Senator Wayne A. Harper proposes the following substitute bill:


1     
RAILROAD AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Wayne A. Harper

5     
House Sponsor: Kay J. Christofferson

6     

7     LONG TITLE
8     General Description:
9          This bill establishes a rail ombudsman.
10     Highlighted Provisions:
11          This bill:
12          ▸     establishes a rail ombudsman position within the rail division; and
13          ▸     modifies implementation dates of certain provisions or changes relating to rail.
14     Money Appropriated in this Bill:
15          This bill appropriates in fiscal year 2025:
16          ▸     to Transportation - Operations/Maintenance Management - Maintenance
17     Administration as an ongoing appropriation:
18               •     from the Rail Transportation Restricted Account, $800,000
19     Other Special Clauses:
20          This bill provides a special effective date.
21     Utah Code Sections Affected:
22     AMENDS:
23          56-1-12 (Effective 04/01/24), as repealed and reenacted by Laws of Utah 2023, Chapter
24     232
25          56-1-13 (Effective 04/01/24), as repealed and reenacted by Laws of Utah 2023, Chapter
26     232
27          56-1-39 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 41 and last
28     amended by Coordination Clause, Laws of Utah 2023, Chapter 41
29          72-2-131, as last amended by Laws of Utah 2021, Chapter 387
30          72-17-101 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
31          72-17-102 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
32          72-17-103 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
33          72-17-104 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
34          72-17-105 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
35          72-17-106 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
36          72-17-107 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
37          72-17-108 (Effective 03/31/24), as enacted by Laws of Utah 2023, Chapter 42
38     ENACTS:
39          56-1-12.1, Utah Code Annotated 1953
40          56-1-13.1, Utah Code Annotated 1953
41          63I-2-256, Utah Code Annotated 1953
42          72-18-101, Utah Code Annotated 1953
43          72-18-102, Utah Code Annotated 1953
44     

45     Be it enacted by the Legislature of the state of Utah:
46          Section 1. Section 56-1-12 (Effective 04/01/24) is amended to read:
47          56-1-12 (Effective 04/01/24). Injury to livestock -- Notice -- Railroad Livestock
48     Damages Fund and Board -- Appeals -- Compensation and fees -- Rulemaking.
49          (1) The provisions in this section apply beginning on May 7, 2025.
50          (2) As used in this section:
51          (a) "Actual fair market value" means the actual value of damages to livestock as
52     determined by the Livestock Damages Board.
53          (b) "Damage" means injury or loss to livestock resulting from a strike by a railroad
54     operation.
55          (c) "Department" means the Department of Agriculture and Food created in Section
56     4-2-102.
57          (d) "Estimated market value" means the market value of livestock as determined in
58     rules made in accordance with Subsection [(8)] (9).
59          (e) "Indemnification provision" means a covenant, promise, agreement or
60     understanding in, in connection with, or collateral to a railroad contract requiring the other
61     entity to insure, hold harmless, indemnify, or defend a railroad against liability if:
62          (i) the damages arise out of:
63          (A) damage to property, including livestock; or
64          (B) other related economic loss; and
65          (ii) the damages are caused by or resulting from the fault, in whole or in part, of the
66     railroad or the railroad's agents or employees.
67          (f) "Law enforcement agency" means the same as that term is defined in Section
68     53-1-102.
69          (g) "Livestock" means the same as that term is defined in Section 4-1-109.
70          (h) "Livestock Damages Board" means the Livestock Damages Board created in
71     Subsection [(9)] (10).
72          (i) "Railroad" means the same as that term is defined in 49 C.F.R. Sec. 200.3.
73          (j) "Railroad Livestock Damage Fund" or "fund" means the Railroad Livestock
74     Damage Fund created in Subsection [(7)] (8).
75          (k) "Statewide railroad engineer" means the statewide railroad engineer within the
76     Department of Transportation.
77          [(2)] (3) Each railroad that operates in this state shall provide to the department current
78     contact information suitable for communication between the department and the railroad
79     regarding injury to livestock caused by a railroad.
80          [(3)] (4) (a) A railroad operator that strikes, injures, or kills livestock during the
81     operation of an engine or car shall:
82          (i) immediately record the location of the strike; and
83          (ii) within 24 hours of the strike, notify and provide pertinent information to the
84     department and the statewide railroad engineer.
85          (b) (i) If a railroad fails to report a strike as required in Subsection [(3)(a)] (4)(a), the
86     railroad is liable for a civil penalty of at least $5,000 per incident.
87          (ii) It is prima facie evidence that a railroad has failed to report if:
88          (A) an investigation described in Subsection [(3)(c)] (4)(c) determines that livestock
89     was struck by railroad;
90          (B) the investigation under Subsection [(3)(c)] (4)(c) resulted from a notification from
91     a livestock owner of a potential strike as described in Subsection [(4)(c)] (5)(c); and
92          (C) the railroad has not reported a corresponding strike under Subsection [(3)(a)]
93     (4)(a).
94          (iii) If the department determines that a railroad has failed to report as described in
95     Subsection [(3)(b)(ii)] (4)(b)(ii):
96          (A) the department shall notify the railroad and assess a civil penalty; and
97          (B) the railroad shall pay the civil penalty assessed by the department.
