D.C. Law 21-254. Rail Safety and Security Amendment Act of 2016.

D.C. Law 21-254. Rail Safety and Security Amendment Act of 2016.

AN ACT

To amend the District Department of the Environment Establishment Act of 2005 to establish within the Department of Energy and Environment an Emergency Response and Rail Safety Division authorized to carry out emergency response activities, coordinate with federal and state rail safety offices, and carry out inspection, investigative, enforcement, and surveillance activities, to transfer the functions of the state safety oversight agency for DC Streetcar to the Department of Energy and Environment, and to authorize the Department of Energy and Environment to carry out security and emergency response functions related to railroads; and to establish a Railroad Advisory Board.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Rail Safety and Security Amendment Act of 2016."

TITLE I. EMERGENCY RESPONSE AND RAIL SAFETY DIVISION

Sec. 101. The District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01 et seq.), is amended as follows:

Note § 8-151.01

(a) Section 101 (D.C. Official Code § 8-151.01) is amended as follows:

Amend § 8-151.01

(1) New paragraphs (5A), (5B), (5C), and (5D) are added to read as follows:

"(5A) "FRA" means the Federal Railroad Administration.

"(5B) "Federal railroad safety laws" means federal laws, or regulations or orders issued under the authority of such laws, addressing the safety of railroad equipment and operations, including:

"(A) The Federal Railroad Safety Act of 1970, approved July 5, 1994 (108 Stat. 63; 49 U.S.C. § 20101 et seq.);

"(B) The Safety Appliance Acts, approved July 5, 1994 (108 Stat. 881; 9 U.S.C. § 20301 et seq.);

"(C) The Locomotive Inspection Act, approved July 5, 1994 (108 Stat. 885; 49 U.S.C. § 20701 et seq.);

"(D) The Signal Inspection Act, approved July 5 1994 (108 Stat. 883; 49 U.S.C. § 20501 et seq.);

"(E) The Accident Reports Act, approved July 5 1994 (108 Stat. 886; 49 U.S.C. § 20901 et seq.);

"(F) The Hours of Service Act, approved July 5 1994 (108 Stat. 888; 49 U.S.C. § 21101 et seq.); and

"(G) The Hazardous Materials Transportation Act, approved July 5 1994 (108 Stat. 759; 49 U.S.C. 5101 et seq.), as it pertains to shipment or transportation by railroad.

"(5C) "FTA" means the Federal Transit Administration.

"(5D) "Hazardous materials" shall have the same meaning as provided in 49 C.F.R. § 171.8.".

Amend § 8-151.01

(2) A new paragraph (10A) is added to read as follows:

"(10A) "Person" means an individual, corporation, company, association, firm, partnership, society, joint stock company, or any other commercial entity.".

Amend § 8-151.01

(3) New paragraphs (11A), (11B), and (11C) are added to read as follows:

"(11A)(A) "Rail system" means all forms of non-highway ground transportation that run on rails or electromagnetic guideways, including rail-fixed guideway systems, as defined by 49 CFR § 659.5, and railroads.

"(B) The term "rail system" does not include a rail system operation conducted by or on behalf of the Washington Metropolitan Area Transit Authority or any railroad.

"(11B)(A) "Railroad" means:

"(i) Any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including commuter or other short-haul railroad passenger service in the District; and

"(ii) High-speed ground transportation systems that connect the District with metropolitan areas, without regard to whether those systems use new technologies that are not associated with traditional railroads;

"(B) The term "railroad" does not include rail system operations conducted by or on behalf of the Washington Metropolitan Area Transit Authority, the District Department of Transportation, or other rail system operators in the District that are not connected to the railroad.

"(11C) "Railroad carrier" means a person providing transportation by railroad or a group of commonly controlled railroad carriers that the Secretary of Transportation has ordered to be treated as a single railroad carrier as provided for in 49 U.S.C. § 20102(3).".

Amend § 8-151.01

(4) A new paragraph (13A) is added to read as follows:

"(13A) "State safety oversight agency" means the District entity designated by the Secretary of Transportation to implement the requirements of 49 U.S.C. § 5329 and 49 C.F.R. § 674.".

Note § 8-151.06

(b) Section 106 (D.C. Official Code § 8-151.06) is amended as follows:

Amend § 8-151.06

(1) Paragraph (5) is amended by striking the phrase "; and" and inserting a semicolon in its place.

Amend § 8-151.06

(2) Paragraph (6) is amended by striking the phrase "materials." and inserting the phrase "materials; and" in its place.

