Notice2022-25882
Equivalent Protective Arrangements for Railroad Employees
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 28, 2022
Effective
December 28, 2022
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
This is a notice of final guidance issued by the Federal Railroad Administration (FRA) in connection with statutorily required protective arrangements for employees impacted by certain projects financed by the Federal government.
Full Text
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<title>Federal Register, Volume 87 Issue 227 (Monday, November 28, 2022)</title>
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[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Notices]
[Pages 73064-73066]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25882]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket No. FRA-2022-0004]
Equivalent Protective Arrangements for Railroad Employees
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of final guidance.
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SUMMARY: This is a notice of final guidance issued by the Federal
Railroad Administration (FRA) in connection with statutorily required
protective arrangements for employees impacted by certain projects
financed by the Federal government.
DATES: The final guidance is effective December 28, 2022.
FOR FURTHER INFORMATION CONTACT: Kevin MacWhorter, Attorney Advisor,
Office of the Chief Counsel, telephone: (202) 641-8727, email:
<a href="/cdn-cgi/l/email-protection#3e555b48575010535f5d4956514c4a5b4c7e5a514a10595148"><span class="__cf_email__" data-cfemail="adc6c8dbc4c383c0cccedac5c2dfd9c8dfedc9c2d983cac2db">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
[[Page 73065]]
I. Summary
The final guidance (FRA Guidance) is available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under docket number FRA-2022-0004 and on the FRA
website at <a href="https://railroads.dot.gov/elibrary/equivalent-labor-protections">https://railroads.dot.gov/elibrary/equivalent-labor-protections</a>.
The FRA Guidance is intended to facilitate compliance with
statutorily required protective arrangements under 49 U.S.C.
22905(c)(2)(B) for employees impacted by certain projects financed by
the Federal government. The FRA Guidance describes both procedural and
substantive protections. The substantive protections include dismissal
and displacement allowances and moving assistance, among other things.
The procedural protections include opportunities for employees (or
their representatives) to engage in negotiations with respect to
application of the protections.
FRA intends to include the FRA Guidance as an appendix to all new
grant and cooperative agreements subject to section 22905(c)(2)(B), and
grantees will be required to ensure the inclusion of the FRA Guidance,
as applicable, in all contracts for the FRA-funded project. Costs
incurred to comply with the FRA Guidance and in a manner consistent
with 2 CFR part 200 are eligible for reimbursement under the applicable
grant.
II. Background
In 1976, pursuant to the Railroad Revitalization and Regulatory
Reform Act of 1976 (4R Act), representatives of the railroads and their
employees agreed on ``[f]air and equitable arrangements'' to protect
employees impacted by certain projects financed by the Federal
government. The Secretary of Labor adopted these protections in a
letter to the Secretary of Transportation dated July 6, 1976. FRA has
placed a copy of this letter and the accompanying protections in the
docket for this FRA Guidance. In general, these protections provide
that a railroad employee who is adversely affected by a project
receiving certain financing from the Federal government may be entitled
to a displacement allowance or a dismissal allowance, among other
benefits.
Many of FRA's current discretionary grant programs, including the
Consolidated Rail Infrastructure and Safety Improvements Program and
the Federal-State Partnership for Intercity Passenger Rail Program, are
subject to the grant conditions described in 49 U.S.C. 22905(c). As
relevant here, section 22905(c)(2)(B), requires grant applicants, for
any grant for a project that uses rights-of-way owned by a railroad, to
agree to comply with ``the protective arrangements that are equivalent
to the protective arrangements established under'' the 4R Act. While
this requirement is a condition of many FRA grants, it is not often
applicable (as FRA's grants do not typically cause an adverse impact to
railroad employees). With that said, FRA developed the FRA Guidance to
assist grantees and to facilitate compliance with these important
protections.
As a condition of receiving funding for a project subject to
section 22905(c), FRA grantees must comply with protective arrangements
equivalent to those provided under the 4R Act. FRA includes this
requirement in the binding and enforceable grant agreement between FRA
and the grant recipient. As described above, FRA grant agreements will
be supplemented by the FRA Guidance, which clarifies the application of
the protections to FRA grant programs. Because section 22905(c)(2)(B)
specifically requires protective arrangements ``equivalent'' to those
established under the 4R Act, FRA did not change the protections
adopted by the Secretary of Labor in 1976. The FRA Guidance provides
the same protections to railroad employees as provided under the 4R
Act.
While providing the same substantive and procedural protections as
the 4R Act, the FRA Guidance also recognizes important differences
between the financial assistance provided under the 4R Act and FRA's
existing grant programs. Whereas the 4R Act provided financial
assistance directly to railroads, many of FRA's grant programs provide
funding to non-railroad grantees (who are often public entities). FRA
believes this difference is best addressed by expressly requiring
grantees to flow down the required protections to the applicable
railroad. This approach both ensures that the railroad employees are
accorded the appropriate protections and aligns with the 4R Act
framework that sets forth protections as between a railroad and its
employees. In addition, railroads and their employees are best
positioned to ensure compliance with these protections as they
specifically understand what, if any, adverse impacts may arise as a
result of a Federally financed project, and are of course, well versed
in negotiating labor protections. Public entities, on the other hand,
are not well positioned to understand the impacts to rail employees
resulting from a Federally financed project. With that said, grantees
are able to enforce the employee protections through their contract
with the relevant railroad (the FRA Guidance also recognizes that
railroad employees, or their representatives, may notify a grantee of a
dispute or controversy relating to the protections). As such, the FRA
Guidance's flow down requirement allocates responsibility for the
protections in a manner that maximizes compliance.