98          (iv) The department shall deposit into the Railroad Livestock Damage Fund any money
99     received for a civil penalty under this Subsection [(3)(b)] (4)(b).
100          (v) Payment of a civil penalty described in this Subsection [(3)(b)] (4)(b) does not
101     release a railroad from liability for damage to livestock.
102          (c) After receiving the notification described in Subsection [(3)(a)] (4)(a), the
103     department shall:
104          (i) notify the relevant law enforcement agency with jurisdiction over the location of the
105     livestock strike; and
106          (ii) in consultation with the relevant law enforcement agency and the statewide railroad
107     engineer, make reasonable efforts to:
108          (A) investigate the scene of the strike;
109          (B) identify the livestock that was struck;
110          (C) determine ownership of the livestock that was struck;
111          (D) assess the state of repair of the fences along the railroad right-of-way; and
112          (E) document and preserve relevant evidence of the scene of the strike.
113          (d) (i) After the investigation described in Subsection [(3)(b)] (4)(3), if possible, the
114     department and relevant law enforcement agency shall notify the owner of the livestock that
115     was struck.
116          (ii) The department shall create and maintain a website to document and provide notice
117     and information to the public regarding livestock strikes within this state.
118          (iii) If the relevant law enforcement agency and department are unable to identify the
119     owner of the injured livestock as described in Subsection [(3)(b)] (4)(b), the department shall
120     post and maintain relevant information regarding the strike on a website to provide notice to
121     the public regarding each livestock strike.
122          [(4)] (5) (a) If livestock is struck by an implement of railroad operations, the owner of
123     the livestock may receive compensation for the estimated market value or the actual fair market
124     value of the damage.
125          (b) To obtain compensation, the owner of the damaged livestock shall notify the
126     department as soon as possible after discovering the damage.
127          (c) A livestock owner shall notify the department each time the owner believes
128     livestock has been damaged by railroad operations.
129          [(5)] (6) A livestock owner shall file a proof of loss form, provided by the department,
130     no later than 30 days after the date of the original notification livestock damage:
131          (a) has been received by the livestock owner pursuant to Subsection [(3)(c)] (4)(c); or
132          (b) has been received by the department pursuant to Subsection [(4)(c)] (5)(c).
133          [(6)] (7) The department shall:
134          (a) within 30 days after the day the department receives a proof of loss form from a
135     livestock owner, either accept or deny the claim for damages to livestock; and
136          (b) to the extent money is available in the Railroad Livestock Damage Fund created in
137     Subsection [(7)] (8), pay all accepted claims in accordance with the livestock estimated market
138     value established pursuant to Subsection [(8)] (9).
139          [(7)] (8) (a) There is created an expendable special revenue fund called the Railroad
140     Livestock Damage Fund.
141          (b) The fund shall consist of:
142          (i) deposits by the Legislature;
143          (ii) an initial deposit by each railroad as described in Subsection [(7)(c)] (8)(c);
144          (iii) periodic payments by each railroad as required in Subsection [(7)(d)] (8)(d);
145          (iv) annual deposits by each railroad for administrative costs as provided under
146     Subsection [(7)(e)] (8)(e);
147          (v) money deposited by the department from a civil penalty described in Subsection
148     [(3)] (4);
149          (vi) other donations or deposits into the fund; and
150          (vii) interest earned on the balance of the fund.
151          (c) Before December 31, 2023, each railroad shall pay into the Railroad Livestock
152     Damage Fund:
153          (i) an initial, one-time fee of $150 per mile of railroad track owned by the railroad in
154     this state, in accordance with rules made under Subsection [(8)(b)] (9)(b), to capitalize the fund
155     for payment of claims as provided in this section; and
156          (ii) an initial, one-time fee of $75 per mile of railroad track owned by the railroad in
157     this state, in accordance with rules made under Subsection [(8)(b)] (9)(b), to pay for staff
158     salaries and other costs to administer the fund and the department responsibilities under this
159     section.
160          (d) (i) If the department issues payment from the fund in accordance with Subsection
161     [(6)] (7), the department shall notify the relevant railroad that is liable for the damage.
162          (ii) The department shall include in the notice to the railroad described in Subsection
163     [(7)(d)(i)] (8)(d)(i) relevant information, including:
164          (A) the date or approximate date that the damage occurred;
165          (B) the location where the damage occurred;
166          (C) the type of livestock that was damaged;
167          (D) the name of the owner of the livestock that was damaged; and
168          (E) the estimated market value of the damage for which the railroad is responsible.
169          (iii) Within 30 days of the date the railroad receives the notice described in Subsection
170     [(7)(d)(iii)] (8)(d)(i), the railroad shall remit to the department the value of the damage.
171          (iv) If a railroad fails to remit to the department the value of the damage as required in
172     Subsection [(7)(d)(i)] (8)(d)(i), the department may impose a civil penalty up to $10,000:
173          (A) for the failure to pay within 30 days as described in Subsection [(7)(d)(iii)]
174     (8)(d)(iii); and
175          (B) for every additional 30-day period of delinquency.
176          (v) Payment of a civil penalty described in Subsection [(7)(d)(iv)] (8)(d)(iv) does not
177     release a railroad from liability for damage to livestock.
178          (e) (i) Between July 1, 2023, and December 31, 2023, the department shall gather data
179     from livestock strikes reported as required in this section to determine how many livestock
180     strikes occurred during that six months.
