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

SUPPLEMENTARY INFORMATION:

I. Background

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). Within FRA, decisional authority for waivers rests with FRA's Railroad Safety Board (Board). 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. The burden of proving the request is justified rests with the petitioner.

In January 2023, FRA published guidance pertaining to waiver procedures and process titled Guidance on Submitting Requests for Waivers, Block Signal Applications, and Other Approval Requests to FRA (Guidance). 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.g., 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.

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.

II. Section-by-Section Analysis

Part 211

§ 211.1 General

FRA proposes to make minor editorial amendments to § 211.1(a) to remove outdated language regarding the Federal Railroad Safety Act (concerning proceedings initiated after 1976).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 et seq.) to 49 U.S.C. ch. 201 et seq., 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 www.regulations.gov . 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. 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 modes.

For purposes of this part, in § 211.1(b)(7), FRA proposes to define “consistent with railroad safety” to mean the proposal is “at least as safe as or safer than the status quo ( i.e., without the proposed relief).” If a proposal would improve railroad safety and/or remove certain railroad operational risks, the prong “consistent with railroad safety” would be satisfied as proposed here. At a minimum, FRA proposes that a petition must document and provide associated qualitative or quantitative analysis that demonstrates that with the regulatory relief, railroad operations would be at least as safe as they would have been without the relief. Under no circumstances could this standard be met if the safety provided under the applicable regulations is not maintained or is reduced. Additionally, consistent with DOT's policy priorities, “innovations should reduce deaths and serious injuries on our Nation's transportation network, while committing to the highest standards of safety across technologies.” Thus, in any petition seeking regulatory relief, petitioners should include safety analysis and any data demonstrating how the request aligns with the proposed definition of “consistent with railroad safety” in § 211.1(b)(7). Generally, FRA expects that a petition that would reduce the level of existing required human visual inspections or that would not meet current FRA requirements would not be consistent with railroad safety under the proposed § 211.1(b)(7). Thus, to demonstrate that a petition is consistent with railroad safety, the petition must show that the proposed process or technology will overcome that expected reduction in safety by being as safe or safer than the existing regulation would require.

For purposes of this part and for understanding the statutory standard, in § 211.1(b)(6), FRA proposes to define “in the public interest” to mean “the proposed request demonstrates positive factors including, but not limited to, empowering workers, ensuring equity, protecting the environment, creating robust infrastructure, enabling adaptability and resiliency, bringing legacy systems up to current standards, allowing for experimentation consistent with railroad safety, providing opportunities to collaborate, ensuring interoperability integration across transportation modes, and the well-being of the public at large.” FRA proposes that “in the public interest” signifies not only how a proposal for regulatory relief may improve railroad operations, but also how the request may positively affect relevant stakeholders, including workers and communities. FRA notes that a request demonstrating any of these factors in the proposed definition may be seen to be “in the public interest,” because the proposal would align with one or more of DOT's priorities and innovation principles.

To reflect whether the request is “in the public interest” as proposed in § 211.1(b)(6), FRA notes that petitioners should address these principles directly in their petitions. For example, the petition could explain how the proposal would reduce waste, re-use or recycle certain inputs, or reduce emissions, demonstrating that the proposal is “in the public interest.” Similarly, consistent with the principle to “Help America win the 21st century,” a petitioner could demonstrate how a request may create robust infrastructure, enable adaptability and resiliency, and bring legacy systems up to current standards. Likewise, the petitioner could show how the request would allow for experimentation to enable learning from both successes and failures (while still being consistent with railroad safety). The request could demonstrate how the petitioner has provided (and will continue to provide) opportunities to collaborate with workers and local communities. Moreover, such requests could show how the proposal would empower workers, such as through expanding access to skills, training, and/or the choice of a union. In line with these principles, FRA expects to continue its successful practice of encouraging stakeholder engagement through establishing test committees as a condition to granting regulatory relief, when appropriate. Historically, FRA has, in certain instances, required the establishment of a test committee as a condition of regulatory relief related to the use of technology or a new operational process in the railroad industry. As noted in footnote 8, a test committee typically involves a small group of diverse stakeholders that meet periodically to review safety data and consider related challenges and benefits of the relief. To show that a proposal is “in the public interest,” FRA proposes that a petitioner could provide evidence that the regulatory relief requested would not eliminate jobs or eliminate required visual inspections, but would add additional positions, or improve the existing positions. The petitioner could identify opportunities for interoperability among innovations and foster cross-modal integration, if possible. Accordingly, in any petition seeking regulatory relief, petitioners should demonstrate how the request aligns with the proposed definition of “in the public interest” in § 211.1(b)(6).

