ATLP Passenger Rail Update

In this passenger rail update we cover the Federal Railroad Administration’s (“FRA”) new regulations concerning fatigue management and FRA’s introduction of the new intercity passenger Corridor Identification and Development Program. We also provide an update on the Amtrak Gulf Coast proceedings currently pending before the Surface Transportation Board (“STB” or “Board”).

FRA Amends Regulations to Implement Statutory Requirements for Fatigue Management

Pursuant to the requirements of Section 103 of the Rail Safety Improvement Act of 2008 (“RSIA”), 49 U.S.C. § 20156, on June 13, 2022, FRA issued a Notice of Final Rule in the Federal Register requiring that certain railroads include “fatigue management plans” in their safety risk reduction plans (87 Fed. Reg. 35,660).  This requirement applies specifically to Class I railroads, railroads that have been deemed by the Secretary of the Department of Transportation to have inadequate safety performance, and intercity passenger and commuter railroads.  Under current FRA regulations, Class I railroads and those deemed to have inadequate safety performance are required to submit Risk Reduction Program (“RRP”) plans to the FRA while intercity passenger and commuter railroads are required to submit System Safety Program (“SSP”) plans.  However, Section 20156 also requires that fatigue management plans be included in a railroad’s safety risk reduction plan (either an RRP or SSP), which had not previously been included in the applicable regulations (49 C.F.R. Part 270 and Part 271), thus prompting this rulemaking.

Through this final rule, the FRA amends 49 C.F.R. Part 270 and Part 271 by adding additional identical subparts to each entitled “Fatigue Risk Management Programs” (“FRMP”).  These subparts lay out the requirements for the FRMPs.  Railroads covered by the rule will be required to submit written FRMP plans to the FRA for its approval.  Once approved, the FRMP plan will become part of the railroad’s SSP or RRP and the FRMP must be implemented into the railroad’s operating practices. 

What is in an FRMP and FRMP plan?  

The rule creates two new requirements for covered railroads: one for the covered railroads to implement an FRMP, and the other for covered railroads to submit to FRA and FRMP plan.  An FRMP is a comprehensive, system-oriented approach to safety in which a railroad determines its fatigue risk by identifying and analyzing applicable hazards and takes action to mitigate, if not eliminate, that fatigue risk.  An FRMP, according to the amended regulations (i.e. 49 C.F.R. § 270.407, pertaining to SSPs, and 49 C.F.R. § 271.607, pertaining to RRPs) must include:

  1. An analysis of fatigue risks.
  2. Strategies for mitigating fatigue risks.
  3. A consideration of policies to address fatigue risk reduction.
  4. A consideration of operational practices to address fatigue risk reduction.
  5. A consideration of training, education, and outreach methods to deliver fatigue-related information to affected employees. 
  6. A method of monitoring and evaluating its FRMP.

The FRMP plan is an explanation of the FRMP along with the railroad’s process for implementing it.  In general, and in accordance with 49 C.F.R. § 270.409, which pertains to SSPs applicable to intercity passenger and commuter railroads (see 49 C.F.R. § 271.609 for identical regulations pertaining to RRPs), FRMP plans must include:

  1. A statement of goals and strategies for reaching fatigue-related goals.
  2. The methodology the railroad will use to analyze fatigue risk.
  3. Strategies for mitigating the fatigue-risks identified in the fatigue-risk analysis.
  4. Processes for evaluating the effectiveness of the FRMP.
  5. An FRMP implementation plan describing how the railroad will implement the FRMP.

In formulating a fatigue-risk analysis, the railroad must evaluate a variety of circumstances throughout its system.  At a minimum, the railroad must consider potential health conditions that might affect fatigue levels in employees considered safety-related; scheduling issues that may affect the amount of rest a safety-related employee receives; and factors specific to different job categories of safety-related employees.  The railroad is also required to consider what policies and operational procedures they will implement to reduce the risks associated with employee fatigue. 

Engagement with Affected Employees and Unions

As part of the development of an FRMP, covered railroads are required to engage with affected employees to assist in formulating their FRMPs.  Section 20156(g) states that railroads are to “consult with, employ good faith, and use its best efforts” to involve affected employees and unions that may represent affected employees in the process of creating their FRMP.  FRA states in its Notice of Final Rule that it does not envision this as simply a reviewing or commenting role on the final product for affected employees, but that railroads should cooperate with affected employees “at all stages of plan development and program implementation.”