181          (ii) Based on the information gathered under Subsection [(7)(e)(i)] (8)(e)(i) and
182     extrapolated and adjusted to estimate annual strike rates, beginning on July 1, 2024, the
183     department shall establish and charge an administrative fee for each claim the department
184     processes under this section sufficient to cover the staff salary and other administrative costs
185     directly related to the administration of this section.
186          (iii) The department shall establish and publish the fee amount in rules made pursuant
187     to Subsection [(8)] (9).
188          (iv) The department may not charge more than necessary to cover the costs of salary
189     and administration directly related to the duties under this chapter.
190          (f) In addition to payment of claims for damage to livestock as described in this
191     section, the department may use money in the Railroad Livestock Damage Fund to pay for the
192     costs of administration, staff salary, and other support related to the Railroad Livestock
193     Damage Fund and administration of this section.
194          [(8)] (9) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
195     Act, the department shall make rules necessary to implement and enforce this section,
196     including rules to establish the:
197          (a) estimated market value of each type of livestock;
198          (b) official mileage calculation for each railroad for the fee established in Subsection
199     [(7)(c)] (8)(c); and
200          (c) administrative fee per claim as described in Subsection [(7)(e)] (8)(e).
201          [(9)] (10) (a) A livestock owner may appeal the estimated market value granted by the
202     department for damage to livestock by appealing to the Livestock Damages Board.
203          (b) There is created the Livestock Damages Board, which shall consist of three
204     members appointed as described in Subsection [(9)(c)] (10)(c).
205          (c) The commissioner of the department shall appoint three members to the Livestock
206     Damages Board as follows:
207          (i) one member who owns or administers a livestock auction;
208          (ii) one member who owns livestock and is engaged in a livestock business; and
209          (iii) one member who works for the department.
210          (d) Except as described in Subsection [(9)(e)(ii)] (10)(e)(ii), a member of the Livestock
211     Damages Board may serve for up to two terms of four years.
212          (e) (i) The commissioner shall appoint the first members to the Livestock Damages
213     Board on or before January 1, 2024.
214          (ii) The commissioner shall stagger the initial terms of the members of the Livestock
215     Damages Board appointed on or before January 1, 2024, by:
216          (A) designating one appointee to serve an initial term of five years; and
217          (B) designating one appointee to serve an initial term of three years.
218          (f) (i) The Livestock Damages Board may convene twice each year to hear appeals
219     regarding the value of livestock damaged by a railroad operation.
220          (ii) If a livestock owner provides clear and convincing evidence that the value of the
221     damage to livestock caused by a railroad operation exceeds the estimated market value
222     established pursuant to Subsection [(8)] (9), the Livestock Damages Board may issue payment
223     from the fund at the actual fair market value amount established in the hearing.
224          [(10)] (11) An indemnification provision in a contract between a railroad and another
225     entity that operates on a railroad facility is against public policy and is void and unenforceable
226     to the extent the indemnification provision is related to damages to livestock or another
227     provision in this section.
228          Section 2. Section 56-1-12.1 is enacted to read:
229          56-1-12.1. Injury to livestock -- Notice.
230          Every person operating a railroad within this state that injures or kills any livestock of
231     any description by the running of any engine or engines, car or cars, over or against any such
232     livestock shall within three days thereafter post at the first railroad station in each direction
233     from the place of such injury or killing in some conspicuous place on the outside of such
234     station a notice in writing of the number and kind of animals so injured or killed, with a full
235     description of each, and the time and place as near as may be of such injury or killing. Such
236     notice shall be dated and signed by some officer or agent of such railroad, and a duplicate
237     thereof shall be filed with the county clerk of the county in which stock is so injured or killed.
238     Every person willfully failing, neglecting or refusing to comply with the provisions of this
239     section is guilty of a class B misdemeanor and shall be fined in any sum not exceeding $50.
240          Section 3. Section 56-1-13 (Effective 04/01/24) is amended to read:
241          56-1-13 (Effective 04/01/24). Fencing right-of-way -- Gates.
242          (1) The provisions in this section apply beginning on May 7, 2025.
243          (2) As used in this section:
244          (a) "Livestock" means the same as that term is defined in Section 4-1-109.
245          (b) "Railroad" means the same as that term is defined in 49 C.F.R. Sec. 200.3.
246          [(2)] (3) Each railroad shall erect and maintain a fence on each side of any railroad
247     right-of-way owned or operated by the railroad that passes through:
248          (a) land owned by a private owner; or
249          (b) public land upon which grazing of livestock occurs.
250          [(3)] (4) A railroad shall ensure that a fence required under Subsection [(2)] (3) is:
251          (a) at least four and one-half feet high;
252          (b) constructed with barbed or other fencing wire, with at least five wires;
253          (c) constructed with substantial posts no more than 16.5 feet apart; and
254          (d) reasonably constructed to ensure livestock are unable to pass through the fence.
255          [(4)] (5) A railroad shall ensure that fences required under Subsection [(2)] (3) include
256     proper gates and cattle guards at each private crossing.
257          [(5)] (6) A railroad is liable to a livestock owner for all damages to livestock resulting
258     from a railroad's failure to construct or maintain a fence as required in this section.
259          [(6)] (7) (a) If a fence falls into disrepair or is damaged, the railroad shall ensure that
260     the fence is repaired as soon as possible, but not later than 30 days after the date the railroad
261     receives notice of the disrepair or damage.
