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40 · Provide clear expectations through position descriptions conducted a survey of state and local agencies that interact with and quarterly or annual performance reviews. the railroads on project agreements. The comments relating to · Provide accountability measures and joint review. regulatory issues were linked to the following topics: · Develop guidance for funded position programs at resource agencies. · Insurance coverage. Current federal regulations require · Keep lines of communication open. contractor liability insurance of $2 million per incident, or · Designate a program management person at the DOT. cumulatively $6 million per year. These limits were last Where multiple DOT-funded staff are employed, designate/ updated in 1982 and are far below amounts now required by fund the position of a program manager within the resource the railroads. Using federal funds to pay for higher amounts agency. requires case-by-case federal approvals. · Provide orientation to the DOT transportation planning · Reimbursement for preliminary engineering. Preliminary and project development process for funded positions. engineering costs are eligible for federal reimbursement, · Support ongoing professional training for the position. including costs for railroad reviews of proposed project concepts and plans. However, if no project is built, federal law requires reimbursement from the states. Some states Timeliness Incentives said this provision limits their flexibility in consulting early Another variation could be to pay premiums for prompt with railroads on project concepts. If the consultations lead reviews. Highway agencies regularly pay incentives to con- to a decision not to build a project, the railroads' costs for tractors for early completion of projects. These incentives engineering reviews are not eligible for reimbursement. have become standardized as various contract provisions that · Mandatory project review timelines. Lack of timely can be applied to the specific conditions of construction proj- responses from railroads was one of the most frequent com- ects. Highway agencies have paid incentives for early comple- plaints. Several highway agencies said mandatory response tion, included penalties for delays, and charged "lane rentals" times were desired. Cities were particularly adamant about that give the contractor incentives to keep traffic open. They a lack of timely responses to requests to establish quiet zones. have also used "A+B" bidding, in which A is the price of the · Railroad participation limits. Federal regulations require construction and B is the length of construction; a combina- railroads to contribute little to projects that cross their tion of both results in the awarded bid. properties, even for projects such as grade separations that No highway official suggested paying premiums for prompt provide some operating benefits to railroads. Some high- reviews, and there is only one example of a state agency that way agencies said railroads should recognize the benefit to funds a position at a railroad to accommodate its reviews. the transportation system of highway projects and agree to contribute more to them. · Preserving rights-of-way for future track expansion. PART 3: Review of Extending highway bridge spans over railroads to allow more Federal Regulations right-of-way for future track expansion is a recognized This research project called for the research team to "review federally eligible expense, if the need for the tracks can be applicable federal regulations that impact public agencies reasonably documented. Some highway agencies and some and railroads on highway renewal projects and identify con- FHWA officials complain that railroads have required flicting interests among the participating parties." Comments longer bridge spans even though these railroads have no firm from the project panel subsequently directed that the proj- plans for track expansion. Some highway agency personnel ect team explicitly examine 23 CFR 140.900140.922, 23 called for more explicit justification from the railroads before CFR 646.101646.220, including the appendix to Subpart B accommodating their requests for right-of-way protection. of Part 646, and 23 CFR 635.201635.205. In addition, the team agreed to examine 23 CFR 636. In the final section of Insurance Coverage this chapter, these regulations are explained and examined in detail. In summary, they relate to how highway agencies can Contractors who work on railroad rights-of-way are required use federal funds to plan and build railroadhighway projects to have public liability and property damage insurance to cover and how they can, or cannot, reimburse railroads for costs not only the railroad but also any other damages that may related to such projects. occur as a result of the project (23 CFR 646.105). In 23 CFR The team gathered information about the effects of these reg- 646.111(a), the liability limit is set at $2 million per occurrence, ulations on the parties in four primary ways. It interviewed six with an aggregate amount of $6 million for aggregate damages of the seven Class I railroads in detail. It interviewed 10 states. in a year. The Code of Federal Regulations indicates these lim- It conducted a meeting of a project advisory panel. Finally, it its were last updated in 1982. Railroads routinely demand