Amend § 8-151.06

(3) A new paragraph (7) to read as follows:

"(7) An Emergency Response and Rail Safety Division to do the following:

"(A) After DDOE has been designated as the state safety oversight agency under section 108a, implement and administer safety and security programs and initiatives for rail systems within the District, including the DC Streetcar;

"(B) Coordinate and conduct emergency responses to spills and releases of substances and pollutants within the District and District waters;

"(C) Enter into inter-governmental agreements with appropriate federal and state agencies to enhance the capabilities of the District to respond to emergencies and to oversee the safety and security of railroad operations within the District;

"(D)(i) Conduct inspection, investigative, enforcement, and surveillance activities related to the safety and security of railroad operations within the District; and

"(ii) If the Director determines that enforcement is permitted under 49 U.S.C. § 20113, the Director may refer a matter to the Attorney General for the District of Columbia for appropriate enforcement action in federal district court.".

(c) New sections 108a through 108g are added to read as follows:

New § 8-151.08a

"Sec. 108a. State safety oversight agency designation for DC Streetcar.

"DDOE is designated as the state safety oversight agency, as described in 49 U.S.C. § 5329(e) and regulations issued thereunder, for the DC Streetcar when:

"(1) The Secretary of Transportation provides its approval of the operation of the District's state safety oversight program by the Department pursuant to 49 U.S.C. § 5329(e); and

Note § 8-151.08a

"(2) The Mayor publishes a notice in the District of Columbia Register:

"(A) Stating that the approval referenced in paragraph (1) of this section was provided; and

"(B) Identifying the date on which the Department shall assume the responsibility of serving as the state safety oversight agency.

New § 8-151.08b

Note § 8-151.08b

"Sec. 108b. Duties, powers, and requirements related to DC Streetcar safety oversight.

"(a) The Director, in carrying out the duties and exercising the powers described in this section, shall not be supervised by, or under the direction or control of, any District officer or employee, or anyone acting on behalf of a District officer or employee, responsible for any aspect of the operation of the DC Streetcar.

"(b) The state safety oversight agency's budget shall be a distinct program, with its own program code and all funds shall be budgeted and reported within the program. The program's budget may merge with the state rail safety agency to the extent permissible under 49 U.S.C. § 5329.

"(c) The Director shall, in accordance and to the extent permissible under 49 U.S.C. § 5329:

"(1) Oversee the operations of the DC Streetcar insofar as those operations affect, or could affect, the safe operation of the DC Streetcar;

"(2) Conduct, or cause to be conducted, investigations, independently or in cooperation with federal or District offices or agencies, into the operations of the DC Streetcar, including any accident or incident involving the operations or assets of the DC Streetcar, insofar as those operations affect, or could affect, the safe operation of the DC Streetcar. This authority includes the authority to inspect DC Streetcar equipment, property, and operations, and to inspect and copy DC Streetcar records, reports, and other information;

"(3) Audit the DC Streetcar system for compliance with safety plans, or for any other purpose that the Director concludes would promote the safe operation of the DC Streetcar.

"(4) Issue reports and findings regarding all aspects of the safety of the DC Streetcar, including operations and accidents, when:

"(A) The issuance of reports and findings is required by federal or District law; or

"(B) The Director determines that such action would promote the safe operation of the DC Streetcar.

"(5) Require the DC Streetcar to develop and submit safety plans pursuant to 49 U.S.C. § 5329(e)(4)(A)(iv) and approve or disapprove them as appropriate.

"(6)(A) Enforce District statutes, regulations, and executive orders related to the safe operation of the DC Streetcar.

"(B) In order to carry out subparagraph (A) of this paragraph, the Director may order the partial or complete cessation of any activity undertaken by the District government, or any entity acting on the District government's behalf, in connection with the operation of the DC Streetcar.

"(7) Conduct all operations or take any other action required of a state safety oversight agency pursuant to 49 U.S.C. § 5329, and any regulations issued thereunder.

"(d) Neither the Director nor the Department shall receive funds from the District Department of Transportation or DC Streetcar related to, or for purposes of, the operation or oversight of the DC Streetcar.

"(e) The Director may execute and file one or more applications, including any required certifications, assurances, or other documents, on behalf of the District with the FTA for federal grants or financial assistance authorized by 49 U.S.C. § 5329(e), Title 23 of the United States Code, or other federal statutes authorizing a project administered by the FTA, and enter into one or more grants or cooperative agreements with the FTA on behalf of the District.

New § 8-151.08c

Note § 8-151.08c

"Sec. 108c. Railroad safety and security authority.