262          (b) To recover damage to livestock caused by a damaged fence as described in this
263     section, a livestock owner shall follow the procedures described in Section 56-1-12.
264          [(7)] (8) (a) If a railroad fails to repair a fence within 30 days after the date the railroad
265     receives notice as described in Subsection [(6)(a)] (7)(a), the owner of the adjacent property
266     may construct or repair the fence.
267          (b) If a land owner repairs a fence as described in Subsection [(7)(a)] (8)(a):
268          (i) the railroad is liable for the full value of the work and materials for the construction
269     or repair; and
270          (ii) if the railroad fails to timely reimburse the land owner, the land owner may file a
271     civil action in a court of competent jurisdiction.
272          [(8)] (9) Any work by a land owner to repair a fence required by this section does not:
273          (a) shift liability for damage to livestock as described in Section 56-1-12 to the land
274     owner; or
275          (b) relieve the railroad from liability for damage to livestock as described in Section
276     56-1-12.
277          Section 4. Section 56-1-13.1 is enacted to read:
278          56-1-13.1. Fencing right-of-way -- Gates.
279          Every railroad company shall erect and maintain a fence on each side of its rights of
280     way where the same passes through lands owned and improved by private owners, and at all
281     public road crossings shall connect the same with cattle guards. Such fence shall not be less
282     than four and one-half feet in height and may be constructed of barbed or other fencing wire
283     with not less than five wires, and good, substantial posts not more than one rod apart with a
284     stay midway between the posts attached to the wires to keep said wires in place; and whenever
285     such railroad company shall provide gates for private crossings for the convenience of the
286     owners of the land through which such railroad passes, such gates shall be so constructed that
287     they may be easily operated; and every railroad company shall be liable for all damages
288     sustained by the owner of any domestic animal killed or injured by such railroad in
289     consequence of the failure to build or maintain such fence. The owner of such lands shall keep
290     such gate closed at all times when not in actual use, and if such owner fails to keep such gates
291     closed, and in consequence thereof, any animal owned by him strays upon such railroad, and is
292     killed or injured, such owner shall not be entitled to recover damages therefor.
293          Section 5. Section 56-1-39 (Effective 03/31/24) is amended to read:
294          56-1-39 (Effective 03/31/24). Assessment for right-of-way infrastructure
295     improvements.
296          (1) The provisions in this section apply beginning on May 7, 2025.
297          (2) As used in this section:
298          (a) "Benefit" includes enhanced property value, enhanced safety or efficiency, reduced
299     costs, and liability avoidance.
300          (b) "Government entity" means the state or a county, city, town, metro township, local
301     district, or special service district.
302          (c) (i) "Railroad" means a rail carrier that is a Class I railroad, as classified by the
303     federal Surface Transportation Board.
304          (ii) "Railroad" does not include a rail carrier that is:
305          (A) exempt from assessment under 49 U.S.C. Sec. 24301; or
306          (B) owned by a government entity.
307          (d) (i) "Right of way infrastructure improvement" means construction, reconstruction,
308     repair, or maintenance of public infrastructure that:
309          (A) is paid for by a government entity; and
310          (B) is partially or wholly within a railroad's right of way or crosses over a railroad's
311     right of way.
312          (ii) "Right of way infrastructure improvement" includes any component of
313     construction, reconstruction, repair, or maintenance of public infrastructure, including:
314          (A) any environmental impact study, environmental mitigation, or environmental
315     project management; and
316          (B) any required or requested review by a non-governmental entity.
317          (e) "Public infrastructure" means any of the following improvements:
318          (i) a system or line for water, sewer, drainage, electrical, or telecommunications;
319          (ii) a street, road, curb, gutter, sidewalk, walkway, or bridge;
320          (iii) signage or signaling related to an improvement described in Subsection [(1)(e)(i)]
321     (2)(e)(i) or (ii);
322          (iv) an environmental improvement; or
323          (v) any other improvement similar to the improvements described in Subsections
324     [(1)(e)(i)] (2)(e)(i) through (iv).
325          [(2)] (3) A government entity may, to the extent allowed under federal law, assess a
326     railroad for any portion of the cost of a right of way infrastructure improvement, including any
327     cost attributable to delay, if:
328          (a) the government entity determines that the right of way infrastructure improvement
329     provides a benefit to the railroad;
330          (b) the amount of the assessment is proportionate to the benefit the railroad receives, as
331     determined by the government entity; and
332          (c) the government entity uses the assessment to pay for or as reimbursement for the
333     cost of the right of way infrastructure improvement and not for the general support of the
334     government entity.
335          [(3)] (4) (a) If two or more government entities have authority under this section to
336     assess a railroad for the same right of way infrastructure improvement, the Office of Rail
337     Safety created in Section 72-17-101 shall:
338          (i) determine the amount of each government entity's assessment in accordance with
339     Subsection [(2)] (3);
340          (ii) assess the railroad for the total of all amounts described in Subsection [(3)(a)(i)]
341     (4)(a)(i); and
342          (iii) distribute the collected assessments to each government entity.
343          (b) The total amount of an assessment under this Subsection [(3)] (4) may not exceed
344     the amount described in Subsection [(2)(b)] (3)(b).
