[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76345-76351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30836]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Chapter II
[Docket No. FRA-2009-0038]
RIN 2130-AC11
Risk Reduction Program
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The Rail Safety Improvement Act of 2008 requires the
development and implementation of railroad safety risk reduction
programs. Risk reduction is a comprehensive, system-oriented approach
to safety that determines an operation's level of risk by identifying
and analyzing applicable hazards and develops plans to mitigate that
risk. Each Risk Reduction Program (RRP) is statutorily required to be
supported by a risk analysis and a Risk Reduction Program Plan (RRPP),
which must include a Technology Implementation Plan and a Fatigue
Management Plan.
This ANPRM solicits public comment on a potential rulemaking that
would require each Class I railroad, each railroad with an inadequate
safety record, and each passenger railroad to submit an RRPP to FRA for
its review and approval. Each of those railroads would ultimately be
required to implement its approved RRP.
DATES: Written comments must be received by February 7, 2011. Comments
received after that date will be considered to the extent possible
without incurring additional expenses or delays.
After all public comments are received, FRA may hold a public
hearing on a date to be announced in a forthcoming notice. The focus of
the meeting would be on issues raised in the submitted comments.
ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0038 may
be submitted by any of the following methods:
Online: Comments should be filed at the Federal
eRulemaking Portal, http://www.regulations.gov. Follow the online
instructions for submitting comments.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. DOT, 1200 New
Jersey Avenue, SE., W12-140, Washington, DC 20590.
Hand Delivery: Room W12-140 on the Ground level of the
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov including any personal
information. Please see the Privacy Act heading in the SUPPLEMENTARY
INFORMATION section of this document for Privacy Act information
related to any submitted comments or materials.
FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk
Reduction Program Division, Office of Safety Analysis, FRA, 1200 New
Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590 (telephone: 202-
493-6224), [email protected]. Elizabeth A. Gross, Trial Attorney,
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop
10, Washington, DC 20590 (telephone: 202-493-1342),
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
In section 103 of the Rail Safety Improvement Act of 2008, Public
Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C.
20156) (hereinafter RSIA), Congress directed the Secretary of
Transportation to issue a regulation by October 16, 2012, requiring
certain railroads to develop a Risk Reduction Program (RRP). While
[[Page 76346]]
the statute vests certain responsibilities with the Secretary of the
U.S. DOT (Secretary), the Secretary has since delegated those
responsibilities to the FRA Administrator. See 49 CFR 1.49(oo); 74 FR
26981 (June 5, 2009); see also 49 U.S.C. 103(g).
Each railroad subject to the regulation would have to develop and
implement an RRP approved by FRA. See 49 U.S.C. 20156(a)(1). This RRP
is required to be supported by an RRPP. See 49 U.S.C. 20156(d)(2). FRA
would also conduct an annual review to ensure that each railroad has
complied with its RRP. See 49 U.S.C. 20156(a)(3). The RSIA mandates
that the following three categories of railroads be required to develop
and implement an FRA-approved RRP:
(1) Class I railroads;
(2) Railroad carriers with inadequate safety performance, as
determined by the Secretary; and
(3) Railroad carriers that provide intercity rail passenger or
commuter rail passenger transportation (passenger railroads).
See 49 U.S.C. 20156(a)(1).
In accordance with the RSIA mandate, this ANPRM announces the
initiation of an RRP rulemaking applicable to the above railroads.
Railroads not required to implement RRPs under the RSIA would be
permitted to voluntarily submit plans meeting the requirements of any
final RRP regulation for FRA review and approval. See 49 U.S.C.
20156(a)(4).
II. Related Proceeding
With the assistance of the Railroad Safety Advisory Committee
(RSAC), FRA is currently developing a System Safety Program (SSP)
regulation applicable to passenger railroads. An SSP is anticipated to
be a comprehensive process for the application of engineering and
management principles, criteria, and techniques to optimize safety.
Like risk reduction, an SSP might require a railroad to assess and
manage risk, and to develop proactive hazard management methods that
would support safety improvement. As currently envisioned, SSP would be
specifically tailored to the risks presented by passenger railroads. To
the extent possible, FRA intends to incorporate risk reduction
requirements into a complimentary safety and risk reduction framework.
III. RSIA RRP Requirements
Under the RSIA, each RRP required to be submitted by a railroad
must contain certain components. As a general matter, an RRP is
required to systematically evaluate safety risks on a railroad's system
and to manage those risks to reduce the consequences and rates of
railroad accidents, incidents, injuries, and fatalities. See 49 U.S.C.
