                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


RESEARCH TRIANGLE REGIONAL PUBLIC     
TRANSPORTATION AUTHORITY,
                       Petitioner,
                v.

                                      
UNITED STATES OF AMERICA; FEDERAL
RAILROAD ADMINISTRATION,                          No. 03-1283
                      Respondents.
AMERICAN PUBLIC TRANSPORTATION
ASSOCIATION; NEW STARTS WORKING
GROUP,
Amici Curiae Supporting Petitioner.
                                      
               On Petition for Review of a Decision
              of the Federal Railroad Administration.

                      Argued: October 28, 2003

                     Decided: December 15, 2003

       Before WILKINS, Chief Judge, and WIDENER and
                  SHEDD, Circuit Judges.



Petition denied by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Kevin Michael Sheys, KIRKPATRICK & LOCKHART,
L.L.P., Washington, D.C., for Petitioner. Peter Jay Plocki, Senior
Trial Attorney, Office of the General Counsel, U.S. DEPARTMENT
2           RESEARCH TRIANGLE REGIONAL v. UNITED STATES
OF TRANSPORTATION, Washington, D.C., for Respondents. ON
BRIEF: Edward J. Fishman, KIRKPATRICK & LOCKHART,
L.L.P., Washington, D.C.; Dora V. Torseth, General Counsel,
RESEARCH TRIANGLE REGIONAL PUBLIC TRANSPORTA-
TION AUTHORITY, Research Triangle Park, North Carolina, for
Petitioner. Kirk K. Van Tine, General Counsel, Paul M. Geier, Assis-
tant General Counsel for Litigation, Dale C. Andrews, Deputy Assis-
tant General Counsel for Litigation, Jeffrey J. Amato, Office of the
General Counsel, U.S. DEPARTMENT OF TRANSPORTATION,
Washington, D.C.; S. Mark Lindsey, Chief Counsel, Daniel C. Smith,
Assistant Chief Counsel, David H. Kasminoff, Office of the Chief
Counsel, FEDERAL RAILROAD ADMINISTRATION, Washing-
ton, D.C., for Respondents. Daniel Duff, Chief Counsel, AMERICAN
PUBLIC TRANSPORTATION ASSOCIATION, Washington, D.C.;
Robert Bergen, HOLLAND & KNIGHT, L.L.P., New York, New
York, for Amici Curiae.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   The Research Triangle Regional Public Transportation Authority,
locally known as the Triangle Transit Authority ("TTA"), asked the
Federal Railroad Administration ("FRA") whether it would assert
jurisdiction over the first phase of a passenger rail system that TTA
intends to operate in the Raleigh-Durham area of North Carolina.
TTA argued that FRA should not assert jurisdiction over its project,
except to a limited extent, because the passenger rail system is an
urban rapid transit system, which Congress specifically excluded
from FRA’s jurisdiction. After meeting with TTA officials, and upon
consideration of plans and estimates provided by TTA as well as the
final environmental impact statement submitted by TTA, FRA issued
a letter ruling concluding that it has jurisdiction over the TTA project.
TTA petitions for review of FRA’s ruling; we deny the petition.
            RESEARCH TRIANGLE REGIONAL v. UNITED STATES                3
                                   I.

   TTA is a regional public transportation provider serving Durham,
Orange, and Wake Counties in North Carolina (the "Research Trian-
gle"). TTA currently operates ground transportation services, and it
has designed a passenger rail system scheduled to begin operations in
2007-08. This passenger rail system will be developed in three
phases. Phase I is a roughly 35-mile line between Raleigh and Dur-
ham, connecting Duke University, downtown Durham, Research Tri-
angle Park, the towns of Morrisville and Cary, North Carolina State
University, downtown Raleigh, and North Raleigh. Phase II will
enhance regional bus transit and rail extensions, and Phase III will
extend the rail system to more outlying areas. TTA has designed this
passenger rail system to address new transportation needs resulting
from rapid population growth, urbanization, and an influx of technol-
ogy and manufacturing firms in the Research Triangle.