345          (c) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
346     Department of Transportation may make rules to establish a process for implementing the
347     provisions of this Subsection [(3)] (4).
348          Section 6. Section 63I-2-256 is enacted to read:
349          63I-2-256. Repeal dates: Title 56.
350          (1) Section 56-1-12.1, relating to injury to livestock, is repealed May 7, 2025.
351          (2) Section 56-1-13.1, relating to fencing right-of-way, is repealed May 7, 2025.
352          Section 7. Section 72-2-131 is amended to read:
353          72-2-131. Rail Transportation Subaccount -- Grants for railroad crossing safety.
354          (1) As used in this section, "eligible entity" means:
355          (a) a public entity; or
356          (b) a private entity that is exempt from federal income taxation under Section
357     501(c)(3), Internal Revenue Code.
358          (2) There is created in the Transit Transportation Investment Fund, created in Section
359     72-2-124, the Rail Transportation [Restricted Account] Subaccount.
360          (3) The [account] subaccount shall be funded by:
361          (a) appropriations to the [account] subaccount by the Legislature;
362          (b) private contributions;
363          (c) donations or grants from public or private entities; and
364          (d) interest earned on money in the account.
365          (4) Upon appropriation, the department shall:
366          (a) use an amount equal to 10% of the money deposited into the [account] subaccount
367     to provide grants in accordance with Subsection (5);
368          (b) use an amount equal to 10% of the money deposited into the [account] subaccount
369     to pay:
370          (i) the costs of performing environmental impact studies in connection with
371     construction, reconstruction, or renovation projects related to railroad crossings on class A,
372     class B, or class C roads; or
373          (ii) the appropriate debt service or sinking fund for the repayment of bonds issued
374     under Subsection 63B-31-101(6); and
375          (c) use the remaining money deposited into the [account] subaccount to pay:
376          (i) the costs of construction, reconstruction, or renovation projects related to railroad
377     crossings on class A, class B, or class C roads;
378          (ii) debt service related to a project described in Subsection (4)(b); [or]
379          (iii) the appropriate debt service or sinking fund for the repayment of bonds issued
380     under Subsection 63B-31-101(5)[.]; or
381          (iv) ongoing maintenance costs of at-grade crossings between rail lines and public
382     highways.
383          (5) (a) The department may award grants to one or more eligible entities to be used for
384     the purpose of improving safety at railroad crossings on class A, class B, or class C roads.
385          (b) An eligible entity may use grant money for any expense related to improving safety
386     at railroad crossings on class A, class B, or class C roads, including:
387          (i) signage; and
388          (ii) safety enhancements to a railroad crossing.
389          (c) The department shall prioritize, in the following order, grants to applicants that
390     propose projects impacting railroad crossings that:
391          (i) have demonstrated safety concerns, including emergency services access; and
392          (ii) have high levels of vehicular and pedestrian traffic.
393          Section 8. Section 72-17-101 (Effective 03/31/24) is amended to read:
394          72-17-101 (Effective 03/31/24). Office of Rail Safety -- Creation -- Applicability.
395          (1) The provisions in this section apply beginning on May 7, 2025.
396          (2) In accordance with 49 C.F.R. Part 212, State Safety Participation Regulations, there
397     is created within the department an Office of Rail Safety.
398          [(2)] (3) As described in 49 C.F.R. Secs. 212.105 and 212.107, to organize the Office
399     of Rail Safety, the executive director shall:
400          (a) enter into an agreement with the Federal Railroad Administration to participate in
401     inspection and investigation activities; and
402          (b) obtain certification from the Federal Railroad Administration to undertake
403     inspection and investigative responsibilities and duties.
404          [(3)] (4) In establishing the Office of Rail Safety in accordance with the duties
405     described in 49 C.F.R. Part 212, the department may hire personnel and establish the duties of
406     the office in phases.
407          [(4)] (5) This chapter applies to:
408          (a) a class I railroad; and
409          (b) commuter rail.
410          Section 9. Section 72-17-102 (Effective 03/31/24) is amended to read:
411          72-17-102 (Effective 03/31/24). Definitions.
412          As used in this chapter:
413          (1) "Class I railroad" means the same as that term is defined in 49 U.S.C. Sec. 20102.
414          (2) "Commuter rail" means the same as that term is defined in Section 63N-3-602.
415          (3) "Federal Railroad Administration" means the Federal Railroad Administration
416     created in 49 U.S.C. Sec. 103.
417          (4) "Office" means the Office of Rail Safety created in accordance with Section
418     72-17-101.
419          (5) "Railroad" means the same as that term is defined in 49 C.F.R. Sec. 200.3.
420          (6) The provisions in this section apply beginning on May 7, 2025.
421          Section 10. Section 72-17-103 (Effective 03/31/24) is amended to read:
422          72-17-103 (Effective 03/31/24). Duties of the Office of Rail Safety.
423          (1) The provisions in this section apply beginning on May 7, 2025.
424          (2) In accordance with 49 C.F.R. Part 212, and the authorization granted from the
425     Federal Railroad Administration, the office shall perform the inspection, compliance, and
426     enforcement duties in the following areas:
427          (a) grade crossings;
428          (b) hazardous materials;
429          (c) motive power and equipment;
430          (d) operating practices;
431          (e) signal and train control; and
432          (f) track.
