Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 63 Second Substitute (2023GS)

Sponsor

Rep. Schultz, M.

Final action

Governor Signed 3/13/2023

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• creates the Office of Rail Safety;
• requires application and a request for certification with the Federal Railroad Administration;
• upon certification, requires the Office of Rail Safety to assume the inspection and investigation functions in certain aspects of the railroad operations;
• allows the Office of Rail Safety to regulate and monitor time limits on the blocking of railroad-highway grade crossings;
• requires railroads to pay a fee to cover the costs of the inspections;
• grants rulemaking power to the Department of Transportation to make rules related to the implementation of the Office of Rail Safety and employee safety standards related to walkways and clearances; and
• makes technical changes.

Every vote on this bill

Bill text

OFFICE OF RAIL SAFETY
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Mike Schultz
Senate Sponsor: 
Michael K. McKell
LONG TITLE
General Description:
This bill creates the Office of Rail Safety within the Department of Transportation.
Highlighted Provisions:
This bill:
▸ creates the Office of Rail Safety;
▸ requires application and a request for certification with the Federal Railroad
Administration;
▸ upon certification, requires the Office of Rail Safety to assume the inspection and
investigation functions in certain aspects of the railroad operations;
▸ allows the Office of Rail Safety to regulate and monitor time limits on the blocking
of railroad-highway grade crossings;
▸ requires railroads to pay a fee to cover the costs of the inspections;
▸ grants rulemaking power to the Department of Transportation to make rules related
to the implementation of the Office of Rail Safety and employee safety standards
related to walkways and clearances; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
This bill provides a special effective date.
This bill provides a coordination clause.
Utah Code Sections Affected:
AMENDS:
72-1-203
, as last amended by Laws of Utah 2019, Chapter 479
ENACTS:
72-17-101
, Utah Code Annotated 1953
72-17-102
, Utah Code Annotated 1953
72-17-103
, Utah Code Annotated 1953
72-17-104
, Utah Code Annotated 1953
72-17-105
, Utah Code Annotated 1953
72-17-106
, Utah Code Annotated 1953
72-17-107
, Utah Code Annotated 1953
72-17-108
, Utah Code Annotated 1953
Utah Code Sections Affected by Coordination Clause:
 72-7-102
, Utah Code Annotated 1953
 72-7-601
, Utah Code Annotated 1953
 72-7-602
, Utah Code Annotated 1953
 72-17-201
, Utah Code Annotated 1953
 72-17-202
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
72-1-203
 is amended to read:
72-1-203.
Deputy director -- Appointment -- Qualifications -- Other assistants
and advisers -- Salaries.
(1) The executive director shall appoint two deputy directors, who shall serve at the
discretion of the executive director.
(2) (a) The deputy director of engineering and operations shall be a registered
professional engineer in the state and is the chief engineer of the department.
(b) The deputy director of engineering and operations shall assist the executive director
with areas of responsibility that may include:
(i) project development, including statewide standards for project design and
construction, right-of-way, materials, testing, structures, and construction;
(ii) oversight of the management of the region offices described in Section 
72-1-205
;
(iii) operations and traffic management;
(iv) oversight of operations of motor carriers and ports;
(v) oversight and enforcement of railroad safety requirements as described in Chapter
17, Office of Rail Safety;
[
(v)
] 
(vi)
 transportation systems safety;
[
(vi)
] 
(vii)
 aeronautical operations; and
[
(vii)
] 
(viii)
 equipment for department engineering and maintenance functions.
(c) The deputy director of planning and investment shall assist the executive director
with areas of responsibility that may include:
(i) oversight and coordination of planning, including:
(A) development of statewide strategic initiatives for planning across all modes of
transportation;
(B) coordination with metropolitan planning organizations and local governments; and
(C) corridor and area planning;
(ii) asset management;
(iii) programming and prioritization of transportation projects;
(iv) fulfilling requirements for environmental studies and impact statements;
(v) resource investment, including identification, development, and oversight of
public-private partnership opportunities;
(vi) data analytics services to the department;
(vii) corridor preservation;
(viii) employee development;
(ix) maintenance planning; and
(x) oversight and facilitation of the negotiations and integration of public transit
providers described in Section 
17B-2a-827
.
Section 2. Section 
72-17-101
 is enacted to read:
CHAPTER 17. RAIL SAFETY
Part 1. Office of Rail Safety
 72-17-101.
Office of Rail Safety -- Creation -- Applicability.