   Although TTA has indicated that Phase I of its rail system will
comply with a number of FRA safety regulations — concerning vehi-
cle safety, signaling systems, and grade crossing warning systems —
TTA does not wish to be bound by all of FRA’s regulations. Follow-
ing a procedure outlined in FRA’s regulations, TTA asked FRA to
determine whether it would assert jurisdiction over Phase I of the rail
system. In considering TTA’s request, FRA officials met with TTA
officials to discuss the particular characteristics and projected uses of
Phase I of the rail system. TTA submitted additional materials to
FRA, and FRA officials again met with TTA officials to discuss the
project. Based on the information submitted by TTA and its inter-
views with TTA officials, FRA determined that Phase I of TTA’s pas-
senger rail system is subject to FRA’s jurisdiction.

   FRA determined that it has jurisdiction to regulate the TTA project
because, it concluded, the TTA project is a "railroad" as that term is
defined in the Federal Railroad Safety Act. The statute specifically
defines "railroad" to include "commuter or other short-haul railroad
passenger service[s]" and "high speed ground transportation systems
that connect metropolitan areas." 49 U.S.C. § 20102(1)(A). The term
"railroad" does not include "rapid transit operations in an urban area
that are not connected to the general railroad system of transporta-
tion." Id. § 20102(1)(B). The statute does not define "commuter or
4           RESEARCH TRIANGLE REGIONAL v. UNITED STATES
other short-haul railroad passenger service" or "rapid transit opera-
tions in an urban area."

   In assessing its jurisdiction over the TTA project, FRA applied its
Statement of Agency Policy Concerning Jurisdiction Over the Safety
of Passenger Operations and Waivers Related to Shared Use of the
Tracks of the General Railroad System by Light Rail and Conven-
tional Equipment (the "Policy Statement"), 65 Fed. Reg. 42,529 (July
10, 2000) (codified at 49 C.F.R. Part 209 Appendix A). FRA first
noted that it would not presume TTA’s rail system to be a commuter
project since Congress had not characterized it as such in any statute.
See id. at 42,544 (stating that FRA will honor statutory characteriza-
tions of specific operations as commuter operations). FRA then noted
that it would not presume TTA’s rail system to be rapid transit since
it was not a subway or elevated system and featured several highway-
rail grade crossings. See id. at 42,545 (describing the rapid transit pre-
sumption).

   Since no presumption applied to the TTA system, FRA analyzed
the specific characteristics of this project to determine whether it
should be characterized as commuter or rapid transit. See id. at
42,544-45. According to the Policy Statement, proper characterization
of a rail system depends upon three general factors: (1) the geo-
graphic scope of the rail service, (2) the primary function of the rail
service, and (3) the frequency of service. Id. Specifically, FRA will
likely deem an operation to be a commuter operation if:

     [1] The system serves an urban area, its suburbs, and more
     distant outlying communities in the greater metropolitan
     area, [2] The system’s primary function is moving passen-
     gers back and forth between their places of employment in
     the city and their homes within the greater metropolitan
     area, and moving passengers from station to station within
     the immediate urban area is, at most, an incidental function,
     and [3] The vast bulk of the system’s trains are operated in
     the morning and evening peak periods with few trains at
     other times.

Id. By contrast, FRA will likely deem an operation to be rapid transit
if:
            RESEARCH TRIANGLE REGIONAL v. UNITED STATES               5
    [1] The operation serves an urban area (and may also serve
    its suburbs), [2] Moving passengers from station to station
    within the urban boundaries is a major function of the sys-
    tem and there are multiple station stops within the city for
    that purpose (such an operation could still have the transpor-
    tation of commuters as one of its major functions without
    being considered a commuter railroad), and [3] The system
    provides frequent train service even outside the morning and
    evening peak periods.

65 Fed. Reg. at 42,545.

   With respect to geographic scope, FRA determined that the TTA
system would "connect two non-contiguous cities (Raleigh and Dur-
ham) whose centers are quite far apart, and run through another com-
munity of considerable size (Cary)." While FRA acknowledged that
it might be possible for two cities to have a single urban core, that is
not the case with Raleigh and Durham, each of which has a distinct
downtown center. The fact that Amtrak intercity rail service already
serves Raleigh, Durham, and Cary suggested to FRA that these cities,
while perhaps part of a larger metropolitan area, do not constitute a
single urban area.

