[Federal Register Volume 87, Number 227 (Monday, November 28, 2022)]
[Notices]
[Pages 73064-73066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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: 
[email protected].

SUPPLEMENTARY INFORMATION:

[[Page 73065]]

I. Summary

    The final guidance (FRA Guidance) is available at https://www.regulations.gov under docket number FRA-2022-0004 and on the FRA 
website at https://railroads.dot.gov/elibrary/equivalent-labor-protections.
    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