from the FRA website:
Tourist, Scenic, and Excursion Railroads
FRA exercises jurisdiction over tourist, scenic, and excursion railroad operations whether or not they are conducted on the general railroad system of transportation. There are two exceptions: (1) operations of less than 24-inch gage (which, historically, have never been considered railroads under the Federal railroad safety laws); and (2) operations that are off the general system and "insular."
Q. 2 - What does insular mean?
Answer: Insularity is an issue only regarding tourist operations over trackage outside of the general system used exclusively for such operations. FRA considers a tourist railroad to be insular if its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of any member of the public "except a business guest, a licensee of the tourist operation or an affiliated entity, or a trespasser" would be affected by the operation.
Q. 3 - When is a tourist railroad not considered insular?
Answer: A tourist operation will not be considered insular if one or more of the following exists on its line:
• A public highway-rail crossing that is in use;
• An at-grade rail crossing that is in use;
• A bridge over a public road or waters used for commercial navigation; or
• A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.
Q. 4 - Do any of FRA’s regulations apply to insular tourist railroads?
Answer: No. Many of FRA’s regulations do not currently apply to tourist railroads. However, FRA’s emergency order authority permits it to address a true safety emergency arising from conditions covered by those regulations or any other regulations that do not apply outside of the general railroad system. Thus, even off-the-general-system tourist railroads should understand that FRA has the jurisdiction to inspect their operations and to take emergency action if those operations pose an imminent hazard of death or injury.
Q. 5 - Do any of FRA’s regulations apply to non-insular railroads?
Answer: Yes. The following regulations and laws apply: Federal signal inspection laws, hazardous materials regulations, noise emission regulations, freight car safety standards, accident/incident reports regulations, hours of service restrictions on duty hours, steam locomotive inspection regulations, grade crossing signal system safety regulations, and all general power and enforcement provisions of the rail safety statutes (e.g., subpoena authority, civil penalty authority, disqualification authority, and emergency order authority).
Q. 6 - How would a tourist railroad sever its connection to the general system?
Answer: It depends on each particular railroad’s circumstances and operations. A railroad should contact FRA if it has questions about whether it is connected to the general system.
Generally, though, a tourist railroad would be considered to be operating off the general system if its operation is conducted only on track used exclusively for that purpose. That a tourist operation has a switch that connects to the general system does not make the tourist operation part of the general system if the tourist trains do not enter the general system and the general system does not use the tourist operation’s trackage for any purpose other than delivering or picking up shipments to or from the tourist operation itself.
Q. 7 - I operate a tourist railroad and have just been given permission to operate an excursion train on a freight railroad’s trackage as a separate business. How do I certify engineers for my operation?
Answer: You have several options. 1) You may have the freight railroad’s engineers operate your train; 2) You may have the freight railroad certify your engineers under its program and issue your employees its own certificates; or 3) You may submit a certification program to FRA and certify your own engineers. Of course, as the freight railroad is the host railroad in these operations, it has a responsibility to determine that your engineers are properly certified and qualified to operate on its railroad.
