Talking Transportation: A Conversation with FRA Chief Counsel – Allison Ishihara Fultz.

Allison Ishihara Fultz is no stranger to the ATLP community.  Prior to joining the Federal Railroad Administration (“FRA”) as its Chief Counsel, Allison has served as a passenger rail editor to Highlights, a chair of the program committee, and as a vice president and treasurer of ATLP’s board of directors.  Allison stepped down from ATLP this past fall to assume her role at FRA.  Allison and I recently spoke on the phone to discuss her career in transportation, her transition from private practice to a safety regulator, and current events at the FRA.

One issue that Allison says is an FRA priority in implementing the Infrastructure Investment and Jobs Act, or Bipartisan Infrastructure Law (“BIL”) is ensuring that the agency provides accessible guidance to all potential organizations seeking funds under the new legislation.  Allison says FRA understands that sophisticated organizations know how to navigate the federal government’s grant making process.  But FRA also wants to ensure that other entities, such as small municipalities – less familiar with the granting process – can access funds to address pressing rail infrastructure issues.

Prior to earning her law degree from the American University Washington College of Law, Allison trained to become an architect by earning her AB and Master of Architecture degrees from Princeton University and then practiced architecture for 13 years, designing and directing construction projects and feasibility studies.

After law school, Allison was an associate at DLA Piper in the real estate and construction law practices and subsequently, for over ten years, she was an associate and then partner with the transportation and environmental law firm Kaplan Kirsch & Rockwell.  As an attorney in private practice, Allison advised public- and private-sector clients on matters related to railroad rights-of-way, passenger rail operations, infrastructure project development, and drafting and negotiation of contracts for railroad construction, operations, and maintenance services.

Thank you, Allison, for taking the time to speak with me today.

JM:

Your career began as an architect and now you are the Chief Counsel at FRA, was a career in transportation an aspiration or did it occur by happenstance?

AF:

It's a little bit of both.  I'm originally from Brooklyn where we lived for the first three years of my life and we took the subway everywhere. And even once we moved to the New Jersey suburbs, we still took the bus into the city to the subway to get around and my orientation has always been towards public transportation for getting around.

But I think I've always had a fascination with systems and how do you make something work within a larger framework? That fascination is what led me into architecture.  The notion of designing the world, coming up with an idea that will migrate from my brain into a tangible structure - something that's present in the world in some way.

This is something that's been a consistent theme of my career, whether it's been architecture or law. The concept of ingesting and organizing a whole bunch of information that may not have any structure or logic to it, and having to make something with it, whether that's a building design or whether that's helping clients frame a legal problem.

JM:

And did this intellectual framework apply to your service on the Montgomery County Board of Appeals?

AF:

Yes, it applied when helping people solve the issue that they've come to solve in the context of a zoning ordinance, and so, that mode of thinking has remained not static, but certainly constant in my career and it's something that's common to both by practicing as an architect and what I've done as a lawyer in transportation.

It’s also been helpful to be able to think in those terms now that I'm at FRA where we deal with the national rail system and all of the inputs and factors and circumstances that we have to deal with to keep it safe and keep it running and accommodate both passenger and freight rail service.

So, I didn't start out as a small child thinking I would definitely work in transportation, but it does not surprise me that I wound up in this field.

JM:

After many years in private practice, what has the transition to your new role in government service been like particularly your new management responsibilities? 

AF:

So, I would say in terms of the management, I have an extremely capable Deputy Chief Counsel Brett Jortland, who has been in that chair for several years, and really is the person with his finger on the pulse of the day-to-day operations of the chief Counsel's Office. 

Brett understands our staff very well.  He understands people's strengths, what kind of projects people are interested in doing, so I give him all the credit for the day-to-day management of FRA’s Chief Counsel's office because if there's anything I need to know, I go to Brett first and then we work out, who will work on a project, or if we get requests from Congress and a member very specifically wants something, how do we respond to it? And so, Brett has been an incredible font of advice on how to run this office on a day-to-day basis.

Quite frankly this frees me up to focus on the legal implications of the policy issues that we deal with.

JM: 

You over see the Office of Safety Law and the Office of General Law, do these two subdivisions of FRA’s General Counsel’s office demand an equal amount of your attention or does one of them run on auto-pilot?

AF:

The Office of General Law and the Office of Safety Law run on separate agendas. But Safety Law is heavily involved in rulemaking because we do the bulk of our rulemaking addressing safety issues and safety regulations. And so, the regulatory activity there is heavily weighted, though not exclusively, towards safety law.  Outside of rulemakings, there is also a significant legal effort dealing with FRA’s safety enforcement responsibilities. 

Turning to the General Law/policy side of the shop our focus now is gearing up to address all the needs under the BIL to move the money out and to give advice to applicants.

The BIL also charges FRA with standing up three new programs: the Railroad Crossing Elimination Program, and two programs aimed at developing intercity passenger rail across the country: the Corridor Identification and Development Program, and Interstate Compact Program.

Our focus right now is making sure that we are crafting guidance that is clear and accessible and useful to all kinds of different participants.

At FRA, we know that there are the more sophisticated organizations that understand how to deal with the federal government and seek grant funding from FRA, FTA and the Build America Bureau and how to juggle all of the associated requirements. But we also want to make sure that we are communicating effectively with the small municipality that doesn't have a ton of resources but also has a problem – such as a grade crossing that it's trying to deal with and maybe they've partnered with a railroad in their area to solve the problem by getting federal funding.

