The American Short Line and Regional Railroad Association (ASLRRA) earlier this month responded to the U.S. Department of Transportation’s notice of proposed rulemaking (NPRM) that addressed procedural reforms, and “applaud[ed] DOT’s efforts.” Among the Association’s recommendations: “for the Department to incorporate a mechanism for the codification of longstanding waivers or regulatory exemptions.”
The USDOT is considering reinstating and expounding upon procedural reforms for its rulemakings, guidance documents, and enforcement actions that were rescinded by a USDOT final rule published on April 2, 2021. The Department on May 16 issued the NPRM; ASLRRA submitted comments by the June 16 deadline (download below).
“ASLRRA and its member railroads support the proposed provision at Section 302.16 of the NPRM that states, inter alia, that any person may petition the Department to perform a retrospective review of an existing rule,” the Association wrote in its comments. “DOT should also add a provision that directs the Department to initiate a rulemaking proceeding for any waiver or regulatory exemption that has been in effect with satisfactory results for over five years to be incorporated into the regulations. For example, the Federal Railroad Administration (‘FRA’) can point to waivers that were in effect for much longer than the five-year waiver period that the agency typically grants. Without a process to systematically evaluate and determine that a long-standing waiver should be codified in regulation, the Department is hampered in its ability to keep pace with innovation. It can also lead to a plethora of waivers, which do not provide regulatory certainty to the public, as they contain expiration dates.”
ASLRRA in its comments also proposed that the USDOT’s final rule “include civil penalty schedules in the list of agency guidance documents that require public notice and comment; and ensure that the Regulatory Flexibility Act provisions are strictly followed in any rulemaking.”
