[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Proposed Rules]
[Pages 26682-26684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11141]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II

[Docket No. FRA-2011-0025]


Study on Protection of Certain Railroad Risk Reduction Data From 
Discovery or Use in Litigation

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice and request for public comment.

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SUMMARY: In accordance with section 109 of the Rail Safety Improvement 
Act of 2008 (RSIA), FRA is soliciting public comment on the issue of 
whether it is in the public interest, including public safety and the 
legal rights of persons injured in railroad accidents, to withhold from 
discovery or use in litigation in a Federal or State court proceeding 
for damages involving personal injury or wrongful death against a 
carrier any report, survey, schedule, list, or data compiled or 
collected for the purpose of evaluating, planning, or implementing a 
railroad safety risk reduction program required under the RSIA, 
including a railroad carrier's analysis of its safety risks and its 
statement of the mitigation measures with which it will address those 
risks.

DATES: Comments should be received on or before July 8, 2011. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: You may submit comments to Docket No. FRA-2011-0025 by any 
of the following methods:
     Federal e-Rulemaking Portal: Go to http://www.regulations.gov and follow the instructions for sending your 
comments electronically.
     Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. 
If you submit comments by mail and would like to know that they reached 
the facility, please enclose a stamped, self-addressed envelope or 
postcard.
     Hand Delivery or Courier: West Building, Ground Floor, 
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax: 202-493-2251
    To avoid duplication, please use only one of these four methods. 
All comments received will be posted without change to http://www.regulations.gov and will include any personal information you 
provide.
    Docket: To read background documents or comments received, go to 
http://www.regulations.gov and click on the ``read comments'' box in 
the upper right hand side of the screen. Then, in the ``Keyword'' box, 
insert ``FRA-2011-0025'' and click ``Search.'' Next, click the ``Open 
Docket Folder'' in the ``Actions'' column. Finally, in the ``Title'' 
column, click on the document you would like to review. If you do not 
have access to the Internet, you may view the docket online by visiting 
the Docket Management Facility in Room W12-140 on the ground floor of 
the Department of Transportation West Building, 1200 New Jersey Avenue, 
SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,

[[Page 26683]]

Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Roberta Stewart, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Room W33-
411, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6027), 
[email protected].

SUPPLEMENTARY INFORMATION: 

