Federal Railroad Administration's Procedures for Waivers and Safety-Related Proceedings

DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Railroad Administration</SUBAGY> <CFR>49 CFR Part 211</CFR> <DEPDOC>[Docket No. FRA-2024-0033]</DEPDOC> <RIN>RIN 2130-AC97</RIN> <SUBJECT>Federal Railroad Administration's Procedures for Waivers and Safety-Related Proceedings</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Railroad Administration (FRA), U.S. Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking (NPRM). <SUM> <HD SOURCE="HED">SUMMARY:</HD> This proposed rule would update FRA's procedures for waivers and safety-related proceedings to define the two components of the statutory waiver and suspension standard, “in the public interest” and “consistent with railroad safety.” By defining these terms, FRA intends to clarify the standard the agency will apply when evaluating petitions for regulatory relief. FRA also proposes to require petitions for relief to include evidence of meaningful consultation with appropriate stakeholders. Additionally, FRA proposes to make minor updates to agency rules of practice. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments on this proposed rule must be received on or before December 30, 2024. Comments received after that date will be considered to the extent possible without incurring additional expense or delay. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> <E T="03">Comments:</E> Comments related to Docket No. FRA-2024-0033 may be submitted by going to <E T="03">www.regulations.gov</E> and following the online instructions for submitting comments. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. All comments received will be posted without change to <E T="03">www.regulations.gov;</E> this includes any personal information. Please see the Privacy Act heading in the <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document for Privacy Act information related to any submitted comments or materials. <E T="03">Docket:</E> For access to the docket to read background documents or comments received, go to <E T="03">www.regulations.gov</E> and follow the online instructions for accessing the docket. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Veronica Chittim, Senior Attorney, Office of the Chief Counsel, at <E T="03">veronica.chittim@dot.gov,</E> 202-480-3410; or Lucinda Henriksen, Senior Advisor, Office of Railroad Safety, at <E T="03">lucinda.henriksen@dot.gov,</E> 202-657-2842. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> FRA has broad discretionary authority to waive or suspend the requirement to comply with any rule, regulation, or order upon a finding that doing so is “in the public interest and consistent with railroad safety.” 49 U.S.C. 20103(d). <SU>1</SU> <FTREF/> Within FRA, decisional authority for waivers rests with FRA's Railroad Safety Board (Board). <SU>2</SU> <FTREF/> FRA's Rules of Practice, 49 CFR part 211, set forth the general requirements for petitions to the Board and the general outline of the Board's processes. <SU>3</SU> <FTREF/> The burden of proving the request is justified rests with the petitioner. <SU>4</SU> <FTREF/> <FTNT> <SU>1</SU>  The Secretary of Transportation is authorized to issue such waivers or suspensions and the Secretary has delegated that authority to FRA. 49 U.S.C. 20103(d)(1) and 49 CFR 1.89(a). </FTNT> <FTNT> <SU>2</SU>  49 CFR 211.41(a). </FTNT> <FTNT> <SU>3</SU>  49 CFR part 211, subpart C (§§ 211.41 through 211.45). </FTNT> <FTNT> <SU>4</SU>   <E T="03">See</E> 49 CFR 211.9. </FTNT> In January 2023, FRA published guidance pertaining to waiver procedures and process titled <E T="03">Guidance on Submitting Requests for Waivers, Block Signal Applications, and Other Approval Requests to FRA</E> (Guidance). <SU>5</SU> <FTREF/> The Guidance outlined best practices for petitioners to use when developing and submitting waiver, suspension, and other approval requests, and best practices impacted stakeholders ( <E T="03">e.g.,</E> the public, railroad employees, and labor organizations) may use to ensure their views, concerns, and comments are thoroughly considered throughout the process. This proposal would provide additional detail on portions of the guidance, and make certain recommendations therein mandatory, such as the recommended consultation prior to filing of a petition. <FTNT> <SU>5</SU>   <E T="03">https://railroads.dot.gov/elibrary/guidance-submitting-requests-waivers-block-signal-applications-and-other-approval-requests;</E> 88 FR 1448 (Jan. 10, 2023). </FTNT> In this rulemaking, FRA is proposing to update its procedures for waivers and safety-related proceedings in 49 CFR part 211 to clarify the standard to be applied by FRA when deciding whether to grant a request for regulatory relief. Specifically, FRA is proposing to define both the “in the public interest” and “consistent with