[Federal Register Volume 80, Number 39 (Friday, February 27, 2015)]
[Proposed Rules]
[Pages 10950-10999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03268]
[[Page 10949]]
Vol. 80
Friday,
No. 39
February 27, 2015
Part IV
Department of Transportation
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Federal Railroad Administration
49 CFR Part 271
Risk Reduction Program; Proposed Rule
Federal Register / Vol. 80 , No. 39 / Friday, February 27, 2015 /
Proposed Rules
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 271
[Docket No. FRA-2009-0038, Notice No. 1]
RIN 2130-AC11
Risk Reduction Program
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Rail Safety Improvement Act of 2008 requires the
development and implementation of railroad safety risk reduction
programs. This NPRM proposes to implement this mandate by requiring
each Class I railroad and each railroad with inadequate safety
performance to develop and implement a Risk Reduction Program (RRP) to
improve the safety of their operations. RRP is a comprehensive, system-
oriented approach to safety that determines an operation's level of
risk by identifying and analyzing applicable hazards and involves
developing plans to mitigate, if not eliminate, that risk. Each RRP
would be statutorily required to include a risk analysis and a
technology implementation plan. An RRP would be implemented by a
written RRP plan that has been submitted to FRA for review and
approval. A railroad would be required to conduct an annual internal
assessment of its RRP, and a railroad's RRP processes and procedures
would be externally audited by FRA.
DATES: Written comments must be received by April 28, 2015. Comments
received after that date will be considered to the extent possible
without incurring additional expense or delay.
FRA anticipates being able to resolve this rulemaking without a
public, oral hearing. However, if FRA receives a specific request for a
public, oral hearing prior to March 30, 2015, one will be scheduled and
FRA will publish a supplemental notice in the Federal Register to
inform interested parties of the date, time, and location of any such
hearing.
ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0038,
Notice No. 1, may be submitted by any of the following methods:
Web site: The Federal eRulemaking Portal,
www.regulations.gov. Follow the Web site's online instructions for
submitting comments.
Fax: 202-493-2251.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington,
DC 20590.
Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking (2130-AC11). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. 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.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground
level of the West Building, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk
Reduction Program Division, U.S. Department of Transportation, Federal
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590
(telephone: 202-493-6224), [email protected]; or Elizabeth Gross,
Trial Attorney, U.S. Department of Transportation, Federal Railroad
Administration, Office of Chief Counsel, Mail Stop 10, West Building
3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone:
202-493-1342), [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Introduction
A. Executive Summary
B. Abbreviations
II. Background and History
A. What is a Risk Reduction Program?
B. Passenger Railroads and System Safety Programs
C. Other Federal Safety Management System Programs
D. Risk Reducing FRA Programs
III. Statutory Background
A. Rail Safety Improvement Act of 2008
B. Related System Safety Rulemaking
C. Related Fatigue Management Plans Rulemaking
IV. Proceedings to Date
A. Advance Notice of Proposed Rulemaking (ANPRM)
B. Public Hearings
C. Railroad Safety Advisory Committee
1. Risk Reduction Program (RRP) Working Group
2. Working Group Tentative Agreement Vote
V. Railroads With Inadequate Safety Performance
VI. Risk Reduction Information Protection
A. Exemption From Freedom of Information Act Disclosure
B. Discovery and Other Use of Risk Analysis Information in
Litigation
1. The RSIA Mandate
2. The Study and Its Conclusions
3. FRA's Proposal
VII. RRP Plan Consultation Requirements
VIII. Section-by-Section Analysis
IX. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies
and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Analysis
C. Federalism
D. International Trade Impact Assessment
E. Paperwork Reduction Act
F. Environmental Assessment
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
I. Introduction
A. Executive Summary
The proposed rulemaking would add to FRA's regulations a new part,
which would require each Class I railroad and each railroad with
inadequate safety performance to develop and implement a Risk Reduction
Program (RRP). An RRP is a structured program with proactive processes
and procedures developed and implemented by a railroad to identify
hazards and to mitigate, if not eliminate, the risks associated with
those hazards on its system. An RRP encourages a railroad and its
employees to work together to proactively identify hazards and to
jointly determine what action to take to mitigate or eliminate the
associated risks.
FRA understands that each railroad that would be subject to the RRP
rule would have a unique operating system, and that not all railroads
have the same amount of resources. Best practices for implementing an
RRP would therefore differ from railroad to railroad. Accordingly, the
proposed RRP rule does not establish prescriptive requirements that may
be appropriate for one railroad but unworkable for another. Instead,
the rule proposes only general, performance-based requirements. This
approach would
[[Page 10951]]
provide each railroad a substantial amount of flexibility to tailor
those requirements to its specific operations.
FRA is proposing this RRP rule as part of its efforts to
continually improve rail safety and to satisfy the statutory mandate
contained in sec. 103 and sec. 109 of the Rail Safety Improvement Act
of 2008 (RSIA), Public Law 110-432, Division A, 122 Stat. 4848 et seq.,
codified at 49 U.S.C. 20156, and 20118-20119. The proposed RRP rule is
a performance-based rule, and FRA seeks comments on all aspects of the
proposed rule.
Section 103 of the RSIA directs the Secretary of Transportation
(Secretary) to issue a regulation requiring Class I railroads, railroad
carriers that provide intercity rail passenger or commuter rail
passenger transportation (passenger railroads), and railroads with
inadequate safety performance to develop, submit to the Secretary for
review and approval, and implement a railroad safety risk reduction
program. The proposed rule would implement this mandate for Class I
freight railroads and railroads with inadequate safety performance. A
railroad not otherwise required to comply with the proposed rule would
also be permitted to voluntarily submit an RRP plan for FRA review and
approval. A separate system safety program (SSP) rulemaking would
similarly implement this mandate for passenger railroads, and an SSP
NPRM was published by FRA on September 7, 2012, 77 FR 55372.
Section 109 of the RSIA specifies that certain risk reduction
records obtained by the Secretary are exempt from the public disclosure
requirements of the Freedom of Information Act (FOIA). This exemption
is subject to two exceptions for disclosure necessary to enforce or
carry out any Federal law and disclosure when a record is comprised of
facts otherwise available to the public and FRA has determined that
disclosure would be consistent with the confidentiality needed for
RRPs. See 49 U.S.C. 20118. FRA therefore believes that railroad risk
reduction records in its possession would generally be exempted from
mandatory disclosure under FOIA. Unless one of the two exceptions
provided by the RSIA would apply, FRA would withhold disclosing any
such records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and
49 CFR 7.13(c)(3).
Section 109 of the RSIA also authorizes the Secretary to issue a
regulation protecting from discovery and admissibility into evidence in
litigation certain information generated for the purpose of developing,
implementing, or evaluating an RRP. Currently, the proposed rule would
implement sec. 109 with respect to RRPs covered by this proposed part.
If an SSP final rule is published before an RRP final rule, however,
the information protection provisions contained in the SSP final rule
would specifically apply to information generated for an RRP as well.
The Secretary has delegated the responsibility to carry out his
responsibilities under both sec. 103 and sec. 109 of RSIA, as well as
the general responsibility to conduct rail safety rulemakings, codified
at 49 U.S.C. 20103, to the Administrator of FRA. See 49 CFR 1.89(m) and
(oo).
The primary component of an RRP would be an ongoing risk-based
hazard management program (risk-based HMP), supported by a risk-based
hazard analysis. A properly implemented risk-based HMP would identify
hazards and the associated risks on the railroad's system, compare and
prioritize the identified risks for mitigation purposes, and develop
mitigation strategies to address the risks. An RRP would also be
required to contain the following additional components: a safety
performance evaluation; a safety outreach component; and a technology
analysis and technology implementation plan (which would consider
various technologies that may mitigate or eliminate identified hazards
and the associated risks). A railroad would also be required to provide
RRP training to employees who have significant responsibility for
implementing and supporting the railroad's RRP.
Implementation of an RRP would be supported by a written risk
reduction program plan (RRP plan) describing the railroad's processes
and procedures for implementing the requirements for an RRP. An RRP
plan would not be required to contain the results of a railroad's risk-
based hazard analysis or to describe specific mitigation strategies. An
RRP plan would also be required to contain certain elements that
support the development of an RRP, such as a policy statement, a
statement of the railroad's RRP goals, a description of the railroad's
system, and an RRP implementation plan.
An RRP could be successful only if a railroad engaged in a robust
assessment of the hazards and associated risks on its system. However,
a railroad may be reluctant to reveal such hazards and risks if there
is the possibility that such information may be used against it in a
court proceeding for damages. In sec. 109 of the RSIA, Congress
directed FRA to conduct a study to determine if it was in the public
interest to withhold certain information, including the railroad's
assessment of its safety risks and its statement of mitigation
measures, from discovery and admission into evidence in proceedings for
damages involving personal injury and wrongful death. See 49 U.S.C.
20119. FRA contracted with an outside organization to conduct this
study, and the study concluded that it was in the public interest to
withhold this type of information from these types of proceedings. See
``Study of Existing Legal Protections for Safety-Related Information
and Analysis of Considerations for and Against Protecting Railroad
Safety Risk Reduction Program Information,'' FRA, docket no. FRA-2011-
0025-0031, Oct. 21, 2011. Furthermore, Congress authorized FRA, by
delegation from the Secretary, to prescribe a rule, subject to notice
and comment, to address the results of the study. See 49 U.S.C.
20119(b). The proposed rule would address the study's results and set
forth protections of certain information from discovery, admission into
evidence, or use for other purposes in a proceeding for damages.
An RRP could affect almost all facets of a railroad's operations.
To ensure that all employees directly affected by an RRP have an
opportunity to provide input on the development, implementation, and
evaluation of a railroad's RRP, a railroad would be required to consult
in good faith and use its best efforts to reach agreement with all of
its directly affected employees on the contents of the RRP plan and any
amendments to the plan. Guidance regarding what constitutes ``good
faith'' and ``best efforts'' would be included in proposed Appendix B.
FRA anticipates that a final RRP rule would become effective 60
days after the date of publication. However, by statute, the protection
of certain information from discovery, admission into evidence, or use
for other purposes in a proceeding for damages would not become
applicable until one year after the publication of the final rule.
Assuming that an SSP final rule could be published before an RRP final
rule, FRA would make the SSP information protection provisions
applicable to RRP programs as well. This approach would permit a
railroad subject to the RRP rule to obtain information protection as
soon as possible. A Class I railroad would be required to submit its
RRP plan to FRA for review no later than 545 days after the publication
date of the final rule. This deadline for submission accounts for the
time that must pass before an information protection provision could
become applicable. Similarly, railroads with inadequate safety
performance or
[[Page 10952]]
railroads either reclassified or newly classified by the Surface
Transportation Board (STB) as Class I railroads after the effective
date of the final rule would not be required to submit RRP plans before
the information protection provisions go into effect. These railroads
would be required to submit an RRP plan either no later than 90 days
after they have either received notification from FRA that they have
been determined to have an inadequate safety performance or after the
effective date of the STB classification or reclassification, or no
later than 545 days after the publication date of the final rule,
whichever is later. If an SSP final rule is published before an RRP
final rule, permitting the information protection provision of SSP to
apply to RRP information, an RRP final rule may require railroads to
submit an RRP plan sooner than 545 days after the publication date of
the final rule.
Within 90 days of receipt of a railroad's RRP plan, FRA would
review the plan and determine whether it meets all the process and
procedure requirements set forth in the regulation. FRA will not be
reviewing a railroad's risk-based hazard analysis or selection of
particular mitigation strategies as part of its RRP plan. If, during
the review, FRA determines that the railroad's RRP plan does not comply
with the requirements, FRA would notify the railroad of the specific
points in which the plan is deficient. The railroad would then have 60
days to correct these deficient points and resubmit the plan to FRA.
Whenever a railroad decides to amend its RRP, it would be required to
submit an amended RRP plan to FRA for approval and provide a cover
letter describing the amendments. A similar approval process and
timeline would apply whenever a railroad amends its RRP plan. A
railroad should not begin implementing an RRP plan before obtaining FRA
approval, as the information protection provisions proposed in this
NPRM would not apply to any risk reduction information that was not
compiled or collected pursuant to an FRA-approved RRP plan.
The costs for this proposed regulation basically stem from the
requirements for each railroad to which this rule would be applicable
to have a fully developed and implemented RRP that is supported by an
RRP plan. The primary costs come from the development of an ongoing
risk-based HMP, the ongoing evaluation of safety performance, and the
safety outreach component of the RRP. In addition, there are costs for
the development of a technology implementation plan, the consultation
process, and internal assessments.
The total cost for this proposed regulation is $18.6 million,
undiscounted. The discounted costs over 10 years are $12.7 million,
using a 7 percent discount rate, and $15.7 million, using a 3 percent
discount rate.
The proposed rule is expected to improve railroad safety on Class I
freight railroads by ensuring that railroad accidents/incidents,
associated casualties, other railroad-related incidents and workplace
injuries decrease through the process of identifying hazards,
mitigating the risks associated with those hazards, and decreasing
unsafe work practices. Decreases in unsafe behaviors or hazards create
a decrease in railroad-related incidents and casualties. The sections
of the proposed RRP regulation that contribute most to the potential
benefits include improved or more robust safety cultures, hazard
identification and risk-based hazard management, allying technology
with risk reduction, systemic evaluation of program and mitigation
strategy effectiveness, and the protection of information provision in
Sec. 271.11.
FRA has performed a break-even analysis for this proposed rule. In
this break-even analysis, FRA has estimated the amount of investment
(capital expenditure) savings or the decreases in costs stemming from
railroad-related incidents (and their associated casualties) for Class
I railroads that the proposed rule would need to break even. FRA has
found that only a very small improvement in either safety or investment
is sufficient to make the proposed rule break-even. The proposed rule
would break even if railroad investments improve by less than .006% (6
thousandths of a percent). FRA believes that such an improvement would
quite likely result from the adoption and implementation of RRPs by
Class I railroads, which would lead to reductions in the (1) number of
railroad accidents/incidents and employee injuries; (2) other railroad
incidents and related casualties; (3) employee absenteeism; and (4)
employee discipline actions.
B. Abbreviations
The following abbreviations are used in this preamble and are
collected here for the convenience of the reader:
CFR Code of Federal Regulations
DOT United States Department of Transportation
FMP Fatigue Management Plan
FOIA Freedom of Information Act
FR Federal Register
FRA Federal Railroad Administration
HMP Hazard Management Program
NPRM Notice of Proposed Rulemaking
OST Office of the Secretary, United States Department of
Transportation
PTC Positive Train Control
Pub. L. Public Law
RRP Risk Reduction Program
RSAC Railroad Safety Advisory Committee
RSIA Railroad Safety Improvement Act of 2008, Public Law 110-432,
Div. A, 122 Stat. 4848
Secretary Secretary of Transportation
SSP System Safety Program
U.S.C. United States Code
II. Background and History
A. What is a risk reduction program?
Risk reduction is a comprehensive, system-oriented approach to
improving safety by which an organization formally identifies and
analyzes applicable hazards and takes action to mitigate, if not
eliminate, the risks associated with those hazards. It provides a
railroad with a set of decision making processes and procedures that
can help it plan, organize, direct, and control its business activities
in a way that enhances safety and promotes compliance with regulatory
standards. As such, risk reduction is a form of safety management
system, which is a term generally referring to a comprehensive,
process-oriented approach to managing safety throughout an
organization.
The principles and processes of risk reduction are based on those
of safety management systems developed to assure high safety
performance in various industries, including aviation, passenger
railroads, the nuclear industry, and other industries with the
potential for catastrophic accidents. Safety management systems have
evolved through experience to include a multitude of equally important
elements without which the organization's safety does not reliably
improve. For ease of understanding, these elements are typically
grouped into larger descriptive categories. For safety management
systems, these descriptive categories include: (1) An organization-wide
safety policy; (2) formal methods for identifying hazards, and for
prioritizing and mitigating risks associated with those hazards; (3)
data collection, data analysis, and evaluation processes to determine
the effectiveness of mitigation strategies and to identify emerging
hazards; and (4) outreach, education, and promotion of an improved
safety culture within the organization.
The requirements of the proposed RRP rule provide a framework for
reducing safety risk. While each railroad subject to the proposed rule
would be required to develop all required components, the scope and
complexity
[[Page 10953]]
of those components would vary from one railroad to the next, because
of the railroads' differing safety needs, capabilities, and available
resources. Because risk reduction is inherently scalable, the burdens
imposed by the proposed rule would depend upon the size of a railroad,
the type of operations the railroad provides, and the strategies for
mitigating risk that the railroad decides to use.
B. Passenger Railroads and System Safety Programs
Risk reduction, as a type of safety management system, is not a new
concept to FRA. Specifically, FRA has previously worked with passenger
railroads to implement system safety programs (SSP), and has published
a separate SSP NPRM for passenger railroads. See System Safety Program,
77 FR 55372 (proposed Sep. 7, 2012) (to be codified at 49 CFR part
270). FRA anticipates that an SSP final rule will be published before
an RRP final rule.
In 1996, FRA issued Emergency Order No. 20, Notice No. 1 (EO 20),
which required, among other things, commuter and intercity passenger
railroads to promptly develop interim system safety plans addressing
the safety of operations that permit passengers to occupy the leading
car in a train.\1\ See 61 FR 6876, Feb. 22, 1996. Subsequently, in 1997
APTA and the commuter railroads, in conjunction with FRA and the U.S.
DOT, developed the ``Manual for the Development of System Safety
Program Plans for Commuter Railroads,'' to more comprehensively address
the safety of these railroad systems. Pursuant to APTA's manual, the
existing commuter railroads developed system safety plans, and a
triennial audit process for these plans began in early 1998 with FRA's
participation. A majority of commuter railroads still participate in
APTA's program.
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\1\ FRA issued EO 20 in response to New Jersey Transit (NJT) and
Maryland Rail Commuter accidents in early 1996.
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FRA has also developed a ``Collision Hazard Analysis Guide'' to
assist passenger rail operators in conducting collision hazard
assessments.\2\ See ``Collision Hazard Analysis Guide: Commuter and
Intercity Passenger Rail Service'' (2007), FRA, available at http://www.fra.dot.gov/eLib/Details/L03191. The ``Collision Hazard Analysis
Guide'' is based both on MIL-STD-882, discussed below, and the hazard
identification/resolution processes described in APTA's ``Manual for
the Development of System Safety Program Plans for Commuter
Railroads.'' The ``Collision Hazard Analysis Guide'' provides a ``step-
by-step procedure on how to perform hazard analysis and how to develop
effective mitigation strategies that will improve passenger rail
safety.'' See id. at 5. Although the ``Collision Hazard Analysis
Guide'' focuses on passenger rail collisions, the techniques described
in the guide are also valid for evaluating other hazards or safety
issues related to any type of operating system. See id. A railroad
subject to the requirements of a final RRP rule could use the
``Collision Hazard Analysis Guide'' as guidance on how to perform a an
acceptable hazard analysis.
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\2\ FRA developed the ``Collision Hazard Analysis Guide:
Commuter and Intercity Passenger Rail Service'' following a January
2005 accident in Glendale, CA, in which a Southern California
Regional Rail Authority (Metrolink) commuter train derailed after
striking an abandoned vehicle left on the tracks. The derailment
caused the Metrolink train to collide with trains on both sides of
it, a Union Pacific Railroad Company (UP) freight train and another
Metrolink train, and resulted in the death of 11 people.
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From its experience with the APTA program and the ``Collision
Hazard Analysis Guide,'' FRA has gained substantial knowledge regarding
the best methods for developing, implementing, and evaluating SSPs for
passenger railroads. This experience is reflected in a recently-
published NPRM, developed with the assistance of the Railroad Safety
Advisory Committee (RSAC), that would require passenger railroads to
develop and implement FRA-approved SSPs.
C. Other Federal Safety Management System Programs
Several Federal agencies have established or proposed safety
management system requirements or guidance for regulated entities. For
example, the Federal Transit Administration (FTA) has established
regulations at 49 CFR part 659 (Rail Fixed Guideway Systems; State
Safety Oversight) that implement a Congressional mandate for a program
requiring State-conducted oversight of the safety and security of rail
fixed guideway systems that are not regulated by FRA. See Intermodal
Surface Transportation Efficiency Act of 1991, Public Law 102-240, sec.
3029, also codified at 49 U.S.C. 5330; and 60 FR 67034, Dec. 27,
1995.\3\
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\3\ FTA's part 659 program applies only to rapid transit systems
or portions thereof not subject to FRA's regulations. See 49 CFR
659.3 and 659.5. FTA amended 49 CFR part 659 in April 2005 to
incorporate the experience and insight it had gained regarding the
benefits of and recommended practices for implementing State safety
oversight requirements. See 70 FR 22562, Apr. 29, 2005.
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The Federal Aviation Administration (FAA) has also published an
NPRM proposing to require each certificate holder operating under 14
CFR part 121 to develop and implement a safety management system (SMS).
See 75 FR 68224, Nov. 5, 2010; and 76 FR 5296, Jan. 31, 2011. An SMS
``is a comprehensive, process-oriented approach to managing safety
throughout the organization.'' 75 FR 68224, Nov. 5, 2010. An SMS
includes: ``an organization-wide safety policy; formal methods for
identifying hazards, controlling, and continually assessing risk; and
promotion of safety culture.'' Id. Under FAA's proposed rule, an SMS
would have four components: Safety Policy, Safety Risk Management,
Safety Assurance, and Safety Promotion. Id. at 68225. In addition, the
United States Coast Guard has published an NPRM proposing an SMS
regulation for towing vessels. See 76 FR 49976, Aug. 11, 2011.
Components similar to those included in both the FAA's SMS regulation
as well as the Coast Guard's regulation are found in this RRP rule
proposed by FRA.
The U.S. Department of Defense (DoD) has also set forth guidelines
for a system safety program. In July 1969, DoD published ``System
Safety Program Plan Requirements'' (MIL-STD-882). MIL-STD-882 is DoD's
standard practice for system safety, with the most recent version, MIL-
STD-882E, published on May 11, 2012. DoD, MIL-STD-882E, ``Department of
Defense Standard Practice System Safety'' (May 11, 2012). MIL-STD-882
is used by many industries in the U.S., and internationally, and could
be useful to a railroad (particularly a smaller railroad with
inadequate safety performance) when trying to determine which methods
to use to comply with this RRP rule. In fact, MIL-STD-882 is cited in
FRA's safety regulations for railroad passenger equipment, 49 CFR part
238, as an example of a formal safety methodology to use in complying
with certain analysis requirements in that rule. See 49 CFR 238.103 and
238.603. Part 238 defines MIL-STD-882 as a standard issued by DoD ``to
provide uniform requirements for developing and implementing a system
safety plan and program to identify and then eliminate the hazards of a
system or reduce the associated risk to an acceptable.''
D. Risk Reducing FRA Programs
FRA also has established two voluntary, independent programs that
exemplify the philosophy of risk reduction: The Confidential Close Call
Reporting System (C3RS) and the Clear Signal for Action (CSA) program.
FRA has developed these programs in the
[[Page 10954]]
belief that, in addition to process and technology innovations, human
factors-based solutions can make a significant contribution to
improving safety in the railroad industry.
The FRA C3RS program includes: (1) Voluntary confidential reporting
of close-call events by employees; (2) root-cause-analysis problem
solving by a Peer Review Team composed of labor, management, and FRA;
(3) identification and implementation of corrective actions; (4)
tracking the results of change; and (5) reporting the results of change
to employees. Confidential reporting and joint labor-management-FRA
root-cause problem solving are the most innovative of these
characteristics for the railroad industry. Demonstration pilot sites
for FRA C3RS are at the Union Pacific Railroad Company (UP), New Jersey
Transit, Strasburg Railroad, and the National Railroad Passenger
Corporation (Amtrak). An evaluation of one of these demonstration pilot
sites indicated that a C3RS program demonstrably resulted in increased
safety.\4\ See Ranney, J. and Raslear, T., ``Derailments decrease at a
C3RS site at midterm,'' FRA Research Results: RR12-04, April 2012,
available at http://www.fra.dot.gov/eLib/details/L01321.
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\4\ Additional evaluations will be performed for other
demonstration pilot sites as sufficient data become available.
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FRA has also implemented the CSA program, another human factors-
based solution shown to improve safety. The CSA Program includes: (1)
Voluntary peer-to-peer feedback in the work environment on both safe
and risky behaviors and conditions (data associated with the program
are owned by labor and not disclosed to management); (2) labor Steering
Committee root cause analysis and the development of behavior and
condition-related corrective actions; (3) Steering Committee
implementation of behavior-related corrective actions; (4) joint labor-
management Barrier Removal Team refining condition-related corrective
actions and implementation; (5) tracking the results of the change; and
(6) reporting the results of change to employees. Peer-to-peer feedback
on safe and risky behaviors and conditions, root cause analysis, and
cooperation between labor and management in corrective actions are the
most innovative of these characteristics for the railroad industry. FRA
considers the CSA program ready for broad implementation across the
industry, as the completion of three demonstration pilots has
demonstrated its applicability in diverse railroad work settings. One
demonstration pilot covered Amtrak baggage handlers; a second covered
UP yard crews; and a third covered UP road crews. See Coplen, M.
Ranney, J. & Zuschlag, M., ``Promising Evidence of Impact on Road
Safety by Changing At-risk Behavior Process at Union Pacific,'' FRA
Research Results: RR08-08, June 2008, available at http://www.fra.dot.gov/eLib/details/L03483; Coplen, M. Ranney, J., Wu, S. &
Zuschlag, M., ``Safe Practices, Operating Rule Compliance and
Derailment Rates Improve at Union Pacific Yards with STEEL Process--A
Risk Reduction Approach to Safety,'' FRA Research Results: RR09-08, May
2009, available at http://www.fra.dot.gov/eLib/details/L04248. After
the completion of these pilot projects, BNSF Railway Company (BNSF)
elected to participate in a peer-to-peer pilot project, and UP elected
to develop and implement a system-wide peer-to-peer program modeled in
part on the CSA demonstration pilots. Currently, FRA is funding the
development of low cost program materials to aid in its distribution
starting with passenger rail.
The C3RS and CSA programs embody many of the concepts and
principles found in an RRP: Proactive identification of hazards and
risks; analysis of those hazards and risks; and implementation of
appropriate action to eliminate or mitigate the hazards and risks.
While FRA does not intend to require any railroad to implement a C3RS
or CSA program as part of its RRP, FRA believes that these types of
programs would be useful for a railroad developing an RRP, and
encourages railroads to include such programs as part of their RRPs.
FRA seeks comment on the extent to which these programs might be useful
in the development of an RRP or as a component of an RRP.
III. Statutory Background
A. Rail Safety Improvement Act of 2008
In sec. 103 of the RSIA, Congress directed the Secretary to issue a
regulation requiring certain railroads to develop, submit to the
Secretary for review and approval, and implement a railroad safety risk
reduction program. See 49 U.S.C. 20156. The Secretary has delegated
this responsibility to the FRA Administrator. See 49 CFR 1.89(oo) (74
FR 26981, Jun. 5, 2009); see also 49 U.S.C. 103(g). The railroads
required to comply with such a regulation include:
(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).
The proposed rule would implement this railroad safety risk
reduction mandate for Class I freight railroads and railroads with
inadequate safety performance. See 49 U.S.C. 20156(a)(1). Generally,
these railroads would be required to assess and manage risk and develop
proactive risk mitigation strategies to promote safety improvement. The
proposed rule would also implement the Congressional mandate permitting
a railroad not required to develop and implement an RRP to voluntarily
submit an RRP plan meeting the requirements of any final RRP rule to
FRA for review and approval. See 49 U.S.C. 20156(a)(4). As proposed, a
railroad voluntarily submitting an RRP plan for FRA approval would be
required to implement the plan in accordance with FRA's requirements
and could be subject to civil penalties for noncompliance. The proposed
rule would also implement other specific safety risk reduction program
requirements found in sec. 103, such as the requirement that a railroad
consult with, employ good faith and use its best efforts to reach
agreement with all of its directly affected employees (including any
non-profit employee labor organization representing a class or craft of
directly affected employees) on the contents of the railroad's RRP
plan.