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41 much higher liability limits from highway agencies. This cre- the railroads are overly conservative and create needless pub- ates several issues. The highway agency must use state funds lic expense. In cases where a project may occur on a railway to pay for the coverage or it must seek case-by-case federal shared with passenger service or on a highly traveled line in a exemption to pay the higher limits. The case-by-case exemp- dense urban area, high liability amounts may be understand- tion can add additional time to the project-development able to the highway agencies. Agencies have said, however, process, especially if the highway agency or FHWA believes that when those same high amounts of coverage are requested the insurance requests to be excessive. for a rural project, they cannot readily accept the higher costs. States and railroads generally agreed that the 1982 limits in The highway agencies also note that small contractors may 23 CFR 646 are low by current insurance standards. Railroads not be able to secure such an amount of liability insurance and, point out that just a new train locomotive costs more than therefore, cannot bid on such projects. In many states, the aver- $2 million and that the minimum liability limits have not esca- age contractor is a small contractor and their exclusion results lated with inflation, or with modern legal standards. The rail- in fewer bidders. When the number of bidders is restricted for roads' position in general has been that highway projects do any reason, it generally over time leads to higher bid prices. their private companies little good but can create extraordinary The FHWA Office of Program Administration reported in liability. Railroads are required by law to accommodate large December 2008 that it was initiating a Notice of Proposed amounts of hazardous material shipments. A derailment, Rule Making to reexamine the liability limit issue. explosion, or release of hazardous materials can lead to Some agencies also objected to some attempts by railroads multimillion-dollar liability. Such liability can increase signif- for complete indemnification, even for railroad negligence. icantly when freight trains operate on the same tracks as pas- However, the insistence on indemnification even for railroad senger trains, or when freight shipments travel through densely error does not appear to be universal. Several agreements were populated areas. As a result, both railroads and highway agen- found in which indemnification requirements were tempered cies say the railroads have required liability limits of up to by statements which acknowledged that indemnification would $25 million for some projects, particularly ones that could be shared based on each party's negligence. affect passengers or populated areas. Some states include stan- dard limits of $5 million per episode and $10 million aggregate liability as a matter of course in project agreements. Federal Eligibility for Preliminary Engineering FHWA's Federal Aid Policy Guide of June 6, 2005, provides As mentioned, the railroads routinely charge for their staff's the following guidance for its state divisions to determine if time when asked to comment on proposed highwayrailroad the higher liability limits are warranted: projects. The need to make such charges generally is accepted by most public highway agencies, who understand the railroads' AMOUNT OF COVERAGE (23 CFR 646.111) need to attribute staff hours and costs under their cost account- In determining whether a larger dollar amount of coverage is necessary for a particular project, consideration should be ing systems. If the costs for project reviews and consultations are given to: not billed back to the public highway project, those costs are (1) the size of the project in question; passed on to the general railroad customers as overhead. (2) the amount and type of railroad traffic passing through Federal highway regulations recognize the eligibility of the project area; project reviews and allow them to be reimbursable under (3) the volume of highway traffic in the project area, includ- 23 CFR 646.202 and 23 CFR 140.900907. The regulations ing traffic generated by the contractor's activities; and are flexible in that they allow the railroads to be reimbursed (4) the safety rating, if available, for the contractor involved whether the reviews and consultations are provided by their in the particular project. in-house staff or whether the railroads or highway agencies a. The decision of the Division Administrator as to Federal hire a consulting firm on the railroads' behalf. participation in railroad protective insurance exceeding the dollar amounts in 23 CFR 646.111, paragraph (a), A point of contention arises, however, regarding federal should ordinarily be final. Exceptional or unusual cases eligibility if a project eventually is not built after federal funds should be referred by the field offices to the FHWA Wash- have been spent for reviews or consultation. FHWA can seek ington Headquarters, Office of Safety Design, for decision. reimbursement of the funds. In other cases, FHWA may not allow eligibility unless the state first "programs" the project. As mentioned, the positions of highway agencies are mixed This includes listing the project in the State Transportation on this matter. In response to a survey question about the Improvement Program and taking other procedural steps to issue, 16 agencies reported that insurance was a common make the project eligible for federal funding. "Programming" problem in agreements, while 21 respondents indicated it was a project consists of several substantive steps, such as provid- not. In some cases, the agencies agree that the railroads' ing guarantees that it can be paid for and assuring that its air- requests are warranted, whereas in other cases they contend quality impacts have been considered.