It is worth noting that several comments were previously submitted to FRA regarding the employee involvement provision of the new regulations.  Several commenters expressed concern that railroads have been historically unwilling in collective bargaining negotiations to address fatigue-related policies.  In addressing this concern, FRA states that collective bargaining is outside the agency’s authority and is separate from the requirements of Section 20156.  However, it also states that in situations where affected employees and the railroad cannot come to agreement on their FRMP, they can submit a letter to FRA explaining their disagreement and FRA will consider that during the process of evaluating their FRMP plan. 

Cost Benefit Analysis of the FRMP

FRA includes a ten-year cost benefit analysis in the docket for this rulemaking.  While FRA was able to quantify the total benefits and costs to the Class Is and the railroads with inadequate safety performance, it was unable to do so for passenger railroads.  For passenger railroads, FRA includes a qualitative analysis of the costs and benefits of this rule.  For the covered freight railroads, FRA’s cost benefit analysis shows that the benefits outpace the costs for both three and seven percent annualized discount rates. 

According to the FRA, this rule codifies a requirement of the RSIA that have been neglected in prior rulemakings since the law was passed in 2008. FRA states in the Notice of Final Rule that this new rule represents another step in an ongoing process to address important safety issues faced by railroads. 

FRA Issues Notice For IIJA-Mandated Intercity Passenger Rail Corridor Identification and Development Program

On May 15, 2022, FRA issued a notice (“Corridor ID Notice”) announcing the establishment of a Corridor Identification and Development (“Corridor ID”) Program for intercity passenger rail (87 Fed. Reg. 29,432).  The notice was issued as a result of a provision in the recently passed Infrastructure Investment and Jobs Act (“IIJA”) requiring the Secretary of Transportation to establish a program within 180 days to facilitate the development of intercity passenger rail corridors. See 49 U.S.C. § 25101(a).

Pursuant to the IIJA, the Corridor ID Program must include the following components: (1) A process for eligible entities to submit proposals for the development of corridors; (2) a process for the review and selection of such proposals; (3) criteria for determining level of readiness for Federal financial assistance of a corridor (to include identification of the service operator, service sponsor, and capital project sponsors; engagement with host railroads; and other criteria determined appropriate by the Secretary); (4) a process for preparing service development plans; (5) the creation of a pipeline of intercity passenger rail corridor projects; (6) planning guidance; and (7) such other features as the Secretary considers relevant to the successful development of intercity passenger rail corridors.  Eligible entities are defined under the IIJA to include Amtrak, States or groups of States, political subdivisions of a State, regional passenger rail authorities, regional planning organizations, entities implementing interstate compacts, and other public entities as determined by the Secretary of Transportation.  Eligible routes are statutorily defined as one of the following: (1) A new intercity passenger rail route of less than 750 miles; (2) the enhancement of an existing intercity passenger rail route of less than 750 miles; (3) the restoration of service over all or portions of an intercity passenger rail route formerly operated by Amtrak; and (4) the increase of service frequency of a long-distance intercity passenger rail route. 49 U.S.C. § 25101(h).  The criteria for the Secretary to select passenger rail corridors for participation in the Corridor ID Program is also established under statute and includes such factors as whether the corridor is reflected or supported by state, regional, or interregional planning; anticipated environmental, congestion mitigation, and other public benefits; financial viability; and integration with existing rail systems and connections between major metropolitan areas. 49 U.S.C. § 25101(c).

Once selected, eligible entities, the Secretary of Transportation, relevant states, and Amtrak, as applicable, must develop service development plans or update existing plans.  Funding for planning and development activities under the Corridor ID Program is authorized from FRA’s Federal-State Partnership for Intercity Passenger Rail grants (Fed-State Partnership) Program (up to 5% of such funding). See 49 U.S.C. § 24911(k).  Once corridors are selected for participation in the Corridor ID Program, projects that are identified in and consistent with development of those corridors enjoy preference in selection for funding through the Fed-State Partnership Program and the Restoration and Enhancement Grants Program.  See 49 U.S.C. § 24911(d)(2)(A)(i) and 49 U.S.C. § 22908(d)(10), respectively.