The proposed rule would also respond to sec. 109 of the RSIA, which
addresses the protection of information in railroad safety risk
analyses. See 49 U.S.C. 20118. In sec. 109, Congress specified that
certain risk reduction records obtained by the Secretary are exempt
from the public disclosure requirements of the Freedom of Information
Act (FOIA). See 49 U.S.C. 20118. Section 109 also directed FRA to
complete a study evaluating 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 involving
personal injury or wrongful death against a railroad certain risk
reduction information, including a railroad's analysis of its safety
risks and its statement of the mitigation measures with which it will
address those risks. See 49 U.S.C. 20119(a). Based upon authority
granted by Congress in sec. 109, the proposed rule contains provisions
responding to the results of this study, which found that it is in the
public interest to protect certain risk reduction information from
discovery or admission into evidence in a Federal or
[[Page 10955]]
State court proceeding for damages. See 49 U.S.C. 20119(b). The study
and its results will be discussed in greater depth later in this
preamble.
B. Related System Safety Rulemaking
A separate SSP rulemaking, as discussed above, would implement the
sec. 103 and sec. 109 RSIA mandates for passenger railroads. See 49
U.S.C. 20156(a). On September 7, 2012, FRA published an NPRM proposing
an SSP rule in the Federal Register. See 77 FR 55372. Establishing
separate safety risk reduction rules for passenger railroads and the
Class I freight railroads \5\ would allow these rules to account for
significant differences between passenger and freight operations. For
example, freight railroads may generate risks uniquely associated with
the transportation of hazardous materials. The proposed RRP rule can be
specifically tailored to these types of risks, which are not
independently generated by passenger railroads.
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\5\ There is only one Class I railroad that also qualifies as a
passenger railroad: Amtrak. Amtrak would be required to comply with
the proposed requirements of the SSP rule. So long as Amtrak remains
in compliance with the requirements of an SSP rule, Amtrak would be
deemed to be in compliance with an RRP rule. This same approach will
be taken for any passenger railroad that also becomes designated as
a Class I railroad.
---------------------------------------------------------------------------
Some overlap would exist between certain components of the proposed
SSP and RRP rules. Most significantly, the RRP and SSP rules would
contain essentially identical provisions implementing the consultation
requirements of sec. 103(g) and responding to the information
protection study mandated under sec. 109 of the RSIA. There was
significant discussion during the RRP and SSP RSAC processes on how to
implement these provisions of the RSIA. FRA worked with the General
Passenger Safety Task Force's System Safety Task Group and the RRP
Working Group to receive input regarding how information protection and
the consultation process should be addressed, with the understanding
that the same language would be included in both the SSP and RRP NPRMs
for review and comment. The consultation and information protection
provisions proposed in this NPRM, therefore, are essentially identical
to those proposed in the 2012 SSP NPRM.
In response to the SSP NPRM, FRA has received a number of comments
addressing the proposed consultation and information protection
provisions. While FRA intends to discuss these comments further as part
of the ongoing RRP and SSP RSAC processes, FRA has decided not to
respond to the SSP comments on the consultation and information
protection provisions in this NPRM. Any comments submitted to the SSP
NPRM regarding these provisions, however, will be considered applicable
to the RRP NPRM as well and will be considered before publication of an
RRP final rule. Ultimately, FRA anticipates that the consultation and
information protection provisions of the SSP and RRP rules will be
essentially identical.
Furthermore, FRA intends to make any information protection
provision in a final SSP rule applicable to any railroad safety risk
reduction program required under chapter II of subtitle B of title 49,
Code of Federal Regulations, such as an RRP. When Congress granted FRA
authority to issue a rule based upon the results of the study, it also
specified that any such rule could not become effective until one year
after its adoption. See 49 U.S.C. 20119(b). Making an SSP information
protection provision applicable to any RRP program would allow RRP
information to be protected from use in certain litigation sooner. This
would allow a railroad subject to the proposed RRP rule to begin
developing its RRP earlier, without having to wait an entire year for
the information protection provisions to become effective.
In addition to the proposed consultation and information protection
sections, some overlap would exist between various other RRP and SSP
provisions (e.g., certain definitions, the process for amending plans,
etc.). The requirements in this proposed NPRM generally follow those in
the SSP NPRM, and do not reflect any comments FRA has received in
response to the SSP NPRM. FRA recognizes that drafting proposals on
related topics simultaneously can give the appearance of overlapping or
duplicative requirements. As these rulemakings progress, we will work
to minimize any overlapping or duplicative requirements.
C. Related Fatigue Management Plans Rulemaking
Section 103(f) of the RSIA states that an RRP must include a
fatigue management plan meeting certain requirements. See 49 U.S.C.
20156(d)(2) and 20156(f). This proposed RRP rulemaking does not address
this mandate, however, because it is currently being considered by a
separate rulemaking process.
On December 8, 2011, the RSAC voted to establish a Fatigue
Management Plans Working Group (FMP Working Group). The purpose of the
FMP Working Group is to provide ``advice regarding the development of
implementing regulations for Fatigue Management Plans and their
deployment under the Rail Safety Improvement Act of 2008.'' ``Railroad
Safety Advisory Committee Task Statement: Fatigue Management Plans,''
Task No.: 11-03, Dec. 8, 2011. (A copy of this statement will be placed
in the public docket for this RRP rulemaking.) Specifically, the FMP
Working Group is tasked to: ``review the mandates and objectives of the
[RSIA] related to the development of Fatigue Management Plans,
determine how medical conditions that affect alertness and fatigue will
be incorporated into Fatigue Management Plans, review available data on
existing alertness strategies, consider the role of innovative
scheduling practices in the reduction of employee fatigue, and review
the existing data on fatigue countermeasures.'' Id.
FRA notes that the RRP Working Group recommended including a
placeholder in the proposed RRP rule text that would require a
railroad, as part of its RRP, to develop a fatigue management plan no
later than three years after the effective date of the final rule, or
three years after commencing operations, whichever is later. This
placeholder did not contain any additional substantive requirements,
however, and was intended merely to be an acknowledgement of the RSIA
fatigue management plan mandate. FRA has elected to not include this
placeholder; however, because it may create confusion regarding the
separate FMP Working Group process and the ongoing fatigue management
plans rulemaking. Rather, FRA will address the substantive requirements
of the fatigue management plan mandate in the separate rulemaking that
FRA has initiated. FRA would approve an RRP plan without the fatigue
management plan component prior to the issuance of fatigue management
final rule, provided the plan met all other applicable RRP
requirements. Until the fatigue management plan final rule is
effective, a railroad could use the processes and procedures in its RRP
to address fatigue-related issues.
IV. Proceedings to Date
A. Advance Notice of Proposed Rulemaking (ANPRM)
On December 8, 2010, FRA published an ANPRM soliciting public
comment on how FRA could best develop and implement a risk reduction
regulation based upon the requirements of the RSIA. See 75 FR 76345-
76351.
[[Page 10956]]
Comments were due by February 7, 2011.
FRA received 11 written comments in response to the ANPRM from a
variety of entities, including railroads, industry organizations, non-
profit employee labor organizations, a consulting firm, and a private
citizen.\6\ Many of the questions and issues raised by commenters were
subsequently discussed in depth during the RSAC process. This NPRM,
therefore, will contain only a very brief overview of the comments.
Written comments submitted in response to the ANPRM are in the public
docket for this proceeding and can be viewed and downloaded at
www.regulations.gov.
---------------------------------------------------------------------------
\6\ The following 18 entities were signatories to comments in
response to the ANPRM: Amtrak; Association of American Railroads
(AAR); Association of Railways Museums, Inc. (ARM); American Public
Transportation Association (APTA); American Short Line and Regional
Railroad Association (ASLRRA); American Train Dispatchers
Association (ATDA); Behavioral Science Technology (BST); Brotherhood
of Locomotive Engineers and Trainmen (BLET/IBT); Brotherhood of
Maintenance of Way Employees Division (BMWED/IBT); Brotherhood of
Railroad Signalmen (BRS); Metrolink; New York State Metropolitan
Transportation Authority (NYSMTA); Patrick J. Coyle (Chemical
Facility Security News); Southern Pennsylvania Transportation
Authority (SEPTA); Transport Workers Union of America (TWU);
Transportation Communications Union (TCU); Trinity Railway Express;
Tourist Railway Association (TRA); and United Transportation Union
(UTU).
---------------------------------------------------------------------------
Many of the ANPRM commenters identified similar issues or
questions. Two commenters recommended that FRA develop a performance-
based risk reduction rule, in order to encourage railroads to find
flexible and creative solutions to safety risks. These commenters also
stressed the importance of protecting risk reduction information from
disclosure and use in litigation. Other commenters requested
clarification on the relationship between risk reduction and system
safety, or expressed concerns related to how a risk reduction rule
would address issues such as contractors or training requirements.
Commenters also provided recommendations on how FRA should identify
railroads with inadequate safety performance. Several labor
organizations also submitted a joint comment strongly emphasizing the
importance of the sec. 103(g) consultation requirements. Issues such as
the above were subsequently discussed at length with both industry and
labor organization representatives during the RSAC process.
B. Public Hearings
Following publication of the ANPRM and close of the comment period,
FRA also held two public hearings that provided interested persons an
opportunity to discuss the development of a risk reduction regulation
in response to the ANPRM. Interested persons were invited to present
oral statements and to proffer information and views at the hearings.
The first public hearing was held on July 19, 2011 in Chicago, IL, and
the second public hearing was held on July 21, 2011 in Washington, DC.
See 76 FR 40320, July 8, 2011. During the hearings, testimony was given
by representatives of the AAR, ASLRRA, Rail World, Inc., and the
Teamsters Rail Conference (the BLET/IBT and BMWED/IBT). As with the
comments in response to the ANPRM, the hearing testimony focused almost
exclusively on topics that continued to be discussed during the RSAC
process. Significant topics of discussion included the following: The
identification of railroads with inadequate safety performance; the
consultation requirements of sec. 103(g); the role of contractors
within a railroad's RRP; the information protection study mandated by
sec. 109; retention of RRP records; and FRA review of a railroad's RRP.
Transcripts of the public hearings are in the public docket for this
proceeding and can be viewed and downloaded at www.regulations.gov.
C. Railroad Safety Advisory Committee (RSAC)
Following the close of the ANPRM comment period and the public
hearings, FRA decided that additional input regarding the development
of a risk reduction regulation would be beneficial. FRA therefore
placed the risk reduction rulemaking into a modified RSAC process,
which discussed many of the questions and concerns that appeared in the
ANPRM and in responses thereto.
1. Risk Reduction Program (RRP) Working Group
FRA proposed Task No. 11-04 to the RSAC on December 8, 2011. The
RSAC accepted the task, and formed the Risk Reduction Program (RRP)
Working Group (Working Group) for the purpose of developing and
implementing RRP under the RSIA. The Working Group is comprised of
members from the following organizations:
AAR; \7\
---------------------------------------------------------------------------
\7\ The AAR is comprised of members including the following
entities: BNSF Railway Company (BNSF); Canadian National Railway
Company (CN); Canadian Pacific Railway (CP); CSX Transportation,
Inc. (CSXT); Iowa Interstate Railroad, Ltd. (IAIS); Kansas City
Southern (KCS); Metra Electric District; Norfolk Southern
Corporation (NS); and UP.
---------------------------------------------------------------------------
Amtrak;
APTA;
ASLRRA;
BLET;
BMWED;
BRS;
FRA;
Long Island Rail Road (LIRR);
Metro-North Commuter Railroad Company (Metro-North);
National Association of Railroad Passengers (NARP);
National Railroad Construction and Maintenance
Association;
National Transportation Safety Board (NTSB);
SEPTA;
TRA; and
UTU.
The Working Group completed its work after four in-person meetings
and several conference calls. The first meeting of the Working Group
took place on January 31 and February 1, 2012, in Cambridge,
Massachusetts. At that meeting the group discussed the appropriate
scope of a risk reduction regulation and heard several presentations
from stakeholders regarding the requirements of the RSIA and current
risk reduction practices on railroads. Subsequent meetings were held in
Washington, DC on April 10, 2012; May 16, 2012; and June 13, 2012.
At the April, May, and June meetings, the group discussed a
document entitled ``Recommendations to the Administrator,'' which
provided FRA advice to consider in developing a risk reduction rule.
The document was updated after each meeting to reflect the Working
Group's discussions.
2. Working Group Tentative Agreement Vote
At the conclusion of the Working Group's last meeting on June 13,
2012, the Working Group obtained tentative agreement on the
``Recommendations to the Administrator'' document. This document did
not include advice regarding railroads with inadequate safety
performance, as this was developed further during subsequent conference
calls. The document was also not put before the full RSAC for vote, and
therefore does not represent formal RSAC consensus. FRA utilized the
comments and documents from the Working Group when developing the
proposed rule text, although it has streamlined and reorganized
suggestions from the Working Group in order to make the rule's
requirements as clear as possible. FRA has also attempted to note in
this NPRM areas in which the proposed rule text substantively differs
from the Working Group's suggestions. Ultimately, however, language
contained in this proposed rule reflects
[[Page 10957]]
the RSIA statutory requirements and the Working Group's tentative
agreement on how the requirements should be applied.
V. Railroads With Inadequate Safety Performance
As previously discussed, sec. 103 of the RSIA directs FRA to
require railroads with inadequate safety performance (as determined by
FRA) to develop and implement an RRP. FRA discussed potential
definitions of inadequate safety performance during the April, May, and
June 2012 RSAC Working Group meetings, and also conducted several
conference calls discussing the issue after the final June 2012 Working
Group meeting. These meetings and conference calls developed and
refined a general approach to determining inadequate safety
performance, and discussed several specific concerns of the ASLRRA,
whose member railroads are those most likely to be affected by FRA's
approach. For example, participants in the conference calls expressed
concerns regarding the need for consistent nationwide application of
FRA's approach to determining inadequate safety performance. FRA
achieved tentative agreement on the proposed approach, but did not seek
consensus.
As a result of these discussions and tentative agreement, FRA
developed an annual process, involving two phases, for determining
whether a railroad's safety performance may be inadequate. This process
would only evaluate railroads that were not already complying with an
SSP or RRP rule, including voluntarily-compliant railroads. In the
first phase, FRA would conduct a statistical quantitative analysis to
determine a railroad's safety performance index, using the three most
recent full calendar years' historical data maintained by FRA. The
quantitative analysis would utilize the following four factors: (1)
Fatalities; (2) FRA reportable injury/illness rate; (3) FRA reportable
accident/incident rate; and (4) FRA violation rate. Railroads that had
either a fatality, or that were at or above the 95th percentile in at
least two of the three other factors (FRA reportable injury/illness,
FRA reportable accident/incident, or FRA violation rate), would be
further examined in a qualitative assessment. FRA would notify the
railroads identified for further examination in a qualitative
assessment, and would give them an opportunity to comment and provide
evidence explaining why they should or should not be required to
develop an RRP. A railroad would also be required to inform its
employees that it had received the notification from FRA and that
employees could submit confidential comments on the matter directly to
FRA. For the second phase of its analysis, FRA would consider the
comments from the railroads, and any comments from the railroad's
employees, as well as any other pertinent evidence, in a qualitative
review of the railroad's safety performance. Following the qualitative
review, FRA would notify the affected railroads regarding whether or
not they must develop an RRP.
Based on Working Group input and results from the C3RS and CSA
projects, FRA also determined appropriate timeframes for compliance,
and deadlines for various notices and submissions. A railroad with
inadequate safety performance would have to comply with this part 271
for a period of at least five years, after which it could petition FRA
for removal from the program. These provisions are discussed further in
the section-by-section analysis.
During discussions, the RSAC Working Group advised FRA to allow a
railroad with inadequate safety performance to choose to establish
either an RRP in compliance with this proposed part 271 or an SSP in
compliance with proposed part 270. For reasons discussed further in the
section-by-section analysis for Sec. 271.13, FRA has not included this
suggestion in the NPRM, but could ultimately include it in a final
rule.
VI. Risk Reduction Information Protection
Section 109 of the RSIA (codified at 49 U.S.C. 20118-20119)
authorizes FRA to issue a rule protecting risk analysis information
generated by railroads. These provisions would apply to information
generated by passenger railroads pursuant to the proposed system safety
rulemaking and to any railroad safety risk reduction programs required
by FRA for Class I railroads and railroads with inadequate safety
performance.
As previously discussed, the information protection provisions
proposed in this NPRM are essentially identical to provisions in the
proposed SSP rule, as there was significant discussion during the SSP
and RRP RSAC processes on how to implement this provision of the RSIA.
FRA worked with the System Safety Task Group and the Risk Reduction
Program Working Group to receive input regarding how information
protection should be addressed, with the understanding that the same
language would be included in both the SSP and RRP NPRMs for review and
comment. While the language proposed in this NPRM does not respond to
comments already received in response to the SSP NPRM, FRA will
consider comments submitted to both the SSP and RRP NPRMs regarding the
information protection provisions when developing an RRP final rule.
A. Exemption From Freedom of Information Act Disclosure
In sec. 109 of the RSIA (codified at 49 U.S.C. 20118-20119),
Congress determined that for risk reduction programs to be effective,
the risk analyses must be shielded from production in response to
Freedom of Information Act (FOIA) requests. See 49 U.S.C. 20118. FOIA
is a Federal statute establishing certain requirements for the public
disclosure of records held by Federal agencies. See 5 U.S.C. 552.
Formal rules for making FOIA requests to DOT agencies are set forth in
49 CFR part 7. Generally, FOIA requires a Federal agency to make most
records available upon request, unless a record is protected from
mandatory disclosure by one of nine exemptions. One of those
exemptions, known as Exemption 3, applies to records that are
specifically exempted from disclosure by statute, if the statute
requires that matters be withheld from the public in such a manner as
to leave no discretion on the issue or establishes particular criteria
for withholding or refers to particular types of matters to be
withheld. See 5 U.S.C. 552(b)(3) and 49 CFR 7.13(c)(3).\8\
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\8\ In 2009, Congress amended 5 U.S.C. 552(b)(3) to require
Exemption 3 statutes to specifically cite to sec. 552(b)(3). See
OPEN FOIA Act of 2009, Public Law 111-83, 123 Stat. 2142, 2184 (Oct.
28, 2009). Because this requirement applies only to statutes enacted
after October 29, 2009, however, it does not apply to section 109 of
the RSIA, which was enacted in October of 2008.
---------------------------------------------------------------------------
Section 109(a) of the RSIA specifically provides that a record
obtained by FRA pursuant to a provision, regulation, or order related
to a risk reduction program or pilot program is exempt from disclosure
under FOIA. The term ``record'' includes, but is not limited to, ``a
railroad carrier's analysis of its safety risks and its statement of
the mitigation measures it has identified with which to address those
risks.'' Id. This FOIA exemption would also apply to records made
available to FRA for inspection or copying pursuant to a risk reduction
program or pilot program. Section 109(c) also gives FRA the discretion
to prohibit the public disclosure of risk analyses or risk mitigation
analyses obtained under other FRA regulations if FRA determines that
the prohibition of
[[Page 10958]]
public disclosure is necessary to promote public safety.
FRA believes that sec. 109 of the RSIA qualifies as an Exemption 3
statute under FOIA. FRA therefore believes that railroad risk reduction
records in its possession would generally be exempted from mandatory
disclosure under FOIA, unless one of two exceptions provided by the
RSIA would apply. See 49 U.S.C. 20118(a)-(b). The first exception
permits disclosure when it is necessary to enforce or carry out any
Federal law. The second exception permits disclosure when a record is
comprised of facts otherwise available to the public and when FRA, in
its discretion, has determined that disclosure would be consistent with
the confidentiality needed for a risk reduction program or pilot
program.
B. Discovery and Other Use of Risk Analysis Information in Litigation
1. The RSIA Mandate
The RSIA also addressed the disclosure and use of risk analysis
information in litigation. Section 109 directed FRA to conduct a study
to determine whether it was in the public interest to withhold from
discovery or admission into evidence in a Federal or State court
proceeding for damages involving personal injury or wrongful death
against a carrier any information (including a railroad's analysis of
its safety risks and its statement of the mitigation measures with
which it will address those risks) compiled or collected for the
purpose of evaluating, planning, or implementing a risk reduction
program. See 49 U.S.C. 20119(a). In conducting this study, the RSIA
required FRA to solicit input from railroads, railroad non-profit
employee labor organizations, railroad accident victims and their
families, and the general public. See id. The RSIA also states that
upon completion of the study, if in the public interest, FRA may
prescribe a rule to address the results of the study (i.e., a rule to
protect risk analysis information from disclosure during litigation).
See 49 U.S.C. 20119(b). The RSIA prohibits any such rule from becoming
effective until one year after its adoption. See id.
2. The Study and Its Conclusions
FRA contracted with a law firm, Baker Botts L.L.P., to conduct the
study on FRA's behalf. Various documents related to the study are
available for review in public docket number FRA-2011-0025, which can
be accessed online at www.regulations.gov. As a first step, the
contracted law firm prepared a comprehensive report identifying and
evaluating other Federal safety programs that protect risk reduction
information from use in litigation. See ``Report on Federal Safety
Programs and Legal Protections for Safety-Related Information,'' FRA,
docket no. FRA-2011-0025-0002, April 14, 2011. Next, as required by
sec. 109 of the RSIA, FRA published a Federal Register notice seeking
public comment on the issue of whether it would be in the public
interest to protect certain railroad risk reduction information from
use in litigation. See 76 FR 26682, May 9, 2011. Comments received in
response to this notice may be viewed in the public docket.
On October 21, 2011, the contracted law firm produced a final
report on the study. See ``Study of Existing Legal Protections for
Safety-Related Information and Analysis of Considerations For and
Against Protecting Railroad Safety Risk Reduction Program Information''
(Study), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The final
report contained analyses of other Federal programs that protect
similar risk reduction data, the public comments submitted to the
docket, and whether it would be in the public interest, including the
interests of public safety and the legal rights of persons injured in
railroad accidents, to protect railroad risk reduction information from
disclosure during litigation. The final report concluded that it would
be within FRA's authority and in the public interest for FRA to
promulgate a regulation protecting certain risk analysis information
held by the railroads from discovery and use in litigation and makes
recommendations for the drafting and structuring of such a regulation.
See id. at 63-64.
3. FRA's Proposal
In response to the final study report, this NPRM is proposing to
protect any information compiled or collected solely for the purpose of
developing, implementing or evaluating an RRP from discovery, admission
into evidence, or consideration for other purposes in a Federal or
State court proceeding for damages involving personal injury, wrongful
death, and property damage. The information protected would include a
railroad's identification of its safety hazards, analysis of its safety
risks, and its statement of the mitigation measures with which it would
address those risks and could be in the following forms or other forms:
Plans, reports, documents, surveys, schedules, lists, or data.
Additional specifics regarding this proposal will be discussed in the
section-by-section analysis of this NPRM.
VII. RRP Plan Consultation Requirements
Section 103(g)(1) of the RSIA states that a railroad required to
establish a safety risk reduction program must ``consult with, employ
good faith and use its best efforts to reach agreement with, all of its
directly affected employees, including any non-profit employee labor
organization representing a class or craft of directly affected
employees of the railroad carrier, on the contents of the safety risk
reduction program.'' 49 U.S.C. 20156(g)(1). Section 103(g)(2) of the
RSIA further provides that if a ``railroad carrier and its directly
affected employees, including any nonprofit employee labor organization
representing a class or craft of directly affected employees of the
railroad carrier, cannot reach consensus on the proposed contents of
the plan, then directly affected employees and such organizations may
file a statement with the Secretary explaining their views on the plan
on which consensus was not reached.'' 49 U.S.C. 20156(g)(2). The RSIA
requires FRA to consider these views during review and approval of a
railroad's RRP plan.
FRA is proposing to implement this mandate by requiring each
railroad required to establish an RRP to consult with its directly
affected employees (using good faith and best efforts) on the contents
of its RRP plan. A railroad would have to include a consultation
statement in its submitted plan describing how it consulted with its
employees. If a railroad and its employees were not able to reach
consensus, directly affected employees could file a statement with FRA
describing their views on the plan. Additional specifics regarding this
proposal are discussed in the section-by-section analysis of this NPRM
for proposed Sec. Sec. 271.207 and 271.209.
As with this NPRM's information protection provisions, the proposed
language is essentially identical to provisions proposed in the 2012
SSP NPRM, since there was significant discussion during the SSP and RRP
RSAC processes on how to implement this provision of the RSIA. FRA
worked with the System Safety Task Group to receive input regarding how
the consultation process should be addressed, with the understanding
that the same language would be included in both the SSP and RRP NPRMs
for review and comment. While the language proposed in this NPRM does
not respond to comments already
[[Page 10959]]
received in response to the SSP NPRM, FRA will consider comments
submitted to both the SSP and RRP NPRMs regarding consultation
requirements when developing an RRP final rule.
VIII. Section-by-Section Analysis
FRA proposes to add a new part 271 to chapter 49 of the CFR. Part
271 would satisfy the RSIA requirements regarding safety risk reduction
programs for Class I railroads and railroads with inadequate safety
performance. See 49 U.S.C. 20156(a)(1). Part 271 would also protect
certain information compiled or collected pursuant to a safety risk
reduction program from admission into evidence or discovery during
court proceedings for damages. See 49 U.S.C. 20119.
The proposed rule would require a risk reduction program that is a
somewhat streamlined version of a safety management system. To adhere
as closely as possible to the requirements of the RSIA, FRA has not
proposed to include a number of program and plan components that are
common to many safety management systems. For example, FRA is not
proposing to include a requirement for a description of the railroad
management and organizational structure (including charts or other
visual representations), but instead asks for a less specific system
description. The RRP plan is also not required to contain a description
of the processes and procedures used for maintenance and repair of
infrastructure and equipment, rules compliance and procedures review,
workplace safety, workplace safety assurance, or public safety
outreach. FRA is also not proposing to require an RRP to establish
processes ensuring that safety concerns are addressed during the
procurement process. As additional examples, a full safety management
system would also require: (1) Development and implementation of
processes to manage emergencies; (2) processes and procedures for the
railroad to manage changes that have a significant effect on railroad
safety; (3) processes and permissions for making configuration changes
to the railroad; and (4) safety certification prior to initiation of
operations or implementation of major projects. The proposed RRP rule
does not currently include such requirements. FRA is specifically
seeking public comments regarding whether any or all of these elements
should be considered essential in order for RRP to function
effectively, and requirements for such additional elements may be
included in the final rule.
The proposed rule contains various filing and communication
requirements. FRA is generally requesting public comment on whether any
provision imposing a filing or communication requirement should permit
a railroad to comply with that requirement electronically.
Subpart A--General
Subpart A of the proposed rule would contain general provisions,
including a formal statement of the rule's purpose and scope, and
provisions limiting the discovery and admissibility of certain RRP
information.
Section 271.1--Purpose and Scope
Proposed Sec. 271.1 would set forth the purpose and scope of the
proposed rule. Paragraph (a) would state that the purpose of this part
is to improve railroad safety through structured, proactive processes
and procedures developed and implemented by railroads. The proposed
rule would require each affected railroad to establish an RRP that
systematically evaluates railroad safety hazards on its system and
manages the risks generated by those hazards in order to reduce the
number and rates of railroad accidents/incidents, injuries, and
fatalities. The proposed rule would not require an RRP to address every
safety hazard on a railroad's system. For example, rather than
identifying every safety hazard on its system, a large railroad could
take a more focused and project-specific view of safety hazard
identification.
Paragraph (b) would state that the proposed rule prescribes minimum
Federal safety standards for the preparation, adoption, and
implementation of RRPs. A railroad would not be restricted from
adopting and enforcing additional or more stringent requirements that
are not inconsistent with a rule arising from this proposed rule.
Paragraph (c) would state that the proposed rule protects
information generated solely for the purpose of developing,
implementing, or evaluating an RRP. FRA may decide not to include this
provision in the final rule if an SSP final rule is published
significantly before an RRP final rule, so that the SSP information
protection provision could be made applicable to RRPs.
Paragraph (d) would contain a clarifying statement indicating that
RRPs are not intended to address certain areas of employee safety.