   FRA further determined that the primary function of TTA’s rail
system would be to move riders from their homes to their workplaces.
FRA based this conclusion on several facts: (1) TTA’s final environ-
mental impact statement disclosed that the system was intended to
increase access to major employment centers, (2) the rail corridor is
located in high-employment areas and station locations were selected
based on their proximity to employment centers, (3) the substantial
majority of trips would be work-related, and (4) TTA’s decision to
use diesel multiple unit ("DMU") vehicles (rather than more tradi-
tional light rail vehicles) was motivated by its understanding that this
system would facilitate commuter transportation.

   Finally, FRA determined that the "[t]he regional railroad will oper-
ate on a frequency of service that is much more indicative of com-
muter service than urban rapid transit." Comparing TTA’s plan to
operate at intervals of 15 minutes in peak periods and 30 minutes in
off-peak periods with frequencies of various types of urban transpor-
6           RESEARCH TRIANGLE REGIONAL v. UNITED STATES
tation systems, FRA concluded that TTA’s system fell at the low end
of commuter operations. Thus, even if TTA were able to reduce its
intervals to 10 minutes in peak hours and 20 minutes in off-peak
hours, the system would still look more like a commuter operation
than a rapid transit operation. According to FRA, "[n]one of the inter-
vals that TTA contemplates are like those of urban rapid transit sys-
tems, which can operate as many as two dozens trains an hour in peak
periods."

   Having concluded that the factors identified in the Policy State-
ment suggested a commuter rail operation, FRA specifically
addressed TTA’s argument that its system should be treated as rapid
transit because 76% of all trips would have both origin and destina-
tion within a single city. At the outset, FRA noted that TTA had failed
to provide requested information concerning methods of statistical
analysis used to generate the 76% figure. FRA doubted the accuracy
of this figure because the data on which it was based were derived
from current bus use patterns, not the model specifically designed for
rail use. According to FRA, using current bus use numbers fails to
account for the likelihood that the addition of rail service will alter
travel patterns. Even assuming the 76% figure to be accurate, FRA
noted that it was actually consistent with a commuter operation when
taken in proper context. Since the TTA system would be linked to bus
routes and highways to facilitate easy transfers, "many of the rela-
tively short rail trips that TTA projects will occur within a single
jurisdiction will be made by commuters who are using the rail system
as the intermediate or final leg of a much longer journey."

   In the end, FRA determined that the TTA project looked more like
a commuter rail operation than a rapid transit operation. Accordingly,
the statutory exclusion was inapplicable, and FRA could assert juris-
diction over the project as a "commuter or other short-haul railroad
passenger service in a metropolitan or suburban area." As a result,
FRA determined that Phase I of the TTA passenger rail system would
be "subject to all of FRA’s safety regulations." TTA filed this petition
for review, arguing that FRA had improperly characterized its rail
system as a commuter operation rather than a rapid transit operation.
            RESEARCH TRIANGLE REGIONAL v. UNITED STATES                  7
                                    II.

                                    A.

   Under the Administrative Procedures Act, an agency’s decision
must be upheld unless it is "arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
The question presented in this appeal is whether FRA’s interpretation
of the statute defining its jurisdiction is lawful. If that statute speaks
clearly to "the precise question at issue" — whether Phase I of the
TTA system is a rapid transit operation — then we must "give effect
to the unambiguously expressed intent of Congress." Barnhart v. Wal-
ton, 535 U.S. 212, 217 (2002) (citing Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)). If the statute
is "silent or ambiguous" as to the issue presented here, then we must
determine whether the FRA’s assertion of jurisdiction reflects "a per-
missible construction" of the statute. Id. at 218 (citing Chevron, 467
U.S. at 843). "Hence we must decide (1) whether the statute unam-
biguously forbids the [a]gency’s interpretation, and, if not, (2)
whether the interpretation, for other reasons, exceeds the bounds of
the permissible." Id.