433          [(2)] (3) As part of the responsibilities described in Subsection [(1)] (2), the office
434     shall:
435          (a) inspect and investigate railroad rights-of-way, facilities, equipment, and operations
436     of railroads in this state;
437          (b) notify a railroad of any violation or lack of compliance with applicable state and
438     federal laws, rules, regulations, orders, and directives;
439          (c) enforce applicable state and federal laws, rules, regulations, orders, and directives
440     relating to the transportation by rail of persons or commodities; and
441          (d) issue orders to require compliance with state and federal laws, rules, regulations,
442     orders, and directives.
443          [(3)] (4) The office shall employ a sufficient number of federally certified inspectors
444     and staff to ensure that railroad equipment, facilities, and tracks are inspected as frequently as
445     reasonably required to ensure compliance and safety as required under state and federal law.
446          [(4)] (5) (a) The office shall investigate railroad practices related to the length of time a
447     railroad blocks a highway-railroad grade crossing.
448          (b) Upon petition of a political subdivision, or upon the office's own motion, the office
449     may:
450          (i) conduct an investigation of the conditions related to a grade crossing; and
451          (ii) if necessary, conduct a hearing, make findings, and issue an order to determine
452     whether highway-railroad crossing blocking practices of the railroad are reasonable.
453          (c) (i) The office shall examine and inspect the physical condition of all railroad
454     facilities in this state to ensure compliance with safety requirements.
455          (ii) As part of the inspection and examination of railroad facilities and crossings, the
456     office shall include an examination and inspection of:
457          (A) the condition of railroad facilities and crossing infrastructure;
458          (B) whether expansion of grade crossing infrastructure or other changes are justified
459     based on the traffic and safety conditions; and
460          (C) other safety considerations required by federal law.
461          (d) If the office determines that a railroad's highway-railroad crossing blocking
462     practices are unreasonable, the office shall:
463          (i) request the Federal Railroad Administration take enforcement actions pursuant to 49
464     C.F.R. Sec. 212.115; and
465          (ii) notify the Surface Transportation Board defined in 49 U.S.C. Sec. 10102 of the
466     unsafe and unreasonable practices.
467          (e) If the office finds a violation of safety requirements as described in this section or
468     in federal law, and the office requests an enforcement action and Federal Railroad
469     Administration does not take enforcement action as described in 49 C.F.R. Sec. 212.115, the
470     office may seek a civil penalty not less than $500 and no more than $10,000 for each offense.
471          [(5)] (6) (a) The office shall examine and inspect the physical condition of all railroad
472     facilities in this state to ensure compliance with safety requirements.
473          (b) If an inspector determines that a railroad facility is noncompliant, the office shall
474     provide written notice to the railroad.
475          (c) If a railroad receives a notice described in Subsection [(5)(b)] (6)(b), the railroad
476     shall remedy the condition or practice within 30 days of the date of the notice.
477          (d) If after 30 days from the date of the notice the railroad has not remedied the
478     condition or practice to the office's satisfaction, the office may set the matter for hearing.
479          (e) After a hearing described in Subsection [(5)(d)] (6)(d), if the office determines that
480     the condition or practice is noncompliant and the railroad has not made reasonable efforts to
481     remedy the condition or practice, the office may issue an order requiring the railroad to:
482          (i) eliminate or remedy the unsafe or unlawful condition or practice; or
483          (ii) make any necessary repairs, alterations, or other changes to the relevant condition
484     or practice to ensure compliance with state and federal law.
485          (f) In addition to any order issued under Subsection [(5)(e)] (6)(e), after a hearing
486     described in Subsection [(5)(d)] (6)(d), if the office determines that the condition or practice is
487     noncompliant and the railroad has not made reasonable efforts to remedy the condition or
488     practice, and the condition or practice is so hazardous as to place a railroad employee or the
489     public in immediate danger, the office may issue an order requiring the railroad:
490          (i) after 48 hours' written notice to the railroad, issue an order prohibiting:
491          (A) the unsafe or unlawful practice; or
492          (B) the use of the facility until completion of the necessary repair, alteration, or other
493     necessary changes; and
494          (ii) pay a civil penalty of not more than $10,000 per violation or per day of violation of
495     state or federal law, or a rule made in accordance with Subsection [(6)] (7) or Section
496     72-17-107.
497          [(6)] (7) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
498     Act, the department shall make rules necessary to:
499          (a) establish the Office of Rail Safety as required in this part;
500          (b) establish and enforce rules regarding safe and reasonable procedures and standards
501     regarding the blocking of grade crossings, which standards and limits shall be commensurate
502     with reasonable requirements of train and vehicular traffic operations;
503          (c) enforce this part and relevant state and federal law related to this part; and
504          (d) administer the Office of Rail Safety as described in this part.
505          Section 11. Section 72-17-104 (Effective 03/31/24) is amended to read:
506          72-17-104 (Effective 03/31/24). Federal Railroad Administration grant program.
507          (1) The provisions in this section apply beginning on May 7, 2025.
508          (2) After reaching an agreement with and receiving the certification from the Federal
509     Railroad Administration as described in Section 72-17-101, the office may apply for [Railroad
510     Safety Grants] railroad safety grants as often as permitted by the Federal Railroad
511     Administration.
512          Section 12. Section 72-17-105 (Effective 03/31/24) is amended to read:
513          72-17-105 (Effective 03/31/24). Establishment of administrative fees -- Payment --
514     Expenditures.
515          (1) [(a)] The provisions in this section apply beginning on May 7, 2025.