While FRA is always concerned with the safety of railroad employees
performing their duties, employee safety in maintenance and servicing
areas generally falls within the jurisdiction of the United States
Department of Labor's Occupational Safety and Health Administration
(OSHA). It is not FRA's intent in this rule to displace OSHA's
jurisdiction with regard to the safety of employees while performing
inspections, tests, and maintenance, except where FRA has already
addressed workplace safety issues, such as blue signal protection in 49
CFR part 218. Similar provisions are found in other rules, clarifying
that FRA does not intend to displace OSHA's jurisdiction over certain
subject matters. See, e.g., 49 CFR 238.107(c). FRA requests public
comment on whether this statement clearly indicates the relationship
between RRPs and OSHA's jurisdiction.
Similarly, while FRA is concerned with environmental damage that
could result from the violation of Federal railroad safety laws and
regulations, FRA does not intend this rule to address environmental
hazards and risks that are unrelated to railroad safety and that would
fall within the jurisdiction of the Environmental Protection Agency
(EPA). For example, FRA would not expect a railroad's RRP to address
environmental hazards regarding particulate emissions from locomotives
that otherwise comply with FRA's safety regulations. FRA seeks public
comment on whether it is necessary for this section to contain a
clarifying statement regarding any such subject matter that this
proposed part may affect, whether potentially implicating the
jurisdiction of OSHA, EPA, or another agency of the Federal government.
Section 271.3--Application
The RSIA directs FRA to require each Class I railroad, railroad
carrier that has inadequate safety performance, and railroad that
provides intercity rail passenger or commuter rail passenger
transportation to establish a railroad safety risk reduction program.
See 49 U.S.C. 20156(a)(1). This proposed rule sets forth requirements
related to a railroad safety risk reduction program for Class I freight
railroads and railroads with inadequate safety performance. Safety risk
reduction programs for railroads that provide intercity rail passenger
or commuter rail passenger transportation are being addressed in a
separate SSP rulemaking.
Paragraph (a) would state that, except as provided in paragraph (b)
of this section, this part applies to Class I railroads, railroads
determined to have inadequate safety performance pursuant to proposed
Sec. 271.13, and railroads that voluntarily comply with the part 271
requirements pursuant to Sec. 271.15 (voluntarily-compliant
railroads).
[[Page 10960]]
FRA proposes to exempt certain railroads from the proposed rule's
applicability. The applicability exemptions proposed in paragraphs
(b)(1) through (4) are general exemptions found in many FRA
regulations. The first exemption, proposed in paragraph (b)(1), would
apply to rapid transit operations in an urban area that are not
connected to the general railroad system of transportation. Paragraph
(b)(1) is intended merely to clarify the circumstances under which
rapid transit operations would not be subject to FRA jurisdiction under
the proposed rule. It should be noted, however, that some rapid transit
type operations, given their links to the general system, are within
FRA's jurisdiction, and FRA would specifically intend for part 271 to
apply to those rapid transit type operations.
Paragraph (b)(2) proposes an exemption for operations commonly
described as tourist, scenic, historic, or excursion service, whether
on or off the general railroad system of transportation. Tourist,
scenic, historic, or excursion rail operations are defined by proposed
Sec. 271.5, and this exemption is consistent with other FRA
regulations. See 49 CFR 227.3(b)(4), 232.3(c)(5), 238.3(c)(3) and
239.3(b)(3). FRA has also proposed to exempt tourist operations,
whether on or off the general railroad system of transportation, from
the proposed SSP rule. It should be noted, however, that this exemption
would not cover any freight operations conducted by a railroad that
also performed tourist operations. A railroad with both freight and
tourist operations may be required to establish an RRP covering the
freight operations if the railroad is determined to have inadequate
safety performance. The railroad's tourist operations would also have
to be addressed by the RRP to the extent that they created hazards
affecting the freight operations. If the tourist operations are
conducted by a separate entity, they would have to be addressed by a
railroad's RRP as required by proposed Sec. 271.101(d), which would
require a railroad to ensure that any persons utilizing or providing
safety-sensitive services support and participate in the railroad's
RRP. FRA specifically requests public comment on this exemption and how
an RRP final rule should address tourist operations that may create
hazards for freight operations.
Paragraph (b)(3) would clarify that the requirements of the
proposed rule do not apply to the operation of private passenger train
cars, including business or office cars and circus train cars. While
FRA believes that a private passenger car operation should be held to
the same basic level of safety as other passenger train operations,
such operations were not specifically identified in the RSIA mandate,
and FRA is taking into account the potential burden that would be
imposed by requiring private passenger car owners and operators to
conform to the requirements of this part. FRA is also proposing to
exempt private passenger train cars from the SSP rule, which would
implement the RSIA mandate for passenger railroads.
Paragraph (b)(4) proposes an exemption for railroads that operate
only on track inside an installation that is not part of the general
railroad system of transportation (i.e., plant railroads, as defined in
Sec. 271.5). Plant railroads are typified by operations such as those
in steel mills that do not go beyond the plant's boundaries and that do
not involve the switching of rail cars for entities other than
themselves. Generally, safety issues on a plant railroad are factually
unique, limited to a single operation, and can be addressed with
targeted safety measures. An RRP is designed to address systemic safety
issues on a railroad's operations through proactive processes and
procedures. Due to the difference in the type of safety issues plant
railroads typically encounter and the complexity of safety issues an
RRP is designed to address, plant railroads are exempt from
implementing an RRP.
Paragraph (b)(5) would exempt from the proposed RRP rule any
commuter or intercity passenger railroad that is already subject to an
FRA SSP rule. As RRP and SSP rules would both implement the RSIA
mandate for railroad safety risk reduction programs, FRA believes that
requiring a commuter or intercity passenger railroad to maintain two
separate safety risk reduction programs would be an unnecessary and
duplicative burden. FRA is therefore proposing to exempt commuter or
intercity passenger railroads required to comply with the SSP rule from
the RRP rule's requirements. Railroads should note that this proposal
would not exempt freight operations conducted by another railroad on
the same track as a commuter or intercity passenger railroad. A
railroad with both freight and passenger operations would be required
to account for its freight operations in its SSP. FRA is specifically
requesting public comment on this proposal and may elect in the final
rule to require railroads with both freight and passenger operations to
implement both an RRP and SSP, or to implement an RRP accounting for
passenger operations.
Section 271.5--Definitions
Proposed Sec. 271.5 would contain a set of definitions clarifying
the meaning of important terms used in the proposed rule. The proposed
definitions are carefully worded in an attempt to minimize potential
misinterpretation of the regulations. FRA requests public comment
regarding the terms defined in this section and whether other terms
should also be defined.
``Accident/incident'' means (1) any impact between railroad on-
track equipment and a highway user (including automobiles, buses,
trucks, motorcycles, bicycles, farm vehicles, pedestrians, and all
other modes of surface transportation motorized and un-motorized, at a
highway-rail grade crossing); (2) any collision, derailment, fire,
explosion, act of God, or other event involving operation of railroad
on-track equipment (standing or moving) that results in reportable
damages greater than the current reporting threshold identified in 49
CFR part 225 to railroad on-track equipment, signals, track, track
structures, and roadbed; and (3) each death, injury, or occupational
illness that is a new case and meets the general reporting criteria
listed in 49 CFR 225.19(d)(1) through (6) if any event or exposure
arising from the operation of a railroad is a discernible cause of a
significant aggravation to a pre-existing injury or illness. Regarding
item (3), the event or exposure arising from the operation of a
railroad need only be one of the discernible causes; it need not be the
sole or predominant cause. The proposed definition is identical to the
definition for ``accident/incident'' contained in FRA's accident/
incident reporting regulations at 49 CFR part 225.
``Administrator'' means the Administrator of the Federal Railroad
Administration or his or her delegate.
``FRA'' means the Federal Railroad Administration.
``FRA Associate Administrator'' means the Associate Administrator
for Railroad Safety/Chief Safety Officer, Federal Railroad
Administration, or the Associate Administrator's delegate.
``Fully implemented'' means that all RRP elements, as described in
an RRP plan, have been established and applied to the safety management
of the railroad.
``Hazard'' means any real or potential condition that can cause
injury, illness, or death; damage to or loss of a system, equipment, or
property; or damage to the environment. Because the proposed definition
would be limited to hazards
[[Page 10961]]
identified in a railroad's risk-based hazard analysis, discussed in
proposed Sec. 271.103, this would include hazards related to
``infrastructure; equipment; employee levels and work schedules;
operating rules and practices; management structure; employee training;
and other areas impacting railroad safety that are not covered by
railroad safety laws or regulations or other Federal laws or
regulations.'' FRA does not intend this definition to include hazards
that are completely unrelated to railroad safety and that would fall
exclusively under the jurisdiction of either OSHA or the EPA. The
proposed definition is identical to the SSP NPRM's proposed definition
for ``hazard'' and is based on an existing definition of the term found
in 49 CFR part 659, which contains FTA's regulations regarding system
safety program plans. See 49 CFR 659.5. The RSAC RRP Working Group
advised FRA to specify that the ``system'' referenced by the definition
of ``hazard'' was a ``safety system.'' FRA decided not to follow this
suggestion, however, in order to maintain consistency between the
proposed RRP and SSP rules. FRA also believes that the descriptor
``safety'' would improperly limit the scope of the proposed definition.
An RRP should address hazards that could result in damage or loss to
any system related to the railroad's operations, and not merely safety
systems.
``Inadequate safety performance'' means safety performance that FRA
has determined to be inadequate based on the analysis described in
proposed Sec. 271.13.
``Mitigation strategy'' means an action or program to reduce or
eliminate the risk generated by a hazard.
``Person'' means an entity of any type covered under 1 U.S.C. 1,
including, but not limited to, the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor or subcontractor providing goods
or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor or
subcontractor.
``Pilot project'' means a limited scope project used to determine
whether quantitative proof suggests that a particular system or
mitigation strategy has potential to succeed on a full-scale basis.
``Plant railroad'' means a type of operation that has traditionally
been excluded from the application of FRA regulations because it is not
part of the general railroad system of transportation. Under Sec.
271.3, FRA has chosen to exempt plant railroads, as defined in this
proposed section, from the proposed rule. In the past, FRA has not
defined the term ``plant railroad'' in other regulations that it has
issued because FRA assumed that its ``Statement of Agency Policy
Concerning Enforcement of the Federal Railroad Safety Laws, The Extent
and Exercise of FRA's Safety Jurisdiction'', 49 CFR part 209, Appendix
A (FRA's Policy Statement or the Policy Statement), provided sufficient
clarification as to the definition of that term. However, it has come
to FRA's attention that certain rail operations believed that they met
the characteristics of a plant railroad, as set forth in the Policy
Statement, when, in fact, their rail operations were part of the
general railroad system of transportation (general system) and
therefore did not meet the definition of a plant railroad. FRA would
like to avoid any confusion as to what types of rail operations qualify
as plant railroads. FRA would also like to save interested persons the
time and effort needed to cross-reference and review FRA's Policy
Statement to determine whether a certain operation qualifies as a plant
railroad. Consequently, FRA has decided to define the term ``plant
railroad'' in this part 271.
The proposed definition would clarify that when an entity operates
a locomotive to move rail cars in service for other entities, rather
than solely for its own purposes or industrial processes, the services
become public in nature. Such public services represent the interchange
of goods, which characterizes operation on the general system. As a
result, even if a plant railroad moves rail cars for entities other
than itself solely on its property, the rail operations will likely be
subject to FRA's safety jurisdiction because those rail operations
bring plant trackage into the general system.
The proposed definition of the term ``plant railroad'' is
consistent with FRA's longstanding policy that it will exercise its
safety jurisdiction over a rail operation that moves rail cars for
entities other than itself because those movements bring the track over
which the entity is operating into the general system. See 49 CFR part
209, Appendix A. Indeed, FRA's Policy Statement provides that
``operations by the plant railroad indicating it [i]s moving cars on .
. . trackage for other than its own purposes (e.g., moving cars to
neighboring industries for hire)'' brings plant track into the general
system and thereby subjects it to FRA's safety jurisdiction. 49 CFR
part 209, Appendix A. Additionally, this interpretation of the term
``plant railroad'' has been upheld in litigation before the U.S. Court
of Appeals for the Fifth Circuit. See Port of Shreveport-Bossier v.
Federal Railroad Administration, No. 10-60324 (5th Cir. 2011)
(unpublished per curium opinion).
``Positive train control'' means a system designed to prevent
train-to-train collisions, overspeed derailments, incursions into
established work zone limits, and the movement of a train through a
switch left in the wrong position, as described in subpart I of 49 CFR
part 236.
``Railroad'' means: (1) Any form of non-highway ground
transportation that runs on rails or electromagnetic guideways,
including--
(i) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads, but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; and
(2) A person or organization that provides railroad transportation,
whether directly or by contracting out operation of the railroad to
another person.
The definition of ``railroad'' is based upon 49 U.S.C. 20102(1) and
(2), and encompasses any person providing railroad transportation
directly or indirectly, including a commuter rail authority that
provides railroad transportation by contracting out the operation of
the railroad to another person, as well as any form of non-highway
ground transportation that runs on rails or electromagnetic guideways,
but excludes urban rapid transit not connected to the general system.
``Risk'' means the combination of the probability (or frequency of
occurrence) and the consequence (or severity) of a hazard.
``Risk-based HMP'' means a risk-based hazard management program.
``Risk reduction'' means the formal, top-down, organization-wide
approach to managing safety risk and assuring the effectiveness of
safety risk mitigation strategies. It includes systematic procedures,
practices, and policies for the management of safety risk.
``RRP'' means a Risk Reduction Program.
[[Page 10962]]
``RRP plan'' means a Risk Reduction Program plan.
``Safety culture'' means the shared values, actions, and behaviors
that demonstrate a commitment to safety over competing goals and
demands. FRA is proposing this definition because the RSIA requires a
railroad's RRP to address safety culture. See 49 U.S.C. 20156(c).
Because there was significant discussion in the RRP Working Group as to
whether this definition was needed, however, FRA specifically requests
public comment on the necessity and content of the proposed definition.
The proposed ``safety culture'' definition was discussed in the
section-by-section analysis of the SSP NPRM. See 77 FR 55382. This
definition is based on a research paper published by the DOT Safety
Council. See U.S. Dep't of Transp., Safety Council, ``Safety Culture: A
Significant Driver Affecting Safety in Transportation 2'' (2011),
available at http://safetycouncil.dot.gov/publications/safety-research-paper.pdf. The DOT Safety Council developed this definition after
extensive review of definitions used in a wide range of industries and
organizations over the past two decades.
FRA acknowledges that this proposed definition is different than
the one recommended by the RRP Working Group, and that railroads may
have a different understanding of what constitutes safety culture.
During RRP Working Group discussions, for example, some participants
expressed the concern that the language ``over competing goals and
demands'' would require a railroad to make safety the ultimate priority
to the exclusion of all other concerns, without providing flexibility
for a railroad to balance the concerns of profit and efficiency. FRA
believes it is important, however, to utilize in this rule a definition
that has been formulated by the DOT Safety Council. Furthermore, the
proposed definition would not require a railroad to always prioritize
safety concerns over competing goals and demands (i.e., it would not
require a railroad to have a perfect safety culture). Rather, the
definition merely expresses how a safety culture can be evaluated by
measuring the extent to which a railroad emphasizes safety over
competing goals and demands, without imposing any such requirement.
``Safety performance'' means a realized or actual safety
accomplishment relative to stated safety objectives.
``Safety outreach'' means the communication of safety information
to support the implementation of an RRP throughout a railroad.
``Senior management'' means personnel at the highest level of a
railroad's management who are responsible for making major policy
decisions and long-term business plans regarding the operation of the
railroad.
``STB'' means the Surface Transportation Board of the United
States.
``Tourist, scenic, historic, or excursion operations'' means
railroad operations that carry passengers, often using antiquated
equipment, with the conveyance of the passengers to a particular
destination not being the principal purpose. Train movements of new
passenger equipment for demonstration purposes are not tourist, scenic,
historic, or excursion operations. This definition is consistent with
FRA's other regulations. See 49 CFR 238.5 and 239.5.
The RSAC RRP Working Group recommended including definitions for
the following terms: safety performance index and safety performance
threshold. FRA determined that these definitions did not provide any
additional clarity and were unnecessary. FRA requests public comment
regarding whether any of these definitions or any other definitions
should be added to the final rule.
Section 271.7--Waivers
Proposed Sec. 271.7 would explain the process for requesting a
waiver from a provision of the rule. FRA has historically entertained
waiver petitions from parties affected by an FRA regulation. In
reviewing such requests, FRA conducts investigations to determine if a
deviation from the general regulatory criteria is in the public
interest and can be made without compromising or diminishing railroad
safety.
The rules governing the FRA waiver process are found in 49 CFR part
211. In general, these rules state that after a petition for a waiver
is received by FRA, a notice of the waiver request is published in the
Federal Register, an opportunity for public comment is provided, and an
opportunity for a hearing is afforded the petitioning or other
interested party. After reviewing information from the petitioning
party and others, FRA would grant or deny the petition. In certain
circumstances, conditions may be imposed on the grant of a waiver if
FRA concludes that the conditions are necessary to assure safety or if
they are in the public interest, or both.
Section 271.9--Penalties and Responsibility for Compliance
Proposed Sec. 271.9 would contain provisions regarding the
proposed penalties for failure to comply with the proposed rule and the
responsibility for compliance.
Paragraph (a) would identify the civil penalties that FRA may
impose upon any person that violates or causes a violation of any
requirement of the proposed rule. These penalties would be authorized
by 49 U.S.C. 20156(h), 21301, 21302, and 21304. The proposed penalty
provision parallels penalty provisions included in numerous other
safety regulations issued by FRA. Essentially, any person that violates
any requirement of the rule arising from this rulemaking or causes the
violation of any such requirement would be subject to a civil penalty
of at least $650 and not more than $25,000 per violation. Civil
penalties would be assessed against individuals only for willful
violations. Where a grossly negligent violation or a pattern of
repeated violations creates an imminent hazard of death or injury to
individuals, or causes death or injury, a penalty not to exceed
$105,000 per violation could be assessed. In addition, each day a
violation continues would constitute a separate offense. Maximum
penalties of $25,000 and $105,000 are required by the Federal Civil
Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 28
U.S.C. 2461, note, as amended by the Debt Collection Improvement Act of
1996, Public Law 104-134, 110 Stat. 1321-373 (April 26, 1996), which
requires each agency to regularly adjust certain civil monetary
penalties in an effort to maintain their remedial impact and promote
compliance with the law. Furthermore, a person could be subject to
criminal penalties under 49 U.S.C. 21311 for knowingly and willfully
falsifying reports required by these regulations. FRA believes that the
inclusion of penalty provisions for the failure to comply with the
regulations is important in ensuring that compliance is achieved. The
proposed rule does not include a schedule of civil penalties, but a
final rule would contain such a schedule.
Proposed paragraph (b) would clarify that any person, including but
not limited to a railroad, contractor, or subcontractor for a railroad,
or a local or state governmental entity that performs any function
covered by the proposed rule, must perform that function in accordance
with the requirements of part 271.
[[Page 10963]]
Section 271.11--Discovery and Admission as Evidence of Certain
Information
As discussed in section VI of the preamble, above, an RSIA-mandated
study by FRA concluded that it is in the public interest to protect
certain information generated by railroads from discovery or admission
into evidence in litigation. Section 109 of the RSIA provides FRA with
the authority to promulgate a regulation if FRA determines that it is
in the public interest, including public safety and the legal rights of
persons injured in railroad accidents, to prescribe a rule that
addresses the results of the study.
Following the issuance of the study, the RSAC met and reached
consensus on recommendations regarding the discovery and admissibility
of information for the proposed SSP rule, with the understanding that
an identical provision would be included in a proposed RRP rule. RSAC
recommended that FRA issue a rule that would protect documents
generated solely for the purpose of developing, implementing, or
evaluating an RRP from: (1) Discovery, or admissibility into evidence,
or considered for other purposes in a Federal or State court proceeding
for damages involving property damage, personal injury, or wrongful
death; and (2) State discovery rules and sunshine laws that could be
used to require the disclosure of such information. As previously
discussed in section III.B of the preamble, FRA published an SSP NPRM
on September 7, 2012, and the information protection language contained
in this RRP NPRM is essentially identical to that proposed by the SSP
NPRM. See 77 FR 55390-55392. While this RRP NPRM does not respond to
comments already received in response to the SSP NPRM, FRA will
consider comments submitted to both the SSP and RRP NPRMs regarding the
information protection provisions when developing an RRP final rule.
Also, sec. 109 of the RSIA mandates that the effective date of a
rule prescribed pursuant to that section must be one year after the
publication of that rule. FRA believes that the public interest
considerations for the protections in Sec. 271.11 are the same for the
SSP rule for passenger railroads. Therefore, assuming that an SSP final
rule might be published before an RRP final rule, FRA would likely make
the SSP information protection provisions applicable to RRP programs as
well. The effect of this proposal is that the information protection
for RRP would become applicable one year after publication of an SSP
final rule, permitting a railroad subject to the RRP rule to obtain
information protection as soon as possible. FRA requests public comment
regarding this approach.
In this Sec. 271.11, FRA proposes discovery and admissibility
protections that are based on the study's results and the RSAC
recommendations. FRA modeled this proposed section after 23 U.S.C. 409.
In sec. 409, Congress enacted statutory protections for certain
information compiled or collected pursuant to Federal highway safety or
construction programs. See 23 U.S.C. 409. Section 409 protects both
data compilations and raw data. A litigant may rely on sec. 409 to
withhold certain documents from a discovery request, in seeking a
protective order, or as the basis to object to a line of questioning
during a trial or deposition. Section 409 extends protection to
information that may never have been in any Federal entity's
possession.
Section 409 was enacted by Congress in response to concerns raised
by the States that compliance with the Federal road hazard reporting
requirements could reveal certain information that would increase the
States' risk of liability. Without confidentiality protections, States
feared that their ``efforts to identify roads eligible for aid under
the Program would increase the risk of liability for accidents that
took place at hazardous locations before improvements could be made.''
Pierce County v. Guillen, 537 U.S. 129, 133-34 (2003) (citing H.R. Doc.
No. 94-366, p. 36 (1976)).
In Guillen, the Court considered the application of sec. 409 to
documents created pursuant to the Hazard Elimination Program, which is
a Federal highway program that provides funding to State and local
governments to improve the most dangerous sections of their roads. Id.
at 133. To be eligible for the program, the State or local government
must (1) maintain a systematic engineering survey of all roads, with
descriptions of all obstacles, hazards, and other dangerous conditions;
and (2) create a prioritized plan for improving those conditions. Id.
The Court held that sec. 409 protects information actually compiled
or collected by any government entity for the purpose of participating
in a Federal highway program, but does not protect information that was
originally compiled or collected for purposes unrelated to the Federal
highway program, even if the information was at some point used for the
Federal highway program. Guillen at 144. The Court took into
consideration Congress's desire to make clear that the Hazard
Elimination Program ``was not intended to be an effort-free tool in
litigation against state and local governments.'' Id. at 146. However,
the Court also noted that the text of sec. 409 ``evinces no intent to
make plaintiffs worse off than they would have been had section 152
[Hazard Management Program] funding never existed.'' Id. The Court also
held that sec. 409 was a valid exercise of Congress's powers under the
Commerce Clause because sec. 409 ``can be viewed as legislation aimed
at improving safety in the channels of commerce and increasing
protection for the instrumentalities of interstate commerce.'' Id.
A comparison of the text of sec. 409 with sec. 109, which was added
to the U.S. Code by the RSIA, shows that Congress used similar language
in both provisions. Given the similar language and concept of the two
statutes, and the Supreme Court's expressed acknowledgement of the
constitutionality of sec. 409, FRA views sec. 409 as an appropriate
model for proposed Sec. 271.11.
FRA proposes that under certain circumstances, information
(including plans, reports, documents, surveys, schedules, lists, or
data) would not be subject to discovery, admitted into evidence, or
considered for other purposes in a Federal or State court proceeding
for damages. This information may not be used in such litigation for
any purpose when it is compiled or collected solely for the purpose of
developing, implementing, or evaluating an RRP, including the
railroad's analysis of its safety risks conducted pursuant to proposed
Sec. 271.103(b) and any identification of the mitigation measures with
which it would address those risks pursuant to proposed Sec.
271.103(c). Proposed Sec. 271.11(a) applies to information that may
not be in the Federal government's possession; rather, it may be
information the railroad has as part of its RRP but would not be
required to provide to the Federal government under this part.
The RSIA identifies reports, surveys, schedules, lists, and data as
the forms of information that should be included as part of FRA's
Study. See 49 U.S.C. 20119(a). However, FRA does not necessarily view
this as an exclusive list. In the statute, Congress directed FRA to
consider the need for protecting information that includes a railroad's
analysis of its safety risks and its statement of the mitigation
measures with which it would address those risks. Therefore, FRA deems
it necessary to include ``documents'' and ``plans'' in this proposed
provision to effectuate Congress' directive in sec. 109 of the
[[Page 10964]]
RSIA. Notwithstanding, FRA does not propose protecting all documents
and plans that are part of an RRP. Rather, as proposed in Sec.
271.11(a), the document has to be ``compiled or collected solely for
the purpose of developing, implementing, or evaluating an RRP under
this part.'' The meaning of ``compiled or collected solely for the
purpose of developing, implementing, or evaluating an RRP under this
part'' is discussed below.
As discussed previously, the proposed regulation would require a
railroad to implement its RRP through an RRP plan. While the railroad
will not provide in the RRP plan that it submits to FRA the results of
the risk-based hazard analysis and the specific mitigation strategies
it will be implementing, its own RRP plan may contain this information
while it is in the possession of the railroad. Therefore, to adequately
protect this type of information, the term ``plan'' is added to cover a
railroad's RRP plan and any hazard elimination or mitigation plans.
It is important to note that these proposed protections will only
extend to information (including plans, reports, documents, surveys,
schedules, lists, or data) that is ``compiled or collected solely for
the purpose of developing, implementing, or evaluating an RRP.'' The
term ``compiled and collected'' is taken directly from the RSIA. FRA
recognizes that railroads may be reluctant to compile or collect
extensive and detailed information regarding the safety hazards and
associated risks on their system if this information could potentially
be used against them in litigation. The term ``compiles'' refers to
information that is generated by the railroad for the purposes of an
RRP; whereas the term ``collected'' refers to information that is not
necessarily generated for the purposes of the RRP, but is assembled in
a collection for use by the RRP. It is important to note that the
collection is protected; however, each separate piece of information
that is not originally compiled for use by the RRP remains subject to
discovery and admission into evidence subject to any other applicable
provision of law or regulation.
The information has to be compiled or collected solely for the
purpose of developing, implementing, or evaluating an RRP. The use of
the term ``solely'' means that the original purpose of compiling or
collecting the information is exclusively for the railroad's RRP. A
railroad cannot compile or collect the information for one purpose and
then try to use proposed paragraph (a) to protect that information
simply because it also uses that information for its RRP. The
railroad's original and primary purpose of compiling or collecting the
information must be for developing, implementing, or evaluating its RRP
in order for the protections to be extended to that information.
Information a railroad had previously compiled or collected for
non-RRP purposes would also not be protected, even if the railroad
continued to compile or collect that information as part of its RRP.
This is because RSIA limits the protections to information that is
compiled or collected pursuant to a risk reduction program required by
the statute; therefore, the proposed protections cannot be extended to
information that was compiled or collected prior to the proposed rule
because that information was not collected pursuant to a risk reduction
program required by RSIA. As discussed above, when interpreting section
409, the Supreme Court held that there is no reason to interpret the
protections as protecting information plaintiffs would have been free
to obtain prior to the enactment of the Hazard Elimination Program.
Consistent with the Court's ruling in Guillen, the proposed protections
would not protect information that plaintiffs would have been free to
obtain prior to the enactment of the proposed rule.
Furthermore, a single type of record, plan, document, etc., could
contain both information that would be protected under the proposed
provision and information that would not be protected. In other words,
an entire railroad document or record would not be protected simply
because it contained a single piece of information that was protected.