20156(a)(1)(A). The RRP will help achieve this goal by mitigating
aspects that increase railroad safety risks and enhancing aspects that
decrease railroad safety risks. Id. Each RRP must contain a risk-based
hazard analysis \1\ and must be supported by an RRPP describing the
processes, procedures and resources that are committed to supporting
the RRP.\2\ For example, the RRPP must describe the organizational
functions and procedures that a railroad will utilize in developing,
implementing, and evaluating its RRP. In addition, an RRPP must also
incorporate a Technology Implementation Plan and a Fatigue Management
Plan.
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\1\ The RSIA uses the phrase ``risk analysis'' to describe the
type of analysis a railroad is required to perform. For purposes of
this ANPRM and any final rule, however, FRA will refer to this
analysis as a ``risk-based hazard analysis.'' This terminology
clarifies that safety hazard risks are the concern of the
rulemaking, as opposed to financial or other types of risk.
Additionally, this harmonizes the risk reduction rulemaking with the
terminology currently being utilized by the SSP rulemaking.
\2\ The RSIA uses the phrases ``comprehensive safety risk
reduction program'' and ``risk mitigation plan'' to describe the
plan that must accompany and support an RRP submitted by a railroad
to the FRA for approval. For purposes of this ANPRM, however, FRA
will refer to this plan as an RRPP.
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A. Risk-Based Hazard Analysis
Each railroad required to implement an RRP would conduct a risk-
based hazard analysis that would be submitted along with the railroad's
RRPP. See 49 U.S.C. 20156(c). FRA would likely expect a risk-based
hazard analysis to identify and analyze the following factors that
affect railroad safety:
Operating rules and practices;
Infrastructure;
Equipment;
Employee staffing levels and schedules;
Management structure;
Employee training; and
Other matters that impact railroad safety.
A railroad would not be required to limit its risk-based hazard
analysis to the above identified factors, and FRA may require a
railroad to consider these and/or additional factors in any proposed or
final rule. However, the contents of a railroad's risk mitigation RRPP
would be based upon the results of the railroad's completed risk-based
hazard analysis. See 49 U.S.C. 20156(d)(1).
B. Technology Implementation Plan and Positive Train Control Systems
An RRPP must include a Technology Implementation Plan (TIP) that
describes the railroad's plan for the ``development, implementation,
maintenance, and use of current, new, or novel technologies on its
system over a 10-year period to reduce safety risks identified under
the railroad safety risk reduction program.'' 49 U.S.C. 20156(e)(1). At
a minimum, a TIP must contain (1) a technology analysis addressing the
safety impact, feasibility, and costs and benefits of implementing
technologies, and (2) a 10-year implementation schedule prioritizing
the development and implementation of new technology. See 49 U.S.C.
20156(e)(2) and (e)(3).
The RSIA also contains several provisions regarding a railroad's
TIP and the implementation of positive train control (PTC) systems.
These provisions, however, apply only to the extent that a railroad is
not already required to implement a PTC system under section 104 of the
RSIA. Under section 104, certain railroads--including all Class I and
passenger railroads--are required to implement PTC systems by December
31, 2015. See 49 U.S.C. 20156(e)(4) and 20157(a). Therefore, the RSIA's
provisions (other than those in section 104) regarding PTC systems
would apply only to railroads determined to have an inadequate safety
record. Possible methodologies FRA could use to determine whether a
railroad has an inadequate safety record are discussed later in this
ANPRM.
While there is no general requirement in the RSIA that all
railroads with an inadequate safety record must address PTC systems in
their TIPs, the RSIA does contain the following provisions regarding
PTC systems:
If a railroad's TIP contains an implementation schedule
for a PTC system, the railroad must comply with that schedule. See 49
U.S.C. 20156(e)(4)(A).
If a railroad is required to submit a TIP that addresses
PTC systems, that railroad must implement such a PTC system pursuant to
its TIP by December 31, 2018. See 49 U.S.C. 20156(e)(4)(B).
The above provisions mean that a railroad voluntarily submitting a
TIP addressing the implementation of a PTC system would not have to
comply with the December 31, 2018 implementation deadline. Rather, such
a railroad would only be required to comply with the implementation
schedule contained in its own TIP. The December 31, 2018 deadline would
apply only to a railroad with an inadequate safety record that
[[Page 76347]]
FRA specifically requires to implement PTC.