   FRA’s jurisdiction is limited by the definition of "railroad" found
in 49 U.S.C. § 20102(1). That statute provides that the term "railroad"
includes "commuter or other short-haul railroad passenger service in
a metropolitan or suburban area" but excludes "rapid transit opera-
tions in an urban area that are not connected to the general railroad
system of transportation." 49 U.S.C. § 20102(1)(A)(i), (B). The stat-
ute does not define "commuter or other short-haul railroad passenger
service" or "rapid transit operations in an urban area." Because Con-
gress did not define these critical terms, we cannot say that the statute
unambiguously forbids FRA’s assertion of jurisdiction over the TTA
system. See Barnhart, 535 U.S. at 218 (stating that "silence, after all,
normally creates ambiguity").1
  1
    TTA’s reliance upon Chicago Transit Authority v. Flohr, 570 F.2d
1305 (7th Cir. 1977), is misplaced. Flohr held that Congress intended the
term "railroad" not to include urban rapid transportation. Id. at 1308. The
plain text of the current statute resolves that question by expressly
excluding urban rapid transit from the definition of "railroad"; the ques-
tion here is just what constitutes an urban rapid transit operation. The
statute is silent on that issue, and so is Flohr.
8           RESEARCH TRIANGLE REGIONAL v. UNITED STATES
   In determining whether the FRA letter ruling reflects a permissible
construction of the statute, we must decide what degree of deference
attaches to the agency’s interpretation. We note at the outset that the
FRA letter ruling did not result from notice and comment rulemaking
or a formal adjudication. This fact, however, "does not automatically
deprive that [agency] interpretation of the judicial deference other-
wise its due." Barnhart, 535 U.S. at 221. See also United States v.
Mead Corp., 533 U.S. 218, 231 (2001) (stating that "the want of
[notice and comment rulemaking] does not decide the case"). At the
very least, FRA’s determination of its jurisdiction is entitled to the
degree of deference described in Skidmore v. Swift & Co., 323 U.S.
134 (1944). See Mead, 533 U.S. at 234 (noting that "Chevron did
nothing to eliminate Skidmore’s holding that an agency’s interpreta-
tion may merit some deference whatever its form").

                                   B.

   Under Skidmore, an agency ruling is "entitled to respect" to the
extent that it has the "power to persuade." 323 U.S. at 140. The force
of a particular agency interpretation is measured by "the thoroughness
evident in its consideration, the validity of its reasoning, its consis-
tency with earlier and later pronouncements, and all those factors
which give it power to persuade, if lacking power to control." Id.

   The FRA letter ruling represented the culmination of a decision-
making process during which FRA officials met directly with TTA
officials to discuss the particular characteristics of this passenger rail
system. The letter ruling addressed those characteristics in light of the
factors described in the Policy Statement and reached a conclusion
consistent with the statute and the Policy Statement. The "thorough-
ness evident in [FRA’s] consideration" of TTA’s project lends persua-
sive force to the letter ruling. See Skidmore, 323 U.S. at 140.

   The letter ruling also has persuasive force because its conclusion
on jurisdiction follows from valid reasoning. Applying the principles
described in its Policy Statement, FRA found that Phase I of the TTA
system resembled a commuter rail operation in its primary purpose,
its geographic scope, its frequency of service, and its projected rider-
            RESEARCH TRIANGLE REGIONAL v. UNITED STATES                  9
ship patterns. It is undisputed that these factors were appropriate for
consideration by FRA.2

   TTA attacks the validity of FRA’s reasoning on four separate
grounds. First, TTA contends that FRA mistakenly characterized the
TTA rail system as a regional system rather than one that served an
urban area. According to TTA, the Research Triangle has urban char-
acteristics and the rail system connecting Raleigh, Durham, and the
suburbs in between should be deemed a system serving a single urban
area. We agree with FRA that the statutory exclusion applies to a
rapid transit system in an urban area, not multiple urban areas and not
a metropolitan area. In the definitional statute at issue here, Congress
included within the definition of "railroad" commuter or short-haul
passenger service "in a metropolitan or suburban area," 49 U.S.C.
§ 20102(1)(A)(i), but excluded rapid transit systems "in an urban
area," id. § 20102(1)(B). Congress plainly distinguished "an urban
area" from "a metropolitan or suburban area," and FRA was correct
to recognize that distinction here.

