Waive State safety oversight; see note below on statutory requirements. 238 Passenger equipment standards Waive State safety oversight. 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 prohibition on tampering with safety devices related to signal system, and blue signal rules on shared track State safety oversight. 219 Alcohol and drug Waive if FTA rule otherwise applies FTA rule may apply. 220 Radio communications Waive, except to extent communications with freight trains and roadway workers are necessary State safety oversight. 225 Accident reporting and investigation Comply with regard to train accidents and crossing accidents; waive as to injuries; FRA accident investigation authority not subject to waiver Employee injuries would be reported under FTA or OSHA rules. 228** Hours of service recordkeeping Waive (in concert with waiver of statute); waiver not likely for personnel who dispatch conventional RR or maintain signal system on shared use track See note below on possible waiver of statutory requirements. 239 Passenger train emergency preparedness Waive State safety oversight. 240 Engineer certification Waive State safety oversight. * Safety appliance statute. ** Hours of service statute. [65 FR 42546, July 10, 2000, as amended at 74 FR 25172, May 27, 2009]

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