C. Fatigue Management Plan
Each RRPP must include a Fatigue Management Plan (FMP) that will be
designed to reduce the likelihood of accidents, incidents, injuries,
and fatalities caused by the fatigue of safety-related railroad
employees. See 49 U.S.C. 20156(f)(1). A railroad will have to update
its FMP every two years. Id. An FMP should accomplish this by
prescribing appropriate fatigue countermeasures, taking into account
the various operating circumstances on the different parts of a
railroad system. See 49 U.S.C. 20156(f)(2). A railroad would also have
to consider whether its FMP should include elements addressing the
following:
Employee education and training on the physiological and
human factors that affect fatigue, as well as strategies to reduce or
mitigate the effects of fatigue, based on the most current scientific
and medical research and literature.
Opportunities for identification, diagnosis, and treatment
of any medical condition that may affect alertness or fatigue,
including sleep disorders.
Effects on employee fatigue of an employee's short-term or
sustained response to emergency situations, such as derailments and
natural disasters, or engagement in other intensive working conditions.
Scheduling practices for employees, including innovative
scheduling practices, on-duty call practices, work and rest cycles,
increased consecutive days off for employees, changes in shift
patterns, appropriate scheduling practices for varying types of work,
and other aspects of employee scheduling that would reduce employee
fatigue and cumulative sleep loss.
Methods to minimize accidents and incidents that occur as
a result of working at times when scientific and medical research have
shown increased fatigue disrupts employees' circadian rhythm.
Alertness strategies, such as policies on napping, to
address acute drowsiness and fatigue while an employee is on duty.
Opportunities to obtain restful sleep at lodging
facilities, including employee sleeping quarters provided by the
railroad carrier.
The increase of the number of consecutive hours of off-
duty rest, during which an employee receives no communication from the
employing railroad carrier or its managers, supervisors, officers, or
agents.
Avoidance of abrupt changes in rest cycles for employees.
Additional elements that the Secretary considers
appropriate.
See 49 U.S.C. 20156(f)(3)(A)-(J).
D. Consensus Requirements
Each railroad submitting an RRP must consult on the contents of the
plan in good faith with all of its directly affected railroad employees
and any non-profit employee labor organization representing directly
affected employees. See 49 U.S.C. 20156(g)(1). If the railroad cannot
reach a consensus on the proposed contents with the employees or the
labor organization, the employees or the labor organization may file a
statement with FRA explaining their views on the RRP on which consensus
was not reached. See 49 U.S.C. 20156(g)(2). FRA is required to consider
such views during the review and approval of the RRP. Id.
E. Protection of Confidential Information
1. FOIA Protection
Under section 109 of the RSIA, 49 U.S.C. 20118(a), certain
information submitted to FRA pursuant to an RRP or risk reduction pilot
project is prohibited from disclosure under the Freedom of Information
Act, 5 U.S.C. 552, (``FOIA''), except as necessary for the Secretary or
another Federal agency to enforce or carry out any provision of Federal
law. This prohibition applies to any part of any record that FRA
receives, inspects, or copies pursuant to an RRP or pilot project,
including (but not limited to) a railroad's analysis of its safety
risks and its statement of identified mitigation measures. Id. This
prohibition, however, is subject to the exception that FRA may disclose
information otherwise available to the public if FRA determines that
disclosure would be consistent with the confidentiality needed for an
RRP or pilot program. See 49 U.S.C. 20118(b).
In addition, FRA may also prohibit disclosure of risk analyses or
risk mitigation analyses obtained under other provisions, regulations,
or orders promulgated under 49 U.S.C. chapter 201, if FRA determines
that the prohibition of public disclosure is necessary to promote
railroad safety. See 49 U.S.C. 20118(c).
2. Protection From Discovery
The RSIA also directs FRA to conduct a study evaluating whether it
is in the public interest to withhold certain risk reduction
information from discovery or admission into evidence in Federal or
State court proceedings against a railroad that involve personal injury
or wrongful death. See 49 U.S.C. 20119(a). In conducting this study,
FRA must take into account both public safety and the legal rights of
persons injured in railroad accidents, and must solicit input from
railroads, railroad non-profit employee labor organizations, railroad
accident victims and their families, and the general public. Id. The
risk reduction information that is the subject of the study would
include any report, survey, schedule, list, or data compiled or
collected for the purpose of evaluating, planning, or implementing a
railroad RRP that is required under 49 U.S.C. chapter 201, including a
railroad's analysis of safety risks and its statement of mitigation
measures with which it will address those risks. Id. FRA may then issue
a rule addressing the results of this study, so long as the rule is in
the public interest (including public safety and the legal rights of
persons injured in railroad accidents). See 49 U.S.C. 20119(b). Any
such rule may not go into effect until one year after its adoption. Id.