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42 Some highway agencies have contended that these formal- that is considering the project would like accurate information ities restrict their ability to consult freely with the railroads at regarding the project's costs, engineering concepts, construc- the critical early stages of a potential project's conceptualiza- tion duration, and what requirements the railroads may have. tion. Railroads have reported that they have had to write off The railroads cannot knowledgeably provide such information hundreds of thousands of unreimbursed engineering expenses without factual engineering and railroad operational analysis. incurred early in the project-development process because of Because experienced engineers can cost $200 or more per hour, the preliminary engineering (PE) regulations. At the early the preliminary discussions for the feasibility of such a project stages, a project may be only a concept without any facts regard- can run into many thousands of dollars. ing its costs or feasibility. On the basis of the railroad's early The ambiguity of whether such early discussions are feder- reaction, the state possibly could decide not to pursue the ally eligible for reimbursement can create delay, particularly project as feasible, or to fundamentally change the project if the sponsoring agency is a local government with limited concept. While most parties agree that early, often, and con- resources who needs to coordinate with the railroad, the state tinuous communication is beneficial, the federal eligibility highway agency, and FHWA. requirement can be an impediment, according to several Part of the issue lies with the definition of preliminary highway agencies and railroads. engineering in 23 CFR 646.204: To comment knowledgeably about a potential project, some degree of engineering analysis, geotechnical assessment, Preliminary Engineering shall mean the work necessary to or even railroad operational assessment may be needed. For produce construction plans, specifications, and estimates to the instance, a request to build a grade separation in an urban degree of completeness required for undertaking construction environment raises complex questions as to how to elevate thereunder, including locating, surveying, designing, and related work. (emphasis added) the railroad over the highway without significant impacts. The vertical clearance for the bottom of a railroad bridge over In 23 CFR 140.902, similar federal intent is noted: a highway should be a minimum of 23 feet. The degree of grade preferable for the railroad's approach to the bridge is This subpart, and all references hereinafter made to "proj- 1%, or 1 foot for every 100 feet of approach. These conditions ects," applies to Federal-aid projects involving railroad facil- can cause the railroad approach embankments to extend ities, including projects for the elimination of hazards of 2,600 feet on either side of the crossing, or up to approxi- railroadhighway crossings, and other projects which use rail- mately 1 mile in total. Creating this length of embankment in road properties or which involve adjustments required by high- an urban setting may mean that adjacent cross streets would way construction to either railroad facilities or facilities that are be cut off by the embankment, which would change neigh- jointly owned or used by railroad and utility companies. borhood traffic flows. If the overpass location is within several miles of a railroad The concept of "project" has not been consistently applied classification yard or intermodal loading facility, its effect on to consultations about the viability of a project concept in its that facility would need to be analyzed. Trains often can be very preliminary stages. Section 646.206(7)(e) notes that spe- stopped while awaiting access into such facilities. Their cific authorization from FHWA is required for each project stoppage can block streets and create impediments for other cost prior to the cost being incurred. The railroads' internal trains using those tracks. The new, elevated tracks approach- costs for PE before a project is authorized can be used as part ing the new overpass must be integrated into the network of of the railroads' financial contribution to a project, if such mainlines and sidings that flow into railroad yards and inter- contribution is required. However, those preauthorization modal facilities. costs are not eligible for federal reimbursement as PE. Not only must the tracks and sidings for the new crossing Section 102(b) of Title 23 of the U.S. Code requires that physically tie into the new elevated tracks, but the electronic if construction or acquisition of right-of-way for a highway signaling and switching systems must also be considered. project is not commenced within 10 years after the date at Again, because of the long tangents and curves required for which federal funds were provided for PE, the state will repay modern trains, a change in switching and signaling may affect the funds. However, the code notes that the 10-year period miles of tracks, or even the operations within a railroad's may be extended if the state requests it and FHWA approves entire region. the extension. Therefore, preliminary discussions can be quite complex A June 26, 2008, memorandum (Repayment of Preliminary regarding whether such a crossing is feasible, what its costs Engineering Costs) from the FHWA Office of Program Admin- might be, how it may affect a neighborhood, or what types of istration provides additional leeway for states to seek exten- construction staging may be necessary to build the crossing sion of repayment, or the outright forgiveness of such PE without affecting busy railroad operations. The highway agency expenditures. It cites the controlling Federal Code but also