We are working hard to make sure that our guidance makes sense, and then to move all that money out, while at the same time maintaining the cadence for the programs that already exist and for which we are now receiving increased levels of funding.

Reflecting on your prior question about my transition to government service out of private practice, it's really a fascinating mix of strictly legal questions, and then questions that address the policy that we're trying to embody and how best to deliver that.

JM:

Can you provide an example of how your office works with other modes within DOT?

AF:

Sure, one example is the work that the professional career staff at FRA and FTA have been doing over the past year and a bit to harmonize, to the extent possible our respective agencies’ requirements for those projects that might be big enough for a project proponent to seek funding from both agencies.

For instance, how do we make sure that the Buy America requirements map effectively and can run together well, because while they are largely the same, they're not exactly the same.  Neither agency can say: oh, just use their (or our) Buy America program. This has to be done through affirmative and conscious coordination efforts.

Buy America is one example where we definitely want to make sure that the two agencies understand one another's approach in grant making for those particular requirements. But, there’s a whole laundry list frankly, of things on which we've been coordinating and working with FTA to coordinate our responses when we do get questions from applicants.

JM:

FRA general counsel’s office falls under the FRA Administrator in FRA’s organizational chart, how much does your office engage with DOT’s Office of the General Counsel and on what types of issues does that involve?

AF:

It essentially comes down to who's being impacted, and so where those things are clearly limited to FRA they remain within FRA jurisdiction. In those situations, there is usually not very much interaction with the DOT Office of General Counsel (“OGC”).

That said, there are many issues that are not limited to FRA and so we will work in parallel with OGC or if there's an issue that comes to OGC and is somehow relevant to FRA, we will contribute to the discussion.  We have a running conversation, but exactly what form it takes changes with the situation.

For example, rulemakings always involve OGC, because all of the rules that the operating administrations are working on are ultimately DOT rules. 

Rulemakings are very formal, but on the other end we have less formal work streams that we work on together such as questions that come from stakeholders or advocacy groups.  There may be some things we receive at FRA that we'll say, you know what, we need to bring OGC into this and let's talk to the General Counsel and take it from there.

We also have a monthly meeting among all the chief counsels across all of the operating administrations and that's a really great window to find out what's happening across the board at DOT.

JM:

What would you say have been the greatest challenges of the transition out of private practice to government service?

AF:

Well, the challenges have been COVID and remote work related.  You know, I'm coming into this new ginormous organization, as a face on a video call. And so, being an architect, I tend to think spatially: I like to know where people sit in the building that just helps me understand the world better and coming into FRA without that perspective was challenging since it's all just been mostly on a screen for the last six months.

I would say the difficulties have primarily been practical and logistical.  The agency itself, DOT, has done a great job of making remote work as easy as possible for new entrants.  But, nevertheless, there can still be this feeling that I'm fencing in the dark at times. 

I am in the building now several times a week and we are ramping up to bring people back to the office. So, I think, some of that disorientation will, I hope, start to dissipate as I get to know where people are in the building and I get to know them in person - essentially, as everything becomes three-dimensional again.

JM:

What aspects of private practice have you missed?

AF:

Primarily, it is my colleagues because they're a really great bunch and our clients were largely a delight to work with and brought us fascinating questions. But at the same time, I've got a great new crew here at DOT to work with.

It hit me a few weeks in that at the beginning of this job, I felt like a college freshman. You know, I was really excited about the new opportunity. And I was really excited about all these people I was meeting and doing something completely different. But I kind of was wistful for the folks back home that I left.

In terms of the law and how I approach legal questions - it is, in many ways, very similar to the approach that we took when I was at the firm.  So, I haven't had to do a big rethink in terms of how I approach the legal questions I'm dealing with. It has been a wonderful surprise to get to FRA and find that the approach here is very similar to the approach that I'm familiar with, working with a team of people who need to be nimble, thorough, and able to respond to all kinds of weird input and questions from any number of sources.

JM:

How do you spend a typical day in this role as Chief Counsel? 

AF:

It's really hard to identify a typical day.  We have a lot of meetings because we spend a lot of time thinking out loud. We problem solve in real time.

I will say that you do hear a lot of complaints in the general world about unnecessary meetings, but there has hardly been a meeting I've been involved in over the last six months that wasn't essential in some way.

It has been really been remarkable. If we have a bunch of people together on a video call, it's because we've got something really juicy that we need to figure out. So, a typical day is bouncing from one video call to the next.

A theme of how we work is that it is very immediate, and I find that when I do have something that requires me to think deeply, I need to carve out the time to do that. Because there are, you know, any number of questions floating around and it's a constant stream of emails and calls and meetings. If I want to create some quiet, I need to do that affirmatively.

JM:

Allison, this has been a lot of fun to talk with you.  I can’t thank you enough for taking the time to speak with me today and allowing me to share our conversation with the ATLP membership.

AF:

It's been great to catch up and I do miss the folks at ATLP, and I credit frankly, my involvement in organizations like ATLP with making my job now easier because I've had those opportunities over my career to talk to people from different kinds of organizations and have informal conversations. 

It's really valuable to have a professional association that provides lots of different participants in an industry a chance to get to know each other as people and to talk about issues without an agenda.  Sometimes as lawyers, it is nice just to speak to colleagues about different strategies for working on certain problems and groups like ATLP provide a really great forum for those kinds of conversations. 

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