FRA anticipates that it will complete this study within one to two
years. The public will have an opportunity to comment on the
information collection requirements of this study through FRA's
obligation under the Paperwork Reduction Act.
IV. FRA's Risk Reduction Initiative
Although FRA's traditional rule-based system has been effective at
establishing minimum safety standards, additional safety improvements
could be achieved through the establishment of risk reduction programs.
FRA's risk reduction initiative utilizes an approach based on (1)
voluntary risk reduction programs in the railroad industry, and (2)
changes to FRA's internal safety culture to maximize the agency's
ability to improve railroad safety. FRA envisions that the RRP and SSP
regulations discussed in this ANPRM will enhance this broad approach.
Risk reduction is a problem-solving process used to identify and
mitigate railroad safety risks. Its objective is to develop innovative
methods, processes, and technologies that can be used to identify and
mitigate railroad safety risk factors proactively instead of
reactively, so that risks are effectively counteracted before an
accident, injury, or fatality occurs.
Overall, a risk reduction approach could help railroads, FRA, and
labor organizations learn how unsafe events may occur and identify
underlying conditions that contribute to unsafe events. This knowledge
will then provide a means to effectively prevent those unsafe events.
When fully implemented, FRA intends that its
[[Page 76348]]
broad risk reduction initiative will help identify systemic factors
that can address multiple railroad safety problems. Risk reduction will
also help to identify, track, and evaluate corrective actions taken by
railroads, and could help reveal previously hidden safety information
for analysis and problem solving.
A. Voluntary Risk Reduction Programs
Before the passage of RSIA, FRA worked with railroads and labor
organizations to develop voluntary proactive safety programs designed
to improve railroad safety and build strong safety cultures. Various
programs, such as the Confidential Close Call Reporting Systems
(C\3\RS) (OMB No. 2130-0574), Crew Resource Management model training
programs, and Clear Signal for Action (CSA) behavior-based safety
programs (as well as many others), contained elements that made them
(or other programs like them) appropriate for consideration as
voluntary programs under the risk reduction umbrella. These elements
include commitments from all stakeholders; voluntary, confidential, and
non-punitive participation; systematic and objective data gathering,
analysis, and reporting; problem-solving and corrective actions; and
long-term sustaining mechanisms. FRA's risk reduction initiative will
continue to encourage the development and implementation of voluntary
programs focusing on proactive risk mitigation.
B. FRA's Internal Risk Reduction Program
As a regulator, FRA recognizes that the presence of a strong
internal safety culture increases its ability to improve railroad
safety. A strong internal safety culture enables the agency to overcome
institutional ``stovepipe'' barriers that inhibit the free flow of
information within the agency and can help the entire agency focus
effectively on railroad safety issues. To help the agency identify new
processes or methods for improving railroad safety, FRA is developing
its own internal risk reduction program. This program will provide
support and guidance to several FRA teams working on internal pilot
studies that would address specific railroad safety issues.
C. Risk Reduction Pilot Programs
The RSIA authorized FRA to conduct research and pilot programs
related to risk reduction. See 49 U.S.C. 20156(a)(2). FRA intends to
use the information and experience gathered through these pilot
programs to develop the RRP regulation. Id.
On May 29, 2009, FRA published a Broad Agency Announcement (BAA)
soliciting proposals for risk reduction pilot programs. See Department
of Transportation (Federal Railroad Administration), ``Limited
Competition of the Federal Railroad Administration Risk Reduction
Program/Broad Agency Announcement,'' Special Notice, Solicitation
Number: DTFR53-09-M-0000, available at: https://www.fbo.gov/index?s=opportunity&mode=form&id=0ea229f12915fda77cfc84b4dbc6ef9a&tab=core&_cview=0. FRA limited competition under the BAA to Class I
railroads, many of which were already developing proactive safety
programs. This allowed FRA to increase the speed of generating pilot
projects results to help develop the RRP regulation required by RSIA.