For example, if a railroad began collecting a new type of information
as part of its accident investigations, and that information was being
collected solely for the purpose of developing, implementing, or
evaluating its RRP, that specific information would be protected. The
information that had been historically collected as part of the
railroad's accident investigation program, however, would remain
unprotected. FRA stresses that the intent of the proposed provisions is
to leave neither railroads nor plaintiffs worse off than before the
implementation of an RRP rule.
Additionally, if the railroad is required by another provision of
law or regulation to collect the information, the protections of
proposed paragraph (a) do not extend to that information because it is
not being compiled or collected solely for the purpose of developing,
implementing, or evaluating an RRP. For example, information that a
railroad must compile pursuant to FRA's accident/incident reporting
regulations would not be protected.
The information protections would also not apply to information
generated by safety risk reduction programs that do not fully comply
with all the requirements of a final RRP rule. Section 109 extends
protection to information generated by a safety risk reduction program
that includes all the required elements of an RRP; a program that
includes one or more, but not all, of the required elements of an RRP
would not satisfy these statutory requirements. For example, FRA
supports the development of the Short Line Safety Institute (see http://www.fra.dot.gov/eLib/details/L15890) to promote the safety of short
line and regional railroad operations, information generated by such an
institute as part of a short line or regional railroad's risk reduction
program would only be protected if: (1) The railroad uses the
information generated by the institute in a fully-implemented RRP, and
(2) that information meets the other requirements in Sec. 109 to
receive protection. It is important to note, however, that RRP is
scalable by design. Full compliance with the RRP regulation by a short
line or regional railroad is therefore not likely to be as complex and
comprehensive as it would be for a larger railroad, and a short line or
regional railroad that voluntarily complies with an RRP final rule will
receive information protection. FRA therefore believes it would be both
unnecessary and not authorized by the RSIA to extend the proposed
information protection provisions to safety risk reduction programs
that did not fully comply with a final RRP rule. FRA invites public
comment on this approach.
The information must be compiled or collected solely for the
purpose of developing, implementing, or evaluating an RRP. These three
terms are taken directly from the RSIA. They cover the necessary uses
of the information compiled or collected solely for the RRP. To develop
an RRP, a railroad will need to conduct a risk-based hazard analysis to
evaluate and identify the safety hazards and associated risks on its
system. This type of information is essential and is information that a
railroad does not necessarily already have. In order for the railroad
to conduct a robust risk-based hazard analysis to develop its RRP, the
protections from discovery and admissibility are extended to the RRP
development stage. Based on the information generated by the risk-based
[[Page 10965]]
hazard analysis, the railroad would implement measures to mitigate or
eliminate the risks identified. To properly implement these measures,
the railroad will need the information regarding the hazards and risks
on the railroad's system identified during the development stage.
Therefore, the protection of this information is extended to the
implementation stage. Finally, the railroad would be required to
evaluate whether the measures it implements to mitigate or eliminate
the hazards and risks identified by the risk-based hazard analysis are
effective. To do so, it will need to review the information developed
by the risk-based hazard analysis and the methods it has used to
implement the elimination/mitigation measures. The use of this
information in the evaluation of the railroad's RRP is protected.
The proposed protections would not apply to the fact that a
railroad ultimately implemented a particular mitigation strategy,
although the protections would apply to the information informing the
railroad's decision as part of its RRP. For example, a railroad may
elect to implement a new type of technology, such as new track
inspection vehicles, as part of its technology implementation plan.
Once the railroad is using these new track inspection vehicles, the
fact that the railroad is using them is not protected by the proposed
provision, as the track inspection vehicles are now serving a purpose
other the development, implementation, or evaluation of the railroad's
RRP (i.e., they are being used for railroad operational purposes). The
manner in which the railroad is using these track inspection vehicles
would also not necessarily be protected (e.g., is the railroad
operating the track inspection vehicles properly?). Information from
the technology analysis and technology implementation plan regarding
the adopted track inspection vehicles, however, would remain protected.
For example, an analysis of the track inspection vehicles' likely
effectiveness in mitigating an identified hazard, as opposed to other
mitigation strategies, would remain protected, as would any analyses
regarding investment decisions related to the vehicles as opposed to
alternative mitigations. Information regarding other technologies that
had been analyzed but were not selected as mitigation strategies would
also be protected. Information regarding the track inspection vehicles'
ultimate effectiveness in addressing the identified hazard and risk
would also be protected. FRA specifically requests public comment on
this discussion.
The information covered by this proposed section shall not be
subject to discovery, admitted into evidence, or considered for other
purposes in a Federal or State court proceeding that involves a claim
for damages involving personal injury, wrongful death, or property
damage. The protections apply to discovery, admission into evidence, or
consideration for others purposes. The first two situations come
directly from the RSIA; however, FRA determined that for the
protections to be effective they must also apply to any other situation
where a litigant might try to use the information in a Federal or State
court proceeding that involves a claim for damages involving personal
injury, wrongful death, or property damage. For example, under proposed
Sec. 271.11, a litigant would be prohibited from admitting into
evidence a railroad's risk-based hazard analysis. However, without the
additional language, the railroad's risk-based hazard analysis could be
used by a party for the purpose of refreshing the recollection of a
witness or by an expert witness to support an opinion. The additional
language, ``or considered for other purposes,'' ensures that the
protected information remains out of a proceeding completely. The
protections would be useless if a litigant is able to use the
information in the proceeding for another purpose. To encourage
railroads to perform the necessary vigorous risk analysis and to
implement truly effective hazard elimination or mitigation measures,
the protections should be extended to any use in a proceeding.
FRA further notes that this proposed section applies to Federal or
State court proceedings that involve a claim for damages involving
personal injury, wrongful death, or property damage. This means, for
example, if a proceeding has a claim for personal injury and a claim
for property damage, the protections are extended to that entire
proceeding; therefore, a litigant cannot use any of the information
protected by this section as it applies to either the personal injury
or property damage claim. While sec. 109 of the RSIA only required the
study to consider proceedings that involve a claim for damages
involving personal injury or wrongful death, the RSAC (which includes
both railroad and labor representation) recommended that FRA extend the
information protection provisions to proceedings involving claims for
property damage as well.
FRA believes it is advisable to follow this RSAC recommendation
because extending the proposed information protections to property
damage claims is consistent with the goal of encouraging railroads to
engage in a robust and candid hazard analysis and to develop meaningful
mitigation measures. The typical railroad accident resulting in injury
or death also involves some form of property damage. Without protecting
proceedings that involve a claim for property damage, a litigant could
bring two separate claims arising from the same incident in two
separate proceedings, the first for property damages and the second one
for personal injury or wrongful death, and be able to conduct discovery
regarding the railroad's risk analysis and to introduce this analysis
in the property damage proceeding but not in the personal injury or
wrongful death proceeding. This means that a railroad's risk analysis
could be used against the railroad in a proceeding for damages. If this
is the case, a railroad will be hesitant to engage in a robust and
candid hazard analysis and develop meaningful mitigation measures. FRA
also believes that expanding the information protection provisions to
property damage claims would be supported by the same considerations
underlying the study's conclusion that protecting risk reduction
information from use in civil litigation claims for personal injuries
or wrongful death would serve the broader public interest. FRA's
proposed approach would also mitigate potential confusion from the
application of different discovery and evidential standards for
personal injury, wrongful death, and property damage claims all
potentially arising from the same event.
Proposed paragraph (b) would ensure that the proposed protections
set forth in paragraph (a) do not extend to information compiled or
collected for a purpose other than that specifically identified in
paragraph (a). This type of information shall continue to be
discoverable, admissible into evidence, or considered for other
purposes if it was discoverable, admissible, or considered for other
purposes prior to the existence of this section. This includes
information compiled or collected for a purpose other than that
specifically identified in paragraph (a) that either: (1) Existed prior
to 365 days after the publication date of a final rule; (2) was
compiled or collected prior to 365 days after the publication date of a
final rule and continues to be compiled or collected; or (3) is
compiled and collected after 365 days after the publication date of a
final rule. Proposed paragraph (b) affirms the
[[Page 10966]]
intent behind the use of the term ``solely'' in paragraph (a), in that
a railroad could not compile or collect information for a different
purpose and then expect to use paragraph (a) to protect that
information just because the information is also used in its RRP. If
the information was originally compiled or collected for a purpose
unrelated to the railroad's RRP, then it is unprotected and would
continue to be unprotected.
Examples of the types of information that proposed paragraph (b)
applies to may be records related to prior incidents/accidents and
reports prepared in the normal course of business (such as inspection
reports). Generally, this type of information is often discoverable,
may be admissible in Federal and State proceedings, or considered for
other purposes, and should remain discoverable, admissible, or
considered for other purposes where it is relevant and not unduly
prejudicial to a party after the implementation of this part. However,
FRA recognizes that evidentiary decisions are based on the facts of
each particular case; therefore, FRA does not intend this to be a
definitive and authoritative list. Rather, FRA merely provides these as
examples of the types of information that paragraph (a) is not intended
to protect.
Proposed paragraph (c) clarifies that a litigant cannot rely on
State discovery rules, evidentiary rules, or sunshine laws that could
be used to require the disclosure of information that is protected by
paragraph (a). This provision is necessary to ensure the effectiveness
of the Federal protections established in paragraph (a) in situations
where there is a conflict with State discovery rules or sunshine laws.
The concept that Federal law takes precedence where there is a direct
conflict between State and Federal law should not be controversial as
it derives from the constitutional principal that ``the Laws of the
United States . . . shall be the supreme Law of the Land.'' U.S.
Const., Art. VI. Additionally, FRA notes that 49 U.S.C. 20106 is
applicable to this section, as FRA's study concluded that a rule
``limiting the use of information collected as part of a railroad
safety risk reduction program in discovery or litigation'' furthers the
public interest by ``ensuring safety through effective railroad safety
risk reduction program plans.'' See Study at 64. FRA concurs in this
conclusion. Section 20106 provides that States may not adopt or
continue in effect any law, regulation, or order related to railroad
safety or security that covers the subject matter of a regulation
prescribed or order issued by the Secretary of Transportation (with
respect to railroad safety matters) or the Secretary of Homeland
Security (with respect to railroad security matters), except when the
State law, regulation, or order qualifies under the ``essentially local
safety or security hazard'' exception to sec. 20106.
Section 271.13--Determination of Inadequate Safety Performance
Proposed Sec. 271.13 would describe FRA's methodology for
determining which railroads must comply with this part because they
have inadequate safety performance. Overall, this section describes how
FRA's analysis would have two phases: A statistically-based
quantitative analysis phase followed by a qualitative assessment phase.
Only railroads identified as possibly having inadequate safety
performance in the quantitative analysis would continue on to the
qualitative assessment, as discussed further below.
Proposed paragraph (a) describes FRA's methodology as a two-phase
annual analysis, comprised of both a quantitative analysis and a
qualitative assessment. This analysis would not include railroads
excluded under proposed Sec. 271.3(b) (e.g., commuter or intercity
passenger railroads that would be subject to FRA SSP requirements),
railroads otherwise required to comply with part 271 (i.e., Class I
railroads and railroads previously determined to have inadequate safety
performance under this section), railroads that voluntarily comply with
this part under proposed Sec. 271.15, and new railroads that have
reported accident/incident data to FRA for fewer than three years,
except that new railroads formed through an amalgamation of operations
(for example, railroads formed through consolidations, mergers, or
acquisitions of control) will be included in the analysis using the
combined accident/incident data of the pre-amalgamation entities. FRA
is requesting public comment on whether and, if so, how, it should also
exclude from the analysis railroads formed by splitting off from a
larger railroad.
FRA specifically requests comment on whether railroads that comply
voluntarily under Sec. 271.15 should be included in FRA's analysis,
and FRA's final rule may elect to include voluntarily-compliant
railroads in the analysis.
Paragraph (b) would describe the quantitative analysis, which would
make a threshold identification of railroads that might have inadequate
safety performance. Paragraph (b)(1) would specify that the
quantitative analysis would be statistically-based and would include
each railroad within the scope of the analysis, using historical safety
data maintained by FRA for the three most recent full calendar years.
The quantitative analysis would identify four factors regarding a
railroad's safety performance: (1) Fatalities; (2) FRA reportable
injury/illness rate; (3) FRA reportable accident/incident rate; and (4)
FRA violation rate.\9\
---------------------------------------------------------------------------
\9\ During RRP Working Group discussions, the ASLRRA expressed
concern that use of FRA violation data to determine safety
performance might be inappropriate, because FRA's prosecutorial
discretion may result in different railroads receiving more or fewer
violations. FRA believes that a railroad identified during the
quantitative analysis could raise such a concern during the
qualitative assessment, and FRA would consider that concern when
making the final determination regarding the railroad's safety
performance.
---------------------------------------------------------------------------
The first factor, described in proposed paragraph (b)(1)(i), is a
railroad's number of on-duty employee fatalities during the three-year
period, determined using Worker on Duty-Railroad Employee (Class A)
information reported on FRA Form 6180.55a \10\ pursuant to FRA's
accident/incident reporting regulations in part 225. FRA is requesting
public comment on whether this factor should include fatalities to
other classes of persons reported on FRA Form 6180.55a, such as
Railroad Employee Not On Duty (Class B), Worker on Duty-Contractor
(Class F), Nontrespassers-On Railroad Property (Class D), etc.
---------------------------------------------------------------------------
\10\ Railroads use Form 6180.55a to report on-duty employee
injuries and occupational illnesses.
---------------------------------------------------------------------------
The second factor, described in proposed paragraph (b)(1)(ii), is a
railroad's FRA on-duty employee injury/illness rate, calculated using
``Worker on Duty-Railroad Employee'' information reported on FRA Form
6180.55a and Form 6180.55 \11\ pursuant to FRA's accident/incident
reporting regulations in part 225. This rate would be calculated with
the following formula:
---------------------------------------------------------------------------
\11\ Railroads use Form 6180.55 to report the number of employee
hours.
Injury/Illness Rate = (Total FRA Reportable On-Duty Employee
Injuries + Total FRA Reportable On-Duty Employee Occupational
Illnesses over a 3-year period) / (Total Employee Hours over a 3-
---------------------------------------------------------------------------
year period/200,000)
This calculation would give the rate of employee injuries and
occupational illnesses per 200,000 employee hours calculated over a 3-
year period. FRA is requesting public comment on whether this factor
should include injuries/illnesses to other classes of persons reported
on FRA Form 6180.55a, such as Railroad Employee Not On Duty
[[Page 10967]]
(Class B), Worker on Duty-Contractor (Class F), Nontrespassers-On
Railroad Property (Class D), etc.
The third factor, described in proposed paragraph (b)(1)(iii), is a
railroad's FRA reportable rail equipment accident/incident rate,
calculated using information reported on FRA Form 6180.54 and Form
6180.55.\12\ This rate would be calculated with the following formula:
---------------------------------------------------------------------------
\12\ Railroads use Form 6180.54 to report accidents/incidents
and Form 6180.55 to report total train miles.
Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail
Equipment Accidents/Incidents over a 3-year period / (Total Train
---------------------------------------------------------------------------
Miles over a 3-year period/1,000,000)
This calculation would give the rate of rail equipment accidents/
incidents per 1,000,000 train miles calculated over a 3-year period.
FRA is not proposing to exclude rail equipment accident/incidents
occurring at highway-rail grade crossings from this calculation, as
highway-rail grade crossings present a significant safety issue for
many railroads. FRA requests public comment on whether it should
consider excluding rail equipment accidents/incidents occurring at
highway-rail grade crossings from this calculation.
The fourth factor, described in proposed paragraph (b)(1)(iv), is a
railroad's FRA violation rate, calculated using FRA's field inspector
data system, which captures the number of violations and is made
available to each railroad. The calculation also uses information
reported to FRA on Form 6180.55. This rate would be calculated with the
following formula:
Violation Rate = Total FRA Violations over a 3-year period / (Total
Train Miles over a 3-year period / 1,000,000)
This calculation gives the rate of violations issued by FRA to a
railroad per 1,000,000 train miles calculated over a 3-year period.
Proposed paragraph (b)(2) states that the quantitative analysis
would identify a railroad as possibly having inadequate safety
performance if at least one of two conditions were met. Identified
railroads would be examined further in the qualitative assessment,
described below.
The first condition would be whether a railroad has had one or more
fatalities. FRA considers an on-duty employee fatality a strong
indication of inadequate safety performance. If a railroad has at least
one fatality within the 3-year period of the quantitative analysis,
that railroad will be examined further in the qualitative assessment.
The second condition would be whether a railroad was at or above
the 95th percentile in at least two of the three factors described in
proposed paragraphs (b)(1)(ii) through (iv) of this section (e.g., a
railroad's FRA injury/illness rate, FRA accident/incident rate, and FRA
violation rate). For example, if the scope of data includes a set of
100 railroads, the railroads with the five highest injury/illness
rates, accident/incident rates, or violation rates would be flagged.
Those railroads flagged in two or more of these factors would be
examined further in the qualitative assessment. Preliminary analyses
estimate that FRA's proposed approach would identify approximately 42
railroads over a five year period, which FRA believes is a reasonable
pool of potential railroads to examine further in the qualitative
analysis. Lowering the threshold to railroads in the 90th percentile
would identify approximately 84 railroads, and lowering the threshold
further to the 80th percentile would identify approximately about 167
railroads. While FRA believes these lower thresholds would yield a pool
too large and unwieldy to address comprehensively in the qualitative
analysis, FRA requests public comment on whether it should consider
flagging railroads at a threshold either above or below the 95th
percentile in two or more of the identified factors.
Proposed paragraph (c) would describe FRA's qualitative assessment
of railroads identified in the quantitative analysis as possibly having
inadequate safety performance. During the qualitative assessment, FRA
would consider input from both a railroad and the railroad's employees,
as well as any other pertinent information. FRA believes such input
would be helpful in determining whether the quantitative analysis
accurately identified a problem with the railroad's safety performance.
Paragraph (c)(1) would state that FRA would provide initial written
notification to railroads identified in the threshold quantitative
analysis as possibly having inadequate safety performance. Paragraph
(c)(1)(i) would further specify that a notified railroad must inform
its employees of FRA's notice within 15 days of receiving notification.
This employee notification would have to be posted at all locations
where a railroad reasonably expects its employees to report for work
and have an opportunity to observe the notice. The notice must be
continuously displayed until 45 days following FRA's initial notice. A
railroad must use other means to notify employees who do not have a
regular on-duty point to report for work, consistent with the
railroad's standard practice for communicating for employees. Such a
notification could take place by email, for example. The notification
must inform employees that they may submit confidential comments to FRA
regarding the railroad's safety performance, and must contain
instructions for doing so. Any such employee comments must be submitted
within 45 days of FRA's initial notice.
Likewise, paragraph (c)(1)(ii) would provide railroads 45 days from
FRA's initial notice to provide FRA documentation supporting any claim
that the railroad does not have inadequate safety performance. For
example, if a fatality on railroad property was determined to be due to
natural causes (such as cardiac arrest), or an accident/incident due to
an act of God, the railroad's chief safety officer could provide a
signed letter attesting to the facts, and asserting the railroad's
reasons for believing that it should not be found to have inadequate
safety performance. A railroad could also submit information regarding
any extenuating circumstances of an incident or the severity of an
injury (for example, a bee sting may not be as serious a safety concern
as a broken bone). FRA will also consider explanations regarding FRA-
issued violations, as well as any mitigating action taken by the
railroad to remedy the violations.
Paragraph (c)(2) would generally describe the qualitative
assessment of railroads identified by the quantitative analysis. During
the qualitative assessment, FRA would consider any information provided
by a railroad or its employees pursuant to paragraph (c)(1) of this
section, as well as any other pertinent information. FRA may
communicate with the railroad during the assessment to clarify its
understanding of any information the railroad may have submitted. Based
upon the qualitative assessment, FRA would make a final determination
regarding whether a railroad has inadequate safety performance no later
than 90 days following FRA's initial notice to the railroad.
Paragraph (d) would state that FRA will provide a final
notification to each railroad given an initial notification pursuant to
paragraph (c) of this section, informing the railroad whether or not it
has been found to have inadequate safety performance. A railroad with
inadequate safety performance must develop and implement an RRP
compliant with the proposed rule and must provide FRA an RRP plan no
later than 90 days after receiving the final notification, as provided
by proposed Sec. 271.301(a).
[[Page 10968]]
The RRP Working Group advised FRA to allow a railroad with
inadequate safety performance to choose to establish either an RRP in
compliance with proposed part 271 or an SSP in compliance with proposed
part 270. The Working Group believed that some railroads (particularly
smaller railroads more in need of formal structures to help them
improve safety) would elect to develop, with FRA assistance, an SSP
rather than an RRP. While FRA supports providing additional flexibility
to railroads with inadequate safety performance, this provision has not
been included in the current rule text because an SSP rule has not yet
taken effect. If the SSP rule goes into effect before the publication
of an RRP final rule, FRA would review this section and could provide
for the choice in the final rule, as advised by the Working Group. FRA
is also soliciting additional public comment on such an approach.
Paragraph (e) would state that a railroad with inadequate safety
performance would have to comply with the requirements of part 271 for
at least five years, running from the date on which FRA approves the
railroad's RRP plan. FRA believes a five-year compliance period
provides the minimum amount of time necessary for an RRP to have a
substantive effect on a railroad's safety performance, particularly if,
pursuant to proposed Sec. 271.221, the railroad has taken 36 months (3
years) to fully implement its RRP. An evaluation of an FRA C3RS
demonstration site showed the following safety improvements after two
and a half years: (1) A 31-percent increase in the number of cars moved
between incidents; (2) improved labor-management relationships and
employee engagement (i.e., an improved safety culture); and (3) a
reduction in discipline cases. FRA believes this evaluation shows that
risk-reduction-type programs can successfully yield positive impacts
within a period of only a few years. See Ranney, J. and Raslear, T.,
``Derailments decrease at a C3RS site at midterm,'' FRA Research
Results: RR12-04, April 2012, available at http://www.fra.dot.gov/eLib/details/L01321. The five-year minimum compliance period should create
the time necessary to determine whether safety improvements achieved
upon implementation of the RRP are sustainable. Furthermore, the
initial development and implementation of an RRP requires the
expenditure of resources, and as discussed in the Regulatory Impact
Analysis for this proposed rule, FRA does not expect an RRP to create a
full level of benefits until the RRP is fully implemented or no later
than the fourth year after the implementation of the rule. A minimum
five-year compliance period, therefore, provides time for a railroad to
begin receiving the full benefits of its RRP investment, although fewer
overall benefits could be received if the railroad had elected to take
the entire three years provided to fully implement its RRP.
At the end of the five-year period, under proposed paragraph (f),
the railroad could petition FRA, according to the procedures for
waivers in 49 CFR part 211, for approval to discontinue compliance with
part 271. Upon receiving a petition, FRA would evaluate the railroad's
safety performance in order to determine whether the railroad's RRP has
resulted in significant safety improvements, and whether these measured
improvements are likely to be sustainable in the long term. FRA's
evaluation would include a quantitative analysis as described in
proposed paragraph (b). FRA would also examine qualitative factors and
review information from FRA RRP audits and other relevant sources.
Analysis of the railroad's safety performance for purpose of
deciding whether its petition should be granted will be driven by the
unique characteristics of the railroad and its RRP; for this reason it
is not possible to enumerate the types of data that will be examined in
the context of a petition to discontinue compliance. In general, FRA
would look at information to determine whether real and lasting changes
to the operational safety and to the organizational safety culture had
been made. The Safety Board will use staff recommendations and other
information it deems necessary to make a final determination about
whether granting a petition is in the interest of public safety. FRA
seeks comment, however, on whether it should specify various factors,
criteria, and data that should be considered to determine whether a
waiver should be granted. If so, what should those factors, criteria,
and data be? FRA may include any such standards in a final rule.
After completing the evaluation, FRA would notify the railroad in
writing whether or not it would be required to continue compliance with
part 271. FRA specifically requests public comment on whether railroads
with inadequate safety performance should be required to comply with
part 271 permanently. In general, RRPs are strategies for gradually
improving railroad safety over the long-term. If a railroad
discontinues an implemented RRP, this could result in the loss of many
future safety improvements. Additionally, the development and
implementation of an RRP require the expenditure of railroad resources.
If an RRP is ended too soon, this might result in a railroad not
obtaining the greatest benefit possible from its RRP investment.
Requiring permanent compliance for railroads with inadequate safety
performance, therefore, could maximize both the safety improvement and
benefits of an RRP over the long-term. Furthermore, an inadequate
safety performance railroad required to comply with part 271
permanently would also continue to receive the information protections
provided for in proposed Sec. 271.11. FRA requests comment on this
approach and could elect to require continued compliance for inadequate
safety performance railroads in a final rule.
FRA also specifically requests public comment on whether the five-
year compliance period in proposed paragraph (e) should run from the
date that the railroad's RRP is fully implemented--rather than the date
on which FRA approved the railroad's RRP plan--in order to provide more
time for the RRP to have a significant effect on the railroad's safety
and for FRA to obtain more information in order to determine whether it
should consider granting a petition for approval to discontinue
compliance with this part. This alternative approach would also provide
an incentive for a railroad to implement its RRP quickly, as doing so
would then allow the railroad to terminate its RRP sooner as well.
FRA also specifically requests public comment on what should happen
when FRA denies an inadequate safety performance railroad's petition to
discontinue compliance with part 271. Should the railroad be permitted
to submit a new petition as soon as it wishes, or should the
regulations impose a new mandatory compliance period upon the railroad?
In other words, should FRA permit the railroad to submit a new petition
immediately or only after a certain period of time, such as one year or
five years?
Railroads should note that Sec. 271.223 proposes to give each
affected railroad 36 months, running from the date FRA approves the
railroad's RRP plan, to fully implement its RRP. If the final rule
ultimately adopts this proposal, FRA anticipates that a petition for
approval to discontinue compliance would most likely be unsuccessful if
an inadequate safety performance railroad took the entire 36 months to
achieve full implementation. In such a scenario, FRA would likely find
that a petition could not be granted because it had only two years'
worth of data to determine
[[Page 10969]]
whether the fully implemented RRP had been successful in improving the
railroad's safety performance. FRA would be more likely to grant a
petition, however, if the railroad had fully implemented its RRP before
the 36-month deadline. FRA anticipates that many inadequate safety
performance railroads, with systems significantly smaller than those of
Class I railroads, would not require the full 36 months to implement an
RRP.
FRA would encourage a railroad with inadequate safety performance
to continue its RRP even if FRA grants its petition to discontinue
compliance with part 271. If a railroad does continue its RRP, it could
be considered a voluntarily-compliant railroad under proposed Sec.
271.15, which would allow proposed Sec. 271.11 to continue to protect
information that continues to be compiled or collected pursuant to the
railroad's RRP from discovery and admission as evidence in litigation.
If a railroad decides not to continue with a part 271-compliant RRP,
information that had been compiled or collected pursuant to the part
271-compliant RRP would remain protected under Sec. 271.11. Any
information compiled or collected pursuant to a non-compliant RRP,
however, would not be protected under Sec. 271.11.
Section 271.15--Voluntary Compliance
The RSIA provides that railroads not required to establish a
railroad safety risk reduction program may nevertheless voluntarily
submit for FRA approval a plan meeting the requirements of the statute.
See 49 U.S.C. 20156(a)(4). Proposed Sec. 271.15(a) would implement
this language by permitting a railroad not otherwise subject to the
proposed rule to voluntarily comply by establishing and fully
implementing an RRP that meets the requirements of this part 271. Any
such voluntary RRP must be supported by an RRP plan that has been
submitted to FRA for approval pursuant to the requirements of proposed
subpart D. Paragraph (a) would also clarify that following FRA's
approval of the RRP plan for a voluntarily-compliant railroad, the
railroad could be subject to civil penalties or other enforcement
action if it then failed to comply with the part 271 requirements. It
is important to ensure that voluntarily-compliant railroads meet the
regulatory requirements because information compiled or collected
pursuant to a voluntarily-compliant RRP would be protected from
discovery or disclosure in litigation under proposed Sec. 271.11. If
the RRP information for a voluntarily-compliant railroad is protected,
FRA believes such a railroad should be subject to civil penalties or
other enforcement action for failing to comply with part 271. FRA
specifically requests public comment on this proposal.