   Second, TTA argues that FRA incorrectly assessed the frequency
of service anticipated for the TTA rail system. FRA found that TTA’s
estimate of 15-minute intervals during peak hours and 30 minute
intervals during off-peak hours was more similar to commuter opera-
tions than rapid transit operations. FRA further noted that even if the
intervals were compressed to 10 minutes and 20 minutes, respec-
tively, those intervals would still be less frequent than typical rapid
transit operations. Contrary to TTA’s argument, there is nothing inter-
nally inconsistent about these conclusions; rather, FRA determined
that the TTA rail system was not even close to rapid transit, at least
with respect to frequency of service. TTA’s estimate that 54% of its
trains would run during off-peak hours does not undermine FRA’s
  2
   We agree with TTA that the Policy Statement is "entitled to respect"
only to the extent that it is persuasive. See Christensen v. Harris County,
529 U.S. 576, 587 (2000); Cunningham v. Scibana, 259 F.3d 303, 306
(4th Cir. 2001). Since we have been presented no reason to doubt the
persuasiveness of the Policy Statement itself, we cannot fault FRA for
applying its principles in making its jurisdictional determination. The
only question for us is whether FRA’s application of its Policy Statement
to TTA’s rail system is persuasive.
10         RESEARCH TRIANGLE REGIONAL v. UNITED STATES
conclusion, for although this estimate suggests that something less
than "the vast bulk" of trains would run during peak hours, see 65
Fed. Reg. at 42,545, it remains true that TTA’s overall frequencies are
at the low end of commuter rail operations. The record includes com-
parative data supporting FRA’s conclusion that TTA’s frequency of
service resembles commuter rail more than rapid transit, and we find
FRA’s analysis persuasive.

   Third, TTA argues that FRA should not have relied upon TTA’s
environmental impact statement to conclude that TTA intends to
operate a commuter service. This complaint is meritless. The Policy
Statement makes relevant the major and incidental functions of the
rail system, see 65 Fed. Reg. at 42,544-45, and FRA cited the envi-
ronmental impact statement as some evidence of the major functions
of the TTA rail system. FRA was entitled to consider any evidence
bearing on this issue, and TTA has not offered any legitimate reason
why its own representations should not be considered. Moreover, the
environmental impact statement was only one of several sources of
information upon which FRA relied to characterize the functions of
the TTA rail system.

   Fourth, TTA argues that FRA incorrectly determined that the pri-
mary purpose of the TTA system would be to provide work-related
transportation. According to the Policy Statement, FRA will likely
consider a rail system to be a commuter operation if "[t]he system’s
primary function is moving passengers back and forth between their
places of employment in the city and their homes within the greater
metropolitan area." 65 Fed. Reg. at 42,544. FRA determined that the
primary function of the TTA system would be to facilitate commuter
traffic to and from work, based upon the following facts: (1) the areas
served by the rail corridor are high-employment areas, (2) the number
of jobs in that corridor is expected to grow by more than 60 percent
over the next two decades, (3) the locations of various stations were
selected because they serve large employment bases and provide
access to a large number of commuters, and (4) work-related trips will
account for at least 63% of all trips on the system. On these facts, we
are persuaded that the primary purpose of the TTA system is to facili-
tate commuter traffic in the Research Triangle, with intra-city traffic
an incidental purpose. In sum, we reject TTA’s contention that FRA’s
letter ruling reflects invalid reasoning.
            RESEARCH TRIANGLE REGIONAL v. UNITED STATES              11
   Finally, TTA argues that FRA’s letter ruling is inconsistent with
FRA’s treatment of other light-rail transit systems. TTA supplies no
support for this assertion aside from its own "knowledge and belief,"
and it should not be given any weight. Based on its thoroughness, the
validity of its reasoning, and the absence of evidence suggesting an
inconsistent application of the Policy Statement, we conclude that
FRA’s determination of its jurisdiction has the "power to persuade"
and is entitled to deference. See Skidmore, 323 U.S. at 140.

                                  III.

   Although TTA may have reason to disagree with FRA’s character-
ization of Phase I of the TTA project as commuter rail or other short-
haul railroad, FRA provided a thorough and well-reasoned analysis of
the TTA project. That analysis represents a fair application of the Pol-
icy Statement and a permissible interpretation of the relevant statute,
and it should not be disturbed. Accordingly, TTA’s petition for
review is denied.

                                                  PETITION DENIED
