2nd Sub. H.B. 63
LEGISLATIVE GENERAL COUNSEL
6 Approved for Filing: K.P. Gasser 6
6 02-05-23 9:46 AM 6
H.B. 63
2nd Sub. (Gray)
Representative Mike Schultz proposes the following substitute bill:
1 OFFICE OF RAIL SAFETY
2 2023 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Mike Schultz
5 Senate Sponsor: Michael K. McKell
6
7LONG TITLE
8General Description:
9 This bill creates the Office of Rail Safety within the Department of Transportation.
10Highlighted Provisions:
11 This bill:
12 <creates the Office of Rail Safety;
13 <requires application and a request for certification with the Federal Railroad
14Administration;
15 <upon certification, requires the Office of Rail Safety to assume the inspection and
16investigation functions in certain aspects of the railroad operations;
17 <allows the Office of Rail Safety to regulate and monitor time limits on the blocking
18of railroad-highway grade crossings;
19 <requires railroads to pay a fee to cover the costs of the inspections;
20 <grants rulemaking power to the Department of Transportation to make rules related
21to the implementation of the Office of Rail Safety and employee safety standards
22related to walkways and clearances; and
23 <makes technical changes.
24Money Appropriated in this Bill:
25 None
*HB0063S02* 2nd Sub. (Gray) H.B. 63 02-05-23 9:46 AM
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26Other Special Clauses:
27Öº This bill provides a special effective date. »Ö
27a This bill provides a coordination clause.
28Utah Code Sections Affected:
29AMENDS:
30 72-1-203, as last amended by Laws of Utah 2019, Chapter 479
31ENACTS:
32 72-17-101, Utah Code Annotated 1953
33 72-17-102, Utah Code Annotated 1953
34 72-17-103, Utah Code Annotated 1953
35 72-17-104, Utah Code Annotated 1953
36 72-17-105, Utah Code Annotated 1953
37 72-17-106, Utah Code Annotated 1953
38 72-17-107, Utah Code Annotated 1953
39 72-17-108, Utah Code Annotated 1953
40Utah Code Sections Affected by Coordination Clause:
41 72-7-102, Utah Code Annotated 1953
42 72-7-601, Utah Code Annotated 1953
43 72-7-602, Utah Code Annotated 1953
44 72-17-201, Utah Code Annotated 1953
45 72-17-202, Utah Code Annotated 1953
46
47Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 72-1-203 is amended to read:
49 72-1-203. Deputy director -- Appointment -- Qualifications -- Other assistants
50and advisers -- Salaries.
51 (1) The executive director shall appoint two deputy directors, who shall serve at the
52discretion of the executive director.
53 (2) (a) The deputy director of engineering and operations shall be a registered
54professional engineer in the state and is the chief engineer of the department.
55 (b) The deputy director of engineering and operations shall assist the executive director
56with areas of responsibility that may include: 02-05-23 9:46 AM 2nd Sub. (Gray) H.B. 63
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57 (i) project development, including statewide standards for project design and
58construction, right-of-way, materials, testing, structures, and construction;
59 (ii) oversight of the management of the region offices described in Section 72-1-205;
60 (iii) operations and traffic management;
61 (iv) oversight of operations of motor carriers and ports;
62 (v) oversight and enforcement of railroad safety requirements as described in Chapter
6317, Office of Rail Safety;
64 [(v)] (vi) transportation systems safety;
65 [(vi)] (vii) aeronautical operations; and
66 [(vii)] (viii) equipment for department engineering and maintenance functions.
67 (c) The deputy director of planning and investment shall assist the executive director
68with areas of responsibility that may include:
69 (i) oversight and coordination of planning, including:
70 (A) development of statewide strategic initiatives for planning across all modes of
71transportation;
72 (B) coordination with metropolitan planning organizations and local governments; and
73 (C) corridor and area planning;
74 (ii) asset management;
75 (iii) programming and prioritization of transportation projects;
76 (iv) fulfilling requirements for environmental studies and impact statements;
77 (v) resource investment, including identification, development, and oversight of
78public-private partnership opportunities;
79 (vi) data analytics services to the department;
80 (vii) corridor preservation;
81 (viii) employee development;
82 (ix) maintenance planning; and
83 (x) oversight and facilitation of the negotiations and integration of public transit
84providers described in Section 17B-2a-827.
85 Section 2. Section 72-17-101 is enacted to read:
86 CHAPTER 17. RAIL SAFETY
87 Part 1. Office of Rail Safety 2nd Sub. (Gray) H.B. 63 02-05-23 9:46 AM
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88 72-17-101. Office of Rail Safety -- Creation -- Applicability.
89 (1) In accordance with 49 C.F.R. Part 212, State Safety Participation Regulations, there
90is created within the department an Office of Rail Safety.