Paragraph (b) would specify that a voluntarily-compliant railroad
would be required to comply with this part 271's requirements for a
minimum period of five years, running from the date on which FRA
approves the railroad's RRP plan. As explained above regarding
railroads with inadequate safety performance, FRA believes that a
minimum five-year period may provide time for a railroad to realize the
safety improvements and benefits associated with its RRP investment.
Under proposed paragraph (c), a voluntarily-compliant railroad would be
able to petition FRA for approval to discontinue compliance with this
part after the end of this five-year period. Any such petition would
have to be filed in accordance with the procedures for waivers
contained in 49 CFR part 211. This NPRM is not proposing any specific
standards for the granting of such petitions other than what are
currently found in part 211. FRA requests public comment, however, on
whether it should establish such standards and, if so, what those
standards should consist of. Furthermore, as with inadequate safety
performance railroads, FRA specifically requests public comment on
whether the minimum five-year compliance period should run from the
date that a railroad's RRP is fully implemented, in order to provide
more time for the RRP to have a significant effect on the railroad's
safety.
Paragraph (d) would provide that the information protection
provisions of proposed Sec. 271.11 (Discovery and admission as
evidence of certain information) would not apply to information that
was compiled or collected pursuant to a voluntarily-compliant RRP that
was not conducted in accordance with the provisions of this part 271.
As discussed in the section-by-section analysis for Sec. 271.11,
voluntary risk reduction programs (such programs generated as part of a
Short Line Safety Institute) would have to fully comply with an RRP
final rule in order for the information generated to be protected from
discovery and use as evidence in litigation.
During the RSAC process, FRA and the RRP Working Group discussed
the possibility of permitting Class II or Class III railroads not
otherwise required to comply with this proposed rule to voluntarily
comply with an SSP rule instead of an RRP rule. While not proposed in
this NPRM, as an SSP rule has not been finalized, FRA is specifically
requesting public comment on whether railroads should be permitted to
voluntarily comply with an SSP rule. The FRA may elect to either
include such an approach in an RRP final rule or to amend an SSP final
rule to provide for such.
Subpart B--Risk Reduction Program Requirements
Subpart B would contain the basic elements of an RRP required by
the proposed rule. The proposed rule would provide a railroad
significant flexibility in developing and implementing an RRP.
Section 271.101--Risk Reduction Programs
Proposed Sec. 271.101 would contain general requirements regarding
RRPs. Paragraph (a)(1) would require railroads to establish and fully
implement an RRP meeting the requirements of this part 271. As
specified by the RSIA, an RRP must systematically evaluate safety
hazards on a railroad's system and manage risks associated with those
hazards to reduce the number and rates of railroad accidents/incidents,
injuries, and fatalities. See 49 U.S.C. 20156(a)(1)(A). FRA intends for
an RRP to be scalable based upon the size of a railroad. For example, a
large railroad would not be expected to identify every safety hazard on
its system, but could take a more focused and project specific view of
safety hazard identification. A railroad with a smaller system (e.g., a
Class II or III railroad determined to have inadequate safety
performance), however, might be asked to take a closer look at specific
safety hazards.
Paragraph (a) also clarifies that an RRP must be an ongoing program
that supports continuous safety improvement. A railroad that conducts a
one-time risk-based hazard analysis and does nothing further after
addressing the results of that analysis will not have established a
compliant RRP. Paragraph (a) would also list the necessary components
that an RRP must contain, including: (1) A risk-based hazard management
program (described in Sec. 271.103); (2) a safety performance
evaluation component (described in Sec. 271.105); (3) a safety
outreach component (described in Sec. 271.107); (4) a technology
analysis and technology implementation plan (described in Sec.
271.109); and (5) RRP implementation and support training (described in
Sec. 271.111).
Paragraph (b) would require a railroad's RRP to be supported by an
RRP plan, meeting the requirements of
[[Page 10970]]
proposed subpart C, that has been approved by FRA.
Paragraph (c) would address railroads subject to the RRP rule that
host passenger train service for passenger railroads subject to the
requirements of the proposed SSP rule. Under Sec. 270.103(a)(2) of the
proposed SSP rule, a passenger railroad must communicate with each host
railroad to coordinate the portions of its SSP plan that are applicable
to the host railroad. Paragraph (c) would require a host railroad, as
part of its RRP, to participate in this communication and coordination
with the passenger railroad.
Paragraph (d) would require a railroad to ensure that persons
utilizing or performing on its behalf a significant safety-related
service support and participate in the railroad's RRP. Such persons
would include entities such as host railroads, contract operators,
shared track/corridor operators, or other contractors utilizing or
performing significant safety-related services, and must be identified
by the railroad in its RRP plan pursuant to proposed Sec. 271.205(b).
Section 271.103--Risk-Based Hazard Management Program
This proposed section would contain the requirements for each risk-
based hazard management program (HMP). Proposed Sec. 271.103(a)(1)
would require a railroad's RRP to include a risk-based HMP that
proactively identifies hazards and mitigates the risks associated with
those hazards. A risk-based HMP must be integrated, system-wide, and
ongoing. The scope of a risk-based HMP would be scalable based upon the
size and extent of the railroad's system.
Paragraph (a)(2) proposes that a risk-based HMP must be fully
implemented (i.e., activities initiated) within 36 months after FRA
approves a railroad's RRP plan. Full implementation means that a
railroad should have completed its risk analysis and begun mitigation
strategies within 36 months of plan approval. If a railroad elects to
test a mitigation strategy in a pilot project (as permitted by proposed
Sec. 271.103(c)(2)), ``fully implemented'' means that the pilot
project must be fully operational within 36 months.
Paragraph (b) would state that a railroad must conduct a risk-based
hazard analysis as part of its risk-based HMP. The types of principles
and processes that inform a successful risk-based hazard analysis have
already been well-established by programs previously discussed in this
preamble, such as MIL-STD-882, APTA's ``Manual for the Development of
System Safety Program Plans for Commuter Railroads'', and FRA's
``Collision Hazard Analysis Guide.'' A railroad subject to a final RRP
rule could use any of these programs for guidance on how to conduct a
risk-based hazard analysis, pursuant to FRA's approval of the processes
in the railroad's RRP plan under proposed Sec. 271.211. As described
in the ``Collision Hazard Analysis Guide,'' a risk-based hazard
analysis is performed to identify hazardous conditions for the purpose
of mitigation, and could include several analysis techniques applied
throughout the lifetime of an RRP. See ``Collision Hazard Analysis
Guide'' at 8. A full hazard analysis could consist of various analyses,
including a Preliminary Hazard Analysis, Failure Modes and Effects
Analysis, Operating Hazard Analysis, and others, although existing
operations already designed, built, and operating may not require all
these analyses. Id. FRA specifically requests public comment regarding
what type of additional guidance would help railroads comply with the
requirements of this proposed section.
Paragraph (b) specifies that, at a minimum, a risk-based hazard
analysis must address the following components of a railroad's system:
Infrastructure; equipment; employee levels and work schedules;
operating rules and practices; management structure; employee training;
and other areas impacting railroad safety that are not covered by
railroad safety laws or regulations or other Federal laws or
regulations.
While the RSIA directed railroads to address safety culture in
their risk-based hazard analyses, FRA chose not to be prescriptive
regarding this requirement, as prescribing how risk-based hazard
analysis would identify hazards generated by a safety culture would be
difficult. FRA would require railroads to measure their safety culture,
however, in proposed Sec. 271.105(a), and believes that this proposed
approach would adequately address any related safety concerns presented
by a railroad's safety culture. With respect to measuring safety
culture, the proposed rule would permit railroads to identify the
safety culture measurements methods that they find most effective and
appropriate to their local conditions. When measuring safety culture,
FRA would expect a railroad to use a method that was capable of
correlating a railroad's safety culture with actual safety outcomes.
For example, such measurement methods could include surveys that assess
safety culture using validated scales, or some other method or
measurement that accurately identifies aspects of the railroad's safety
culture that correlate to safety outcomes. Ultimately, FRA would expect
a railroad to demonstrate that improvements in the measured aspects of
safety culture would reliably lead to reductions in accidents,
injuries, and fatalities. FRA requests public comment on how a railroad
should measure its safety culture as part of its RRP.
As further described in paragraph (b), a risk-based hazard analysis
must identify hazards by analyzing the following: (1) Various aspects
of the railroad's system (including any operational changes, system
extensions, or system modifications); and (2) accidents/incidents,
injuries, fatalities, and other known indicators of hazards (such as
data compiled from a close call reporting program). A railroad must
then calculate risk by determining and analyzing the likelihood and
severity of potential events associated with the identified hazards.
These risks must then be compared and prioritized for the purpose of
mitigation.
Paragraph (c)(1) would require a railroad, based on its risk-based
HMP, to design and implement mitigation strategies that improve safety
by mitigating or eliminating aspects of a railroad's system that
increase risks identified in the risk-based hazard analysis and
enhancing aspects of a railroad's system that decrease risks identified
in the risk-based hazard analysis. As provided in proposed paragraph
(c)(2), a railroad could use pilot projects (including those conducted
by other railroads) to determine whether quantitative data suggests
that a particular mitigation strategy has potential to succeed on a
full-scale basis. FRA anticipates that railroads will design and
implement mitigation strategies that are either cost-beneficial or
cost-neutral. FRA requests public comment on this assumption. FRA is
specifically interested in the experience of any railroads that may
have already utilized risk reduction strategies, and whether or not
such railroads have realized cost benefits from the design and
implementation of risk mitigation strategies. In railroads'
experiences, how much have mitigation strategies related to risk
reduction activities cost?
As discussed above in the analysis of the purpose and scope
provisions of proposed Sec. 271.1, FRA does not intend the proposed
regulation to address hazards and risks that are completely unrelated
to railroad safety and that would fall directly under the jurisdiction
of either OSHA or the EPA. FRA would not, therefore, expect a risk-
based HMP to address hazards and risks that go beyond the limits of
FRA's railroad safety jurisdiction. A risk-based
[[Page 10971]]
HMP should, however, include railroad safety hazards and risks that
could result in damage to the environment, such as a derailment that
could result in a hazardous materials release. In such situations, the
underlying hazard or risk would fall within FRA's railroad safety
jurisdiction. FRA seeks public comment on whether this section should
include a statement clarifying the railroad safety scope of the risk-
based HMP.
Additionally, the proposed regulation does not define a level of
risk that railroads must target with their risk-based HMPs. FRA's
Passenger Equipment Safety Standards require passenger railroads,
however, when procuring new passenger cars and locomotives, to ensure
that fire safety considerations and features in the design of the
equipment reduce the risk of personal injury caused by fire to an
acceptable level using a formal safety methodology such as MIL-STD-882.
See 49 CFR 238.103(c). Passenger railroads operating Tier II passenger
equipment are also required to eliminate or reduce risks posed by
identified hazards to an acceptable level. See 49 CFR 238.603(a)(3).
FRA seeks comment on whether a final RRP rule should define levels of
risks that a railroad's risk-based HMP must target.
Section 271.105--Safety Performance Evaluation
This section would contain requirements for safety performance
evaluations. Safety performance evaluation is a necessary part of a
railroad's RRP because it determines whether the RRP is effectively
reducing risk. It also monitors the railroad's system to identify
emerging or new risks. In this sense, it is essential for ensuring that
a railroad's RRP is an ongoing process, and not merely a one-time
exercise.
Paragraph (a) would require a railroad to develop and maintain
ongoing processes and systems for evaluating the safety performance of
a railroad's system. A railroad must also develop and maintain
processes and systems for measuring its safety culture. For example, a
railroad could measure its safety culture by surveying employees and
management to establish an initial baseline safety culture, and then
comparing that initial baseline to subsequent surveys. FRA would give a
railroad substantial flexibility, however, to decide which safety
culture measurement was the best fit for the organization. FRA's
primary concern would be that the selected measurement would provide a
way to demonstrate that an improvement in the safety culture
measurement would reliably lead to a corresponding improvement in
safety. Overall, a safety performance evaluation would consist of both
a safety monitoring and a safety assessment component.
Paragraph (b) would establish the safety monitoring component by
requiring a railroad to monitor the safety performance of its system.
At a minimum, a railroad must do so by establishing processes and
systems for acquiring safety data and information from the following
sources: (1) Continuous monitoring of operational processes and systems
(including any operational changes, system extensions, or system
modifications); (2) periodic monitoring of the operational environment
to detect changes that may generate new hazards; (3) investigations of
accidents/incidents, injuries, fatalities, and other known indicators
of hazards; (4) investigations of reports regarding potential non-
compliance with Federal railroad safety laws or regulations, railroad
operating rules and practices, or mitigation strategies established by
the railroad; and (5) a reporting system through which employees can
report safety concerns (including, but not limited to, hazards, issues,
occurrences, and incidents) and propose safety solutions and
improvements. The requirement for a reporting system would not require
a railroad to establish an extensive program like FRA's Confidential
Close Call Reporting System (C3RS). Rather, a railroad would have
substantial flexibility to design a reporting system best suited to its
own organization (or, if a railroad already has some sort of reporting
system, to modify it to meet the needs of the railroad's RRP). For
example, a railroad could decide whether or not it wanted its reporting
system to be confidential or non-punitive.\13\ Or, in the alternative,
the reporting system could be something as simple as a suggestion box
made available to employees.
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\13\ If a railroad elected to use a reporting system that was
non-punitive in nature, FRA would expect it to contain certain
limitations that would prevent the system from becoming a way for
railroad employees to completely avoid culpability for any type of
wrongdoing, such as willful misconduct. For example, FRA's C3RS
pilot programs do not protect an employee from discipline under
certain circumstances, including when: The employee's action or lack
of action was intended to damage property, injure individuals, or
place others in danger; the employee's action or lack of action
involved a criminal defense; and the event resulted in an
identifiable release of hazardous materials. FRA would expect any
railroad non-punitive reporting system to have similar limitations.
---------------------------------------------------------------------------
Paragraph (c) would establish the safety assessment component, the
purpose of which is to assess the need for changes to a railroad's
mitigation strategies or overall RRP. To do so, a railroad must
establish processes to analyze the data and information collected
pursuant to the safety monitoring component of this section, as well as
any other relevant data regarding the railroad's operations, products,
and services. At a minimum, this safety assessment must: (1) Evaluate
the overall effectiveness of the railroad's RRP in reducing the number
and rates of railroad accidents/incidents, injuries, and fatalities;
(2) evaluate the effectiveness of the railroad's RRP in meeting the
goals described in its RRP plan pursuant to proposed Sec. 271.203(c);
(3) evaluate the effectiveness of risk mitigations in reducing the risk
associated with an identified hazard (any hazards associated with
ineffective mitigation strategies would be required to be reevaluated
through the railroad's risk-based HMP); and (4) identify new,
potential, or previously unknown hazards, which shall then be evaluated
by the railroad's risk-based HMP.
Section 271.107--Safety Outreach
This section contains requirements regarding the safety outreach
component of an RRP. Under proposed paragraph (a), an RRP must include
a safety outreach component that communicates RRP safety information to
railroad personnel (including contractors) as that information is
relevant to their positions. At a minimum, a safety outreach program
must: (1) Convey safety-critical information; (2) explain why RRP-
related safety actions are taken; and (3) explain why safety procedures
are introduced or changed.
Railroads should note that this section imposes only a general
education and communication requirement (similar to a briefing), and
not a training curriculum requirement that would require railroads to
test and qualify employees on the information conveyed. The focus of
this section would be limited to outreach and safety awareness. A
limited one-time RRP training requirement for railroad employees who
have significant responsibility for implementing and supporting a
railroad's RRP is contained in proposed Sec. 271.111, discussed below.
Furthermore, this section would only require a railroad to communicate
RRP safety information that is relevant to an employee's position. For
example, a railroad could be expected to notify railroad employees of a
mitigation strategy that is being implemented that requires employee
participation (e.g., a close call program). A railroad would also have
to communicate safety information to employees who worked
[[Page 10972]]
in the implementation and support of the RRP, in addition to providing
these employees the implementation and support training proposed in
Sec. 271.111. For example, a railroad would be expected to communicate
the effect the RRP was having on the railroad's overall safety
performance to employees who implemented and supported the railroad's
RRP. This section would not, however, require a railroad to train all
employees on RRP requirements and principles. This section would also
not require a railroad to provide employees any sort of job-specific
training.
Paragraph (b) would require a railroad to report the status of
risk-based HMP activities to railroad senior management on an ongoing
basis. A railroad would have flexibility in its RRP plan to specify
what ``ongoing basis'' means.
Section 271.109--Technology Analysis and Technology Implementation Plan
This section would implement the RSIA requirement that an RRP
include a technology analysis and a technology implementation plan. See
49 U.S.C. 20156(e).
Paragraph (a) would require a Class I railroad to conduct a
technology analysis and to develop and adopt a technology
implementation plan no later than three years after the publication
date of the final rule. A railroad with inadequate safety performance
shall conduct a technology analysis and develop and adopt a technology
implementation plan no later than three years after receiving final
written notification from FRA that it shall comply with this part,
pursuant to Sec. 271.13(e), or no later than three years after the
publication date of the final rule, whichever is later. A railroad that
the STB reclassifies or newly classifies as a Class I railroad shall
conduct a technology analysis and develop or adopt a technology
implementation plan no later than three years following the effective
date of the classification or reclassification or no later than three
years after the effective date of the final rule, whichever is later. A
voluntarily-compliant railroad shall conduct a technology analysis and
develop and adopt a technology implementation plan no later than three
years after FRA approves the railroad's RRP plan. It is important to
note that the technology implementation plan needs to be adopted within
three years of the various events described in paragraph (a), not
necessarily the actual technology. FRA understands that certain
technologies may take longer than three years to properly implement,
and the three year timeline in paragraph (a) does not apply to this
technology. FRA would, however, expect a railroad to implement
technology in a timely manner consistent with its implementation plan.
Further, as addressed by paragraph (d), if a railroad implements
technology pursuant to 49 CFR part 236, subpart I (Positive Train
Control Systems), the railroad is required to comply with the timeline
set forth in RSIA.
Under paragraph (b), a technology analysis must evaluate current,
new, or novel technologies that may mitigate or eliminate hazards and
the resulting risks identified through the risk-based hazard management
program. The railroad would analyze the safety impact, feasibility, and
costs and benefits of implementing technologies that will mitigate or
eliminate hazards and the resulting risks. At a minimum, a technology
analysis must consider processor-based technologies, positive train
control (PTC) systems, electronically-controlled pneumatic brakes, rail
integrity inspection systems, rail integrity warning systems, switch
position monitors and indicators, trespasser prevention technology, and
highway-rail grade crossing warning and protection technology. FRA
specifically requests public comment on whether a technology analysis
should be required to consider additional technologies, or whether some
of the proposed technologies do not need to be addressed by the
technology analysis.
Under paragraph (c), a railroad must develop, and periodically
update as necessary, a technology implementation plan that contains a
prioritized implementation schedule describing the railroad's plan for
development, adoption, implementation, maintenance, and use of current,
new, or novel technologies on its system over a 10-year period to
reduce safety risks identified in the railroad's risk-based HMP. A
railroad would not be required to include a certain number or type of
technology in its plan, as this will depend upon the identified
hazards. As proposed, the phrase ``periodically update as necessary''
means that a railroad's plan must be ongoing and continuous, rather
than a one-time exercise. When a railroad updates its plan, it would be
required to do so in a way that extended the plan 10 years from the
date of the update. FRA is specifically requesting public comment on
whether the phrase ``as necessary'' should be replaced by a definite
requirement for a railroad to update its plan after a specific period
of time. If so, how long should this time period be? For example,
should a railroad be required to update its technology implementation
plan annually?
Paragraph (d) would state that, except as required by 49 CFR part
236, subpart I (Positive Train Control Systems), if a railroad decides
to implement a PTC system as part of its technology implementation
plan, the railroad shall set forth and comply with a schedule that
would implement the system no later than December 31, 2018, as required
by the RSIA. See 49 U.S.C. 20156(e)(4)(B). However, this paragraph
would not, in itself, require a railroad to implement a PTC system. In
addition, FRA specifically seeks public comment on whether a railroad
electing to implement a PTC system would find it difficult to meet the
December 31, 2018 implementation deadline. If so, what measures could
be taken to assist a railroad struggling to meet the deadline and
achieve the safety purposes of the statute?
Section 271.111--Implementation and Support Training
This proposed section would require a railroad to provide RRP
training to each employee who has significant responsibility for
implementing and supporting the railroad's RRP. This proposed training
requirement would apply to any employee with such responsibility,
including an employee of a person identified by a railroad's RRP plan
under proposed Sec. 271.205(a)(3) as utilizing or performing
significant safety-related services on the railroad's behalf. While
railroads will have some flexibility in identifying which employees
have significant RRP responsibilities, the following two categories of
employees are examples of who should be included: (1) Employees who
hold positions of safety leadership (e.g., corporate safety and
operations officers); and (2) employees whose job duties primarily
relate to developing and implementing an RRP (e.g., employees tasked
with conducting the mandatory risk-based hazard analysis or
implementing mitigation measures). Railroad operating employees whose
jobs are only tangentially related to RRP, such as locomotive engineers
or dispatchers, would not be expected to have RRP training. FRA
specifically requests public comment regarding which railroad employees
should be provided RRP training.
This training would help ensure that personnel with significant RRP
responsibilities are familiar with the elements of the railroad's
program and have the knowledge and skills needed to fulfill their
responsibilities. While this training requirement was not contained in
the ``Recommendations to the Administrator'' document voted on by the
RSAC RRP Working Group, FRA
[[Page 10973]]
believes the requirement is necessary to ensure the effectiveness of a
railroad's RRP.\14\ A railroad's RRP can be successful only if those
who are responsible for implementing and supporting the program
understand the requirements and goals of the program. Including an RRP
training component in this NPRM is also necessary because such RRP
training would not otherwise be required by FRA's training standards
rule, published on November 7, 2014. See 79 FR 66460. In general, the
training standards rule requires a railroad to develop and submit for
FRA approval a training program for ``safety-related railroad
employees.'' Id. Section 243.5 defines a ``safety-related railroad
employee'' as follows:
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\14\ A training component is also included in the SSP NPRM,
published September 7, 2012. See 77 FR 55386-55387, 55404-55405.
While the proposed RRP training requirement shares similarities with
the SSP proposal, it has been modified to reflect what FRA believes
to be the different training needs of the freight railroad industry.
Safety-related railroad employee means an individual who is
engaged or compensated by an employer to: (1) Perform work covered
under the hours of service laws found at 49 U.S.C. 21101, et seq.;
(2) Perform work as an operating railroad employee who is not
subject to the hours of service laws found at 49 U.S.C. 21101, et
seq.; (3) In the application of parts 213 and 214 of this chapter,
inspect, install, repair, or maintain track, roadbed, and signal and
communication systems, including a roadway worker or railroad bridge
worker as defined in Sec. 214.7 of this chapter; (4) Inspect,
repair, or maintain locomotives, passenger cars or freight cars; (5)
Inspect, repair, or maintain other railroad on-track equipment when
such equipment is in a service that constitutes a train movement
under part 232 of this chapter; (6) Determine that an on-track
roadway maintenance machine or hi-rail vehicle may be used in
accordance with part 214, subpart D of this chapter, without repair
of a non-complying condition; (7) Directly instruct, mentor,
inspect, or test, as a primary duty, any person while that other
person is engaged in a safety-related task; or (8) Directly
supervise the performance of safety-related duties in connection
---------------------------------------------------------------------------
with periodic oversight in accordance with Sec. 243.205.
Because this definition focuses on railroad operating employees and
those who directly train and supervise them, FRA assumes that it would
not include the typical railroad employee who has significant
responsibility for implementing and supporting a railroad's RRP, as FRA
believes it is unlikely that employees with significant RRP
responsibilities would also be engaged in performing operational duties
or directly training or supervising those who do.\15\ Therefore,
railroad employees with significant RRP responsibilities are not likely
to be covered by the requirements in the training standards final rule.
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\15\ Furthermore, even if an RRP employee performed duties that
fell within the proposed definition of ``safety-related railroad
employee,'' the training standards NPRM only proposed to require
training for a safety-related railroad employee to the extent that
he or she is required to comply with a Federal mandate. See 77 FR
6420. For example, a railroad employee who is expected to perform
any of the inspections, tests, or maintenance required by 49 CFR
part 238 would be required to be trained in accordance with all
Federal requirements for that work. Id. Because the RRP regulation
proposed in this NPRM is performance-based and focuses on process,
FRA would not consider it as containing specific mandates for the
way in which a railroad employee with significant RRP responsibility
has to perform his or her RRP duties. Therefore, even if an RRP
employee also qualified as a ``safety-related railroad employee''
under the proposed training standards rule, the proposed training
standards rule would not subject the employee to any additional RRP
training requirement. FRA believes it would be inconsistent to apply
the proposed training standards rule to some RRP employees and not
others, based solely upon whether the employee performed safety-
related duties that were subject to the training standards rule but
otherwise unrelated to RRP.
---------------------------------------------------------------------------
FRA is specifically requesting public feedback on this proposed RRP
implementation and support training requirement. What topics should RRP
implementation and support training cover? (For example, should
employees with significant RRP responsibilities be trained in the
principles and requirements of a final rule?) Also, should periodic or
refresher training be provided?
Subpart C--Risk Reduction Program Plan Requirements
Subpart C would contain proposed requirements for RRP plans.
Section 271.201--General
Proposed Sec. 271.201 would require a railroad to adopt and
implement its RRP through a written RRP plan meeting the requirements
of subpart C. This plan must be approved by FRA according to the
requirements of subpart D.
Section 271.203--Policy, Purpose and Scope, and Goals
Proposed Sec. 271.203 would contain requirements for policy,
purpose and scope, and goals statements for an RRP plan. Under
paragraph (a), an RRP plan must contain a policy statement, signed by
the railroad's chief official (e.g., Chief Executive Officer),
endorsing the railroad's RRP. This signature endorsement would indicate
that the railroad's chief official has reviewed and supports the policy
statement, thereby demonstrating the importance of safety to the
railroad. The RSAC Working Group recommended that FRA allow the safety
policy statement to be signed by the railroad's chief safety officer.
Prior experience with effective risk management programs, however, has
demonstrated to FRA the importance of the active involvement of the
highest officials in improving safety and safety culture. For this
reason, FRA has determined that the chief official at the railroad
should sign the safety policy. The policy statement should endorse the
railroad's RRP and include a commitment to implement and maintain the
RRP, as well as a commitment to the management of safety risk and a
commitment to continuously seek improvements in the level of safety.
Paragraph (b) would require an RRP plan to include a statement
describing the purpose and scope of the railroad's RRP. This statement
must describe the railroad's safety philosophy and safety culture. A
safety philosophy is what a railroad thinks about safety, while a
safety culture is the railroad's practices and behaviors with respect
to safety. This statement must also describe how the railroad promotes
improvements to its safety culture, the roles and responsibilities of
railroad personnel (including management) within the railroad's RRP,
and how any person utilizing or performing on a railroad's behalf
significant safety-related services (including host railroads, contract
operators, shared track/corridor operators, or other contractors) will
support and participate in the railroad's RRP.
Under paragraph (c), an RRP plan must contain a statement defining
the railroad's goals for an RRP and describing clear strategies for
reaching those goals. The central goal of an RRP is to manage or
eliminate hazards and the resulting risks to reduce the number and
rates of railroad accidents, incidents, injuries, and fatalities. FRA
believes one way to achieve this central goal is for a railroad to set
forth goals that are designed in such a way that when the railroad
achieves these goals, the central goal is achieved as well. These goals
may not be merely vague aspirations towards general safety improvement.
Rather, as described further below, the goals must be long-term,
meaningful, measurable, and focused on the mitigation of risks
associated with identified safety hazards.
Long-term: Goals must be long-term so that they are
relevant to the railroad's RRP. This does not mean that goals cannot
have relevance in the short-term. Rather, goals must have significance
beyond the short-term and must continue to contribute to the RRP.
Meaningful: Goals must be meaningful so that they are not
so broad
[[Page 10974]]
that they cannot be attributed to specific aspects of the railroad's
operations. The desired results must be specific and must have a
meaningful impact on safety.