516          (2) The office shall annually determine a fee to be paid by each railroad that operated
517     within the state and is subject to the jurisdiction of the office on a pro rata basis as described in
518     Subsection [(2)] (3).
519          [(b)] (a) The office and the department shall establish the annual fee to produce a total
520     amount not less than the amount required to regulate railroads and carry out the duties
521     described in this part.
522          [(c)] (b) The office shall use the revenue generated by the fees paid by each railroad for
523     the investigation and enforcement activities of the office as authorized under this part.
524          [(2)] (3) (a) For grade crossings inspections and services, the office shall establish and
525     each railroad shall pay a fee based on:
526          (i) as of January 1 of each year, the number of crossings the railroad operates within
527     this state that cross a highway, whether at grade, by overhead structure, or subway; and
528          (ii) the frequency of use of each crossing the railroad operates, including:
529          (A) the frequency of train operation at the crossing; and
530          (B) the frequency of highway traffic at the crossing.
531          (b) For hazardous materials related inspections and services, the office shall establish
532     and each railroad shall pay a fee based on the tonnage of hazardous materials transported in this
533     state during a given year.
534          (c) For motive power and equipment related inspections and services, the office shall
535     establish and each railroad shall pay a fee based on the number of motive power units and other
536     equipment units operated by the railroad in this state.
537          (d) For track related inspections and services, the office shall establish and each
538     railroad shall pay a fee based on the number of miles of track owned or operated by the railroad
539     within this state.
540          (e) For signal and train control inspections and services, as well as operating practices
541     inspections and services, the office shall establish and each railroad shall pay a fee based on
542     gross operating revenue of each railroad generated within this state.
543          (f) (i) For inspection services related to commuter rail, notwithstanding any other
544     agreement, a county or municipality with commuter rail service provided by a public transit
545     district may request local option transit sales tax in accordance with Section 59-12-2206 and
546     spend local option transit sales tax in the amount requested by the office.
547          (ii) A county or municipality that requests local option transit sales tax as described in
548     Subsection [(2)(f)(i)] (3)(f)(i) may transmit to the office the funds requested under Subsection
549     [(2)(f)(i)] (3)(f)(i) and transmitted to the county or municipality under Subsection
550     59-12-2206(5)(b).
551          (iii) A county or municipality that requests local option transit sales tax as described in
552     Subsection [(2)(f)(i)] (3)(f)(i) may not request more local option transit sales tax than is
553     necessary to carry out the safety inspection and functions under this chapter.
554          (iv) The office is not required to charge or collect a fee related to inspections of
555     commuter rail.
556          [(3)] (4) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking
557     Act, the department shall make rules to establish each of the fee amounts described in
558     Subsection [(2)] (3):
559          (i) according to the data described in Subsection [(2)] (3); and
560          (ii) to collect an amount sufficient to cover the budget and costs to administer the
561     duties of the office.
562          (b) The department shall annually adjust the fees established in accordance with
563     Subsection [(3)(a)] (4)(a) to account for inflation and other budgetary factors.
564          [(4)] (5) Each railroad that operates within this state shall pay to the office the fees
565     described and established by the office.
566          Section 13. Section 72-17-106 (Effective 03/31/24) is amended to read:
567          72-17-106 (Effective 03/31/24). Office of Rail Safety Account.
568          (1) The provisions in this section apply beginning on May 7, 2025.
569          (2) There is created an expendable special revenue fund called the Office of Rail Safety
570     Account.
571          [(2)] (3) The account shall be funded by:
572          (a) deposits into the account by the Legislature;
573          (b) fees collected pursuant to Section 72-17-105; and
574          (c) other deposits or donations into the account.
575          [(3)] (4) The office shall provide a detailed budget to account for the office's
576     expenditures related to the enforcement of this part, including:
577          (a) salaries, per diem, and travel expenses of employees performing the duties
578     described in this part;
579          (b) expenditures for clerical and support staff directly associated with the duties
580     described in this part;
581          (c) expenditures for legal staff who pursue and administer complaints and compliance
582     issues related to this part; and
583          (d) reasonable overhead costs related to Subsections [(3)(a)] (4)(a) through (c).
584          [(4)] (5) The office, in performing the duties under this part:
585          (a) shall limit the expenditure of funds to the total amount of fees collected from the
586     railroads as described in this section; and
587          (b) may not expend funds from other sources accessible to the department.
588          Section 14. Section 72-17-107 (Effective 03/31/24) is amended to read:
589          72-17-107 (Effective 03/31/24). Rulemaking regarding railroad clearances and
590     walkways.
591          (1) The provisions of this section apply beginning on May 7, 2025.
592          (2) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the
593     department shall make rules to establish safety standards related to:
594          [(1)] (a) walkways adjacent to railroad track;
595          [(2)] (b) clearances of structures and other obstructions near railroad track;
596          [(3)] (c) the safety of office personnel conducting inspections in accordance with this
597     part;
598          [(4)] (d) railroad infrastructure and work spaces for railroad workers;
599          [(5)] (e) signage related to railroad worker safety; and
600          [(6)] (f) other safety standards as the department finds necessary.