(1) In accordance with 49 C.F.R. Part 212, State Safety Participation Regulations, there
is created within the department an Office of Rail Safety.
(2) As described in 49 C.F.R. Secs. 212.105 and 212.107, to organize the Office of
Rail Safety, the executive director shall:
(a) enter into an agreement with the Federal Railroad Administration to participate in
inspection and investigation activities; and
(b) obtain certification from the Federal Railroad Administration to undertake
inspection and investigative responsibilities and duties.
(3) In establishing the Office of Rail Safety in accordance with the duties described in
C.F.R. Part 212, the department may hire personnel and establish the duties of the office in
phases.
(4) This chapter applies to:
(a) a class I railroad; and
(b) commuter rail.
Section 3. Section 
72-17-102
 is enacted to read:
 72-17-102.
Definitions.
As used in this chapter:
(1) "Class I railroad" means the same as that term is defined in 49 U.S.C. Sec. 20102.
(2) "Commuter rail" means the same as that term is defined in Section 
63N-3-602
.
(3) "Federal Railroad Administration" means the Federal Railroad Administration
created in 49 U.S.C. Sec. 103.
(4) "Office" means the Office of Rail Safety created in accordance with Section
72-17-101
.
(5) "Railroad" means the same as that term is defined in 49 C.F.R. Sec. 200.3.
Section 4. Section 
72-17-103
 is enacted to read:
 72-17-103.
Duties of the Office of Rail Safety.
(1) In accordance with 49 C.F.R. Part 212, and the authorization granted from the
Federal Railroad Administration, the office shall perform the inspection, compliance, and
enforcement duties in the following areas:
(a) grade crossings;
(b) hazardous materials;
(c) motive power and equipment;
(d) operating practices;
(e) signal and train control; and
(f) track.
(2) As part of the responsibilities described in Subsection (1), the office shall:
(a) inspect and investigate railroad rights-of-way, facilities, equipment, and operations
of railroads in this state;
(b) notify a railroad of any violation or lack of compliance with applicable state and
federal laws, rules, regulations, orders, and directives;
(c) enforce applicable state and federal laws, rules, regulations, orders, and directives
relating to the transportation by rail of persons or commodities; and
(d) issue orders to require compliance with state and federal laws, rules, regulations,
orders, and directives.
(3) The office shall employ a sufficient number of federally certified inspectors and
staff to ensure that railroad equipment, facilities, and tracks are inspected as frequently as
reasonably required to ensure compliance and safety as required under state and federal law.
(4) (a) The office shall investigate railroad practices related to the length of time a
railroad blocks a highway-railroad grade crossing.
(b) Upon petition of a political subdivision, or upon the office's own motion, the office
may:
(i) conduct an investigation of the conditions related to a grade crossing; and
(ii) if necessary, conduct a hearing, make findings, and issue an order to determine
whether highway-railroad crossing blocking practices of the railroad are reasonable.
(c) (i) The office shall examine and inspect the physical condition of all railroad
facilities in this state to ensure compliance with safety requirements.
(ii) As part of the inspection and examination of railroad facilities and crossings, the
office shall include an examination and inspection of:
(A) the condition of railroad facilities and crossing infrastructure;
(B) whether expansion of grade crossing infrastructure or other changes are justified
based on the traffic and safety conditions; and
(C) other safety considerations required by federal law.
(d) If the office determines that a railroad's highway-railroad crossing blocking
practices are unreasonable, the office shall:
(i) request the Federal Railroad Administration take enforcement actions pursuant to 49
C.F.R. Sec. 212.115; and
(ii) notify the Surface Transportation Board defined in 49 U.S.C. Sec. 10102 of the
unsafe and unreasonable practices.
(e) If the office finds a violation of safety requirements as described in this section or
in federal law, and the office requests an enforcement action and Federal Railroad
Administration does not take enforcement action as described in 49 C.F.R. Sec. 212.115, the
office may seek a civil penalty not less than $500 and no more than $10,000 for each offense.
(5) (a) The office shall examine and inspect the physical condition of all railroad
facilities in this state to ensure compliance with safety requirements.
(b) If an inspector determines that a railroad facility is noncompliant, the office shall
provide written notice to the railroad.
(c) If a railroad receives a notice described in Subsection (5)(b), the railroad shall
remedy the condition or practice within 30 days of the date of the notice.
(d) If after 30 days from the date of the notice the railroad has not remedied the
condition or practice to the office's satisfaction, the office may set the matter for hearing.