Measurable: Goals must be measurable so that they are
designed in such a way that it is easily determined whether each goal
is achieved or at least progress is being made to achieve the goal. A
measurable goal is one which is supported by specific measurable
objectives, which address activities and outcomes that help achieve the
goals.
The goals must be consistent with the overall goal of the
RRP, in that they must be focused on the mitigation of risks arising
from identified safety hazards.
For example, a railroad could have goals such as reducing the
number of incidents involving run-through switches, reducing the number
of injuries due to distraction, increasing the number of days between
minor derailments, or identifying and eliminating or mitigating
hazardous conditions with a railroad's processes and operations. Such
goals must be supported by specific, measurable objectives. For
example, the goal of identifying and eliminating or mitigating
hazardous conditions with a railroad's processes and operations could
be supported by the following objectives: (1) Increase safety hazard
reporting by 10 percent over the next year; and (2) initiate mitigation
of all unacceptable hazards within a certain numbers of months
following the risk-based hazard analysis. Whatever the goal, there
should be a specific measurable objective associated with it, and once
mitigation has enabled a railroad to reach that goal, resources should
be allowed to shift from mitigation to maintenance. This goal
specificity is necessary so that a railroad may be able to determine
whether its RRP is meeting these goals and effectively improving
safety. Furthermore, the statement required by proposed paragraph (c)
must describe clear strategies on how the railroad will achieve these
goals. These strategies will be the railroad's opportunity to provide
its vision on how these particular goals will ultimately reduce the
number and rates of railroad accidents, incidents, injuries, and
fatalities.
Section 271.205--System Description
This section would require an RRP plan to include a statement
describing the characteristics of the railroad system. This section
would not, however, require a railroad to describe every facet of its
system in minute detail. Rather, the description should be sufficient
to support the identification of hazards by establishing a basic
understanding of the scope of the railroad's system. For example, the
description should contain information such as the general geographic
scope of the railroad's system, the total miles of track that the
railroad operates, and which track segments the railroad shares with
other railroads. More specifically, the statement must describe the
following:
A brief history of the railroad, including when and how
the railroad was established and the major milestones in the railroad's
history. Safety culture, operating rules, and practices have been
affected by railroad mergers and other significant events, and this
information will provide background as to the railroad's organizational
history and how it may have shaped the way in which the railroad
addresses safety risk;
The railroad's operations (including any host operations),
including the roles, responsibilities, and organization of the railroad
operating departments;
The scope of the service the railroad provides, including
the number of routes, the major types of freight the railroad
transports (including intermodal and hazardous materials), and their
respective traffic proportions. The railroad may also provide a system
map;
The physical characteristics of the railroad, including
the number of miles of track the railroad operates over, the number and
types of grade crossings the railroad operates over, and which track
segments the railroad shares with other railroads;
A brief description of the railroad's maintenance
activities and the type of maintenance required by the railroad's
operations and facilities;
Identification of the size and location of the railroad's
physical plant, including major physical assets such as maintenance
facilities, offices, and large classification yards; and
Any other aspects of the railroad pertinent to the
railroad's operations.
The system description must also identify all persons that utilize
or perform on the railroad's behalf significant safety-related services
(including entities such as host railroads, contract operations, shared
track/corridor operators, or other contractors). FRA would give a
railroad significant discretion to identify which persons utilize or
provide on its behalf significant safety-related services. In
interpreting this proposed provision, emphasis would be placed upon the
words ``significant'' and ``safety-related.'' FRA does not expect a
railroad to identify every contractor that provides services. For
example, a railroad would be expected to identify a signal contractor
that routinely performed services on its behalf, but not a contractor
hired on a one-time basis to pave a grade crossing. Generally, this
section would require identification of those persons whose significant
safety-related services or utilization would be affected by the
railroad's RRP.
Section 271.207--Consultation Process Description
Section 271.207 would implement section 103(g)(1) of the RSIA,
which states that a railroad required to establish an RRP must
``consult with, employ good faith and use its best efforts to reach
agreement with, all of its directly affected employees, including any
non-profit employee labor organization representing a class or craft of
directly affected employees of the railroad carrier, on the contents of
the safety risk reduction program.'' 49 U.S.C. 20156(g)(1). This
section would also implement section 103(g)(2) of the RSIA, which
further provides that if a ``railroad carrier and its directly affected
employees, including any nonprofit employee labor organization
representing a class or craft of directly affected employees of the
railroad carrier, cannot reach consensus on the proposed contents of
the plan, then directly affected employees and such organizations may
file a statement with the Secretary explaining their views on the plan
on which consensus was not reached.'' 49 U.S.C. 20156(g)(2). The RSIA
requires FRA to consider these views during review and approval of a
railroad's RRP plan.
As discussed above in section III.B of the preamble, the proposed
language is essentially identical to that proposed in the separate SSP
NPRM, published on September 7, 2012, except that it contains
additional language applying specifically to the unique situations of
railroads with inadequate safety performance, railroads that have been
reclassified or newly classified as Class I railroads by the STB, and
voluntarily-compliant railroads. While the RSAC did not provide
recommended language for this section, FRA worked with the System
Safety Task Group to receive input regarding how the consultation
process should be addressed, with the understanding that the language
would be provided in both the RRP and SSP NPRMs for review and comment.
Therefore, FRA seeks comment on this rule's proposal regarding the
consultation requirement set forth in sec. 103(g) of the RSIA.
Furthermore,
[[Page 10975]]
while this NPRM does not respond to comments already received in
response to the already-published SSP NPRM, FRA will consider comments
submitted to both the SSP and RRP NPRMs regarding the consultation
process requirements when developing an RRP final rule. FRA requests
comments on all aspects of the proposed provisions, and is specifically
interested in comment regarding the proposed timelines for meeting with
directly affected employees.
Paragraph (a)(1) would implement sec. 103(g)(1) of the RSIA by
requiring a railroad to consult with its directly affected employees on
the contents of its RRP plan, including any non-profit employee labor
organization representing a class or craft of the railroad's directly
affected employees. As part of that consultation, a railroad must
utilize good faith and best efforts to reach agreement with its
directly affected employees on the contents of its plan.
Paragraph (a)(2) would specify that a railroad that consults with a
non-profit employee labor organization is considered to have consulted
with the directly affected employees represented by that organization.
Paragraph (a)(3) would require a Class I railroad to meet with its
directly affected employees to discuss the consultation process no
later than 240 days after the publication date of the final rule. This
meeting will be the Class I railroads' and directly affected employees'
opportunity to schedule, plan, and discuss the consultation process.
FRA does not expect a Class I railroad to discuss any substantive
material until the information protection provisions of Sec. 271.11
become applicable. Rather, this initial meeting should be more
administrative in nature so that both parties understand the
consultation process as they go forward and so that they may engage in
substantive discussions as soon as possible after the applicability
date of Sec. 271.11. This will also be an opportunity to educate the
directly affected employees on risk reduction and how it may affect
them. The Class I railroad will be required to provide notice to the
directly affected employees no less than 60 days before the meeting is
scheduled.
Paragraph (a)(4) would require a railroad with inadequate safety
performance to meet no later than 30 days following FRA's notification
with its directly affected employees to discuss the consultation
process. The inadequate safety performance railroad would have to
notify the employees of this meeting no less than 15 days before it is
scheduled. Under paragraph (a)(5), a railroad reclassified or newly
classified by the STB would have to meet with its directly affected
employees to discuss the consultation process no later than 30 days
following the effective date of the classification or reclassification.
The reclassified or newly classified Class I railroad would also be
required to notify its directly affected employees of the meeting no
less than 15 days before it is scheduled. FRA specifically requests
public comment on whether this schedule allows railroads with
inadequate safety performance or reclassified or newly classified Class
I railroads sufficient time to consult with directly affected
employees.
Paragraph (a)(6) would clarify that while a voluntarily-compliant
railroad must also consult with its directly affected employees using
good faith and best efforts, there are no timeline requirements
governing when such meetings must take place.
Paragraph (a)(7) would direct readers to proposed appendix B for
additional guidance on how a railroad might comply with the
consultation requirements of this section. Appendix B is discussed
later in this preamble.
Paragraph (b) would require a railroad to submit, together with its
RRP plan, a consultation statement. The purpose of this consultation
statement would be twofold: (1) To help FRA determine whether the
railroad has complied with Sec. 271.207(a) by, in good faith,
consulting and using its best efforts to reach agreement with its
directly affected employees on the contents of its RRP plan; and (2) to
ensure that the directly affected employees with which the railroad has
consulted were aware of the railroad's submission of its RRP plan to
FRA for review. The consultation statement must contain specific
information described in proposed paragraphs (b)(1) through (4) of this
section.
Paragraph (b)(1) would require a consultation statement to contain
a detailed description of the process the railroad utilized to consult
with its directly affected employees. This description should contain
information such as (but not limited to) the following: (1) How many
meetings the railroad held with its directly affected employees; (2)
what materials the railroad provided its directly affected employees
regarding the draft RRP plan; and (3) how input from directly affected
employees was received and handled during the consultation process.
If the railroad is unable to reach agreement with its directly
affected employees on the contents of its RRP plan, paragraph (b)(2)
would require that the consultation statement identify any areas of
non-agreement and provide the railroad's explanation for why it
believed agreement was not reached. A railroad could specify, in this
portion of the statement, whether it was able to reach agreement on the
contents of its RRP plan with certain directly affected employees, but
not others.
If the RRP plan would affect a provision of a collective bargaining
agreement between the railroad and a non-profit employee labor
organization, paragraph (b)(3) would require the consultation statement
to identify any such provision and explain how the railroad's RRP plan
would affect it.
Under proposed paragraph (b)(4), the consultation statement must
include a service list containing the names and contact information for
the international/national president of any non-profit employee labor
organization representing directly affected employees and any directly
affected employee not represented by a non-profit employee labor
organization who significantly participated in the consultation
process. If an international/national president did not participate in
the consultation process, the service list must also contain the name
and contact information for a designated representative who
participated on his or her behalf. This paragraph would also require a
railroad (at the same time it submits its proposed RRP plan and
consultation statement to FRA) to provide individuals identified in the
service list a copy of the RRP plan and consultation statement.
Railroads could provide the documents to the identified individuals
electronically, or using other means of service reasonably calculated
to succeed (e.g., sending identified individuals a hyperlink to a copy
of the submitted RRP plan). This service list would help FRA determine
whether the railroad had complied with the Sec. 271.207(a) requirement
to consult with its directly affected employees. Requiring the railroad
to provide individuals identified in the service list with a copy of
its submitted plan and consultation statement would also notify those
individuals that they now have 60 days under Sec. 271.207(c)(2)
(discussed below) to submit a statement to FRA if they are not able to
come to reach agreement with the railroad on the contents of the RRP
plan.
Paragraph (c)(1) would implement sec. 103(g)(2) of the RSIA by
providing that, if a railroad and its directly affected employees
cannot reach agreement on the proposed contents of an RRP plan, then a
directly affected employee may file a statement with the
[[Page 10976]]
FRA Associate Administrator for Railroad Safety/Chief Safety Officer
explaining his or her views on the plan on which agreement was not
reached. See 49 U.S.C. 20156(g)(2). The FRA Associate Administrator for
Railroad Safety/Chief Safety Officer will consider any such views
during the plan review and approval process.
Paragraph (c)(2) would specify, as also provided in Sec.
271.301(a)(1), that a railroad's directly affected employees have 60
days following the railroad's submission of its proposed RRP plan to
submit the statement described in paragraph (c)(1) of this section. FRA
believes 60 days would provide directly affected employees sufficient
time to review a railroad's proposed RRP plan and to draft and submit
to FRA a statement if they were not able to come to agreement with the
railroad on the contents of that plan. In order to provide directly
affected employees the opportunity to submit a statement, FRA would not
approve or disapprove a railroad's proposed RRP plan before the
conclusion of this 60-day period.
Section 271.209--Consultation on Amendments
This section would describe the consultation requirements for
amendments to a railroad's RRP plan. Under this section, an RRP plan
would be required to include a description of the process the railroad
will use to consult with its directly affected employees on any
substantive amendments to the railroad's RRP plan. Examples of
substantive amendments could include the following: the addition of new
stakeholder groups (or the removal of a stakeholder group); major
changes to the processes employed, including changes to the frequency
of governing body meetings; or changing the organizational level of the
manager responsible for the RRP (e.g., changing from the Chief Safety
Officer to someone who reports to the Chief Safety Officer). Non-
substantive amendments could include changes that update any names or
addresses included in the plan. As with its initial RRP plan, a
railroad would be required to use good faith and best efforts to reach
agreement with directly affected employees on any substantive
amendments to that plan. Requiring a railroad to detail that process in
its plan would facilitate the consultation by establishing a known path
to be followed. A railroad that did not follow this process when
substantively amending its RRP plan could then be subject to penalties
for failing to comply with the provisions of its plan. This requirement
would not apply to non-substantive amendments (e.g., amendments
updating names and addresses of railroad personnel).
Section 271.211--Risk-Based Hazard Management Program Process
This section would require an RRP plan to describe the railroad's
process for conducting an HMP. As previously discussed, railroads could
look to well-established safety management systems for guidance on how
to describe the process for conducting an HMP, such as MIL-STD-882,
APTA's Manual for the Development of System Safety Program Plans for
Commuter Railroads, and FRA's Collision Hazard Analysis Guide. While
FRA understands that railroads subject to a final RRP rule would likely
need to develop processes unique to their own operations, FRA would
expect a railroad's HMP process to use techniques similar to those used
by these types of current safety management systems. FRA specifically
requests public comment on what type(s) of guidance could help a
railroad comply with the requirements of this proposed section.
This section also specifies certain information that must be
contained in an RRP plan's description of a railroad's HMP process.
Under paragraph (a), this description must specify: (1) The railroad's
processes for identifying hazards and the risks associated with those
hazards; (2) the sources the railroad will use to support the ongoing
identification of hazards and the risks associated with those hazards;
and (3) the railroad's processes for comparing and prioritizing the
identified risks for mitigation purposes.
Paragraph (b) would require an RRP plan to describe the railroad's
processes for identifying and selecting mitigation strategies and for
monitoring an identified hazard through the mitigation of the risk
associated with that hazard.
Section 271.213--Safety Performance Evaluation Process
This section would require an RRP plan to describe the railroad's
processes for measuring its safety culture pursuant to Sec. 271.105,
monitoring safety performance pursuant to Sec. 271.105(b), and
conducting safety assessments pursuant to Sec. 271.105(c). Regarding
the requirement for a railroad to describe its processes for measuring
safety culture, this would require a railroad's plan to explain its
definition of safety culture and how the railroad measures whether that
definition is being achieved. For example, a railroad could define the
parameters by which it measures its safety culture, and then measure
changes to its safety culture relative to that initial baseline.
Overall, FRA would give a railroad substantial flexibility in
determining what safety culture definition and measurement processes
worked best for its organization.
Section 271.215--Safety Outreach Process
This section would require an RRP plan to describe a railroad's
process for communicating safety information to railroad personnel and
management pursuant to Sec. 271.107.
Section 271.217--Technology Implementation Plan Process
This section would require an RRP plan to describe a railroad's
processes for conducting a technology analysis pursuant to Sec.
271.109(b) and for developing a technology implementation plan pursuant
to Sec. 271.109(c).
Section 271.219--Implementation and Support Training Plan
Paragraph (a) of this section would require an RRP plan to contain
a training plan describing the railroad's processes for training,
pursuant to Sec. 271.111, employees with significant responsibility
for implementing and supporting the RRP (including employees of a
person identified pursuant to Sec. 271.205(a)(3) as utilizing or
performing significant safety-related services on the railroad's behalf
who have significant responsibility for implementing and supporting the
railroad's RRP).
Paragraph (b) would require the training plan to specifically
describe the frequency and content of the RRP training for each
position or job function identified pursuant to Sec. 271.223(b)(3) as
having significant responsibilities for implementing the RRP.
Section 271.221--Internal Assessment Process
Paragraph (a) of this section would require an RRP plan to describe
a railroad's processes for conducting an internal assessment of its RRP
pursuant to proposed subpart E. At a minimum, this description must
contain the railroad's processes for: (1) Conducting an internal RRP
assessment; (2) internally reporting the results of its internal
assessment to railroad senior management; and (3) developing
improvement plans, including developing and monitoring recommended
improvements (including any necessary revisions or updates to its RRP
plan) for fully implementing its RRP, complying with the implemented
elements of the RRP plan, or achieving the goals identified in the
railroad's RRP
[[Page 10977]]
plan pursuant to Sec. 271.203(c). Paragraph (b) would be reserved.
Section 271.223--RRP Implementation Plan
Paragraph (a) of this section would require an RRP plan to describe
how the railroad would implement its RRP. A railroad may implement its
RRP in stages, so long as the RRP is fully implemented within 36 months
of FRA's approval of the plan. Under paragraph (b), this implementation
plan must cover the entire implementation period and contain a timeline
(beginning with the date FRA approved the railroad's RRP plan)
describing when certain specific and measurable implementation
milestones will be achieved. The implementation plan must also describe
the roles and responsibilities of each position or job function with
significant responsibility for implementing the railroad's RRP or any
changes to the railroad's RRP (including any such positions or job
functions held by an entity or contractor that utilizes or performs on
the railroad's behalf significant safety-related services). An
implementation plan must also describe how significant changes to the
railroad's RRP will be made.
Subpart D--Review, Approval, and Retention of Risk Reduction Program
Plans
The RSIA requires a railroad to submit its RRP, including any of
the required plans, to the Administrator (as delegate of the Secretary)
for review and approval. See 49 U.S.C. 20156(a)(1)(B). Subpart D,
Review, Approval, and Retention of System Safety Program Plans, would
contain requirements addressing this mandate.
Section 271.301--Filing and Approval
This section would contain requirements for the filing of an RRP
plan and FRA's approval process.
Paragraph (a) would require a Class I railroad to submit one copy
of its RRP plan to the FRA Associate Administrator for Railroad Safety/
Chief Safety Officer no later than 545 days after the publication date
of the RRP final rule. A railroad with inadequate safety performance
would be required to submit its RRP plan no later than 90 days after it
receives final written notification from FRA that it is required to
comply with the RRP rule pursuant to proposed Sec. 271.13(e), or no
later than 545 days after the publication date of the RRP final rule,
whichever is later. A railroad that the STB reclassifies or newly
classifies as a Class I railroad shall submits its RRP plan no later
than 90 days following the effective date of the classification or
reclassification, or no later than 545 days after the publication date
of the RRP final rule, whichever is later. A voluntarily-compliant
railroad could submit an RRP plan at any time. FRA specifically
requests public comment on whether electronic submission of an RRP plan
should be permitted and, if so, what type of process FRA should use to
accept such submissions.
A railroad would be required to provide certain additional
information as part of its submission. Under paragraph (a)(1), a
submitted RRP plan would be required to include the signature, name,
title, address, and telephone number of the chief official responsible
for safety and who bears the primary managerial authority for
implementing the submitting railroad's safety policy. By signing, the
chief official responsible for safety is certifying that the contents
of the RRP plan are accurate and that the railroad will implement the
contents of the program as approved by FRA.
Paragraph (a)(2) would require a submitted RRP plan to contain the
contact information for the primary person responsible for managing the
RRP for the railroad. This person may be the same person as the chief
official responsible for safety and who bears the primary managerial
authority for implementing the submitting railroad's safety policy. If
it is not the same person, however, the contact information for both
must be provided. The contact information for the primary person
managing the RRP is necessary so that FRA knows who to contact
regarding any issues with the railroad's RRP.
Under paragraph (a)(3), the submitted RRP plan would have to
contain the contact information for the senior representatives of the
persons that the railroad has determined utilize or provide significant
safety-related services (including entities such as host railroads,
contract operators, shared track/corridor operators, and other
contractors). This contact information is necessary so that FRA is
aware of which persons will be involved in implementing and supporting
the railroad's RRP.
Finally, paragraph (a)(4) would reference proposed Sec. 271.207(b)
and require a railroad to submit the consultation statement describing
how it consulted with its directly affected employees on the contents
of the RRP plan. When the railroad provides the consultation statement
to FRA, proposed Sec. 271.207(b)(4) would also require the railroad to
provide a copy of the statement to directly affected employees
identified in a service list. Directly affected employees could then
file a statement within 60 days after the railroad filed its
consultation statement, as discussed in proposed Sec. 271.207(c).
Paragraph (b) would describe FRA's process for approving a
railroad's RRP plan. Within 90 days of receipt of an RRP plan, or
within 90 days of receipt of each RRP plan submitted prior to the
commencement of railroad operations, FRA would review the proposed RRP
plan to determine if the elements required by part 271 are sufficiently
addressed, and whether the processes and resources described by the
plan are sufficient to support effective implementation of the required
RRP elements. This review would also consider any statement submitted
by directly affected employees pursuant to proposed Sec. 271.207(c).
This process would involve continuous communication between FRA and the
railroad, and FRA intends to work with a railroad when reviewing its
plan and to keep directly affected employees informed of this process.
If this communication process results in substantively significant
changes to the railroad's submitted RRP plan, FRA may direct the
railroad to consult further with its directly affected employees before
FRA approves the plan.
Railroads should note the FRA will not be approving specific
mitigation measures as part of a railroad's RRP plan. Rather, a
railroad's RRP plan should only describe the processes and procedures
the railroad will use to develop and implement its RRP, including the
processes and procedures that will be used to identify and mitigate or
eliminate hazards and risks. FRA does not expect railroads to have
already identified and analyzed hazards and risks, and to have
developed specific mitigation strategies, at the time FRA approves the
railroad's RRP plan.
Once FRA determines whether a railroad's RRP plan complies with the
requirements of part 271, FRA would provide the railroad's primary
contact person written notification of whether the railroad's RRP plan
is approved or not. If FRA does not approve a plan, it would inform the
railroad of the specific points in which the plan is deficient. FRA
would also provide written notification to each individual identified
in the service list accompanying the consultation statement required
under proposed Sec. 271.207(b)(4). If a railroad receives notification
that the plan is not approved (including notification of the specific
points in which the plan is deficient), the railroad would have 60
[[Page 10978]]
days to correct all of the deficiencies and resubmit the plan to FRA.
If these corrections are substantively significant, FRA will inform the
railroad that it must consult further with its directly affected
employees about the corrections and submit an updated consultation
statement with its corrected RRP plan. Directly affected employees
would also be afforded the opportunity to submit a statement in
response to the substantively significant corrections. Directly
affected employees would not be given a second opportunity, however, to
address plan provisions that were unrelated to the substantively
significant corrections.
Paragraph (c) would specify that all documents required to be
submitted to FRA under this part may be submitted electronically
pursuant to the procedures in proposed appendix C to this part.
Section 271.303--Amendments
This section would address the process a railroad must follow
whenever it amends its FRA-approved RRP plan, regardless of whether the
amendments are substantive or non-substantive. If a railroad makes
substantive amendments, however, it would be required to follow the
process described in its RRP plan (pursuant to Sec. 271.209) for
consulting with its directly affected employees. A railroad must submit
the amended RRP plan to FRA not less than 60 days prior to the proposed
effective date of the amendment(s). Along with the amended RRP plan,
the railroad must also file a cover letter outlining the proposed
change(s) to the original, approved RRP plan. The cover letter should
provide enough information so that FRA knows what is being added or
removed from the original approved RRP. These requirements would not
apply if the proposed amendment is limited to adding or changing a
name, title, address, or telephone number of a person, although the
railroad would still be required to file the amended RRP plan with
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer.
Such amendments would be implemented by the railroad upon filing with
FRA.
FRA would review the proposed amended RRP plan within 45 days of
receipt. FRA would then notify the railroad's primary contact person
whether the amended plan has been approved. If the amended plan is not
approved, FRA would inform the railroad of the specific points in which
the proposed amendment is deficient. In some instances, FRA may not be
able to complete its review in 45 days. In these cases, if FRA fails to
timely notify the railroad, the railroad may implement the amendment(s)
to the plan, which may be subject to change once FRA completes its
review. Within 60 days of receiving notification from FRA that a
proposed amendment has not been approved, a railroad must provide FRA
either a corrected copy of the amendment, addressing all deficiencies
noted by FRA, or notice that the railroad is retracting the amendment.
(Railroads should note that a retracted amendment would be covered by
the information protections provisions of proposed Sec. 271.11, as the
amendment would have been information compiled for the sole purpose of
developing an RRP.) Through its general oversight, FRA may also
determine that amendments to the RRP plan are necessary. In these
cases, the FRA would follow the process set forth in proposed Sec.
271.305.
This section does not propose a provision for amendments that a
railroad may deem safety-critical. Because a railroad's RRP plan would
only explain the processes and procedures for the program, FRA is
uncertain whether a railroad would ever need to amend the plan in order
to address a specific safety-critical concern. Rather, FRA believes
that any such safety-critical concern would require changes in the way
the RRP is implemented and maintained, rather than changes in the
processes and procedures outlined in the plan. FRA is specifically
requesting public comment, however, on whether an RRP plan would ever
need to be amended in a way that is safety-critical, so that it would
be impractical for a railroad to submit the amendment 60 days before
its proposed effective date. If so, FRA would likely include in a final
rule a provision stating that a railroad must provide FRA a safety-
critical amendment as soon as possible, instead of 60 days before its
proposed effective date.
Section 271.305--Reopened Review
Proposed Sec. 271.305 would provide that, for cause stated, FRA
could reopen consideration of an RRP plan or amendment (in whole or in
part) after approval of the plan or amendment. For example, FRA could
reopen review if it determines that the railroad has not been complying
with its plan/amendment or if information has been made available that
was not available when FRA originally approved the plan or amendment.
The determination of whether to reopen consideration would be solely
within FRA's discretion and made on a case-by-case basis.
Section 271.307--Retention of RRP Plans
Proposed Sec. 271.307 would contain requirements related to a
railroad's retention of its RRP plan. A railroad would be required to
retain at its system and various division headquarters a copy of its
RRP plan and a copy of any amendments to the plan. A railroad may
comply with this requirement by making an electronic copy available.
The railroad must make the plan and any amendments available to
representatives of FRA or States participating under part 212 of this
chapter for inspection and copying during normal business hours.
In its tentative agreement document, the RSAC Working Group advised
FRA to permit only specific RRP-trained FRA representatives to have the
authority to request access to a railroad's RRP plan. FRA is not
including this suggestion in the proposed rule, however, because it has
concerns regarding how it could be implemented. For example, how could
a railroad know whether or not an FRA representative has been trained
in RRP? FRA also believes that rule text may not be the appropriate
place for such a distinction, as the question of which inspectors have
authority to conduct inspections is an internal FRA matter. FRA
nevertheless is specifically requesting public comment on both the
proposed rule text and the Working Group's suggestion, and the final
rule may contain the Working Group's suggestion. FRA would also be
interested in any suggested alternate approaches that may be included
in the final rule.
Subpart E--Internal Assessments
In order to help ensure that an RRP is properly implemented and
effective, a railroad would need to evaluate its program on an annual
basis. Subpart E would contain provisions requiring a railroad to
conduct an internal assessment of its RRP.
Section 271.401--Annual Internal Assessments
This section would describe the processes a railroad must use to
evaluate its RRP. Because this evaluation is an internal assessment, a
railroad could tailor the processes to its specific operations, and FRA
would work with the railroad to determine the best method to internally
measure the implementation and effectiveness of the railroad's RRP.
Paragraph (a) would require a railroad to conduct an annual (once
every calendar year) internal assessment of its RRP. If desired, a
railroad could audit
[[Page 10979]]
its program more than once a year. This internal assessment must begin
in the first calendar year after the calendar year in which FRA
approves the railroad's RRP plan. The internal assessment would
determine the extent to which the railroad has: (1) Achieved the
implementation milestones described in its RRP plan pursuant to
proposed Sec. 271.223(b); (2) complied with the elements of its
approved RRP plan that have already been implemented; (3) achieved the
goals described in its RRP plan pursuant to proposed Sec. 271.203(c);
(4) implemented previous internal assessment improvement plans pursuant
to proposed Sec. 271.403; and (5) implemented previous external audit
improvement plans pursuant to Sec. 271.503. A properly executed
internal assessment would provide the railroad with detailed knowledge
of the status of its program implementation and the degree to which the
program is effectively reducing risk. The railroad would be required to
ensure that the results of the assessment of these various elements are
internally reported to the railroad's senior management.
