BACKGROUND
The nation’s freight, intercity passenger, and commuter rail operators need a program that can provide authoritatively researched, specific, limited-scope studies of legal issues and problems having national significance and application to rail transportation. To meet similar needs in the highway area, the Transportation Research Board (TRB) of The National Academies inaugurated a project in 1969 under the National Cooperative Highway Research Program. This project has been funded continuously since that time, eliciting strong support and approval from the constituency it serves. In addition, a transit legal research project was implemented in 1992 under the Transit Cooperative Research Program, and that project has also been continuously since its inception. Finally, an airport legal research project was implemented in 2006 under the Airport Cooperative Research Program, and continues today.
Each year, numerous attorneys nationwide are involved in rail-related work; yet, there is no centralized collection of legal resources on which they can depend. The National Cooperative Rail Research Program’s (NCRRP’s) Legal Research Digest series will provide rail-related research on a wide variety of legal topics. This solicitation is the first in what is anticipated to be a series of studies of legal issues affecting the rail industry.
OBJECTIVE
The objective of this research is to provide legal research on three topics of interest to the legal community associated with the rail industry. The product of this research will be an NCRRP Legal Research Digest for each of the three topics that will ultimately be included in a series of reports on legal issues associated with the rail industry, addressing issues related to passenger, freight, and commuter rail. Each document will provide interested attorneys with authoritative, well-researched, specific information that is targeted in scope.
This research will address the following three legal topics:
· Project 12-01/Topic 1: Compilation, Review, and Summary of Railroad Law Resources ($75,000);
· Project 12-01/Topic 2: Issues that Emerge when Public Entities Acquire a Real Property Interest in Rail Lines ($60,000); and
· Project 12-01/Topic 3: Buy America(n) Requirements ($50,000).
Each topic is further described below. Proposers may respond to one or more of these topics.
RESEARCH PLAN
If responding to more than a single research topic, proposers should submit a separate proposal for each topic. Proposers should develop and include in their proposal(s) a detailed research plan for accomplishing each topic of interest. Proposers are expected to describe research plans that can realistically be accomplished within the constraints of available funds and contract time. Proposals must present the proposers' current thinking in sufficient detail to demonstrate their understanding of the issues and the soundness of their approach to meet the topic objective. The research plan should be divided into tasks, and proposers must describe in detail the work proposed in each task. The research plan should also include a description of proposed deliverables for each task or group of tasks along with a detailed project schedule.
A separate selection will be made for each topic based on the qualifications of the research team and quality of the proposal. Research proposal content requirements are discussed in the sections that follow.
Project 12-01/Topic 1: Compilation, Review, and Summary of Railroad Law Resources
The objective for this topic is to develop (1) a list or index of substantive legal areas and/or issues that railroad attorneys, representing freight and passenger (commuter and intercity) rail operators and owners (including government entities), encounter; (2) a bibliography of sources tied to the index that rail attorneys may consult for purposes of research and keeping informed on relevant developments in railroad-related legal issues; and (3) a narrative summary of current relevant law in selected categories. The sources included in this research may be statutory, regulatory, case law, or scholarly material, and may be web-based or in print.
The report for this topic should contain a listing of available resource material, divided into appropriate index categories. Examples of categories could include, but are not limited to, the following: (1) liability and insurance, (2) federal pre-emption, (3) environmental, (4) labor (including applicability of Davis-Bacon), and (5) use of eminent domain (by and against a railroad).
The research will be carried out in a minimum of three tasks:
Task 1. Prepare the following: (1) a list or index of substantive legal areas and/or issues applicable to passenger and freight; (2) a recommended set of substantive areas of law from that list for narrative summary that are of particular significance to the rail industry; (3) a rationale for those selections for review and confirmation by the panel; and (4) a detailed scope of work for subsequent tasks.
Provide the product of Task 1 to the panel for discussion and approval via a teleconference. Based on that teleconference, the research team and the panel will agree on the scope of work for remaining tasks.
Task 2. After approval of the product of Task 1, complete the index and the accompanying narrative summaries. Prior to completion of Task 2, participate in an interim meeting with the panel to review output before preparation of the draft final report. This interim meeting will be in the form of a web conference.
Task 3. Prepare the draft final report for review and approval. Questions and comments will be shared with the research team for response and resolution in the revised final report.