(e) After a hearing described in Subsection (5)(d), if the office determines that the
condition or practice is noncompliant and the railroad has not made reasonable efforts to
remedy the condition or practice, the office may issue an order requiring the railroad to:
(i) eliminate or remedy the unsafe or unlawful condition or practice; or
(ii) make any necessary repairs, alterations, or other changes to the relevant condition
or practice to ensure compliance with state and federal law.
(f) In addition to any order issued under Subsection (5)(e), after a hearing described in
Subsection (5)(d), if the office determines that the condition or practice is noncompliant and
the railroad has not made reasonable efforts to remedy the condition or practice, and the
condition or practice is so hazardous as to place a railroad employee or the public in immediate
danger, the office may issue an order requiring the railroad:
(i) after 48 hours' written notice to the railroad, issue an order prohibiting:
(A) the unsafe or unlawful practice; or
(B) the use of the facility until completion of the necessary repair, alteration, or other
necessary changes; and
(ii) pay a civil penalty of not more than $10,000 per violation or per day of violation of
state or federal law, or a rule made in accordance with Subsection (6) or Section 
72-17-107
.
(6) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
department shall make rules necessary to:
(a) establish the Office of Rail Safety as required in this part;
(b) establish and enforce rules regarding safe and reasonable procedures and standards
regarding the blocking of grade crossings, which standards and limits shall be commensurate
with reasonable requirements of train and vehicular traffic operations;
(c) enforce this part and relevant state and federal law related to this part; and
(d) administer the Office of Rail Safety as described in this part.
Section 5. Section 
72-17-104
 is enacted to read:
 72-17-104.
Federal Railroad Administration Grant Program.
After reaching an agreement with and receiving the certification from the Federal
Railroad Administration as described in Section 
72-17-101
, the office may apply for Railroad
Safety Grants as often as permitted by the Federal Railroad Administration.
Section 6. Section 
72-17-105
 is enacted to read:
 72-17-105.
Establishment of administrative fees -- Payment -- Expenditures.
(1) (a) The office shall annually determine a fee to be paid by each railroad that
operated within the state and is subject to the jurisdiction of the office on a pro rata basis as
described in Subsection (2).
(b) The office and the department shall establish the annual fee to produce a total
amount not less than the amount required to regulate railroads and carry out the duties
described in this part.
(c) The office shall use the revenue generated by the fees paid by each railroad for the
investigation and enforcement activities of the office as authorized under this part.
(2) (a) For grade crossings inspections and services, the office shall establish and each
railroad shall pay a fee based on:
(i) as of January 1 of each year, the number of crossings the railroad operates within
this state that cross a highway, whether at grade, by overhead structure, or subway; and
(ii) the frequency of use of each crossing the railroad operates, including:
(A) the frequency of train operation at the crossing; and
(B) the frequency of highway traffic at the crossing.
(b) For hazardous materials related inspections and services, the office shall establish
and each railroad shall pay a fee based on the tonnage of hazardous materials transported in this
state during a given year.
(c) For motive power and equipment related inspections and services, the office shall
establish and each railroad shall pay a fee based on the number of motive power units and other
equipment units operated by the railroad in this state.
(d) For track related inspections and services, the office shall establish and each
railroad shall pay a fee based on the number of miles of track owned or operated by the railroad
within this state.
(e) For signal and train control inspections and services, as well as operating practices
inspections and services, the office shall establish and each railroad shall pay a fee based on
gross operating revenue of each railroad generated within this state.
(f) (i) For inspection services related to commuter rail, notwithstanding any other
agreement, a county or municipality with commuter rail service provided by a public transit
district may request local option transit sales tax in accordance with Section 
59-12-2206
 and
spend local option transit sales tax in the amount requested by the office.
(ii) A county or municipality that requests local option transit sales tax as described in
Subsection (2)(f)(i) may transmit to the office the funds requested under Subsection (2)(f)(i)
and transmitted to the county or municipality under Subsection 
59-12-2206
(5)(b).
(iii) A county or municipality that requests local option transit sales tax as described in