601          Section 15. Section 72-17-108 (Effective 03/31/24) is amended to read:
602          72-17-108 (Effective 03/31/24). Agreements to indemnify in a railroad contract.
603          (1) The provisions of this section apply beginning on May 7, 2025.
604          (2) As used in this section:
605          (a) "Railroad contract" means a contract or agreement between:
606          (i) a railroad; and
607          (ii) another person that could be subject to a civil penalty or fine issued pursuant to this
608     chapter.
609          (b) "Indemnification provision" means a covenant, promise, agreement, or
610     understanding in, in connection with, or collateral to a railroad contract that requires the person
611     to insure, hold harmless, indemnify, or defend the railroad against liability, if:
612          (i) the damages arise out of a civil penalty issued pursuant to this chapter; and
613          (ii) the damages are caused by or resulting from the fault of the railroad or the
614     railroad's agents or employees.
615          [(2)] (3) Except as provided in Subsection [(3)] (4), an indemnification provision in a
616     railroad contract is against public policy and is void and unenforceable.
617          [(3)] (4) If an indemnification provision is included in a railroad contract, in any action
618     for damages described in Subsection [(1)(b)(i)] (2)(b)(i), the railroad may seek indemnification
619     from another party to a railroad contract pro rata based on the proportional share of fault of
620     each party, if:
621          (a) the damages are caused in part by the party other than the railroad; and
622          (b) the cause of the damages arose at a time when the party other than the railroad was
623     operating pursuant to the railroad contract.
624          [(4)] (5) This section may not be construed to impair a contract in existence before
625     May 3, 2023.
626          Section 16. Section 72-18-101 is enacted to read:
627     
CHAPTER 18. RAIL OMBUDSMAN

628     
Part 1. Creation and Duties

629          72-18-101. Rail ombudsman.
630          (1) There is created the position of rail ombudsman in the rail division of the
631     department.
632          (2) The executive director of the department shall appoint the rail ombudsman.
633          Section 17. Section 72-18-102 is enacted to read:
634          72-18-102. Rail ombudsman -- Duties.
635          (1) The rail ombudsman shall:
636          (a) develop and maintain expertise in and understanding of laws and regulations
637     relating to rail;
638          (b) coordinate, consult, and provide information to private citizens, government
639     entities, rail operators, stakeholders, and other interested parties about rail related issues;
640          (c) on the rail ombudsman's website, provide:
641          (i) updated, easily accessible information about the duties of the rail ombudsman; and
642          (ii) a form that a member of the public, including a railroad company employee, may
643     use to submit a report or complaint;
644          (d) provide education and training regarding rail laws and regulations; and
645          (e) arrange and facilitate meetings between a rail company and one or more of the
646     following, to resolve a rail dispute described in Subsection (2):
647          (i) a local government entity;
648          (ii) a large public transit district; or
649          (iii) a private property or livestock owner.
650          (2) The rail ombudsman shall facilitate meetings described in Subsection (1)(e) to
651     resolve issues relating to:
652          (a) safety;
653          (b) at-grade and grade-separated rail crossings;
654          (c) fencing;
655          (d) injury to or loss of livestock;
656          (e) railroad maintenance, including maintenance agreements and road closures;
657          (f) improvements to railroad right-of-way infrastructure;
658          (g) track realignment;
659          (h) track consolidation; or
660          (i) any other issue that has caused a dispute between a rail company and a party
661     described in Subsection (1)(e).
662          (3) If the rail ombudsman invites a rail company or another party described in
663     Subsection (1)(e) to a meeting to resolve a rail dispute, the rail company or other person shall:
664          (a) attend the meeting; and
665          (b) attempt to resolve the dispute through the rail ombudsman before filing an action in
666     court or seeking another remedy.
667          (4) A rail company and a party described in Subsections (1)(e)(i) through (iii) shall
668     provide notice to the rail ombudsman before:
669          (a) closing a highway for railroad maintenance; or
670          (b) starting a construction project involving:
671          (i) an at-grade rail crossing; or
672          (ii) the realignment or consolidation of railroad tracks.
673          (5) The rail ombudsman may not address nor participate in:
674          (a) organized labor issues or disputes; or
675          (b) rail company employee safety issues.
676          Section 18. FY 2025 Appropriation.
677          The following sums of money are appropriated for the fiscal year beginning July 1,
678     2024, and ending June 30, 2025. These are additions to amounts previously appropriated for
679     fiscal year 2025.
680          Subsection 18(a). Operating and Capital Budgets.
681          Under the terms and conditions of Title 63J, Chapter 1, Budgetary Procedures Act, the
682     Legislature appropriates the following sums of money from the funds or accounts indicated for
683     the use and support of the government of the state of Utah.
684     
ITEM 1
     To Transportation - Operations/Maintenance Management
685      From Rail Transportation Restricted Account$800,000
686      Schedule of Programs:
687      Maintenance Administration$800,000

688          Section 19. Effective date.
689          (1) Except as provided in Subsection (2), if approved by two-thirds of all the members
690     elected to each house, this bill takes effect upon approval by the governor, or the day following
691     the constitutional time limit of Utah Constitution, Article VII, Section 8, without the governor's
692     signature, or in the case of a veto, the date of the veto override.
693          (2) If this bill is not approved by two-thirds of all members elected to each house, this
694     bill takes effect May 1, 2024.