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43 notes that 23 CFR 630.112 provides a slightly longer time It is not clear from the highway agency comments about PE frame for repayment, which FHWA Division Offices may use. eligibility if the highway agencies have considered using the The memorandum notes that when project termination is NEPA path as a justification for using federal funds for pre- the result of compliance with another federal law, FHWA has a liminary review of projects but then later dropping the proj- long-standing policy of not requiring repayment. For instance, ects if the project is not feasible because of environmental if the environmental analysis leads to a "no build" decision, then and community impacts. An e-mail communication with the PE funds do not need to be repaid. To require otherwise, the FHWA Office of Program Administration indicated that would create a "Catch-22" where the agency could be penalized such consideration would be made by the state Division Office for not conducting an objective environmental analysis or face under the provisions relevant to a NEPA "no build" decision. penalties of having to repay the PE funds if the environmental Also not clear from the comments is whether the highway process results in a "no build" decision. agencies have exhausted opportunities to use federal funds for "planning studies" of rail projects. Several categories of It is FHWA's view that 23 U.S.C. 102(b) is intended to federal funds are available for planning studies, including address the matter of PE projects remaining active for indefi- Surface Transportation Program funds. These are widely dis- nite periods of time. While an outright waiver of repayment of tributed and flexible funds that states, MPOs, and sometimes PE costs is not prescribed under this section, States may request counties have as a result of pass-through funding from FHWA a time extension from FHWA for repayment of Federal funds to the states. These funds can be used for local planning studies, on a project that has stalled. The request should be accompa- nied with sufficient justification to the Division offices. Divi- such as studying mobility, safety, emergency response, and sion Administrators may grant an extension of time to begin intermodal needs of an area or region. Inherent in such stud- the subsequent phase of work only if the justification is deter- ies can be the expenditure of engineering funds, and possibly mined reasonable and beyond the State's control. reimbursement of expenses to railroads, for the consideration of highwayrail projects. Because such funds are not PE funds, The memorandum lists the following as reasonable exam- they probably can be construed as not falling within the require- ples for time extensions: ments for repayment if a project is not built. It is quite common for planning studies to examine projects that are not eventu- · Litigation; ally constructed because of their cost, impacts, or impracti- · Complex consultations with state, federal, or local agencies; cality. Again, although the planning study approach may need · The public involvement process has altered the state's plan case-by-case approval, it appears that it could be a mecha- for satisfying the project's "purpose and need"; and nism for states to use federal funds for early coordination of · Projects that use unique implementation or a funding project concepts. approach to which the state is not accustomed. Required Time Frames for Reviews The memorandum notes that it is not acceptable to forgive PE expenditures because of shifting political priorities, insuf- The greatest number of open-ended comments from state ficient transportation budgets, or a lack of staffing to pursue and local highway agencies regarding the railroad agreement the project. process was a request for timely responses from the railroads. Many ambiguous circumstances are possible that can Timeliness was a consistent theme from highway agencies cloud the issue of whether PE funds would need to be repaid. that ran through every phase of this project. Although "shifting political priorities" do not constitute a valid Several states called for a formal highwayrailroad project- reason to forgive PE expenditures on a project, clear public coordination process adopted into federal code. They advo- opposition to a project that is noted in the environmental cated for mandatory coordination periods and required process could be a valid justification for dropping a project in turnaround times for responses from the railroads. In effect, the the NEPA process. "Insufficient transportation budgets" may highway agencies are asking for a process similar to the long- not be a valid reason, but localities have the ability to influence sought "environmental streamlining" that highway agencies the withdrawal of funds for a project through the metropolitan have desired from the NEPA process for highway projects. planning organization (MPO) process. If a community opposes The environmental streamlining movement has been quite a project because of its impact, it can work through the MPO extensive, and attracted considerable discussion in the 2004 process to remove the project from the regional transporta- transportation reauthorization debates. tion program, which then eliminates federal funding for the The streamlining issue is quite complex and contentious. project. Differentiating between an appropriate and an in- Highway agencies frequently complain that it takes a decade or appropriate justification for not pursing a project may be quite more to receive environmental approvals for a complex project, nuanced and dependent on the unique circumstance. such as a bypass or new interchange. However, environmental