The BAA requested proposals from the Class I railroads for pilot
projects that targeted operations, equipment, or systems that posed the
greatest risk to operational and personal safety. FRA evaluated the
proposals and announced in September 2009 that Risk Reduction Pilot
Program Grant Awards had been awarded to the National Railroad
Passenger Corporation (Amtrak); BNSF Railway Company; Canadian Pacific
Railway; CSX Transportation, Inc.; Norfolk Southern Corporation; and
Union Pacific Railroad Company.
FRA is currently monitoring these pilot programs and gathering
information and results that will assist in the development of the
subject RRP regulation. FRA anticipates that many of these pilot
projects will have a life span beyond the publication of the final risk
reduction regulation, and many of them may ultimately become part of a
railroad's FRA-approved RRP.
V. Advance Notice of Proposed Rulemaking
In accordance with the RSIA mandate, this ANPRM announces the
initiation of an RRP rulemaking. This ANPRM requests written comments
in response to the questions presented. FRA also welcomes any
additional information that may be helpful in considering a risk
reduction framework for railroad carriers. FRA is not proposing any
specific regulatory language in this ANPRM. After a review of all the
comments submitted in response to this ANPRM, FRA will likely issue a
notice of proposed rulemaking (NPRM) proposing specific risk reduction
program regulations. Interested persons will have the opportunity to
comment on a proposed regulation prior to the adoption of any final
regulation regarding risk reduction.
A. Identifying Railroads With an Inadequate Safety Record
FRA is particularly interested in soliciting input regarding how to
determine whether a railroad has an ``inadequate safety record'' under
49 U.S.C. 20156(a)(1) and thus would be required to develop and
implement an RRP. The RSIA does not provide guidance on how this
determination should be made. FRA is currently considering an approach
in which a variety of safety factors would be analyzed and weighed when
making the determination. Such possible factors could include:
The railroad's safety performance within the last five (5)
years, as measured by the number of occurrences per million train-miles
of the following:
[cir] Fatal accidents/incidents reportable under 49 CFR part 225
(not including accidents/incidents occurring at highway-rail grade
crossings, unless caused by a railroad's failure to comply with a
railroad operating rule or a Federal statute or regulation).
[cir] The number, severity, and types (e.g., head-on collisions
between pieces of on-track equipment) of accidents/incidents reportable
under 49 CFR part 225.
[cir] Non-accident hazardous materials releases.
[cir] FRA safety violations/deficiencies.
How the railroad's measured safety performance compares
with other railroads of similar size and operations.
Any serious accident/incident involving hazardous
materials and whether any such accident/incident led to an evacuation,
environmental damage, or a personal injury/fatality.
Any recommendations made by an FRA Regional Administrator
(with detailed supporting reasons provided) identifying a railroad with
an inadequate safety record.
The proportion of the railroad's territory that is
excepted track under 49 CFR 213.4. Railroads may designate a segment of
track as excepted track subject to certain conditions. Id. For example,
on excepted track a railroad may not operate trains in excess of ten
miles an hour, operate occupied passenger trains, or operate freight
trains containing more than five cars containing hazardous materials.
See Sec. 213.4(e)(1)-(e)(3). Excepted track is then subject to less
stringent track safety standards. See 49 CFR 213.5.
FRA does not anticipate that all these factors would necessarily be
weighted equally. Additionally, a determination relating to the
adequacy of a railroad's safety record could be based upon any number
of factors, depending upon the
[[Page 76349]]
severity of the safety concern involved. FRA would likely consider such
factors as fatalities, accidents/incidents, non-accident hazmat
releases, and FRA safety violations/deficiencies, using statistical
models that compare the railroad's performance to the industry average
or an FRA threshold established on a periodic basis (e.g., yearly).
Rates above a certain threshold would then likely cause FRA to
determine that a railroad has an inadequate safety record. In order for
FRA to determine that a railroad no longer has an inadequate safety
record, the railroad may then need to be below all applicable
thresholds for a set period of time (e.g., three years).
Additional factors to be considered may include the increased risk
level due to operating conditions specific to an individual railroad.
In other words, factors presenting a greater than usual risk or hazard
would weigh in favor of determining that a railroad has an inadequate
safety record. Such factors might include the following:
Share of a railroad's revenue from the shipment of
hazardous materials;
Share of a railroad's revenue from the shipment of
hazardous materials in a major metropolitan area;
Whether the railroad shares trackage rights with a
railroad engaged in passenger operations; and
Whether a passenger operation crosses the railroad's
right-of-way at grade, otherwise known as a diamond crossing.