On February 7, 2022, FRA published a request for information in the Federal Register seeking comments on the Corridor ID Program, to which FRA received over 400 responses.  FRA also conducted three virtual listening sessions in February 2022 with stakeholders. From these sessions, FRA reports in the Corridor ID Notice that several themes emerged, including that the Corridor ID Program should: (1) Expand on the geographic scope of previous corridor development efforts in order to serve communities and regions that are not currently well-served by passenger rail service; (2) in addition to laying the foundation for a longer-term planning framework, also strive to deliver “quick wins;” (3) include multi-State and multi-project corridors; (4) be clear on the length of eligible corridors; (5) place relatively less emphasis on the selection criteria regarding non-Federal funding for operating costs; (6) be clear on how the Corridor ID Program relates to other FRA programs and requirements; (7) be clear on whether the corridor must be in a State rail plan; (8) provide multi-year funding; (9) provide “tracks” with different evaluation criteria to accommodate corridor proposals at different levels of readiness; (10) be clear on how a project that is not initially selected can join the Corridor ID Program at a later date; and (11) provide a clear timeline for application and selection.

As described in the Corridor ID Notice, the Corridor ID Program “is intended both to support a sustained long-term development effort, and to set forth a capital project pipeline ready for Federal (and other) funding.” FRA states that it intends the Corridor ID Program “to become the primary means for directing Federal financial support and technical assistance toward the development of proposals for new or improved intercity passenger rail services throughout the United States.”  FRA also notes that selection of a corridor into the Corridor ID Program “will represent a decision by FRA to provide financial assistance for the completion of . . . pre-implementation corridor development activities” such as planning, preliminary engineering, and environmental review (i.e. under the National Environmental Policy Act).

The Corridor ID Notice states that FRA plans to publish a notice in the final quarter of 2022 soliciting proposals by eligible entities to participate in the Corridor ID Program.  FRA states that it will solicit proposals for both entirely undeveloped concepts and corridors that have already been established or are in development.  The Corridor ID Notice provides general guidance on what is expected to be included in the future solicitation, but notes that official proposal contents will be issued when the solicitation is issued. Proposers are not expected to be required to demonstrate a commitment by host railroads to support such proposals, but proposers will be expected to demonstrate a sufficient level of commitment to the proposed capital project and the degree of coordination among project and service sponsors.  FRA anticipates requiring proposals to explicitly state whether or not the proposed corridor is intended to be operated by Amtrak.

Surface Transportation Board Extends Period for Submitting to the Evidentiary Record in Proceeding for Amtrak’s Request to Restart Gulf Coast Service.

Following up on previous coverage on this blog regarding Amtrak’s request to restart intercity passenger rail service between Mobile, Alabama and New Orleans, Louisiana, on June 10, 2022, the STB issued a decision extending the date for closing of the evidentiary record in that proceeding (Finance Docket No. 36496) until July 13, 2022.  The decision also modifies the protective order issued for this proceeding to allow certain Amtrak employees to access materials designated as “highly confidential” and requires the parties to participate in Board-sponsored mediation.   The parties in this proceeding are the National Railroad Passenger Corporation (“Amtrak”), CSX Transportation, Inc. (“CSX”), Norfolk Southern Railway Company (“NS”), and, collectively, the Alabama State Port Authority and its rail carrier division, the Terminal Railway Alabama State Docks (“Port of Mobile”).

At issue in this proceeding is Amtrak’s request, pursuant to 49 U.S.C. § 24308(e), to restart twice daily round-trip passenger rail service between Mobile and New Orleans.  Passenger rail service along this route was suspended after Hurricane Katrina decimated the area in 2015.  Since then, several passenger services connecting to New Orleans have resumed, but service to Mobile has not.  CSX owns the majority of the rail line over which the service would operate and opposes the reintroduction of passenger service.  CSX, along with Norfolk Southern and the Port of Mobile, claims that the reintroduction of passenger service, without billions of dollars in new capital investment along the corridor, would “impair unreasonably” freight operations.  See 49 U.S.C. § 24308(e)(2)(A).

The STB has held oral hearings in this proceeding over an extended period this spring. At the conclusion of the oral evidentiary hearing held on May 12, 2022, the Chairman of the STB, Martin J. Oberman, discussed several evidentiary issues and invited the parties to submit additional evidence to the Board pertaining to those issues.  Supplemental evidence can be submitted until July 13, 2022, at which time the Board will issue additional instructions regarding next steps in the proceeding.

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