railroad safety” components of the statutory standard in 49 U.S.C. 20103(d), for purposes of evaluating waiver or suspension requests. Additionally, FRA is proposing to require petitions for regulatory relief to include evidence of meaningful consultation with stakeholders. <HD SOURCE="HD1">II. Section-by-Section Analysis</HD> <HD SOURCE="HD2">Part 211</HD> <HD SOURCE="HD2">§ 211.1 General</HD> FRA proposes to make minor editorial amendments to § 211.1(a) to remove outdated language regarding the Federal Railroad Safety Act (concerning proceedings initiated after 1976). Further, FRA proposes to replace the obsolete statutory citation (45 U.S.C. 432) for emergency orders with the current citation, 49 U.S.C. 20104. FRA also proposes to clarify that a proceeding will be deemed to be initiated and the time period for its disposition will begin on the date a petition or application that complies with the requirements of this chapter is confirmed to be complete (not merely the date it is received) by FRA. FRA also proposes to make technical amendments to the definitions of “Safety Act,” “Docket Clerk,” and “Railroad Safety Board.” Specifically, in the definition of “Safety Act” in § 211.1(b)(3), FRA proposes to update the citation (45 U.S.C. 421 <E T="03">et seq.</E> ) to 49 U.S.C. ch. 201 <E T="03">et seq.,</E> as the existing citation is obsolete. FRA proposes to add a cross-reference in § 211.1(a) to the proposed updated definition of “Safety Act” in § 211.1(b)(3). In the definition of “Docket Clerk” in § 211.1(b)(4), FRA proposes to (1) remove the reference to the “Office of Chief Counsel Docket Clerk,” as this position no longer exists at FRA, and (2) replace the physical address for the DOT Docket Clerk with the website <E T="03">www.regulations.gov</E> . Within the definition of “Railroad Safety Board” in § 211.1(b)(5), FRA proposes to insert the word “Railroad” before “Safety” into the outdated term “Office of Safety.” FRA proposes to amend § 211.1(b) to add specific definitions of “in the public interest” and “consistent with railroad safety” for purposes of this part. FRA has long interpreted the standard in 49 U.S.C. 20103(d)(1) of “in the public interest and consistent with railroad safety” as a standard focused on safety, including the safety of rail operations and those directly involved in those operations, as well as the safety and well-being of the public at large. However, neither 49 U.S.C. 20103 nor 49 CFR part 211 defines “in the public interest and consistent with railroad safety.” Thus, in § 211.1(b)(6) and (b)(7), FRA proposes to add definitions of “in the public interest” and “consistent with railroad safety” to clarify the standard and provide transparency and consistency as to how FRA will evaluate whether a petition meets that standard. Overall, via the proposed definitions in § 211.1(b)(6) and (7), FRA expects requests for waivers, suspensions, and other safety-related proceedings for regulatory relief to maintain or improve railroad safety and to align with one or more of DOT's priorities and innovation principles or other public interest factors. <SU>6</SU> <FTREF/> DOT's first innovation principle, to “Serve our policy priorities,” includes a focus “around creating high quality jobs, achieving racial equity and increasing opportunity for all Americans, and tackling the climate crisis” to drive innovation. DOT's second innovation principle, “Help America win the 21st century,” prioritizes future proofing infrastructure and also bringing legacy systems into the digital age and enabling adaptability and resiliency. Many FRA regulations were established prior to the digital age, providing an opportunity for future requests to show how certain practices can be updated and adapted appropriately consistent with this principle. DOT's third innovation principle, “Support workers,” involves empowering workers on many levels, including expanding skills and training, as well as ensuring workers have a seat at the table to shape innovation. DOT's fourth innovation principle, “Allow for experimentation and learn from failure,” supports open data and transparency and the ability to learn from experimentation and failures. DOT's fifth innovation principle, “Provide opportunities to collaborate,” strives for an outcomes-based approach that is technology neutral, consistent with FRA's performance-based regulations. This principle embraces public private partnerships that foster innovation and protect the interests of the public, workers, and communities in a technology-neutral manner. Finally, DOT's sixth innovation principle, “Be flexible and adapt as technology changes,” also reflects performance-based regulations and interoperability, and the need for a collaborative approach across transportation m ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 106k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━