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44 groups and federal resource agencies are adamant that federal In the SHRP 2 R-16 project, the extensive interviews with environmental laws do not allow them to cut corners. Statutes railroads and highway agencies reveal that it is not common for such as Section 404 of the Clean Water Act or the Endangered highway agencies to present railroads with critical-path sched- Species Act contain absolute provisions that require the avoid- ules. It is not common for the highway agencies to present a ance of impacts to critical resources such as wetlands, waters of firm program of projects to the railroads, with a clear sense of the United States, or threatened or endangered species. Those priorities for review and clearly requested deadlines for the statutes do not easily accommodate programmatic approvals reviews. Repeatedly, the railroads have expressed skepticism or other strategies that often are used to accelerate project that highway agencies could present a clear list of projects that reviews. The issue of environmental streamlining has been should be reviewed during the course of a year. The railroads-- debated for more than a decade and has resulted in several speaking from years of experience--note that the funding of time-saving innovations, both at the federal and state levels. many proposed projects often is very uncertain. They report However, the timelines for environmental reviews have not gaps of years sometimes between when they provide comments been noticeably shortened for complex projects, except in on projects and when they next see those projects. The rail- isolated high-profile cases. roads noted such gaps uncritically. They expressed under- The state and local officials responding to this project sur- standing that highway agencies face uncertain funding sources, vey, however, reiterated repeatedly their calls for some kind particularly when locally funded projects are presented. How- of streamlining of the railroad process, or for mandatory ever, during in-depth interviews with six of the seven Class I turnaround times from the railroads. railroads, most expressed skepticism that highway agencies In response to an open-ended survey question, state and could routinely provide them with a clear sense of a year's municipal railroad coordination officials advocated the worth of projects needing review. The railroads indicated they following: review projects as they arrive, without the ability to anticipate how many projects they must plan to review in a year. · Federal regulations should define the review process from Railroad reviews are conducted with a mix of internal rail- start to finish and include standard agreements that the road engineers and a mix of outside, task-order consultants. railroads should accept. The in-house reviewers generally have a finite review capacity, · The federal regulations should also define the process to based on their finite available work hours. However, the exter- use if the DOTs and railroad companies cannot come to an nal review capacity of the railroads is more or less infinite, con- agreement. sidering their ability to refer review work to a national network · Railroads should always promptly respond to agency of consulting engineering firms. Several of the Class I railroads inquiries. noted that they have agreements with up to a dozen consulting · Railroads should hire more public projects staff to expedite engineering firms for reviews. Because these review costs are reviews and respond to inquiries. passed on to the highway agency, the cost of the reviews does · Railroads should understand and try to avoid the contractor not present an impediment to the railroads. delay claims that project sponsors can incur when railroad It would appear possible for the railroads to anticipate the decisions lead to project delay. needed review workload for any one state or municipality, if the · Project sponsors should be able to advance projects if rail- state or municipality would provide the railroad with a firm, road companies do not respond promptly to submittals. multiyear schedule of which projects will be referred to the rail- An agreed-on series of coordination steps with agreed-on road at what time over the course of the next one, two, or even timelines theoretically is possible. Highway departments and three years. Such firm time frames are anticipated in the fed- review agencies have regularly shared such milestones, both erally required State Transportation Improvement Programs for individual projects and for programs of projects. The use (STIP) and the regional Transportation Improvement Pro- of critical-path scheduling is common in the construction grams (TIP) developed by the MPOs. The STIP and TIP are industry and often has been used for the project-development required to be fiscally balanced, which means they should only process, as well. In such a process, the review milestones are contain projects that can be afforded. They should by regulation identified in advance and the highway agency reaches under- only include projects that have been accepted into the regional standing with the various review agencies as to when submit- plans by the public planning agencies. In short, the STIPs and tals should be expected and what the desired response times TIPs are required under federal regulations to be realistic, legit- are. Following the collapse of the I-35 bridge in Minneapolis, imate schedules of projects that are to be constructed within the the Minnesota DOT completed a design-build of a new bridge next four years. In addition, each state is required to adopt a in less than 12 months. Such a feat requires extensive coor- project development process (PDP), which is a clear sequence dination and cooperation with various review agencies, and of steps it follows to develop each project. The PDP is intended the Minneapolis example demonstrates that such cooperation to provide the public and interested parties an understanding is possible. of the steps necessary to develop a project, providing them