Subsection (2)(f)(i) may not request more local option transit sales tax than is necessary to
carry out the safety inspection and functions under this chapter.
(iv) The office is not required to charge or collect a fee related to inspections of
commuter rail.
(3) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act,
the department shall make rules to establish each of the fee amounts described in Subsection
(2):
(i) according to the data described in Subsection (2); and
(ii) to collect an amount sufficient to cover the budget and costs to administer the
duties of the office.
(b) The department shall annually adjust the fees established in accordance with
Subsection (3)(a) to account for inflation and other budgetary factors.
(4) Each railroad that operates within this state shall pay to the office the fees described
and established by the office.
Section 7. Section 
72-17-106
 is enacted to read:
 72-17-106.
Office of Rail Safety Account.
(1) There is created an expendable special revenue fund called the Office of Rail Safety
Account.
(2) The account shall be funded by:
(a) deposits into the account by the Legislature;
(b) fees collected pursuant to Section 
72-17-105
; and
(c) other deposits or donations into the account.
(3) The office shall provide a detailed budget to account for the office's expenditures
related to the enforcement of this part, including:
(a) salaries, per diem, and travel expenses of employees performing the duties
described in this part;
(b) expenditures for clerical and support staff directly associated with the duties
described in this part;
(c) expenditures for legal staff who pursue and administer complaints and compliance
issues related to this part; and
(d) reasonable overhead costs related to Subsections (3)(a) through (c).
(4) The office, in performing the duties under this part:
(a) shall limit the expenditure of funds to the total amount of fees collected from the
railroads as described in this section; and
(b) may not expend funds from other sources accessible to the department.
Section 8. Section 
72-17-107
 is enacted to read:
 72-17-107.
Rulemaking regarding railroad clearances and walkways.
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
department shall make rules to establish safety standards related to:
(1) walkways adjacent to railroad track;
(2) clearances of structures and other obstructions near railroad track;
(3) the safety of office personnel conducting inspections in accordance with this part;
(4) railroad infrastructure and work spaces for railroad workers;
(5) signage related to railroad worker safety; and
(6) other safety standards as the department finds necessary.
Section 9. Section 
72-17-108
 is enacted to read:
 72-17-108.
Agreements to indemnify in a railroad contract.
(1) As used in this section:
(a) "Railroad contract" means a contract or agreement between:
(i) a railroad; and
(ii) another person that could be subject to a civil penalty or fine issued pursuant to this
chapter.
(b) "Indemnification provision" means a covenant, promise, agreement, or
understanding in, in connection with, or collateral to a railroad contract that requires the person
to insure, hold harmless, indemnify, or defend the railroad against liability, if:
(i) the damages arise out of a civil penalty issued pursuant to this chapter; and
(ii) the damages are caused by or resulting from the fault of the railroad or the
railroad's agents or employees.
(2) Except as provided in Subsection (3), an indemnification provision in a railroad
contract is against public policy and is void and unenforceable.
(3) If an indemnification provision is included in a railroad contract, in any action for
damages described in Subsection (1)(b)(i), the railroad may seek indemnification from another
party to a railroad contract pro rata based on the proportional share of fault of each party, if:
(a) the damages are caused in part by the party other than the railroad;
(b) the cause of the damages arose at a time when the party other than the railroad was
operating pursuant to the railroad contract.
(4) This section may not be construed to impair a contract in existence before May 3,
2023.
Section 10. 
Effective date.
This bill takes effect on March 31, 2024.
Section 11. 
 Coordinating H.B. 63 with H.B. 232 -- Substantive and technical
amendments.
If this H.B. 63 and H.B. 232, Railroad Crossing Maintenance Amendments, both pass
and become law, it is the intent of the Legislature that the Office of Legislative Research and
General Counsel shall prepare the Utah Code database for publication as follows:
(1) renumbering Title 72, Chapter 7, Part 6, Regulation of Highway-Railroad Grade
Crossings, in H.B. 232 to be Title 72, Chapter 17, Part 2, Regulation of Highway-Railroad
Grade Crossings;
(2) renumbering Section 72-7-601 in H.B. 232 to be Section 72-17-201;
(3) renumbering Section 72-7-602 in H.B. 232 to be Section 72-17-202; and
(4) replacing the language "Section 
72-7-602"
 with "Section 
72-17-202"
 in Section
72-7-102.