By incorporating definitions for “in the public interest” and “consistent with railroad safety” into FRA's Rules of Practice, FRA intends to ensure consistency in how requests are evaluated going forward. For example, when reviewing whether a waiver request is “in the public interest and consistent with railroad safety,” the Board would assess the request's commitment to both safety and the public interest. A petition showing only that a proposal may improve the efficiency of railroad operations or reduce costs will likely not meet the standard in the proposed definition of “in the public interest” without a separate showing that the request meets additional public interest factors as proposed in § 211.1(b)(6). The petitioner should be able to show there is a benefit to stakeholders, and, as described below, that the stakeholders had been consulted with before filing to ensure any potential concerns are addressed.

Further, if the request for regulatory relief would reduce the number of inspections being performed, the petition may not meet the “in the public interest” definition proposed here. In many cases, technology can be layered on top of the existing regulatory framework without necessitating a reduction in human inspections currently being performed or relief from Federal regulations. Thus, if a petitioner proposes to incorporate a new technology or approach, but also requests relief to permit a reduction in the number of inspections, to demonstrate the request is “in the public interest,” the request would need to show both that the relief is necessary and that other factors outweigh the impacts of reduced inspections in the context of potential negative impacts to the “public interest.”

FRA also notes that the same statutory standard applies for initial requests for relief and renewal or modification requests. Generally, waivers or other approvals for regulatory relief are time limited and may be geographically limited, and renewals are discretionary, which means renewals and expansions of a waiver's geographic scope are never automatic or guaranteed. Further, consistent with 49 U.S.C. 20103(d)(4), FRA reviews waivers or suspensions that have been in continuous effect for a six-year period and determines whether the waiver or suspension should be terminated, renewed, or incorporated into the regulations. Petitioners seeking to renew or expand an existing grant of relief should include in the application evidence of Petitioners' compliance with the existing conditions of the relief (if any), and how the waiver, suspension, or other approval for relief has satisfied, and will continue to satisfy, the proposed standard of “in the public interest and consistent with railroad safety.” Additionally, FRA proposes (in § 211.9) to require petitions for renewal to contain specific data on the overall effectiveness of the waiver, suspension, or other grant of relief.

Upon review of a petition for regulatory relief, FRA would determine whether the factors in proposed § 211.1(b)(6) and (b)(7) have been addressed and meet the standard of “in the public interest and consistent with railroad safety.” If the factors have not been addressed, FRA may dismiss the petition, primarily because FRA would be unable to evaluate whether the request meets the standard of “in the public interest and consistent with railroad safety.” If the petition addresses the factors proposed in § 211.1(b)(6) and (b)(7), FRA would then consider whether the requested regulatory relief satisfies the “in the public interest” and “consistent with railroad safety” standards as defined and would address these requirements in any decision letter issued.

Given this proposal, which would define and clarify the “public interest” component of the statutory standard, FRA seeks public comment on whether additional changes to the existing procedures for waivers, suspensions, and other safety-related proceedings for regulatory relief are necessary.

FRA intends the new definitions proposed in § 211.1(b) to be applicable for the evaluation of all waiver and suspension petitions filed pursuant to 49 U.S.C. 20103(d). Historically, FRA has applied the standard of “consistent with railroad safety” to FRA's review of block signal applications (49 U.S.C. 20502; 49 CFR part 235). FRA does not intend to revise this historical practice, but intends to apply the definition of “consistent with railroad safety,” as proposed in § 211.1(b)(7).

§ 211.7 Filing Requirements

In paragraph (b)(1), FRA proposes to remove the reference to the “FRA Docket Clerk,” and replace with “FRA via email to FRAWaivers@dot.gov. ” The position of “FRA Docket Clerk” no longer exists. FRA proposes to remove the reference in that section to “grandfathering,” and simply refer to “petitions for approval” under 49 CFR 238.203. Finally, FRA proposes modifying the phrase that the acknowledgment shall state “the date the petition or application was received” to be “the date FRA determined the petition or application was complete.”