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45 opportunity to comment on such projects at the appropriate The section specifically exempts railroads from state laws decision points. Theoretically, the predictable STIP and PDP requiring them to participate in hazard-elimination projects milestones should provide a clear path of what railroad that are federally funded. It also says that projects for the highway projects are under development, what their schedules reconstruction of grade separations are of "no ascertainable are, what their milestones are, and, therefore, when railroad net benefit to the railroad" and, therefore, the railroads should reviews should be required. In addition to the federally required not have to contribute to them financially. If a project sepa- lists of projects and their milestones, nearly every state high- rates a crossing that has lights and gates, then the railroad con- way agency has some form of computerized project manage- tributes 5% of the cost of the grade separation. If the crossing ment system. These systems can produce lists of projects by is not actively protected, the railroad is not required to con- their anticipated schedules and needed milestones. tribute 5% to the cost of the grade separation. In summary, the states in some cases are calling for firm Several of the states that commented in the survey for this federal guidelines for railroad reviews, but it has not been project advocated for additional railroad participation. Their documented that the states and local agencies have exhausted logic was that all the modes are linked and that railroad users voluntary efforts to assist the railroads to routinely anticipate also depend on the highway network for mobility. They dis- which projects they should expect to review over the course agreed with the contention that a grade separation does not of a year. Nor have the highway agencies been able to produce benefit a railroad. They contended that the elimination of a metrics that document the delay which they report. crossing improves railroad operations and that the railroads The experience of the environmental streamlining efforts receive benefits from the crossings. As one state described this have revealed several major issues that need to be addressed sentiment, "Certain railroad companies should rethink their in any project-streamlining framework if a national frame- business model to accept the fact that (1) publicly funded work for railroad reviews were to be enacted: highway capacity improvement projects that cross or affect existing railroad rights-of-way are not funded and designed to · The national framework most likely would require standard benefit railroad operations [and] (2) railroad companies use project development processes across the states. The seven and depend upon the entire transportation infrastructure Class I railroads each work with many states. For the rail- (including highways) just as much as any other highway user roads to adhere to common review time frames, standardi- or mode of transportation (i.e., air or ship), and should zation in how the states identify milestones and in how they accommodate highway construction projects accordingly." define these milestones, as well as what elements are included Since at least the deregulation of the rail industry in 1980, at each milestone's submittal, would need to be achieved. the railroads have received exemptions from different state · A common problem with environmental streamlining with requirements on contributions for projects. Histories of the federal review agencies has been that when a resource agency rail industry have noted how in earlier decades the highly reg- receives a submittal, if it decides the submittal is incomplete, ulated railroads were forced to pay for grade separations and it can request additional information, which "restarts the other improvements that they neither sought nor benefited clock" for the review period. Routinely, resource agencies from. The federal clarification of their contributions in federal respond to submittals by requesting more information, code largely ended such different financial requirements, at which extends the review period. · Many highwayrailroad projects are local ones, which least for federal aid projects. The railroad officials interviewed neither the state or federal highway agencies control. It will in this study were adamant that their companies cannot have be difficult for the state highway agency to guarantee sched- their capital-investment decisions dictated by outside parties, ules from the local agencies. such as the highway agencies. To do so would put them in a uniquely disadvantaged position in which their internal A subset of the timely review issue was the issue of timely investment needs could be overridden by local agencies who reviews relating to urban quiet zones. At least 2 of the 11 insisted they contribute to highway projects that they cannot responding cities singled out a lack of responsiveness on quiet control or benefit from. zone requests and reviews as particular causes of delay. Provisions for Additional Tracks Railroad Participation In 23 CFR 646.212, FHWA agrees to participate in the addi- Several of the respondents called for greater financial partic- tional costs to provide space to allow for additional tracks to ipation from the railroads for highwayrailroad projects. In be added when highway projects cross or affect railroad rights- 23 CFR 646.210, several conditions are spelled out under of-way. The section notes that it will participate when the which railroads either do or do not have to contribute finan- railroad "establishes to the satisfaction of the State highway cially to highwayrailroad projects. In most circumstances, agency and FHWA that it has a definite demand and plans for the railroads do not have to contribute. installation of the additional tracks within a reasonable time."