"(a) The Director may enter into agreements with, and provide any necessary certifications, documents, and other information to, the FRA in order to perform the functions of a state rail safety agency, to the extent permissible under 49 U.S.C. § 20101 et seq.), or any regulations issued thereunder.

"(b) The state rail safety agency's budget shall be a distinct program, with its own program code and all funds shall be budgeted and reported within the program. The program's budget may merge with the state safety oversight agency's budget established under section 108b, to the extent permissible under 49 U.S.C. § 20101.

"(c) The Director may engage in investigative and surveillance activities related to the safety of facilities, equipment, rolling stock, and operations of railroads and railroad carriers operating in the District and may take enforcement actions, to the extent permissible under 49 U.S.C. § 20101 et seq.), or any regulation issued thereunder.

New § 8-151.08d

Note § 8-151.08d

"Sec. 108d. Emergency response.

"The Director may take any action necessary to address emergency response planning and operations related to rail systems in the District including:

"(1) Development of emergency response plans as may be required by the FTA for the DC Streetcar; and

"(2) Coordination and support in accordance with the District Response Plan drafted by the Homeland Security and Emergency Management Agency regarding the planning for and response to emergencies involving rail systems in the District.

New § 8-151.08e

Note § 8-151.08e

"Sec. 108e. Public reporting.

"(a) The Director shall, consistent with applicable federal railroad safety laws, publish on a biannual basis, information related to railroad safety and security, including:

"(1) The quantity of hazardous materials that were transported within or through the District by railroad during the reporting period; and

"(2) The railroad inspection, investigation, and surveillance activities performed by the Department under sections 108c and 108f during the reporting period.

"(b) In publishing the information required by subsection (a) of this section, the Director shall take into account public safety and confidentiality necessary for public security.

New § 8-151.08f

Note § 8-151.08f

"Sec. 108f. Entry and inspection.

"The Director shall have the authority to inspect railroad equipment, facilities, rolling stock, or operations or to inspect any record related to the safety, security, and operations of the railroad at any reasonable time and upon the presentation of appropriate credentials to the owner, operator, or person in charge, to the extent permissible under federal railroad safety laws.

New § 8-151.08g

Note § 8-151.08g

"Sec. 108g. Study of fees.

"By November 30, 2017, the Mayor shall transmit to the Chairperson of the Council committee with oversight of transportation a report and recommendation as to the imposition of fees related to the transportation of hazardous materials under 49 U.S.C. § 5125(f).".

Note § 8-151.10

(d) Section 110 (D.C. Official Code § 8-151.10) is amended by adding a new subsection (c) to read as follows:

Amend § 8-151.10

"(c)(1) The Mayor, pursuant to Title I of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Official Code § 2-501 et seq.), may issue rules to implement the Rail Safety and Security Amendment Act of 2016, passed on 2nd reading on December 20, 2016 (Enrolled version of Bill 21-3).

"(2) If proposed rules are developed pursuant to paragraph (1) of this subsection, at the time the proposed rules are submitted to the District of Columbia Register for public notice and comment, the Mayor shall provide the proposed rules to the Rail Advisory Board for comment.

"(3) If the Mayor, when issuing final rules, does not incorporate the Rail Advisory Board's suggested modifications provided pursuant to section 203(b)(4) of the Rail Safety and Security Amendment Act of 2016, passed on 2nd reading on December 20, 2016 (Enrolled version of Bill 21-3), the Mayor shall provide the Rail Advisory Board with a detailed written explanation as to why the proposed modifications were not incorporated.

"(4) For the purposes of this subsection, the term "Railroad Advisory Board" means the Railroad Advisory Board established by section 202 of the Rail Safety and Security Amendment Act of 2016, passed on 2nd reading on December 20, 2016 (Enrolled version of Bill 21-3).".

New Chapter 3A of Title 35

TITLE II. RAILROAD ADVISORY BOARD

New § 35-331

Note § 35-331

Sec. 201. Definitions.

For the purposes of this title, the term:

(1) "Board" means the Railroad Advisory Board established by section 202.

(2) "Federal railroad safety laws" shall have the same meaning as provided in section 101(5B) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01(5B)).

(3) "Railroad carrier" shall have the same meaning as provided in section 101(11C) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01(11C)).

New § 35-332

Note § 35-332

Sec. 202. Rail Advisory Board.

(a) There is hereby established the Rail Advisory Board.

(b) The Board shall be composed of 9 members, appointed as follows:

(1) One member from a railroad carrier authorized to operate in the District of Columbia, appointed by the Mayor.

(2) Two labor representatives, appointed by the Mayor.