Section 271.403--Internal Assessment Improvement Plans
Paragraph (a) of this section would require a railroad, within 30
days of completing its internal assessment, to develop an improvement
plan addressing the results of its internal assessment. Paragraph (b)
would require the improvement plan to have at least four elements.
First, the improvement plan must describe the recommended improvements
that address the findings of the internal assessment for fully
implementing the railroad's RRP, complying with the elements of the RRP
that are already implemented, or achieving the goals identified in the
RRP plan pursuant to Sec. 271.203(c). These improvements would include
any necessary revisions or updates to the RRP plan, which would have to
be made pursuant to the amendment process in proposed Sec. 271.303.
Second, the improvement plan must identify by position title the
individual who is responsible for carrying out the recommended
improvements. Third, the improvement plan must set forth a timeline
that establishes when specific and measurable milestones for
implementing the recommended improvements would be achieved. Finally,
the improvement plan must specify the process for monitoring and
evaluating the effectiveness of the recommended improvements. FRA
believes that if a railroad's internal assessment improvement plan
contains these four elements, the railroad would effectively identify
any areas in which the RRP is either improperly implemented or
ineffective at reducing risk, and could adequately address those
deficiencies.
Section 271.405--Internal Assessment Reports
Paragraph (a) of this section would require a railroad to submit a
copy of its internal assessment report to the FRA Associate
Administrator for Railroad Safety/Chief Safety Officer. The railroad
must submit this report within 60 days of completing its internal
assessment. Under paragraph (b), the report must be signed by the
railroad's chief official responsible for safety who bears primary
managerial authority for implementing that railroad's safety policy and
contain at least four elements. First, the report must describe the
railroad's internal assessment, including a description of how the
railroad satisfied the requirements set forth in proposed Sec.
271.401(b)(1) through (3). Second, the report must describe the
findings of the internal assessment. Third, the report must
specifically describe the recommended improvements set forth in the
railroad's improvement plan pursuant to proposed Sec. 271.403. Fourth,
the report must describe the status of the recommended improvements
that were set forth in the railroad's recent internal assessment
improvement plan and any outstanding recommended improvements from
previous internal assessment improvement plans.
Subpart F--External Audits
This subpart would address FRA's process for conducting audits of
the railroad's RRP and establish requirements regarding the actions a
railroad must take in response to FRA's audits. FRA's audits would
focus on reviewing the railroad's RRP process and ensuring that the
railroad is following the processes and procedures described in its
FRA-approved RRP plan.
Section 271.501--External Audits
As described in this section, FRA would conduct (or cause to be
conducted) external audits of a railroad's RRP. These audits would
focus on RRP process, evaluating the railroad's compliance with the RRP
elements required by this part, as supported by the railroad's approved
RRP plan. Because the railroad's RRP plan and any amendments would have
already been approved by FRA, this section would permit FRA to focus on
the extent to which the railroad is complying with the processes and
procedures in its own plan.
Similar to the review process for RRP plans, FRA would not audit a
railroad's RRP in a vacuum. Rather, FRA would communicate with the
railroad during the audit and attempt to resolve any issues before its
completion. Once the audit is completed, FRA would provide the railroad
with written notification of the audit results. For example, these
results would identify any areas where the railroad was not properly
complying with its RRP plan, any areas that needed to be addressed by
the railroad's RRP but were not, or any other areas in which FRA found
that the railroad and its program were not in compliance with this
part.
Section 271.503--External Audit Improvement Plans
This section would establish requirements for railroad improvement
plans responding to the results of FRA's external audit. If the results
of the audit require the railroad to take any corrective action,
paragraph (a) would provide the railroad 60 days to submit for FRA
approval an improvement plan addressing any such instances of
deficiency or non-compliance. At a minimum, paragraph (b) would require
the improvement plan to: (1) Describe the improvements the railroad
would implement to address the audit findings; (2) identify by position
title the individual who would be responsible for carrying out the
improvements necessary to address the audit findings; and (3) contain a
timeline describing when specific and measurable milestones for
implementing the recommended improvements would be achieved.
Specification of milestones is important because it would allow the
railroad to determine the appropriate progress of the improvements,
while also allowing FRA to gauge the railroad's compliance with its
improvement plan.
Under paragraph (c), if FRA does not approve a railroad's
improvement plan, FRA would notify the railroad of the plan's specific
deficiencies. The railroad would then have no more than 30 days to
amend the improvement plan to correct the deficiencies identified by
FRA and provide FRA a copy of the amended improvement plan. Paragraph
(d) would require a railroad to provide FRA for review, upon the
request of the FRA Associate Administrator for Railroad Safety/Chief
Safety Office, a status report on the implementation of the
improvements contained in the improvement plan.
[[Page 10980]]
Appendix A to Part 271--Schedule of Civil Penalties
Appendix A to part 271 would contain a schedule of civil penalties
for use in connection with this part. Because such penalty schedules
are statements of agency policy, notice and comment are not required
prior to their issuance. See 5 U.S.C. 553(b)(3)(A). Nevertheless,
commenters are invited to submit suggestions to FRA describing the
types of actions or omissions for each proposed regulatory section that
would subject a person to the assessment of a civil penalty. Commenters
are also invited to recommend what penalties may be appropriate, based
upon the relative seriousness of each type of violation.
Appendix B to Part 271--Federal Railroad Administration Guidance on the
Risk Reduction Program Consultation Process
Appendix B would contain guidance on how a railroad could comply
with Sec. 271.207, which states that a railroad must in good faith
consult with and use its best efforts to reach agreement with all of
its directly affected employees on the contents of the RRP plan. The
appendix begins with a general discussion of the terms ``good faith''
and ``best efforts,'' explaining that they are separate terms and that
each has a specific and distinct meaning. For example, the good faith
obligation is concerned with a railroad's state of mind during the
consultation process, and the best efforts obligation is concerned with
the specific efforts made by the railroad in an attempt to reach
agreement with its directly affected employees. The appendix also
explains that FRA will determine a railroad's compliance with the Sec.
271.207 requirements on a case-by-case basis and outlines the potential
consequences for a railroad that fails to consult with its directly
affected employees in good faith and using best efforts.
The appendix also contains specific guidance on the process a
railroad may use to consult with its directly affected employees. This
guidance would not establish prescriptive requirements with which a
railroad must comply, but would provide a road map for how a railroad
may conduct the consultation process. The guidance also distinguishes
between employees who are represented by a non-profit employee labor
organization and employees who are not, as the processes a railroad may
use to consult with represented and non-represented employees could
differ significantly. Overall, however, the appendix stresses that
there are many compliant ways in which a railroad may choose to consult
with its directly affected employees and that FRA believes, therefore,
that it is important to maintain a flexible approach to the Sec.
271.207 consultation requirements, so a railroad and its directly
affected employees may consult in the manner best suited to their
specific circumstances.
Appendix C to Part 271--Procedures for Submission of Railroad Risk
Reduction Program Plans and Statements From Directly Affected Employees
Proposed Appendix C would provide railroads and directly affected
employees the option to file RRP plans or consultation statements
electronically. FRA intends to create a secure document submission site
and would need basic information from railroads or directly affected
employees before setting up a user's account. In order to provide
secure access, information regarding the points of contact would be
required. It is anticipated that FRA would be able to approve or
disapprove all or part of a program and generate automated
notifications by email to a railroad's points of contact. Thus, FRA
would want each point of contact to understand that by providing any
email addresses, the railroad would be consenting to receive approval
and disapproval notices from FRA by email. Railroads that allow notice
from FRA by email would gain the benefit of receiving such notices
quickly and efficiently. FRA specifically requests public comment on
whether to allow electronic submission, and on what electronic formats
might be practical and acceptable.
While the proposed appendix would request the names and contact
information for two individuals who would be the railroad's or directly
affected employees' points of contact and who would be the only
individuals allowed access to FRA's document submission site, FRA
specifically requests public comment on whether this is a sufficient
number of points of contact, or whether more would be necessary,
particularly for railroads with multiple non-profit labor
organizations.
Those railroads that would choose to submit printed materials to
FRA would be required to deliver them directly to the specified
address. Some railroads may choose to deliver a CD, DVD, or other
electronic storage format to FRA rather than requesting access to
upload the documents directly to the secure electronic database.
Although that would be an acceptable method of submission, FRA would
encourage each railroad to utilize the electronic submission
capabilities of the system. Of course, if FRA does not have the
capability to read the type of electronic storage format sent, FRA
would be able to reject the submission.
FRA may be able to develop a secure document submission site so
that confidential materials would be identified and not shared with the
general public. However, FRA does not expect the information in an RRP
plan to be of such a confidential or proprietary nature, particularly
since each railroad is required to share the submitted RRP plan with
individuals identified in the service list pursuant to Sec.
271.107(b)(4). RRP records in FRA's possession are also exempted from
disclosure under the Freedom of Information Act pursuant to sec. 109(a)
of the RSIA, and FRA is proposing in Sec. 271.11 of this NPRM to
protect any information compiled or collected solely for the purpose of
developing, implementing, or evaluating an RRP from discovery,
admission into evidence, or consideration for other purposes in a
Federal or State court proceeding for damages involving personal
injury, wrongful death, and property damage. Accordingly, FRA does not
at this time believe it is necessary to develop a document submission
system which addresses confidential materials at this time.
IX. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and
Procedures
This NPRM has been evaluated in accordance with existing policies
and procedures, and determined to be significant under Executive Order
12866, Executive Order 13563, and DOT policies and procedures. See 44
FR 11034 (Feb. 26, 1979). FRA has prepared and placed in the docket a
regulatory impact analysis (RIA) addressing the economic impact of this
NPRM.
This NPRM directly responds to the Congressional mandate of sec.
103 of the RSIA, which states that FRA shall require each Class I
railroad and railroads with inadequate safety performance to establish
a railroad safety risk reduction program. See 49 U.S.C. 20156(a)(1).
This NPRM proposes to implement this mandate by requiring each Class I
railroad and railroad with inadequate safety performance to develop and
implement a RRP to improve the safety of their operations. FRA believes
that all of the requirements of the NPRM are directly or implicitly
required by the RSIA.
[[Page 10981]]
The costs for this proposed regulation basically stem from the
requirements to have a fully developed and implemented RRP that is
supported by an RRP plan. The primary costs come from the development
of an ongoing risk-based HMP, the ongoing evaluation of safety
performance, and the safety outreach component of the RRP. In addition,
there are costs for the development of a technology implementation
plan, the consultation process, and internal assessments.
In analyzing this proposed rule, FRA has applied DOT's updated
``Guidance on the Economic Value of a Statistical Life in US Department
of Transportation Analyses,'' published in March 2013. This policy
updated the Value of a Statistical Life (VSL) from $6.2 million to $9.1
million and revised guidance used to compute benefits based on injury
and fatality avoidance in each year of the analysis based on forecasts
from the Congressional Budget Office of a 1.07 percent annual growth
rate in median real wages over a 30 year period (2013-2043). FRA also
adjusted wage based labor costs in each year of the analysis
accordingly. Real wages represent the purchasing power of nominal
wages. Non-wage inputs are not impacted. The primary cost and benefit
drivers for this analysis are labor costs and avoided injuries and
fatalities, both of which in turn depend on wage rates.
The total cost for this proposed regulation is $18.6 million,
undiscounted. The discounted costs over 10 years are $12.7 million,
using a 7 percent discount rate, and $15.7 million, using a 3 percent
discount rate. The annualized costs are $1.81 million at a 7% discount
rate and $1.84 million at a 3% discount rate.
Table 1--Costs (10 years)
----------------------------------------------------------------------------------------------------------------
RRP NPRM
-----------------------------------------------------------------------------------------------------------------
Railroads with
Costs Class I railroads inadequate safety Total for all Annualized
performance railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General.................. $0 $10,194 $10,194 .................
Subpart B: RR Programs.............. 14,352,029 2,008,553 16,360,582 .................
Subpart C: RRP Plans................ 791,776 743,231 1,535,007 .................
Subpart D: Review and Approval of 2,387 6,362 8,750 .................
Plans..............................
Subpart E: Internal Assessments..... 253,369 388,140 641,509 .................
Subpart F: External Audits.......... 42,647 25,690 68,337 .................
----------------------------------------------------------------------------------------------------------------
Total Cost...................... 15,442,208 3,182,169 18,624,377 $1,862,438
(PV 7)...................... 10,699,013 2,039,639 12,738,652 1,813,698
(PV 3)...................... 13,095,827 2,610,750 15,706,578 1,841,290
----------------------------------------------------------------------------------------------------------------
RRPs create benefits through several mechanisms. RRPs identify
potential hazards at an early stage, so that expenditures can be made
with a view to avoiding the hazards, making expenditures more
effective. Because of these characteristics RRPs identify a wide array
of potential safety issues, and potential solutions, so that railroads
can use their available resources where the effect will be most
beneficial per dollar spent. In addition, RRPs help maintain safety
gains over time. When railroads adopt countermeasures to safety
problems, they may over time lose the focus that made those
countermeasures effective. With RRP plans, those safety gains are
likely to continue for longer time periods. Because of these
characteristics of RRP, safety is improved, while at the same time
costs of countermeasures are reduced. RRPs can also be instrumental in
addressing hazards that are not well-addressed through conventional
safety programs, such as minor injuries and incidents, or risks that
occur because safety equipment is not used correctly or continuously.
It is difficult, if not impossible, to segregate totally railroad
expenses that go to enhance safety from other railroad expenses. Track,
vehicle, and signal maintenance expenses all contribute to safety on a
railroad. Every operational and maintenance employee, as well as track
or signal inspector, performs duties with few functions that do not
work to enhance safety. Every capital expenditure is likely to have a
safety component, whether for equipment, right-of-way, signal, or
facility. RRPs can increase the safety return on any investment related
to the operation and maintenance of the railroad. FRA believes a very
conservative estimate of investment expenditures by all Class I
railroads is $42.7 billion per year. For purposes of this analysis, FRA
assumes that RRPs will not create benefits until they are fully
implemented by the railroad, after the third year, and so cannot
improve the effectiveness of investments until Year 4, after which they
will affect investments through Year 10. Improved effectiveness of
investment benefits can reasonably be expected to impact between $188
billion (discounted at 7 percent) and $244 billion (discounted at 3
percent) over the next ten years.
Another way to look at the benefits that might accrue from RRPs is
to look at total Class I freight operation-related accident/incident
costs. For the time-period 2001-2010 the total number of accidents/
incidents (excluding grade crossing incidents and platform accidents/
incidents) involving Class I freight railroads was 66,116, which
resulted in 6,956 fatalities and 42,289 injuries. For purposes of this
NPRM's RIA, FRA used the averages from 2008-2010 which had 5,325
incidents, 602 fatalities and 3,428 injuries. Of course, these
accidents/incidents also caused damage to other property, delays on
both railroads and highways, response costs, and many other costs.
Applying the same methodology used in other analyses, FRA has found
that the total societal cost of a serious accident/incident is at least
1.97 times the fatality costs.\16\ Societal accident costs include
fatality costs, injury costs, delay costs, response costs, damage to
equipment, damage to track and structures, and equipment clearing,
although there may
[[Page 10982]]
be other societal costs not accounted for. Those accidents/incidents
that are serious enough to result in fatalities can result in broader
societal costs, as noted above. Further, some accidents/incidents, such
as grade crossing accidents, can be quite severe, resulting in very
serious injuries but not a fatality, resulting in costs per fatality of
grade crossing accidents being more than the costs of those accidents
that result only in fatalities. FRA believes multiplying societal costs
of fatalities times a factor of 1.97 to derive total societal cost of
serious accidents/incidents is conservative. In this case, if the
fatality costs are $9.1 million per fatality, and the average number of
fatalities per year is 602, then the societal cost of fatalities is
$5.5 billion per year, and the total societal cost of freight operation
related serious accidents/incidents is $10.8 billion for the base year
of 2012. According to the DOT Guidance issued in March 2013, the VSL is
expected to increase annually based on an expected 1.07 percent annual
growth rate in median real wages. As noted above, for purposes of this
analysis, FRA assumes that RRP implementation will not result in
benefits until railroads are required to fully implement their RRPs,
after the third year, and so cannot reduce accidents until Year 4, and
then will affect accidents through Year 10. Total ten-year accident
safety costs total between $77.7 billion (discounted at 7 percent) and
$102.3 billion (discounted at 3 percent).
---------------------------------------------------------------------------
\16\ See DOT/FRA--``Positive Train Control Systems, Final Rule,
Regulatory Impact Analysis,'' Document FRA 2008-0132-0060, available
at http://www.regulations.gov/#!documentDetail;D=FRA-2008-0132-0060.
The RIA for FRA's Positive Train Control System final rule
originally found that the total societal cost of serious accidents
and incidents is at least 2.33 times the fatality costs. Due to the
revised approach for assessing VSL over time in accordance with
DOT's Guidance, discussed above, this number has been revised to
1.97 times the fatality costs.
---------------------------------------------------------------------------
FRA analyzed what percentage of the potential accident reduction
benefit pools would have to be saved in order for the NPRM to have
accident reduction benefits at least equal to costs that apply to
existing Class I railroads. The results are presented in Table 2 below,
which shows the percentage of the total benefit pools that would need
to be saved in order for the rule to break even. FRA believes that such
savings are more than attainable. Please note that the rule would break
even if it met either percentage by itself, and that the rule would not
need to meet both percentages.
Table 2--Ten-Year Costs as Percent of Benefit Pools for Class I Freight Railroads
----------------------------------------------------------------------------------------------------------------
Current dollar Discounted value Discounted value
Benefit pool value 7% 3%
----------------------------------------------------------------------------------------------------------------
Railroad Investment.................................... 0.0062 0.0068 0.0065
Railroad Incidents..................................... 0.0146 0.0164 0.0154
----------------------------------------------------------------------------------------------------------------
With the new VSL policy, DOT also recommends a sensitivity analysis
be considered using a VSL of $5.2 million and $12.9 million. Using a
VSL of $5.2 million, FRA estimates the break-even point is less than 3
hundredths of a percent, and using a VSL of $12.9 million the break-
even point is approximately 1.1 hundredths of a percent.
In conclusion, FRA is confident that the accident reduction and
cost effectiveness benefits together would justify the $12.7 million
(discounted at 7 percent) to $15.7 million (discounted at 3 percent)
implementation cost over the first ten years of the rule as proposed.
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. FRA has not determined whether
this proposed rule would have a significant economic impact on a
substantial number of small entities. Therefore, FRA is publishing this
IRFA to aid the public in commenting on the potential small business
impacts of the requirements in this NPRM. FRA invites all interested
parties to submit data and information regarding the potential economic
impact on small entities that would result from the adoption of the
proposals in this NPRM. FRA will consider all information and comments
received in the public comment process when making a determination
regarding the economic impact on small entities in the final rule.
For the railroad industry over a 10-year period, FRA estimates that
the total cost for the proposed rule will be $18.6 million,
undiscounted; $12.7 million, discounted at 7 percent; or $15.7 million,
discounted at 3 percent.\17\ Based on information currently available,
FRA estimates that less than 17 percent of the total railroad costs
associated with implementing the proposed rule would be borne by small
entities.
---------------------------------------------------------------------------
\17\ FRA's estimates follow Office of Management and Budget
(OMB) guidance in OMB Circular A-94 to use real discount rates of 7
and 3 percent for regulatory analysis.
---------------------------------------------------------------------------
A Class II or III railroad may be brought under FRA's proposed RRP
regulation if FRA determines that the railroad has inadequate safety
performance. This determination would be made according to proposed
Sec. 271.13. Based on an initial review and evaluation, FRA estimates
that approximately 10 railroads that are considered small entities for
the purpose of this analysis would be found to have inadequate safety
performance in the initial year of the rule, and would therefore be
required to comply with FRA's RRP requirements. On average, FRA
estimates that five additional Class III railroads with inadequate
safety performance would be added incrementally per annum after the
first full year of implementation, and that the number of railroads
with inadequate safety performance would reach a maximum of 40 to 45
railroads around the tenth year of the rule. Together, these railroads
do not compose a substantial number of the 629 Class III railroads,
which potentially fall under this proposed rule and would be evaluated
for inadequate safety performance, and a minor percentage of the
railroad operations impacted directly by this proposed regulation, as
measured by total employees. Thus, a very few number of small entities
in this sector would be impacted. In order to get a better
understanding of the total costs for the entire freight railroad
industry (which forms the basis for the estimates in this IRFA), or for
more cost detail on any specific requirement, please see the Regulatory
Impact Analysis (RIA) that FRA has placed in the docket for this
rulemaking.
In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
1. A description of the reasons why action by the agency is being
considered.
2. A succinct statement of the objectives of, and the legal basis
for, the proposed rule.
3. A description--and, where feasible, an estimate of the number--
of small
[[Page 10983]]
entities to which the proposed rule will apply.
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
1. Reasons for Considering Agency Action
FRA has proposed this part 271 in order to comply with sec. 103 and
sec. 109 of the RSIA. The RSIA states, in part, that FRA shall require
each Class I railroad and railroad with ``inadequate safety
performance'' to establish a railroad safety risk reduction
program.\18\ See 49 U.S.C. 20156, 20118, and 20119. This proposed rule
sets forth RRP requirements for Class I freight railroads and railroads
with inadequate safety performance.
---------------------------------------------------------------------------
\18\ As discussed elsewhere in this NPRM, the RSIA mandate to
require safety risk reduction programs for passenger railroads is
being addressed in a separate SSP rulemaking.
---------------------------------------------------------------------------
2. The Proposed Rule: Objectives and Legal Basis
The purpose of this proposed rule is to improve railroad safety
through structured, proactive processes and procedures developed and
implemented by railroad operators. The proposed rule would require a
railroad to establish an RRP that systematically evaluates railroad
safety hazards on its system and manages those risks in order to reduce
the number and rates of railroad accidents/incidents, injuries, and
fatalities.
The proposed rule would prescribe minimum Federal safety standards
for the preparation, adoption, and implementation of RRPs. The proposed
rule does not restrict railroads from adopting and enforcing additional
or more stringent requirements not inconsistent with this proposed
rule.
The Secretary has delegated the responsibility to carry out his
responsibilities under both sec. 103 and sec. 109 of RSIA, as well as
the general responsibility to conduct rail safety rulemakings, codified
at 49 U.S.C. 20103, to the Administrator of FRA. See 49 CFR 1.89(m) and
(oo).
The proposed rulemaking would add to FRA's regulations a new part
271. Part 271 would satisfy the RSIA mandate that FRA require safety
risk reduction programs for Class I freight railroads and railroads
with inadequate safety performance. See 49 U.S.C. 20156(a)(1). It would
also include protection from admission or discovery of certain
information compiled or collected pursuant to a safety RRP. See 49
U.S.C. 20119.
3. Descriptions and Estimates of Small Entities to Which the Proposed
Rule Would Apply
The universe of the entities considered in an IRFA generally
includes only those small entities that can reasonably expect to be
directly regulated by the proposed action. Small railroads are the
types of small entities potentially affected by this proposed rule.
A ``small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under sec. 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Title 49 U.S.C. 601(4) likewise includes within the
definition of small entities non-profit enterprises that are
independently owned and operated, and are not dominant in their field
of operation.
The U.S. Small Business Administration (SBA) stipulates in its size
standards that the largest a ``for-profit'' railroad business firm may
be, and still be classified as a small entity, is 1,500 employees for
``line haul operating railroads'' and 500 employees for ``switching and
terminal establishments.'' Additionally, 5 U.S.C. 601(5) defines as
small entities governments of cities, counties, towns, townships,
villages, school districts, or special districts with populations less
than 50,000.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
Statement of Agency Policy that formally establishes small entities or
small businesses as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003 (codified as appendix C to 49 CFR part
209). The $20 million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR 1201.1-1. This definition is what FRA is
proposing to use for the rulemaking.
Railroads
Class I freight railroads and railroads with inadequate safety
performance would have to comply with all of the proposed provisions of
part 271. However, the amount of effort to comply with the proposed
rule is commensurate with the size of the entity.
In the universe of railroads for potential compliance under this
proposed rule, there are 7 Class I railroads, 10 Class II railroads (1
of which is classified as a passenger railroad that would be excepted
from the proposed rule), and 629 Class III freight railroads. Railroads
with tourist operations are excluded, and these comprise approximately
90 of the total 719 Class III railroads.
To identify the non-Class I railroads that must comply with the
proposed rule, FRA will annually conduct a two-phase analysis to
determine which railroads have inadequate safety performance. This is
accomplished by the following: (1) A statistically-based quantitative
analysis of fatalities, FRA-reportable injuries/illnesses, FRA-
reportable accidents/incidents, and FRA safety violations; and (2) a
qualitative assessment that includes input from affected railroads and
their employees. (See Sec. 271.13 of the proposed rule for a full
description of the process used to determine inadequate safety
performance.)
As FRA's initial inadequate safety performance analysis would occur
at least one year after an RRP final rule goes into effect, it is
impossible to tell how many railroads with inadequate safety
performance would be required to comply with the RRP regulation, and
consequently how many of those might be small businesses. However,
using a recent 3-year rolling average of safety data to test the
selection analytical process, and accounting for those that might seek
relief through the qualitative review process, FRA would expect between
7 and 13 Class III railroads to qualify initially for the program, or a
simple average of 10; and between 3 and 7, incrementally, per annum
thereafter, or a simple average of 5. FRA expects the number of
inadequate safety performance railroads to grow each year by 4 or 5 to
a maximum of 40 to 45 by year 9 or 10, at which point it should flatten
out or actually decline. This declining involvement is due to several
factors: (1) Safety performance will improve; (2) after 7 years, some
railroads will seek and receive relief
[[Page 10984]]
from being in the program; (3) the size of the railroad pool being
examined for inadequate safety performance would shrink as more
railroads are required to comply with part 271; and (4) railroads will
observe the positive behaviors and results of those railroads with RRPs
and will embrace the better safety practices of those railroads as a
model. FRA does not find this number of small railroads to be a
substantial number of small entities when compared with the 629 small
railroads that could potentially be impacted (i.e., Class III
railroads) in the industry.
FRA intends to provide assistance to railroads, including small
business entities, in the development of their RRPs, starting at the
planning phase and continuing through the implementation phase. The
proposed rule is also scalable in nature, and FRA would provide
assistance to those railroads so that the scope and content of their
RRPs are proportionate to their size and the nature of their operation.
As indicated above, FRA would assist a small entity in preparing
its RRP program and plan. FRA anticipates that the RRP plan for such an
entity would be a very concise and brief document.
FRA requests comments on these findings and conclusions.
Contractors
Some railroads use contractors to perform many different functions
on their railroads. For some of these railroads, contractors perform
safety-related functions, such as operating trains. For the purpose of
assessing the impact of an RRP, contractors fall into two groups:
Larger contractors who perform a primary operating or maintenance
function for the railroads, and smaller contractors who perform
ancillary functions to the primary operations. Larger contractors are
typically large private companies, such as Sperry Rail Service, or part
of an international conglomerate such as Balfour Beatty. Smaller
contractors may perform such duties as brush clearing, painting
facilities, etc.
Safety-related policies, work rules, guidelines, and regulations
are imparted to the small contractors today as part of their
contractual obligations and qualification to work on the Class I
freight railroads, and potentially to work for railroads with
inadequate safety performance. FRA sees minimal additional burden to
imparting the same type of information under each railroad's RRP. A
very small administrative burden may result.
Under the proposed rule, contractors (small or large) who provide
significant safety-related services are not required to do anything
under the rule. While the proposed rule requires the railroad to
involve the persons that provide significant safety-related services in
the railroad's RRP, it doesn't require the entity to do any training.
Thus, any burdens imposed on contractors would be indirect or taken
into account in the contract with the pertinent railroad or both. FRA
requests comment on these findings and conclusions.
4. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule
There are reporting, recordkeeping, and compliance costs associated
with the proposed regulation.