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46 State highway agencies have complained that railroads have dates back to the early 20th century when railroads were con- routinely requested wider spans to accommodate additional sidered to be publicly sanctioned monopolies, much like power tracks beneath them without providing documentation that and telephone companies. In states with these commissions, they have definite plans to add tracks. Some of the respondents the highway agencies develop arrangements with them to share advocated that railroads should provide greater justification for duties on developing projects and passing through federal the additional expense of lengthening overhead bridges. They funds for the projects. have argued that without definite plans documenting the need In at least one state, the highway agency was adamant that for the additional tracks and when the tracks will be built, the the Federal Highway Administration should assert its primacy highway agency should not have to incur additional expense to as the lead agency, or that FHWA at least should approve each lengthen structures to accommodate those future tracks. project specifically. The officials in this state contended that the The railroads counter that almost all long-term forecasts lack of FHWA sponsorship left primacy for the project with the indicate that rail volumes will grow for decades. They note state utilities commission, which asserted control over projects that a new bridge may stand for at least 50 years, making it that do not exist in federal regulation. The state contended that highly likely that during the life of the highway bridge, the if FHWA approved each Section 130 hazard-elimination proj- adjacent railroad tracks will need to be expanded. Providing ect, the state DOT would be able to exert more stewardship space for additional tracks on most mainline railroads repre- over the projects and not have unreasonable requirements sents a reasonable assumption, the railroads contend. imposed by the non-highway-focused utilities commission. Accounting Rules Railroad Reimbursement Costs Under 23 CFR 140.900922, a wide variety of railroad costs Several of the Class I railroads have union agreements that are eligible for federal reimbursement. Eligible costs include require most track improvement work and most "flagging" to both hazard-elimination project costs and the costs for non- be conducted by its union personnel. Flagging involves mon- safety projects that affect railroads and that create expense for itoring the approach of trains into a construction zone, which the railroads. Several stipulations apply: may be impeded by equipment, construction workers, or con- struction materials. Several of the states, and particularly the · The project has to be programmed in the STIP. cities, complained that the railroad costs were excessive and · The work must be federally authorized before it is begun. that their taxpayers could save money if the highway agency · Expanded crossings must meet the horizontal and vertical were allowed to bid this work or to hire its own flaggers. clearance standards set in 23 CFR 646. "Railroad force account work reimbursed with public funds The provisions allow the railroads to bill for labor, profes- should be performed and billed as if it was being paid for sional services costs, overhead rates, fringe benefits, materials, by their own company, rather than considered `free money' and insurance. to perform work outside of what is required/necessary to At least one railroad noted its difficulty in documenting accommodate the highway improvement project work," said that its costs are "reasonable" as required in 23 CFR 140.907, one state. and that the costs are in compliance with 48 CFR 31 of the "Also it would be extremely beneficial if DOT contractors Federal Acquisition Regulation (FAR). FAR Part 31 consists could do some or all of the RR crossing work. This is likely a of 38 pages of federal accounting rules. The FAR rules were union issue. However, allowing DOT contractors to do some developed for a large array of federal contracts, including or all of the work would save our jurisdiction probably tens highly complex defense contracts as well as relatively simple of thousands in tax dollars," said one city. highway projects. To ensure that a company bills its costs in The ability to draft federal regulations to override railroad compliance with the FAR requires a degree of accounting union agreements is probably quite limited. The right to col- sophistication that is unique and applicable only to instances lectively bargain is also protected in federal law. It would in which charges are billed back through the highway agen- appear difficult to develop regulations that would counter- cies to FHWA. At least one of the railroads suggested that mand union agreements relating to railroad construction work simplified accounting requirements would streamline its and railroad flagging. process and probably lessen its costs. Federal Representation FHWA Lead on Safety Projects Four cities that independently responded to the survey called In some states, a public utilities commission still plays a role in for an undefined but firm statement of federal advocacy on railroad safety projects. The involvement of these commissions behalf of local governments that interact with the railroads.