(3) One community representative appointed by the Chairperson of the Council committee with oversight over the Homeland Security and Emergency Management Agency.

(4) One community representative appointed by the Chairperson of the Council committee with oversight over the Department of Energy and Environment.

(5) The Director of the Homeland Security and Emergency Management Agency or the Director's designee,

(6) The Chief of the Fire and Emergency Medical Services Department or the Chief's designee;

(7) The Director of the District Department of Transportation or the Director's designee; and

(8) Director of the Department of Energy and Environment or the Director's designee.

(c)(1) The members of the Board appointed under subsections (b)(1) and (2) of this section shall serve 4-year terms.

(2) The members of the Board appointed under subsections (b)(3) and (4) of this section shall serve 3-year terms.

(d) The Board shall elect, by a majority vote, one of its member to serve as chairperson of the Board. The chairperson shall be elected at the Board's first meeting and biannually thereafter.

(e) The Board shall elect, by a majority vote, one of its members to serve as vice-chairperson of the Board. The vice-chairperson shall be elected at the Board's first meeting and biannually thereafter.

(f) Vacancies shall be filled in the same manner as the initial appointment. A member appointed to fill a vacancy shall serve for the remainder of the unexpired term.

(g) The Board shall meet, at a minimum, on a quarterly basis, at times to be determined by the Board at the Board's first meeting.

New § 35-333

Note § 35-333

Sec. 203. Functions and operations of the Board.

(a) The purpose of the Board shall be to serve as the advisory body to the Mayor, the Council, the District Department of Transportation, the Homeland Security Emergency Management Agency, and the Department of Energy and Environment on matters pertaining to investigation and surveillance of federal railroad safety laws.

(b) The Board shall:

(1) Develop policy and recommendations on the allocation of District funding, railroad enhancements, development initiatives, rail safety, homeland security, and community relations programs;

(2) Identify and develop projects and policies that mitigate the environmental impact of railroad operation and enhance the availability and utilization of railroad transportation in the District;

(3) At the request of the Mayor, the Council, the Director of the District Department of Transportation, the Director of the Homeland Security Emergency Management Agency, or the Director of the Department of Energy and Environment, advise on any other matters pertaining to railroad transportation in the District; and

(4) Submit comments on proposed rules developed pursuant to section 110(c) of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.10(c)), including any proposed modifications, to the Mayor before to the expiration of the public comment period.

(c) Members of the Board shall receive no compensation, but shall be reimbursed for their actual and necessary expenses incurred in connection with their official duties. Staff support for the Board shall be provided by the District Department of Transportation with supplemental support from the Department of Energy and Environment.

TITLE III. CONFORMING AMENDMENTS

Sec. 301. An Act To classify the officers and members of the fire department of the District of Columbia, and for other purposes, approved June 20, 1906 (34 Stat. 314; D.C. Official Code § 5-401 et seq.), is amended as follows:

Amend § 5-401

Note § 5-401

(a) Section 1(c) (D.C. Official Code § 5-401(c)) is repealed.

Repeal § 5-401.01

Note § 5-401.01

(b) Section 1a (D.C. Official Code § 5-401.01) is repealed.

TITLE IV. CONSTRUCTION

Sec. 401. Construction.

This act shall be construed, and the authority granted under it shall be exercised, in a manner consistent with applicable federal laws and regulations.

TITLE V. APPLICABILITY; FISCAL IMPACT STATEMENT; EFFECTIVE DATE.

Sec. 501. Applicability

Note § 5-401

(a) This act shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan.

(b) The Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan, and provide notice to the Budget Director of the Council of the certification.

(c)(1) The Budget Director shall cause the notice of the certification to be published in the District of Columbia Register.

(2) The date of publication of the notice of the certification shall not affect the applicability of this act.

Note § 8-151.08c, § 8-151.08d, § 8-151.08e, § 8-151.08f

(d) The amendatory provisions of section 101(c) that add new sections 108c, 108d(1), 108e, and 108f to the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01 et seq.), shall apply after the Mayor enters an agreement to participate in railroad investigative and surveillance activities with the Federal Railroad Administration ("FRA") and the FRA delegates investigative and surveillance authority with respect to all or any part of federal railroad safety laws pursuant to 49 C.F.R. § 212.105.

Note § 5-401, § 5-401.01

(e) Section 301 shall apply on the date the requirements of new section 108a of the District Department of the Environment Establishment Act of 2005, effective February 15, 2006 (D.C. Law 16-51; D.C. Official Code § 8-151.01 et seq.), added by section 101(c), have been met.

Sec. 502. Fiscal impact statement.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).

Sec. 503. Effective date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.