Passenger Rail Update

Introduction
 
            The passenger rail sphere has seen a number of developments in the spring of 2020 on the regulatory and funding fronts, including:

  • FRA Grants COVID-19 Emergency Relief to Freight and Commuter Railroads
  • FRA Issues Notice of $311 Million in Funding for CRISI Grants
  • Comments submitted on Intercity Passenger Rail Metrics and Standards

            Read on for details.

FRA Grants COVID-19 Emergency Relief to Freight and Commuter Railroads

On March 25, 2020, the FRA issued a letter (Relief Letter) granting a 60-day, partial and conditional waiver of various Federal rail safety regulations as a result of staffing shortages and limitations of movement due to the COVID-19 pandemic.  Letter from FRA Associate Administrator for Safety Karl Alexy to Michael J. Rush, Association of American Railroads; Jo Strang, American Short Line and Regional Railroad Association; and Narayana Sundara, American Public Transportation Association (March 25, 2020) (available at https://www.apta.com/wp-content/uploads/Emergency-Waiver-Letter-25March20.pdf).

The waiver granted underthe Relief Letter applies to all freight and commuter railroads subject to FRA safety regulations.  Subsequently, the FRA issued letters extending relief for an additional 60 days from May 22, 2020 to July 24, 2020. See Letter from FRA Associate Administrator Karl Alexy to Paul P. Skoutelas, American Public Transportation Association, May 22, 2020 (available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-05/Response%20to%20APTA%20ERD%20extension%20request%20%28052220%29_.pdf)

The original Relief Letter responded to a petition letter jointly filed by the Association of American Railroads (AAR), the American Short Line and Regional Railroad Association (ASLRRA), and the American Public Transportation Association (APTA) (collectively, the Railroad Associations) seeking temporary emergency relief from various FRA rail safety regulation due expected staffing shortages caused by the COVID-19 pandemic and resulting emergency measures implemented by various government entities. The Railroad Associations filed their petition for emergency relief following the FRA Administrator’s activation of the emergency relief docket for the purposes of responding to the pandemic.

The Relief Letter granted temporary, conditional waivers for compliance with various the Federal safety requirements concerning the following activities:

  • Track inspection time-interval-dependent requirements (Part 213)
  • Operational tests and inspections of employees (Part 217)
  • Utility employee assignments (Part 218)
  • Railroad locomotive engineer and conductor certifications (Parts 240 and 242)
  • Use of verbal quick tie-up procedures (Part 228)
  • Periodic and time-based locomotive maintenance and inspection requirements (Part 229)
  • Various mechanical requirements (Part 232) and
  • Time-interval-dependent inspection and testing of grade crossing and signal and train control systems (Parts 234 and 236)

Additional specific conditions for each of these waivers are provided in the Relief Letters, which were issued on March 25, March 30, April 6, and April 10, 2020.  See Id.  Many of the conditions are related to the temporary extension of time- or period-specific requirements during the specified period.  The FRA noted that it lacks the authority to waive requirements that are statutory, rather than regulatory, in nature, particularly the December 31, 2020, deadline for implementing positive train control.

 

In addition to specific conditions tied to waiver of certain provisions, the Relief Letter stipulated two generally applicable waiver conditions.  First, railroads must document the basis on which they conclude that availing themselves of the waiver in a particular circumstance was necessary. Second, any railroad utilizing the waiver must report weekly information concerning non-compliance.  This information must be reported to the railroad’s respective industry association (AAR, APTA, or ASLRRA), unless the reporting railroad is unaffiliated with these associations, in which case the reporting railroad should provide such information directly to the FRA.

FRA Issues Notice of $311 Million in Funding for Consolidated Rail Infrastructure and Safety Improvement Grants

The Federal Railroad Administration (FRA) issued a Notice of Funding Opportunity (NOFO) for up to $311 million in eligible Consolidated Rail Infrastructure and Safety Improvement (CRISI) grants that will be available to states or public authorities providing intercity passenger rail.  FRA’s Notice is available at Federal Railroad Administration Notice of Funding Opportunity for Consolidated Rail Infrastructure and Safety Improvements, 85 Fed. Reg. 21923 (April 20, 2020).  Applications for funding are due June 19, 2020, through www.Grants.gov.

The CRISI grant program supports investments to improve railroad safety, efficiency and reliability; mitigate congestion at both intercity passenger and freight railroad chokepoints; enhance multi-modal connections; and support new or substantially improved intercity passenger rail transportation corridors.  Rail safety programs funded under CRISI grants may include:

  • Grade crossing enhancements
  • Rail line relocations
  • Improvements and deployments of railroad safety technology
  • Regional rail and corridor planning, environmental analysis and research
  • Workforce development and training

Under the NOFO, at least 25% of the 2020 appropriation will be made available for rural projects and $45 Million will be made available for projects that require acquisition of rights-of-way, track or track structure projects to support the development for new intercity passenger rail service routes.  The NOFO specifies that there are no minimum or maximum dollar thresholds for awards.  FRA encourages applicants for these funds to identify and include other state, local, public or private funding or financing support for the project in order to maximize competitiveness.  Funding under the NOFO will be made through grant agreements and/or cooperative agreements.

Applicants eligible for funding include: a state; a group of states; an interstate compact; a public agency or publicly chartered authority established by one or more states; a political subdivision of a state; and Amtrak or another rail carrier that provides intercity rail passenger transportation.  Applicants are not limited in the number of projects for which they may seek funding.

Over Three Hundred Comments Submitted on FRA NPRM on Intercity Passenger Rail Metrics & Standards.

The deadline for public comments on the FRA’s Notice of Proposed Rulemaking (NPRM), Metrics and Minimum Standards for Intercity Passenger Rail Service, 85 Fed. Reg. 17,835 (March 31, 2020), was Monday, June 1.  A total of 361 commenters weighed in on the NPRM, the majority whom are individual Amtrak riders.  In addition, freight railroads, commuter railroads and state Departments of Transportation provided comments.  The NPRM proposes a new definition for on-time performance (OTP) called “Customer OTP” which is defined as “the percentage of all customers on an intercity passenger rail train who arrive at their detraining point within 15 minutes of their published scheduled arrival time, reported by train route.” 

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