§ 211.9 Content of Waiver and Other Safety-Related Proceeding Petitions

First, FRA proposes to make minor editorial amendments to § 211.9(a), (b), and (c) to remove the semi-colons at the end of each paragraph and account for the new proposed paragraphs (d) and (e). FRA also proposes to rename § 211.9 and revise the introductory language to reflect a broader application to waivers, and other safety-related proceedings seeking regulatory relief, such as block signal applications and requests for test programs under § 211.51 and remove the application to rulemakings. Specifically, FRA proposes to apply the new language to “each petition for waiver or other safety-related proceeding for regulatory relief.” FRA proposes to remove rulemaking petitions from the applicability of § 211.9 and add a new § 211.10 dedicated to the content requirements of rulemaking petitions. Additionally, in § 211.9(c), FRA proposes removing the language “each evaluation must include an estimate of resulting costs to the private sector, to consumers, and to Federal, State, and local governments as well as an evaluation of resulting benefits, quantified to the extent practicable.” While petitions for relief must evaluate the impacts of a proposed waiver, the existing language for a detailed cost benefit analysis is more applicable to petitions for rulemaking, and thus FRA proposes moving this language into § 211.10(c) pertaining to rulemakings.

Second, FRA proposes to amend § 211.9 to add a new paragraph (d) to require that petitioners must provide evidence that they have consulted with applicable stakeholders prior to submission of the application to FRA for consideration. In this proposal, any petition must contain documentation, such as a certification statement by the petitioner, with accompanying documentation demonstrating that the petitioner engaged in meaningful consultation with stakeholders. Specifically, FRA proposes § 211.9(d) to state that petitions must demonstrate: “meaningful good faith consultation with potentially affected stakeholders, including applicable rail labor stakeholders, on the proposed request for relief, prior to submission to FRA for evaluation and processing.” Should FRA finalize this proposed language, a petition that fails to document meaningful consultation will likely be denied as incomplete. While meaningful consultation will generally entail consultation with rail labor stakeholders, affected stakeholders for a more localized request would likely include communities along the railroad's right-of-way. If a particular community would be affected, FRA expects the railroad to reach out to the community proactively before filing the request with FRA. If there are no specific localities affected, FRA otherwise expects the public to be informed through FRA's publication of the notice of the request in the Federal Register . The public at-large would then have the opportunity to comment on that notice and collaborate on the request.

FRA has found that incoming petitions frequently do not address the potential impacts of the request on stakeholders other than the petitioner. This too often leads to extensive efforts on the part of both FRA and individual petitioners to work with these stakeholders to understand and address their concerns. FRA discussed this issue in its January 2023 Guidance, recommending that petitioners consult and coordinate with stakeholders prior to filing. This proposed rule would streamline the process by requiring petitioners to consult and coordinate with potentially affected stakeholders prior to filing a petition with FRA, and then documenting these efforts in their petition. For example, virtually every request from a railroad for a waiver from a safety regulation will impact at least some of that railroad's employees. Accordingly, prior to filing a petition with FRA, this proposal would require a railroad to meaningfully consult with potentially impacted employees, and the local and general chairmen as well as the State and national legislative levels of any labor organizations that represent them, and document the extent and outcome of its consultation in any petition.

Meaningful consultation prior to submission would serve to educate stakeholders of the proposal and reduce the likelihood of any misunderstandings as to the requested relief. FRA expects petitioners to engage stakeholders in discussions about the relief proposed and genuinely seek stakeholders' input. FRA expects that consultation will be substantive, and not simply serve to check a box that stakeholders were informed of a proposal, as that would not constitute meaningful consultation. Meaningful consultation involves good faith and the best efforts of railroads to engage stakeholders in discussions about the proposed request for relief, the relief sought, and seek substantive input. The intent of consultation is to engage with affected stakeholders at all stages of the proposal's development and then implementation of the relief, if granted. Ideally, railroads would consider their employees, and organization(s) representing those employees, as partners throughout the process rather than as reviewers of a finished product. Meaningful consultation should involve coordinating, gathering, and discussing employee and railroad input and considering feedback on the development of the proposed request.

To show that a railroad sought feedback from applicable stakeholders, a petition could include a statement with a detailed description of the process the petitioner used to consult with stakeholders as well as written correspondence, identify areas of agreement or non-agreement with the proposal, and include a service list to show which parties were consulted. Additionally, FRA expects that stakeholders would provide factual, well-supported feedback that demonstrates such meaningful collaboration.

Petitions that demonstrate consensus has been achieved with potentially affected stakeholders, including applicable rail labor organizations, would likely provide evidence of one factor that the application is “in the public interest.”