91 (2) As described in 49 C.F.R. Secs. 212.105 and 212.107, to organize the Office of
92Rail Safety, the executive director shall:
93 (a) enter into an agreement with the Federal Railroad Administration to participate in
94inspection and investigation activities; and
95 (b) obtain certification from the Federal Railroad Administration to undertake
96inspection and investigative responsibilities and duties.
97 (3) In establishing the Office of Rail Safety in accordance with the duties described in
9849 C.F.R. Part 212, the department may hire personnel and establish the duties of the office in
99phases.
100 (4) This chapter applies to:
101 (a) a class I railroad; and
102 (b) commuter rail.
103 Section 3. Section 72-17-102 is enacted to read:
104 72-17-102. Definitions.
105 As used in this chapter:
106 (1) "Class I railroad" means the same as that term is defined in 49 U.S.C. Sec. 20102.
107 (2) "Commuter rail" means the same as that term is defined in Section 63N-3-602.
108 (3) "Federal Railroad Administration" means the Federal Railroad Administration
109created in 49 U.S.C. Sec. 103.
110 (4) "Office" means the Office of Rail Safety created in accordance with Section
11172-17-101.
112 (5) "Railroad" means the same as that term is defined in 49 C.F.R. Sec. 200.3.
113 Section 4. Section 72-17-103 is enacted to read:
114 72-17-103. Duties of the Office of Rail Safety.
115 (1) In accordance with 49 C.F.R. Part 212, and the authorization granted from the
116Federal Railroad Administration, the office shall perform the inspection, compliance, and
117enforcement duties in the following areas:
118 (a) grade crossings; 02-05-23 9:46 AM 2nd Sub. (Gray) H.B. 63
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119 (b) hazardous materials;
120 (c) motive power and equipment;
121 (d) operating practices;
122 (e) signal and train control; and
123 (f) track.
124 (2) As part of the responsibilities described in Subsection (1), the office shall:
125 (a) inspect and investigate railroad rights-of-way, facilities, equipment, and operations
126of railroads in this state;
127 (b) notify a railroad of any violation or lack of compliance with applicable state and
128federal laws, rules, regulations, orders, and directives;
129 (c) enforce applicable state and federal laws, rules, regulations, orders, and directives
130relating to the transportation by rail of persons or commodities; and
131 (d) issue orders to require compliance with state and federal laws, rules, regulations,
132orders, and directives.
133 (3) The office shall employ a sufficient number of federally certified inspectors and
134staff to ensure that railroad equipment, facilities, and tracks are inspected as frequently as
135reasonably required to ensure compliance and safety as required under state and federal law.
136 (4) (a) The office shall investigate railroad practices related to the length of time a
137railroad blocks a highway-railroad grade crossing.
138 (b) Upon petition of a political subdivision, or upon the office's own motion, the office
139may:
140 (i) conduct an investigation of the conditions related to a grade crossing; and
141 (ii) if necessary, conduct a hearing, make findings, and issue an order to determine
142whether highway-railroad crossing blocking practices of the railroad are reasonable.
143 (c) (i) The office shall examine and inspect the physical condition of all railroad
144facilities in this state to ensure compliance with safety requirements.
145 (ii) As part of the inspection and examination of railroad facilities and crossings, the
146office shall include an examination and inspection of:
147 (A) the condition of railroad facilities and crossing infrastructure;
148 (B) whether expansion of grade crossing infrastructure or other changes are justified
149based on the traffic and safety conditions; and 2nd Sub. (Gray) H.B. 63 02-05-23 9:46 AM
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150 (C) other safety considerations required by federal law.
151 (d) If the office determines that a railroad's highway-railroad crossing blocking
152practices are unreasonable, the office shall:
153 (i) request the Federal Rail Administration take enforcement actions pursuant to 49
154C.F.R. Sec. 212.115; and
155 (ii) notify the Surface Transportation Board defined in 49 U.S.C. Sec. 10102 of the
156unsafe and unreasonable practices.
157 (e) If the office finds a violation of safety requirements as described in this section or
158in federal law, and the office requests an enforcement action and Federal Rail Administration
159does not take enforcement action as described in 49 C.F.R. Sec. 212.115, the office may seek a
160civil penalty not less than $500 and no more than $10,000 for each offense.
161 (5) (a) The office shall examine and inspect the physical condition of all railroad
162facilities in this state to ensure compliance with safety requirements.
163 (b) If an inspector determines that a railroad facility is noncompliant, the office shall
164provide written notice to the railroad.
165 (c) If a railroad receives a notice described in Subsection (5)(b), the railroad shall
166remedy the condition or practice within 30 days of the date of the notice.
