FRA requests input on provision in Risk Reduction Program final rule

Washington — Responding to a petition for reconsideration of a final rule on its Risk Reduction Program, the Federal Railroad Administration is seeking comment on whether to keep or remove a provision clarifying that certain contractors are considered a railroad’s directly affected employees.

The provision – 49 CFR Part 271.3(c) – reads that “if a railroad contracts out significant portions of its operations, the contractor and the contractor’s employees performing the railroad’s operations shall be considered directly affected employees for purposes of this part.”

According to a notice of proposed rulemaking published in the Sept. 8 Federal Register, the Association of American Railroads submitted the petition in April 2020, asking FRA to consider removing the provision. AAR contends that although the inclusion of contractor employees may be appropriate for passenger railroads that contract out their entire operations, the same isn’t true for Class I freight railroads. The association also requests a clearer definition of “significant portion.” Because potential removal of the provision may not be done before certain implementation deadlines in the rule for Class I freight railroads arrive, FRA says it won’t take enforcement action or disapprove a railroad’s RRP plan for not complying with the provision.

FRA has received and approved all seven Class I freight railroads’ RRP plans since issuing a response about the provision. The agency also notes that it hasn’t received any statements from directly affected employees citing concerns about the provision, which the agency says should be retained and is a necessary part of the overall System Safety Program rule.

The deadline to comment on the NPRM is Nov. 7.