Project 12-01/Topic 2: Issues that Emerge when Public Entities Acquire a Real Property Interest in Rail Lines
Acquisition of a real property interest in rail lines by public entities is increasing. There are advantages and disadvantages when public entities gain an interest in a rail corridor in terms of ability to operate, maintain, and upgrade corridors, while avoiding potential conflicts associated with contributing public funds to a private freight railroad entity. Some issues related to acquisition may depend on whether a rail line is still in service, or if it is already or about to be abandoned. In addition, negotiating the purchase of a rail line requires an appropriate valuation of the right-of-way. For example, valuation of the right-of-way can be calculated using (a) net liquidation value (NLV), (b) going concern value, or (c) another appropriate valuation method. How capacity measures are incorporated into the valuation process is also a difficult issue to address, and can affect overall risk assessment. It may be important to assess the scale of risk, how risk (credit, liability, and other categories) is evaluated, how that risk and subsequent uncertainty is factored into the valuation, and how that process affects asset securitization. Other issues addressed under this topic should include, but not be limited to, how to consider indemnification issues in states that have not waived sovereign immunity, and the role of the Surface Transportation Board (STB) in these transactions.
The research will be carried out in a minimum of three tasks:
Task 1. Prepare the following: (1) an identification and assessment of critical issues related to acquisition of rail lines by public entities, (2) a detailed outline of those critical issues that will be addressed in the final report, and (3) a detailed scope of work for subsequent tasks.
Following completion of this task, provide the product of Task 1 to the panel for discussion and approval via a teleconference. Based on that teleconference, the research team and the panel will agree on the proposed scope of work for remaining tasks.
Task 2. After approval of the product of Task 1, complete the remaining tasks in the approved scope of work. Prior to completion of Task 2, the research team will participate in an interim meeting with the panel to review output prior to preparation of the draft final report. This interim meeting will be in the form of a web conference.
Task 3. Prepare the draft final report for review and approval. Questions and comments will be shared with the research team for response and resolution in the revised final report.
Project 12-01/Topic 3: Buy America(n) Requirements
The objective of this topic is to address the requirements of four existing Buy America(n) programs applicable to passenger and freight rail systems—each of which may have different regulatory and statutory requirements: FRA, FTA, FHWA, and Amtrak. The report dealing with this topic should address similarities and differences among the various programs and their applicability to freight and passenger rail. In this analysis, “passenger rail” encompasses high-speed, intercity passenger, and commuter rail. The analysis should further address recent agency changes and policy interpretations, including, but not limited to, application of waivers. The analysis should also address the situation in which projects are funded through multiple federal funding sources with different Buy America(n) requirements and describe strategies for addressing conflicts that might arise. The research conducted under this topic should include case studies to illustrate the range of conflicts or issues that have arisen or may arise through application of these programs. Based on the case studies, the research team should identify observed differences in the application of the provisions of this program, as well as possible strategies to resolve common industry problems.
The research will be carried out in a minimum of three tasks:
Task 1. Gather information to summarize, compare, and contrast components of the several applicable programs. This effort should also include an evaluation of the effects of potential multiple sources of funding, and it should identify issues and potential areas of conflict. Prepare a detailed proposed scope of work for subsequent tasks, including a synopsis of each recommended case study.
Following completion of this task, provide the product of Task 1 to the panel for discussion and approval via a teleconference. Based on that teleconference, the research team and the panel will agree on the proposed scope of work for remaining tasks.
Task 2. After approval of the product of Task 1, complete the remaining tasks in the approved scope of work. Prior to completion of Task 2, participate in an interim meeting with the panel to review output prior to preparation of the draft final report. This interim meeting will be in the form of a web conference.
Task 3. Prepare the draft final report for review and approval. Questions and comments will be shared with the research team for response and resolution in the revised final report.
STATUS: Three separate contractors were selected. Topic 1: The Larry Thomas Law Firm; Topic 2: Kaplan, Kirsch & Rockwell LLP; Topic 3: Conner Gwyn Schenck PLLC. The final report for Topic 3 has been published as Legal Research Digest 1. Topic 1 has been published as Legal Research Digest 2. Topic 2 has also been published as Legal Research Digest 3..