The Railroad Safety Improvement Act of 2008

    Pursuant to section 103 of the Rail Safety Improvement Act of 2008 
(Pub. L. 110-432, Div. A, or ``RSIA'') (codified at 49 U.S.C. 20156) 
and a delegation from the Secretary (49 CFR 1.49(oo) \1\), FRA is 
conducting rulemakings to issue rules by October 16, 2012 that would 
require the establishment of risk reduction programs by certain 
passenger and freight railroads. As part of these risk reduction 
programs, railroads would have to produce detailed analyses of the 
hazards and risks present in the railroad working environment in order 
to develop processes to eliminate these hazards and risks. In section 
109 of the RSIA (codified at 49 U.S.C. 20118-20119), Congress 
determined that for these programs to be effective, the risk analyses 
must, subject to a few exceptions, be shielded from production in 
response to Freedom of Information Act (FOIA) requests.\2\ See 49 
U.S.C. 20118.
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    \1\ ``The Federal Railroad Administrator is delegated authority 
to: * * * (oo) Carry out the functions and exercise the authority 
vested in the Secretary by the Rail Safety Improvement Act of 2008 
(Pub. L. 110-431, Div. A, 122 Stat. 4848).''
    \2\ If the information is ``necessary for the Secretary of 
Transportation or another Federal agency to enforce or carry out any 
provision of Federal law'' it may be disclosed. The Secretary may 
also disclose ``any part of any record comprised of facts otherwise 
available to the public if * * * the Secretary determines that 
disclosure would be consistent with the confidentiality needed for 
that safety risk reduction or pilot program.''
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    In lieu of including a statutory provision that would shield the 
risk analysis information from production and use in litigation, 
Congress mandated a study. In Section 109 of the RSIA, codified at 49 
U.S.C. 20119, Congress directed FRA to evaluate whether it is in the 
public interest (including public safety and the legal rights of 
persons injured in railroad accidents) to withhold from discovery or 
admission into evidence in a Federal or State court proceeding for 
damages against a railroad carrier certain information compiled or 
collected for a safety risk reduction program required by FRA. 49 
U.S.C. 20119(a). In conducting this study, FRA is required to solicit 
input from railroads, railroad non-profit employee labor organizations, 
railroad accident victims and their families, and the general public.
    The Secretary has delegated the responsibility to carry out this 
provision to the Administrator of FRA. 49 CFR 1.49(oo). In accordance 
with section 109 of the RSIA, FRA is therefore issuing this notice to 
solicit public comments on whether it is in the public interest to 
protect railroad risk reduction information from production and use in 
litigation. Once the mandated study is completed, FRA may, if it is in 
the public interest, prescribe a rule to address the results of the 
study. Any such final rule would not become effective until one year 
after its adoption.
    Section 109 of the RSIA specifically refers to public safety as a 
component of the public interest to be evaluated in the study. Comments 
received by FRA in response to its advance notice of proposed 
rulemaking (ANPRM) on a risk reduction program indicate that railroads 
are reluctant to participate in the development of a statutorily 
mandated risk reduction program rule and to provide comprehensive risk 
analyses that might be used against them in litigation. See 49 U.S.C. 
20156 and 75 FR 76345 (December 8, 2010), Docket No. FRA-2009-0038. The 
purpose of shielding sensitive risk information from production in 
private litigation would be to encourage a railroad to describe its 
safety vulnerabilities, including its security vulnerabilities, and the 
mitigation measures it has identified with which it will address those 
risks, in documents that are not simply recitations of platitudes or 
pamphlets suitable for public relations campaigns but instead serious, 
comprehensive, and in-depth analyses. In other words, because railroads 
have indicated that they would be reluctant to produce comprehensive 
risk reduction analyses if they may be released in response to 
discovery requests or used in litigation, safety may be enhanced by 
prohibiting their release.
    In addition to the public interest in railroad safety, section 109 
of the RSIA also mentions specifically the legal rights and interests 
of persons injured in railroad accidents. There are numerous lawsuits 
each year against railroads that involve matters such as passenger 
train accidents, rail-highway grade crossing accidents, and railroad 
employee injuries. If the risk reduction information that would be 
generated and collected by the railroads under FRA's risk reduction 
programs were protected from discovery and use in these types of 
private lawsuits, another important question is whether private 
litigants would be disadvantaged by that protection.
    Accordingly, FRA is soliciting comments on the following issues:
     Whether and how railroad safety and railroad risk 
reduction programs would be impacted if risk reduction information 
collected for these programs were discoverable and could be used in 
litigation; and
     Whether and how the legal rights of persons injured in 
railroad accidents would be impacted if railroad risk reduction program 
information were protected from discovery and use in litigation.
    These specific questions are not intended to limit the comments; if 
there are other issues applicable to the protection of railroad risk 
information from use in litigation that commenters believe should be 
addressed, FRA invites a discussion of those issues.
    Once the comment period has closed, FRA will evaluate, digest and 
summarize the comments. The public comments will then be used as part 
of a final study report to fulfill the requirements of 49 U.S.C. 20119 
in determining whether it is in the public interest to protect railroad 
risk reduction information from discovery and use in litigation. If, 
based on the final study report, FRA were to conclude that it would be 
in the overall public interest to protect such information, FRA would 
then prepare and issue a notice of proposed rulemaking requesting 
public comment on draft regulations regarding limitations on the use of 
railroad risk information in litigation. The final study report will be 
made available to the public.

Supplemental Materials

    To assist commenters in evaluating and discussing the issues at 
hand, FRA will place several items in the public docket for review.
    First, FRA will put in the docket copies of the applicable statutes 
relating to the establishment of railroad risk reduction programs, the 
statutory protection of railroad risk reduction information from FOIA, 
and the statutory requirement for the study on the protection of 
railroad risk reduction information from discovery and use in 
litigation.
    Second, FRA will put in the docket a copy of a report (produced by 
FRA's contractor for the study) that discusses existing Federal 
government programs, both within and outside of DOT, that protect 
similar types of risk information from use in litigation, and the

[[Page 26684]]

mechanisms by which that information is protected. The report provides 
an overview of the legal means by which certain types of information 
provided to the Federal government are protected from disclosure. Part 
II of the report identifies certain existing legal principles 
applicable to disclosure of information held by the Federal government, 
focusing on FOIA and the discovery process in Federal and State court 
litigation. Part III summarizes the RSIA's statutory requirements 
regarding the establishment of risk reduction programs, and summarizes 
FRA's actions to date to implement the RSIA's requirements. Parts IV 
and V provide an overview of a number of statutes and regulations that 
limit access to information submitted to DOT and other Federal 
government agencies. Within each Part, the report describes programs 
under which disclosure of safety-related information has been 
specifically limited by statute or regulation. The report also 
discusses programs that provide various degrees of protection for 
certain types of non-safety-related information.

Regulatory Notices

    Privacy Act: Anyone is able to search the electronic form of any 
written communications and comments received into any of our dockets by 
the name of the individual submitting the document (or signing the 
document, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70, 
pages 19477-78) or online at http://www.dot.gov/privacy.html.

    Issued in Washington, DC, on May 3, 2011.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2011-11141 Filed 5-6-11; 8:45 am]
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