III. Comments
On March 4, 2022, FRA published a notice of proposed guidance in
connection with the equivalent protective arrangements for railroad
employees and sought public comment. 87 FR 12527. In preparing the FRA
Guidance, FRA considered all public comments submitted to the Federal
Register. The following commenters submitted comments in connection
with the proposed guidance: the Transportation Trades Department AFL-
CIO; the Brotherhood of Maintenance of Way Employees/IBT; the
Brotherhood of Railroad Signalmen; the International Association of
Sheet Metal, Air, Rail and Transportation Workers Mechanical Division;
and the National Conference of Firemen And Oilers, 32BJ/SEIU. Comments
are summarized and briefly addressed below.
The commenters stated that it was not sufficient for the FRA
Guidance to require a grant recipient to flow down the requirements
while making the railroad responsible for the actions necessary to
implement the protections. Instead, the commenters stated that the FRA
Guidance should provide that any grant recipient, whether a railroad or
a non-railroad, of Federal financial assistance subject to 49 U.S.C.
22905(c) must take the actions necessary to provide and enforce the
employee protective arrangements. Similarly, commenters also stated
that the FRA Guidance did not sufficiently address the scenario in
which a grant recipient contracts with a third party (and not the
railroad itself) to perform railroad work activities. These comments
requested that FRA revise the proposed guidance to require all grant
recipients to provide the protections directly to the adversely
impacted railroad employees. FRA disagrees. As described above, section
2 of the FRA Guidance requires all non-railroad grant recipients to
flow down the protective arrangement requirements to subsequent
contracting parties, including railroads. As discussed above, FRA
believes the flow-down requirement ensures that railroads and their
employees comply with the required employee protections, when
applicable, which is consistent with
[[Page 73066]]
(and equivalent to) the 4R Act protections.
However, in consideration of these comments, FRA has made four
modifications to the FRA Guidance. First, section 2 of the FRA Guidance
now includes a sentence clearly stating that a grant recipient is
responsible for ensuring compliance with the employee protections.
Second, a new section 2(b) of the FRA Guidance requires a grant
recipient to incorporate into an agreement, new or existing, with a
railroad owning rights-of-way the requirement that the railroad notify
its employees (and their representatives) of the project funded with
financial assistance subject to 49 U.S.C. 22905(c) and the
applicability of the employee protections. Third, a new section 2(c) of
the FRA Guidance permits any railroad employee (or their
representatives) to notify the grant recipient of a dispute or
controversy related to these employee protections. Fourth, FRA has
modified subsection 8(a) and section 9 to provide a clear mechanism for
a railroad employee (or its representative) to dispute whether it would
be affected by a project, including the ability to refer the dispute to
arbitration. FRA believes this clarification will help address comments
regarding the applicability of the protections in instances where a
grant recipient contracts directly with a third party (and not the
applicable railroad). Together, these four changes clarify the grant
recipient's obligations to: ensure compliance with the employee
protections; ensure railroad employees and their representatives are on
notice of projects subject to the protections; ensure railroad
employees and their representatives can notify the grant recipient of
any dispute relating to the protections; and provide a mechanism to
resolve disputes as to whether a railroad employee is affected by a
project.
A commenter suggested that the FRA Guidance should also apply to
post-construction maintenance activities relating to Federally financed
construction projects subject to the grant conditions described in
section 22905(c). FRA disagrees. Pursuant to section 22905(c)(2)(B),
the protections apply to those actions ``taken in connection'' with the
project. FRA understands this language to limit the protections to the
activities necessary to complete the project funded with FRA financial
assistance. The protections do not extend to activities, like
maintenance, that follow the completion of the project and which are
not funded by FRA's financial assistance.
FRA made several additional revisions to the proposed guidance. One
commenter requested that the ``Average Monthly Time'' used to calculate
displacement allowances be based on hours worked rather than days
worked. FRA agrees with this change and modified subsection 1(b)
accordingly. A commenter also requested that FRA revise the definition
of the term ``Dismissed Employee'' to include employees who are
``unable to secure another position by exercise of their seniority
rights,'' rather than the proposed language that excluded employees who
``can secure another position by exercise of their seniority rights.''
FRA agrees with this change and modified subsection 1(c) accordingly. A
commenter also requested that FRA revise subsection 4(b)(ii) of the FRA
Guidance, titled ``Subject of Negotiations,'' to clarify that changes
to infrastructure, including rights-of-way, track, and signal and
crossing systems, that may result in dismissal or displacement of
protected employees or rearrangement of forces involving such employees
shall be subject to review and negotiation by the parties to the extent
necessary to ensure compliance with the FRA Guidance. FRA agrees with
this proposed change and modified subsection 4(b)(ii) accordingly.
Issued in Washington, DC
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2022-25882 Filed 11-25-22; 8:45 am]
BILLING CODE 4910-06-P
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