167 (d) If after 30 days from the date of the notice the railroad has not remedied the
168condition or practice to the office's satisfaction, the office may set the matter for hearing.
169 (e) After a hearing described in Subsection (5)(d), if the office determines that the
170condition or practice is noncompliant and the railroad has not made reasonable efforts to
171remedy the condition or practice, the office may issue an order requiring the railroad to:
172 (i) eliminate or remedy the unsafe or unlawful condition or practice; or
173 (ii) make any necessary repairs, alterations, or other changes to the relevant condition
174or practice to ensure compliance with state and federal law.
175 (f) In addition to any order issued under Subsection (5)(e), after a hearing described in
176Subsection (5)(d), if the office determines that the condition or practice is noncompliant and
177the railroad has not made reasonable efforts to remedy the condition or practice, and the
178condition or practice is so hazardous as to place a railroad employee or the public in immediate
179danger, the office may issue an order requiring the railroad:
180 (i) after 48 hours' written notice to the railroad, issue an order prohibiting: 02-05-23 9:46 AM 2nd Sub. (Gray) H.B. 63
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181 (A) the unsafe or unlawful practice; or
182 (B) the use of the facility until completion of the necessary repair, alteration, or other
183necessary changes; and
184 (ii) pay a civil penalty of not more than $10,000 per violation or per day of violation of
185state or federal law, or a rule made in accordance with Subsection (6) or Section 72-17-107.
186 (6) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
187department shall make rules necessary to:
188 (a) establish the Office of Rail Safety as required in this part;
189 (b) establish and enforce rules regarding safe and reasonable procedures and standards
190regarding the blocking of grade crossings, which standards and limits shall be commensurate
191with reasonable requirements of train and vehicular traffic operations;
192 (c) enforce this part and relevant state and federal law related to this part; and
193 (d) administer the Office of Rail Safety as described in this part.
194 Section 5. Section 72-17-104 is enacted to read:
195 72-17-104. Federal Railroad Administration Grant Program.
196 After reaching an agreement with and receiving the certification from the Federal
197Railroad Administration as described in Section 72-17-101, the office may apply for Railroad
198Safety Grants as often as permitted by the Federal Rail Administration.
199 Section 6. Section 72-17-105 is enacted to read:
200 72-17-105. Establishment of administrative fees -- Payment -- Expenditures.
201 (1) (a) The office shall annually determine a fee to be paid by each railroad that
202operated within the state and is subject to the jurisdiction of the office on a pro rata basis as
203described in Subsection (2).
204 (b) The office and the department shall establish the annual fee to produce a total
205amount not less than the amount required to regulate railroads and carry out the duties
206described in this part.
207 (c) The office shall use the revenue generated by the fees paid by each railroad for the
208investigation and enforcement activities of the office as authorized under this part.
209 (2) (a) For grade crossings inspections and services, the office shall establish and each
210railroad shall pay a fee based on:
211 (i) as of January 1 of each year, the number of crossings the railroad operates within 2nd Sub. (Gray) H.B. 63 02-05-23 9:46 AM
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212this state that cross a highway, whether at grade, by overhead structure, or subway; and
213 (ii) the frequency of use of each crossing the railroad operates, including:
214 (A) the frequency of train operation at the crossing; and
215 (B) the frequency of highway traffic at the crossing.
216 (b) For hazardous materials related inspections and services, the office shall establish
217and each railroad shall pay a fee based on the tonnage of hazardous materials transported in this
218state during a given year.
219 (c) For motive power and equipment related inspections and services, the office shall
220establish and each railroad shall pay a fee based on the number of motive power units and other
221equipment units operated by the railroad in this state.
222 (d) For track related inspections and services, the office shall establish and each
223railroad shall pay a fee based on the number of miles of track owned or operated by the railroad
224within this state.
225 (e) For signal and train control inspections and services, as well as operating practices
226inspections and services, the office shall establish and each railroad shall pay a fee based on
227gross operating revenue of each railroad generated within this state.
228 (f) (i) For inspection services related to commuter rail, notwithstanding any other
229agreement, a county or municipality with commuter rail service provided by a public transit
230district may request local option transit sales tax in accordance with Section 59-12-2206 and
231spend local option transit sales tax in the amount requested by the office.
232 (ii) A county or municipality that requests local option transit sales tax as described in
233Subsection (2)(f)(i) may transmit to the office the funds requested under Subsection (2)(f)(i)
234and transmitted to the county or municipality under Subsection 59-12-2206(5)(b).
235 (iii) A county or municipality that requests local option transit sales tax as described in
236Subsection (2)(f)(i) may not request more local option transit sales tax than is necessary to
237carry out the safety inspection and functions under this chapter.
238 (iv) The office is not required to charge or collect a fee related to inspections of
239commuter rail.