As this document is an ANPRM, the above ideas are not intended to
constitute FRA's final position regarding the definition of
``inadequate safety record.'' Rather, they are intended to elicit
discussion and comment from interested parties. FRA anticipates that
any approach proposed in a future NPRM could differ significantly from
the above. Nevertheless, FRA believes that the approach presented above
provides a good starting point for discussion. As discussed further
below in the Request for Information section, FRA is interested in
receiving any comments, questions, or concerns about the above
approach, as well as any suggestions for alternate methods of
determining when a railroad has an ``inadequate safety record.''
B. RRP Requirements and Implementation
As discussed above, the RSIA requires a railroad's RRP to include
certain minimum core components: A risk-based hazard analysis and an
RRPP (which must include a TIP and an FMP). FRA anticipates that a risk
reduction proposed rule would provide further specification regarding
what a risk-based hazard analysis and an RRPP might contain. For
example, FRA could propose the following requirements for public
comment:
A railroad's risk-based hazard analysis may be required
to:
[cir] Utilize certain demonstrated methodologies;
[cir] Be of a certain scope;
[cir] Contain a comprehensive description of the railroad's system;
[cir] Address the risks posed both by and to contractors who work
for the railroad; and
[cir] Address the risks posed by joint operations between
railroads.
A railroad may be required to update its risk-based hazard
analysis on a periodic basis. Additionally, certain events or
occurrences may trigger a mandatory update of a railroad's risk-based
hazard analysis.
A railroad's RRPP may be required to include defined roles
and responsibilities for contractors working for the railroad, as well
as employees.
A railroad's RRPP may be required to provide for periodic
risk reduction training to specific railroad employees and contractors.
A railroad's RRPP may be required to specify how the
railroad will periodically review the design and implementation of its
RRP utilizing valid mathematical tests or methods that conform to the
standards of the American Evaluation Association.
A railroad may be required to maintain certain risk
reduction documentation and records and to make that information
available upon request to the FRA for auditing purposes.
A railroad may be required to develop and submit a risk-
based hazard analysis and an RRPP for approval six months after the
publication of the final rule, and to fully implement the RRP six
months after the hazard analysis and the RRPP have been approved by the
FRA.
C. Request for Information
In general, FRA seeks comments on the broad areas outlined within
this ANRPM, and approaches FRA can take to integrate existing FRA
requirements into a comprehensive risk reduction program that meets the
requirements set forth in RSIA. FRA seeks comments on how a risk
reduction program could be implemented to meet the requirements of the
law in a manner that maximizes benefits without imposing excessive,
unjustified, or unnecessary costs.
FRA also seeks input from the public on the following specific
questions. Comments will be used by FRA to make decisions regarding the
content and direction of any future public meetings on the risk
reduction rulemaking and the contents of the NPRM. Each commenting
party should refer to the number of the specific question(s) to which
it is responding. FRA also requests additional comments and information
not addressed by these questions that would promote an understanding of
the implications of imposing an RRP regulatory requirement. FRA does
not expect that every commenter will be able to answer every question.
Please respond to those questions you feel able to answer or that
address your particular issue. FRA encourages responses from all
interested entities, not only railroads. Each comment filed by a party,
other than railroads or their representatives, should explain its
interest in risk reduction and how its comments may assist in the
development of an RRP rulemaking.
Risk Reduction Program
1. If you are not in the railroad industry, please tell us about
your organization and your interest in risk reduction.
2. What should be the scope of applicability for the final risk
reduction rule? Should certain types of railroads (such as tourist
railroads) be exempted from the regulation?
3. The RSIA requires a railroad with an ``inadequate safety
record'' to develop and implement an FRA-approved RRP. This ANPRM
proposes a list of factors that FRA could consider when determining
whether a railroad has an ``inadequate safety record.''
a. Is FRA asking the right questions to determine the adequacy of a
safety record? Please comment on the various factors FRA has
identified. What other questions should FRA be asking?
b. What additional factors not discussed above should FRA consider?
4. An RRP must be designed to improve safety by reducing the number
and rates of accidents, incidents, injuries, and fatalities. An RRP
will accomplish this by using a safety improvement process that
identifies accident precursors and mitigates hazards on an ongoing
basis.
a. What should an effective RRP include to accomplish this mandate?
b. How should a railroad go about adequately demonstrating that its
RRP is effective for addressing safety concerns identified in the risk-
based hazard analysis?
c. How can a railroad utilize risk reduction to improve its
corporate safety culture?
5. Each railroad required to develop and implement an FRA-approved
RRP must include defined roles and responsibilities for contractors.