Third, as discussed above, FRA proposes to add a new paragraph (e) to require that renewal and expansion petitions contain data on the overall effectiveness of the existing relief. While § 211.9(c) requires petitions to contain sufficient information to support the action sought, including an evaluation of anticipated impacts of the action sought, FRA notes that a renewal or expansion petition should also be able to demonstrate how effective the waiver or other grant of relief has been prior to the request for renewal or expansion. To assist petitioners in providing data on the effectiveness of a waiver or other relief, FRA proposes revising the last sentence in § 211.9(c) to require each petition pertaining to safety regulations to “contain relevant safety data and analysis to demonstrate the petition is in the public interest and consistent with railroad safety, and outline the metrics to be used to determine effectiveness of the waiver or other relief, if granted.” Given the petitioner's experience implementing and using the waiver or other relief, a petitioner should have specific data to support the renewal or expansion request. This may include how railroad safety has improved because of the waiver or other grant of relief ( e.g., the number of defects decreased, or a reduction in the risk of an infrequent, but catastrophic event), and how the public interest has been served. In § 211.9(e)(1), FRA proposes to make this expectation to provide data of the relief's effectiveness a requirement for all renewal and expansion petitions. Moreover, in § 211.9(e)(2), FRA proposes to require that a renewal or expansion petition must also demonstrate compliance with any conditions that were included in the previous grant of relief. Finally, in § 211.9(e)(3), FRA proposes to require renewal and expansion requests for relief to “demonstrate how the waiver, suspension, or other approval for relief is, and will continue to be, in the public interest and consistent with railroad safety.”

§ 211.10 Content of Rulemaking Petitions

FRA proposes to establish a new provision, § 211.10, to outline content requirements for rulemaking petitions. As discussed above, FRA proposes to remove rulemaking petitions from § 211.9, and create a standalone § 211.10 to address rulemaking content requirements. The requirements proposed in § 211.10 are substantively similar to the existing § 211.9. Specifically, FRA proposes to require each petition for rulemaking to (a) “set forth the text or substance of the rule, regulation, standard, or amendment proposed, or specify the rule, regulation, or standard that the petitioner seeks to have repealed” and (b) “explain the interest of the petitioner, and the need for the action requested.” In proposed (c), each petition for rulemaking must “contain sufficient information to support the action sought including an evaluation of anticipated impacts of the action sought; each evaluation must include an estimate of resulting costs to the private sector, to consumers, and to Federal, State, and local governments as well as an evaluation of resulting benefits, quantified to the extent practicable.” In this manner, petitions for rulemaking would be required to evaluate the costs and benefits of the proposal.

§ 211.11 Processing of Petitions for Rulemaking

FRA proposes updating the references in this provision from § 211.9 to § 211.10, to reflect the proposed bifurcation of petitions for waivers and petitions for rulemaking content requirements. In § 211.11(b) and (c), FRA proposes replacing references to the pronoun “he” with “the Administrator.” In § 211.11(d), FRA proposes to change the word “mailed” to “sent” to reflect the possibility of electronic transmittal of the notice of grant or denial.

§ 211.13 Initiation and Completion of Rulemaking Proceedings

FRA proposes updating the reference in this provision from § 211.9 to § 211.10, to reflect the proposed bifurcation of petitions for waivers and petitions for rulemaking content requirements. FRA proposes replacing references to the pronouns “his” and “he” with “the Administrator's” and “the Administrator.”

§ 211.41 Processing of Petitions for Waiver of Safety Rules

FRA proposes to update the language in § 211.41(b) to include an explicit standard comment period for notice of a waiver in the Federal Register to be 60 days. Moreover, FRA suggests removing the introductory language, “[i]f required by statute or the Administrator or the Railroad Safety Board deems it desirable.” Because publication of a notice is required for all such waiver petitions ( see49 U.S.C. 20103(d)(2)(C)), FRA finds this introductory language is unnecessary. The existing provision is silent on the length of an appropriate period of public comment; however, FRA has customarily used 60 days as a matter of practice. FRA also proposes to specify that any deviation from the proposed standard 60-day comment period will be subject to the Administrator's approval.

§ 211.43 Processing of Other Waiver Petitions

FRA proposes to update the language in § 211.43(b) to mirror the changes as discussed for § 211.41(b).

III. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094 and DOT Regulatory Policies and Procedures

This proposed rule is a non-significant regulatory action within the meaning of Executive Order (E.O.) 12866 as amended by E.O. 14094, Modernizing Regulatory Review and DOT's Order, “Rulemaking and Guidance Procedures,” DOT 2100.6A (June 7, 2021). FRA concluded that this proposed rule would impart an annualized burden of approximately $78,000 per year, for an estimated 70 waiver petitions annually, or about $547,000 present value at 7 percent over 10 years. This estimate assumes an equal number of waiver consultations that take 1 hour and those that may take 4 hours, including administrative time of about 25 percent.