240 (3) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
241the department shall make rules to establish each of the fee amounts described in Subsection
242(2): 02-05-23 9:46 AM 2nd Sub. (Gray) H.B. 63
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243 (i) according to the data described in Subsection (2); and
244 (ii) to collect an amount sufficient to cover the budget and costs to administer the
245duties of the office.
246 (b) The department shall annually adjust the fees established in accordance with
247Subsection (3)(a) to account for inflation and other budgetary factors.
248 (4) Each railroad that operates within this state shall pay to the office the fees described
249and established by the office.
250 Section 7. Section 72-17-106 is enacted to read:
251 72-17-106. Office of Rail Safety Account.
252 (1) There is created an expendable special revenue fund called the Office of Rail Safety
253Account.
254 (2) The account shall be funded by:
255 (a) deposits into the account by the Legislature;
256 (b) fees collected pursuant to Section 72-17-105; and
257 (c) other deposits or donations into the account.
258 (3) The office shall provide a detailed budget to account for the office's expenditures
259related to the enforcement of this part, including:
260 (a) salaries, per diem, and travel expenses of employees performing the duties
261described in this part;
262 (b) expenditures for clerical and support staff directly associated with the duties
263described in this part;
264 (c) expenditures for legal staff who pursue and administer complaints and compliance
265issues related to this part; and
266 (d) reasonable overhead costs related to Subsections (3)(a) through (c).
267 (4) The office, in performing the duties under this part:
268 (a) shall limit the expenditure of funds to the total amount of fees collected from the
269railroads as described in this section; and
270 (b) may not expend funds from other sources accessible to the department.
271 Section 8. Section 72-17-107 is enacted to read:
272 72-17-107. Rulemaking regarding railroad clearances and walkways.
273 In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the 2nd Sub. (Gray) H.B. 63 02-05-23 9:46 AM
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274department shall make rules to establish safety standards related to:
275 (1) walkways adjacent to railroad track;
276 (2) clearances of structures and other obstructions near railroad track;
277 (3) the safety of office personnel conducting inspections in accordance with this part;
278 (4) railroad infrastructure and work spaces for railroad workers;
279 (5) signage related to railroad worker safety; and
280 (6) other safety standards as the department finds necessary.
281 Section 9. Section 72-17-108 is enacted to read:
282 72-17-108. Agreements to indemnify in a railroad contract.
283 (1) As used in this section:
284 (a) "Railroad contract" means a contract or agreement between:
285 (i) a railroad; and
286 (ii) another person that could be subject to a civil penalty or fine issued pursuant to this
287chapter.
288 (b) "Indemnification provision" means a covenant, promise, agreement, or
289understanding in, in connection with, or collateral to a railroad contract that requires the person
290to insure, hold harmless, indemnify, or defend the railroad against liability, if:
291 (i) the damages arise out of a civil penalty issued pursuant to this chapter; and
292 (ii) the damages are caused by or resulting from the fault of the railroad or the
293railroad's agents or employees.
294 (2) Except as provided in Subsection (3), an indemnification provision in a railroad
295contract is against public policy and is void and unenforceable.
296 (3) If an indemnification provision is included in a railroad contract, in any action for
297damages described in Subsection (1)(b)(i), the railroad may seek indemnification from another
298party to a railroad contract pro rata based on the proportional share of fault of each party, if:
299 (a) the damages are caused in part by the party other than the railroad;
300 (b) the cause of the damages arose at a time when the party other than the railroad was
301operating pursuant to the railroad contract.
302 (4) This section may not be construed to impair a contract in existence before May 3,
3032023.
303aÖº Section 10. Effective date.
303b This bill takes effect on March 31, 2024. »Ö
304 Section Öº [10] 11 »Ö . Coordinating H.B. 63 with H.B. 232 -- Substantive and
304atechnical 02-05-23 9:46 AM 2nd Sub. (Gray) H.B. 63
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305amendments.
306 If this H.B. 63 and H.B. 232, Railroad Crossing Maintenance Amendments, both pass
307and become law, it is the intent of the Legislature that the Office of Legislative Research and
308General Counsel shall prepare the Utah Code database for publication as follows:
309 (1) renumbering Title 72, Chapter 7, Part 6, Regulation of Highway-Railroad Grade
310Crossings, in H.B. 232 to be Title 72, Chapter 17, Part 2, Regulation of Highway-Railroad
311Grade Crossings;
312 (2) renumbering Section 72-7-601 in H.B. 232 to be Section 72-17-201;
313 (3) renumbering Section 72-7-602 in H.B. 232 to be Section 72-17-202; and
314 (4) replacing the language "Section 72-7-602" with "Section 72-17-202" in Section
31572-7-102.