FRA
[[Page 76350]]
will likely hold a railroad responsible for ensuring that a contractor
fulfills these roles and responsibilities.
a. What are the different ways an RRP can incorporate contractors
performing work for a railroad?
b. How would you determine which contractors should be included in
a railroad's RRP? Should a railroad's RRP be required to incorporate
only contractors who perform safety-sensitive service for the railroad?
Who should be excluded? Explain.
c. Should a railroad or FRA (or both) be responsible for ensuring
that contractors working for a railroad are fulfilling their RRP roles
and responsibilities?
6. An RRP must take into account the risks and hazards associated
with joint operations between railroads.
a. How should FRA define joint operations in the context of an RRP
regulation?
b. What are the different ways an RRP can incorporate risks and
hazards associated with joint operations?
7. Should all railroads be required to submit risk-based hazard
analyses and RRPPs of identical scope and depth that meet uniform
rigorous standards? If not, how can FRA craft a scalable regulation
that applies fairly to both large and small railroads? Are there ways
to make risk reduction programs scalable and flexible, dependent upon
the size and flexibility of the railroad?
8. Risk reduction is an ongoing, dynamic approach to identifying
and mitigating risks. How can a railroad use an RRPP to promote safety
improvement and to maintain an acceptable level of safety?
9. What risk reduction activities are already in place at
railroads, and, how could those activities be incorporated into a
future proposed rule?
10. Are there ways to achieve greater benefits at a lower cost
through alternative methods of implementation?
Risk-Based Hazard Analysis
11. The RSIA requires each railroad to develop and implement an RRP
that systematically ``evaluates railroad safety risks on its system.''
How can a risk-based hazard analysis accomplish this mandate?
a. What methodologies should FRA require that a railroad use when
conducting its risk-based hazard analysis?
b. What should be excluded from the scope of a risk-based hazard
analysis? What should be included in that scope?
c. How should a risk-based hazard analysis determine what is and
what is not an acceptable level of risk?
d. What are various methods for determining whether a railroad has
effectively applied a risk-based hazard analysis to its entire system?
12. FRA will likely require a risk-based hazard analysis to address
the risks presented both by and to contractors working for the
railroad. What elements would need to be present to ensure risks
relevant to contractors are addressed?
a. Is there a particular set of contractors that FRA should focus
on, or, conversely, contractors that have little impact on overall
risk?
13. When approving a railroad's RRPP, FRA will likely consider the
railroad's approach to updating its risk-based hazard analysis.
a. At a minimum, how often should a railroad update a risk-based
hazard analysis? Why have you recommended this time span?
b. In what ways is a risk-based hazard analysis an on-going process
supporting safety improvements?
c. What type of events or occurrences might trigger an update of a
railroad's risk-based hazard analysis?
Risk Reduction Program Plan
14. The RSIA requires a railroad to include a TIP and an FMP in its
RRPP. FRA may require an RRPP to have additional elements, such as a
comprehensive description of the railroad's system. What other basic
elements should an RRPP be required to contain?
15. Based on the information provided in this ANPRM, what would the
potential burden on railroads be for developing and maintaining an
RRPP, TIP, and FMP? Are particular elements more burdensome than
others? Are there ways for FRA to reduce the burden on railroads
(including, but not limited to, reduction of burden on small entities)?
16. All conclusions reached or positions taken by a railroad should
have supporting data that a reviewer can understand and follow in order
to reach the same conclusions. What additional supporting
documentation, data, or other information should a railroad be required
to include in the RRPP package it submits for FRA approval?
17. Are there risk management standards or guidelines that FRA
should apply when approving a railroad's RRPP?
18. Are there standards, analyses, or other considerations that FRA
should apply when deciding whether a railroad with an inadequate safety
record must submit a TIP providing for the implementation of a PTC
system?
19. The RSIA requires a railroad to consider whether its FMP should
address certain elements. Are there additional elements that FRA should
require a railroad's FMP to consider? What are the likely costs of
implementing specific elements of an FMP, and, what are the expected
benefits of implementing these elements?
Training
20. A railroad will likely be required to develop a risk reduction
training program (submitted as part of the railroad's RRPP) that
introduces the concept of safety risk reduction and the elements of the
railroad's RRP. What specific material should be included in or
excluded from a railroad's training?
21. Which employees or classes of employees should a railroad be
required to train on various RRP policies and procedures? Who should be
excluded from this training? Explain.
22. How often should risk reduction training be required? Why?
Recordkeeping and Program Audits
23. FRA may require railroads to maintain RRP records related to
input and output data, safety outcomes, evaluation protocols, manuals,
training programs, policies, procedures, standard operating procedures,
etc. Would retaining these records be appropriate? Are there other
records FRA should propose that railroads maintain? What would be the
practical utility of collecting and maintaining this information? What
would the potential burden of these activities be? Are there ways for
FRA to reduce burden related to recordkeeping and auditing
requirements?
24. In addition to a records review, FRA's annual review will
probably include field inspections, interviews, surveys, and other
evaluative data collection efforts. FRA may also inspect data
indicating whether the program has been effective in reducing risk. Are
these effective evaluation measures? What other tools could FRA
incorporate into its annual review effort?
25. As provided by the RSIA, FRA will review a railroad's RRP
annually. Should FRA's annual review:
a. Address a railroad's entire RRP?
b. Focus primarily on certain RRP components, with a maximum of two
years between audits for any single program component?
c. Target certain issues identified by accident/incident,
inspection, or complaint data?
26. How should a railroad provide FRA access to proprietary or
sensitive data?
27. FRA will likely require covered railroads to periodically
evaluate their RRP to ensure that it is effectively
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reducing risk. Covered railroads will be specifically required to
evaluate components of the program that were not audited by FRA that
year. These evaluations will likely be required to utilize valid
mathematical tests or methods that conform to the standards of the
American Evaluation Association.
a. How often should a railroad be required to evaluate the
effectiveness of its RRP?
b. What other standards could a railroad use to evaluate the
effectiveness of its RRP?
28. Should FRA allow a railroad to hire a contractor to evaluate
its RRP? If so, what qualifications or certifications should this
contractor have?
29. What documentation/certification must a railroad maintain so
that FRA can verify that the railroad has properly evaluated the
effectiveness of its RRP?
Cost/Benefits
30. What are the initial and recurrent costs of establishing and
maintaining RRP processes (e.g., internal auditing and evaluation, data
collection, employee training, computer software, personnel hiring and
training)?
31. How could railroads maximize benefits associated with a risk
reduction program without unjustified or unnecessary costs?
32. What new knowledge, skills, and abilities would your
organization need, if any, to operate successfully within a risk
reduction framework?
33. What are practical ways a small business could apply the
elements of an RRP?
34. What business benefits are created by a risk reduction program?
35. Are there special costs or loss of benefits of scale for small
businesses? If so, how can they be minimized?
General/Background
36. FRA may require a railroad to develop and submit an RRPP for
approval six months after publication of the final rule. Is this
timeline appropriate? If not, why? What additional problems does the
six month deadline create?
37. FRA may require a railroad to establish a full initial
implementation of an RRP six months after the RRPP has been approved by
FRA.
a. Is this timeline appropriate? If not, explain why it is not
appropriate.
b. Should FRA permit a railroad to implement its RRP in phases?
What should those phases be? Explain.
38. Has your organization implemented an official safety risk
reduction program (or other programs that could qualify as risk
reduction)? Please describe your implementation experience.
a. How has this program impacted organizational safety and
compliance with existing Federal statutes and regulations?
b. How have the resources required to implement and maintain the
program affected your organization?
c. If you do not represent a railroad, how do you think your risk
reduction activities would apply in a railroad context?
d. How has this program improved your organization's corporate
safety culture?
39. Has your railroad undertaken a risk reduction pilot project? If
so, please tell us how successful that pilot project has been and how
any data or information obtained through the project could assist in
the development of an RRP regulation.
40. What areas of FRA's current regulations do you believe already
incorporate risk reduction principles? How would you suggest the FRA
avoid any duplicative requirements in any risk reduction rulemaking
effort?
Public Meetings
41. After the ANPRM comment period has closed, FRA may hold one or
more public hearings on the announced risk reduction rulemaking.
Decisions regarding public meetings will be made based upon the content
of the comments. As such, all interested entities should, to the best
of their ability, respond fully in writing to the questions presented
in this ANPRM.
a. How many public meetings, if any, should FRA hold?
b. Where should any public meeting(s) be held? Are there certain
meeting locations that would increase participation?
Issued in Washington, DC, on December 2, 2010.
Karen J. Hedlund,
Chief Counsel, Federal Railroad Administration.
[FR Doc. 2010-30836 Filed 12-7-10; 8:45 am]
BILLING CODE 4910-06-P