FRA believes that the added burden is marginal due to the proposed
NPRM requirements. The total 10-year cost of this proposed rulemaking
is $18.6 million, of which FRA estimates $3.2 million or less will be
attributable to small entities ($3.2 million in current dollars, $2
million at a 7-percent discount rate, or $2.6 million at a 3-percent
discount rate.) Based on FRA's RIA, which has been placed in the docket
for this proposed rulemaking, the average railroad with inadequate
safety performance would incur an average of $13,500 (non-discounted)
of burden per year. If on average railroads with inadequate safety
performance were in the RRP for eight years, then the life-time cost
would be approximately $108,000. Previously, FRA sampled small
railroads and found that revenue averaged approximately $4.7 million
(not discounted) in 2006. One percent of average annual revenue per
small railroad, or $47,000, is more than three times the average annual
cost that these railroads will incur because of this proposed rule. FRA
realizes that some railroads will have lower revenue than $4.7 million.
However, FRA believes that this average provides a good representation
of the small railroads, in general.
Overall, FRA believes that the proposed regulation would not be a
significant economic burden for small entities. However, due to the
small number of small railroads that are estimated to be impacted by
this proposed rule, the cost per railroad could be found to be
significant. For a thorough presentation of cost estimates, please
refer to the RIA, which has been placed in the docket for this proposed
rulemaking. FRA expects that most of the skills necessary to comply
with the proposed regulation would be professional hazard assessment
personnel, and recordkeeping and reporting personnel.
The following section outlines the potential additional burden on
small railroads for each subpart of the proposed rule:
Subpart A--General: Risk Reduction Program Regulation
The policy, purpose, and definitions outlined in subpart A, alone,
would not impose a significant burden on small railroads. However,
there is the small requirement for notifying employees of the railroad
that FRA has found that the railroad may have inadequate safety
performance. This subpart of the proposed rule would impose less than 1
percent of the total burden for small entities.
Subpart B--Risk Reduction Program Requirements
Subpart B of the proposed rule would have a more or less
proportional effect directly related to the size and complexity of a
railroad. This subpart of the proposed rule would impose approximately
63 percent of the total burden for small entities. The proposed
requirements in this subpart describe what must be developed and placed
in the RRP to properly implement the RRP. More specifically, it
requires the development of the risk-based hazard analysis, risk-based
hazard management processes, and technology implementation plans.
Because of the scalable nature of the proposed rule, the requirements
of an RRP would be much less complex for a small railroad than they
would be for a Class I railroad. This is due to several characteristics
of small railroads, such as the concentrated geography of operation in
a small area, the short distance of operation, and a non-fragmented and
non-diffused work force (in other words, most employees of a small
railroad are located in one place). Hence, the number and types of
hazards for a small railroad should be limited. Also, such RRP
requirements as technology plans should not be burdensome. A small
railroad is very limited in the investments it can place in new
technologies, and what they do invest in would quite likely be a tried-
and-true technology that has been thoroughly tested elsewhere.
Subpart C--Risk Reduction Program Plan Requirements
Subpart C of the proposed rule would have a more or less
proportional effect directly related to the size and complexity of a
railroad. In other words, it would have less impact on small entities
than it would on Class I railroads. This subpart of the proposed rule
would impose approximately 23 percent of the total burden for small
[[Page 10985]]
entities. These proposed requirements describe what must be developed
and placed in the RRP plan to properly implement the RRP. Specifically,
it requires a plan statement on each element of the RRP, including
safety policy and goals, system description, consultation process,
risk-based hazard management processes, technology plans, internal
assessment process, and an RRP implementation plan. This proposed
subpart is primarily the paperwork or written plan that supports the
processes and programs in the RRP.
Subpart D--Review, Approval, and Retention of Risk Reduction
Program Plans
Subpart D of the proposed rule would impose less than 1 percent of
the total burden for small entities. The proposed requirements of this
subpart are for the initial delivery and review of the RRP plan, as
well as delivery of any ongoing amendments. Since this is initially
only expected to have 10 small railroads submitting plans for approval
and approximately 5 railroads each year thereafter, this subpart should
have a very small economic impact.
Subpart E--Internal Assessments
Subpart E of the proposed rule would impose approximately 12
percent of the total burden for small entities. This burden is for the
ongoing cost for the small railroads to perform an internal assessment
and report on internal audits on annual basis. As noted above,
initially very few small railroads would be performing internal
assessments, which would serve to minimize the economic impact on small
railroads.
Subpart F--External Audits
Subpart F of the proposed rule would impose approximately 1 percent
of the total burden for small entities. This burden is for the ongoing
cost for the small railroads to host an external audit by FRA or its
designees on a periodic basis. This includes the burden to produce an
improvement plan if such were required as a result of the external
audit findings. FRA does not expect more than five of these railroads
to receive an external audit for any given year.
Market and Competition Considerations
The railroad industry has several significant barriers to entry,
such as the need to own or otherwise obtain access to rights-of-way and
the high capital expenditure needed to purchase a fleet, as well as
track and equipment. Furthermore, the small railroads under
consideration would potentially be competing only with the trucking
industry and typically deal with the transport of commodities or goods
that are not truck-friendly. Thus, while this proposed rule would have
an economic impact on Class I freight railroads and railroads with
inadequate safety performance, it should not have an impact on the
competitive position of small railroads. FRA requests comment on these
findings and conclusions.
5. Identification of Any Duplicative, Overlapping, or Conflicting
Federal Rules
FRA is not aware of any relevant Federal rules that may duplicate,
overlap, or conflict with the proposed rule. In fact, the rule would
support most other safety regulations for railroad operations.
The Federal Transit Administration (FTA) first implemented
requirements similar to an RRP in 49 CFR part 659 in 1995, and its
requirements can be much more systemic and encompassing. However, FTA's
part 659 program applies to only rapid transit systems, or portions
thereof, that are not subject to FRA's rules. See 49 CFR 659.3 and
659.5. Therefore, FTA's part 659 does not apply to any of the railroads
that are within the scope of the proposed RRP rule.
FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from the adoption of the proposals in this NPRM. As noted above
FRA has estimated that railroads with inadequate safety performance
would incur less than 12 percent of the total cost of this proposed
rule. Based on FRA's RIA, the average railroad with inadequate safety
performance would incur an average of $13,500 (non-discounted) of
burden per year. If on average railroads with inadequate safety
performance were in the RRP for eight years, then the life-time cost
would be approximately $108,000. Previously, FRA sampled small
railroads and found that revenue averaged approximately $4.7 million
(not discounted) in 2006. One percent of average annual revenue per
small railroad, or $47,000, is more than three times the average annual
cost that these railroads will incur because of this proposed rule. FRA
realizes that some railroads will have lower revenue than $4.7 million.
However, FRA believes that this average provides a good representation
of the small railroads, in general. FRA specifically requests comments
as to whether small railroads would incur a significant economic impact
from this proposed rule. FRA will consider all comments received in the
public comment process when making a final determination regarding the
economic impact on small entities.
C. Federalism
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. FRA has determined that
the proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
proposed rule will not impose substantial direct compliance costs on
State and local governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
This NPRM proposes to add part 271, Risk Reduction Programs. FRA is
not aware of any State having regulations similar to proposed part 271.
However, FRA notes that this part could have preemptive effect by the
operation of law under a provision of the former Federal Railroad
Safety Act of 1970, repealed and codified at 49 U.S.C. 20106 (Sec.
20106). Sec. 20106 provides that States may not adopt or continue in
effect any law, regulation, or order related to railroad safety or
security that covers the subject matter of a regulation prescribed or
order issued by the
[[Page 10986]]
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to Sec. 20106. Although FRA is proposing to specify in
proposed Sec. 271.11(c) that state discovery rules and sunshine laws
that could be used to require the disclosure of information protected
by Sec. 271.11(a) are preempted, the purpose of this language is only
to clarify the preemptive effect of Sec. 20106, and is not intended to
have preemptive effect that goes beyond the operation of Sec. 20106.
The proposed information protection provisions clearly relate to
matters of railroad safety because, as previously discussed, 49 U.S.C.
20119(b) authorizes FRA to issue a rule governing the discovery and use
of risk analysis information in litigation.
In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than preemption of State laws under 49
U.S.C. 20106 and 20119. Accordingly, FRA has determined that
preparation of a federalism summary impact statement for this proposed
rule is not required.
D. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
E. Paperwork Reduction Act
The information collection requirements in this proposed rule are
being submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
are duly designated, and the estimated time to fulfill each requirement
is as follows:
----------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual
CFR section/subject Respondent universe responses response burden hours
----------------------------------------------------------------------------------------------------------------
271.7--Waiver Petitions to FRA... 22 railroads....... 1 petition......... 80 hours........... 80
271.13--Determination of 22 railroads....... 120 notices........ 30 minutes......... 60
Inadequate Safety Performance
(ISP)--Notice to Employees of
ISP Designation by FRA.
--Employee Confidential 100 employees...... 10 comments........ 30 minutes......... 5
Comments to FRA regarding RR
ISP Designation.
--RR Documentation to FRA 10 railroads....... 10 document........ 8 hours............ 80
Refuting ISP Designation.
271.101(a)--Risk Reduction 7 railroads........ 7 RRPs............. 6,987 hours........ 48,910
Programs (RRPs)--Class I
Railroads.
--Risk Reduction Programs 10 railroads....... 10 RRPs............ 343 hours.......... 3,430
(RRPs)--Inadequate Safety
Performance (ISP) Railroads.
(c)--Communication by RRs 7 railroads........ 40 consults........ 2 hours............ 80
that host passenger train
service with Class I RRs
subject to FRA System Safety
Program Requirements.
(d)--RR Identification/ 7 railroads........ 318 consults....... 2 hours............ 636
Communication with railroads
performing significant
safety-related services--
Class I RRs.
--RR Identification/ 7 railroads........ 1,488 consult...... 1 hour............. 1,488
Communication with
contractors performing
significant safety related
services.
(d)--ISP RRs identification/ 10 railroads....... 10 consults........ 4 hours............ 40
communication w/entities
performing significant
safety-related services.
271.107--Reporting to management 7 railroads........ 84 reports......... 30 minutes......... 42
risk-based HMP Activities--Class
I.
--Reporting to management-- 10 railroads....... 120 reports........ 3 hours............ 360
ISP RRs.
271.111--Implementation Training.
--Employee RRP training-- 150,000 employees.. 1,400 worker....... 2 hours............ 2,800
Class I RR.
--Replacement/new employees: 150,000 employees.. 140 workers........ 2 hours............ 280
Class I.
--Employee RRP training--ISP 1,000 employees.... 100 workers........ 2 hours............ 200
RRs.
--Employee RRP training 17 railroads....... 1,640 records...... 3 minutes.......... 82
records (Class I RRs + ISP
RRs).
271.201/203--Written Risk 7 railroads........ 7 RRP Plans........ 1,152 hours........ 8,064
Reduction Plans (RRPs)--Adoption
and Implementation of RRP Plans--
Class I.
--Written RRP Plans--ISP RRs. 10 railroads....... 10 RRP Plans....... 240 hours.......... 2,400
271.207--RR Good Faith 7 Railroads........ 7 consults......... 200 hours.......... 1,400
Consultation w/Directly Affected
Employees--Class I RRs.
--RR Good Faith 10 Railroads....... 10 consults........ 20 hours........... 200
Consultations--ISP RRs.
--RR Notification to 7 Railroads........ 2 notices.......... 8 hours............ 16
Employees of Consultation
Meeting--Class I RRs.
--ISP RR Notification to 10 Railroads....... 1 notice........... 30 minutes......... 1
Employees.
[[Page 10987]]
--Voluntarily compliant RR 72 railroads....... 1 consult/statement 20 hours........... 20
consultation with directly
affected employees on RRP
Plan contents.
--Copy of RRP Plan/ 7 Railroads........ 380 plan copies + 2 minutes.......... 25
Consultation Statement to 380.
General Chair of Labor Union
and to Individuals
Identified in RRP Plan
Service List.
--Statements from Directly 10 Labor Unions.... 3 statements....... 6 hours............ 18
Affected Employees--Class I
RRs.
271.209--Substantive Amendments 7 Railroads........ 7 amended plans.... 40 hours........... 280
to RRP Plan--Class I RRs.
Substantive Amendments to RRP 10 Railroads....... 10 amended plans... 4 hours............ 40
Plan--ISP RRs.
271.301--Filing of RRP Plan w/ 17 railroads....... 17 filed plans..... 2 hours............ 34
FRA--Class I RRs + ISP RRs.
--Class I RR corrected RRP 7 railroads........ 2 RRP plans........ 2 hours............ 4
Plan.
--FRA requested Class I RR 7 railroads........ 2 consulting 3 hours............ 6
consultation with directly statements.
affected employees regarding
substantive corrections/
changes to RRP Plan.
271.303--Amendments Consultation 17 railroads....... 2 consults......... 60 minutes......... 2
w/Directly Affected Employees on
Substantive Amendments to RRP
Plan--Class I RRs + ISP RRs.
--Amended RRP Plan--Class I 7 railroads........ 7 plans............ 6 hours............ 42
RRs.
--Amended RRP Plan--ISP RRs.. 10 railroads....... 1 plan............. 1 hour............. 1
--Amended RRP Plan 7 Railroads........ 1 corrected RRP 80 hours........... 80
Disapproved by FRA and Plan.
Requiring Correction.
271.307--Retention of RRP Plans-- 17 railroads....... 34 plan copies..... 10 minutes......... 6
Copies of RRP Plan/Amendments by
RR at System/Division
Headquarters.
217.401/403--RR Internal 7 railroads........ 7 plans............ 120 hours.......... 840
Assessment/Improvement Plans--
Class I RRs.
--ISP RR Improvement Plans... 10 railroads....... 10 plans........... 32 hours........... 320
271.405--Internal Assessment 7 railroads........ 7 reports/copies... 8 hours............ 56
Report Copy to FRA--Class I RRs.
--Internal Assessment Report 10 railroads....... 10 reports/copies.. 2 hours............ 20
Copy to FRA--ISP RRs.
271.503--External Audit 7 railroads........ 2 plans............ 40 hours........... 80
Improvement Plans--Submission of
Improvement Plans upon FRA
Written Notice of Agency Audit
Results--Class I RRs.
--External Audit Improvement 10 railroads....... 1 plan............. 4 hours............ 4
Plans--Submission of
Improvement Plans upon FRA
Written Notice of Agency
Audit Results--Class I RRs.
--Submission of Amended 7 railroads........ 1 plan............. 8 hours............ 8
Improvement Plan after FRA
Disapproval.
--Status Report Requested by 7 railroads........ 1 status report.... 8 hours............ 8
FRA concerning
Implementation of
Improvements in Improvement
Plan.
Appendix B--Request by FRA for 7 railroads........ 3 documents........ 40 hours........... 120
Additional Information/Documents
to determine whether Railroad
has met Good Faith and Best
Efforts Consultation
Requirements of Section 271.207.
--Further Railroad 7 railroads........ 1 consult.......... 8 hours............ 8
Consultation w/employees
after determination by FRA
that railroad did not use
Good Faith/Best Efforts.
--Meeting to discuss 7 railroads........ 7 meetings/consults 2 hours............ 14
Administrative Details of
Consultation Process during
the time between Initial
Meeting and Applicability
Date--Class I RRs.
--Meeting to discuss 10 railroads....... 10 meetings/ 1 hour............. 10
Administrative Details of consults.
Consultation Process during
the time between Initial
Meeting and Applicability
Date -ISP RRs.
--Draft RRP Plan Proposal to 10 railroads....... 2 proposals/copies. 20 hours........... 40
Employees--ISP RRs.
--Employee comments on RRP 100 Employees...... 6 comments......... 1 hour............. 6
Plan Draft Proposal.
----------------------------------------------------------------------------------------------------------------
The estimates in this table are based upon FRA's general experience
and expertise regarding the railroad industry and the development of
plans. All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
[[Page 10988]]
3506(c)(2)(B), FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan,
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone
at 202-493-6132.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via email to Mr. Brogan or Ms. Toone at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.
F. Environmental Assessment
FRA has evaluated this proposed rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this proposed rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows: ``(c)
Actions categorically excluded. Certain classes of FRA actions have
been determined to be categorically excluded from the requirements of
these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * * (20)
Promulgation of railroad safety rules and policy statements that do not
result in significantly increased emissions or air or water pollutants
or noise or increased traffic congestion in any mode of
transportation.''
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.
G. Unfunded Mandates Reform Act of 1995
Pursuant to sec. 201 of the Unfunded Mandates Reform Act of 1995
(Public Law 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
For the year 2010, this monetary amount of $100,000,000 has been
adjusted to $143,100,000 to account for inflation. This proposed rule
would not result in the expenditure of more than $143,100,000 by the
public sector in any one year, and thus preparation of such a statement
is not required.
H. Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, advance notice of proposed rulemaking, and notice of
proposed rulemaking) that (1)(i) is a significant regulatory action
under Executive Order 12866 or any successor order and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this NPRM in accordance with Executive Order 13211.
FRA has determined that this NPRM will not have a significant adverse
effect on the supply, distribution, or use of energy. Consequently, FRA
has determined that this regulatory action is not a ``significant
energy action'' within the meaning of Executive Order 13211.
I. Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
List of Subjects in 49 CFR Part 271
Penalties; Railroad safety; Reporting and recordkeeping
requirements; and Risk reduction.
The Proposal
In consideration of the foregoing, FRA proposes to add part 271 to
chapter II, subtitle B of title 49, Code of Federal Regulations, to
read as follows:
PART 271--RISK REDUCTION PROGRAM
Subpart A--General
Sec.
271.1 Purpose and scope.
71.3 Application.
71.5 Definitions.
271.7 Waivers.
[[Page 10989]]
271.9 Penalties and responsibility for compliance.
271.11 Discovery and admission as evidence of certain information.
271.13 Determination of inadequate safety performance.
271.15 Voluntary compliance.
Subpart B--Risk Reduction Program Requirements
271.101 Risk reduction programs.
271.103 Risk-based hazard management program.
271.105 Safety performance evaluation.
271.107 Safety outreach.
271.109 Technology analysis and technology implementation plan.
271.111 Implementation and support training.
Subpart C--Risk Reduction Program Plan Requirements
271.201 General.
271.203 Policy, purpose and scope, and goals.
271.205 System description.
271.207 Consultation process description.
271.209 Consultation on amendments.
271.211 Risk-based hazard management program process.
271.213 Safety performance evaluation process.
271.215 Safety outreach process.
271.217 Technology implementation plan process.
271.219 Implementation and support training plan.
271.221 Internal assessment process.
271.223 RRP implementation plan.
Subpart D--Review, Approval, and Retention of Risk Reduction Program
Plans
271.301 Filing and approval.
271.303 Amendments.
271.305 Reopened review.
271.307 Retention of RRP plans.
Subpart E--Internal Assessments
271.401 Annual internal assessments.
271.403 Internal assessment improvement plans.
271.405 Internal assessment reports.
Subpart F--External Audits
271.501 External audits.
271.503 External audit improvement plans.
Appendix A to Part 271--Schedule of Civil Penalties [Reserved]
Appendix B to Part 271--Federal Railroad Administration Guidance on
the Risk Reduction Program Consultation Process
Appendix C to Part 271--Procedures for Submission of Risk Reduction
Program Plans and Statements from Directly Affected Employees
Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
Subpart A--General
Sec. 271.1 Purpose and scope.
(a) The purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by railroads. Each railroad subject to this part must
establish a Risk Reduction Program (RRP) that systematically evaluates
railroad safety hazards on its system and manages the risks associated
with those hazards in order to reduce the number and rates of railroad
accidents/incidents, injuries, and fatalities.
(b) This part prescribes minimum Federal safety standards for the
preparation, adoption, and implementation of RRPs. This part does not
restrict railroads from adopting and enforcing additional or more
stringent requirements not inconsistent with this part.
(c) This part prescribes the protection of information generated
solely for the purpose of developing, implementing, or evaluating an
RRP under this part.
(d) An RRP required by this part is not intended to address and
should not address the safety of employees while performing
inspections, tests, and maintenance, except where FRA has already
addressed workplace safety issues, such as blue signal protection in
part 218 of this chapter. FRA does not intend to approve any specific
portion of an RRP plan that relates to employee working conditions.
Sec. 271.3 Application.
(a) Except as provided in paragraph (b) of this section, this part
applies to--
(1) Class I railroads;
(2) Railroads determined to have inadequate safety performance
pursuant to Sec. 271.13; and
(3) Railroads that voluntarily comply with the requirements of this
part pursuant to Sec. 271.15.
(b) This part does not apply to:
(1) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation;
(2) Tourist, scenic, historic, or excursion operations, whether on
or off the general railroad system of transportation;
(3) Operation of private cars, including business/office cars and
circus trains;
(4) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec. 271.5); and
(5) Commuter or intercity passenger railroads that are subject to
Federal system safety program requirements.
Sec. 271.5 Definitions.
As used in this part only--
Accident/incident means--
(1) Any impact between railroad on-track equipment and a highway
user at a highway-rail grade crossing. The term ``highway user''
includes automobiles, buses, trucks, motorcycles, bicycles, farm
vehicles, pedestrians, and all other modes of surface transportation
(motorized and un-motorized);
(2) Any collision, derailment, fire, explosion, act of God, or
other event involving operation of railroad on-track equipment
(standing or moving) that results in reportable damages greater than
the current reporting threshold identified in part 225 of this chapter
to railroad on-track equipment, signals, track, track structures, and
roadbed;
(3) Each death, injury, or occupational illness that is a new case
and meets the general reporting criteria listed in Sec. 225.19(d)(1)
through (6) of this chapter if any event or exposure arising from the
operation of a railroad is a discernible cause of a significant
aggravation to a pre-existing injury or illness. The event or exposure
arising from the operation of a railroad need only be one of the
discernible causes; it need not be the sole or predominant cause.
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
FRA means the Federal Railroad Administration.
FRA Associate Administrator means the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad Administration,
or the Associate Administrator's delegate.
Fully implemented means that all elements of an RRP as described in
the RRP plan are established and applied to the safety management of
the railroad.
Hazard means any real or potential condition that can cause injury,
illness, or death; damage to or loss of a system, equipment, or
property; or damage to the environment.
Inadequate safety performance means safety performance that FRA has
determined to be inadequate based on the criteria described in Sec.
271.13.
Mitigation strategy means an action or program intended to reduce
or eliminate the risk associated with a hazard.
Person means an entity of any type covered under 1 U.S.C. 1,
including, but not limited to, the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor or subcontractor providing goods
or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor or
subcontractor.
Pilot project means a limited scope project used to determine
whether
[[Page 10990]]
quantitative proof suggests that a particular system or mitigation
strategy has potential to succeed on a full-scale basis.
Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
is not considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
Positive train control system means a system designed to prevent
train-to-train collisions, overspeed derailments, incursions into
established work zone limits, and the movement of a train through a
switch left in the wrong position, as described in subpart I of part
236 of this chapter.
Railroad means--
(1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including--
(i) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads, but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; and
(2) A person or organization that provides railroad transportation,
whether directly or by contracting out operation of the railroad to
another person.
Risk means the combination of the probability (or frequency of
occurrence) and the consequence (or severity) of a hazard.
Risk-based HMP means a risk-based hazard management program.
Risk reduction means the formal, top-down, organization-wide
approach to managing safety risk and assuring the effectiveness of
safety risk mitigation strategies. It includes systematic procedures,
practices, and policies for the management of safety risk.
RRP means a Risk Reduction Program.
RRP plan means a Risk Reduction Program plan.
Safety culture means the shared values, actions, and behaviors that
demonstrate a commitment to safety over competing goals and demands.
Safety performance means a realized or actual safety accomplishment
relative to stated safety objectives.
Safety outreach means the communication of safety information to
support the implementation of an RRP throughout a railroad.
Senior management means personnel at the highest level of a
railroad's management who are responsible for making major policy
decisions and long-term business plans regarding the operation of the
railroad.
STB means the Surface Transportation Board of the United States.
Tourist, scenic, historic, or excursion operations means railroad
operations that carry passengers, often using antiquated equipment,
with the conveyance of the passengers to a particular destination not
being the principal purpose. Train movements of new passenger equipment
for demonstration purposes are not tourist, scenic, historic, or
excursion operations.
Sec. 271.7 Waivers.
(a) A person subject to a requirement of this part may petition the
Administrator for a waiver of compliance with such requirement. The
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(b) Each petition for a waiver under this section shall be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions the
Administrator deems necessary.
Sec. 271.9 Penalties and responsibility for compliance.
(a) Any person that violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $650 and not more than $25,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to individuals, or has caused death or injury, a penalty not to exceed
$105,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. Any person that knowingly and
willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311 (formerly codified
in 45 U.S.C. 438(e)). Appendix A to this part contains a schedule of
civil penalty amounts used in connection with this part.
(b) Although the requirements of this part are stated in terms of
the duty of a railroad, when any person, including a contractor or
subcontractor to a railroad, performs any function covered by this
part, that person (whether or not a railroad) shall perform that
function in accordance with this part.
Sec. 271.11 Discovery and admission as evidence of certain
information.
(a) Any information (including plans, reports, documents, surveys,
schedules, lists, or data) compiled or collected for the sole purpose
of developing, implementing, or evaluating an RRP under this part,
including a railroad carrier's analysis of its safety risks conducted
pursuant to Sec. 271.103(b) and a statement of the mitigation measures
with which it would address those risks created pursuant to Sec.
271.103(c), shall not be subject to discovery, admitted into evidence,
or considered for other purposes in a Federal or State court proceeding
for damages involving personal injury, wrongful death, or property
damage.
(b) This section does not affect the discovery, admissibility, or
consideration for other purposes of information (including plans,
reports, documents, surveys, schedules, lists, or data) compiled or
collected for a purpose other than that specifically identified in
paragraph (a) of this section. Such information shall continue to be
discoverable, admissible into evidence, or considered for other
purposes if it was discoverable, admissible, or considered for other
purposes prior to the existence of this section. This includes such
information that either:
(1) Existed prior to [365 DAYS AFTER THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER];
(2) Was compiled or collected prior to [365 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE
[[Page 10991]]
IN THE FEDERAL REGISTER] and that continues to be compiled or
collected; or
(3) Is compiled or collected after [365 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
(c) State discovery rules and sunshine laws that could be used to
require the disclosure of information protected by paragraph (a) of
this section are preempted.
Sec. 271.13 Determination of inadequate safety performance.
(a) General. (1) This section describes FRA's methodology for
determining which railroads are required to establish an RRP because
they have inadequate safety performance. FRA's methodology will consist
of a two-phase annual analysis, comprised of both a quantitative
analysis and qualitative assessment, which will include all railroads
except for:
(i) Railroads excluded from this part under Sec. 271.3(b);
(ii) Railroads already required to comply with this part;
(iii) Railroads that are voluntarily complying with this part under
Sec. 271.15; and
(iv) Except as provided in paragraph (a)(2) of this section, new
start-up railroads that have reported accident/incident data to FRA
pursuant to part 225 of this chapter for fewer than three years.
(2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads
formed through amalgamation of operations (for example, railroads
formed through consolidations, mergers, or acquisitions of control)
will be included in the analysis using the combined data of the pre-
amalgamation entities.
(b) Quantitative analysis. (1) Methodology. The first phase of
FRA's annual analysis will be a statistically-based quantitative
analysis of each railroad within the scope of the analysis, using
historical safety data maintained by FRA for the three most recent full
calendar years. The purpose of the quantitative analysis is to make a
threshold identification of railroads that possibly have inadequate
safety performance. This quantitative analysis will calculate the
following four factors:
(i) A railroad's number of on-duty employee fatalities during the
3-year period, calculated using ``Worker on Duty-Railroad Employee
(Class A)'' information reported on FRA Form 6180.55a pursuant to FRA's
accident/incident reporting regulations in part 225 of this chapter;
(ii) A railroad's on-duty employee injury/illness rate, calculated
using ``Worker on Duty-Railroad Employee (Class A)'' information
reported on FRA Forms 6180.55a and 6180.55 pursuant to FRA's accident/
incident reporting regulations in part 225 of this chapter. This rate
will be calculated using the following formula, which gives the rate of
employee injuries and occupational illnesses per 200,000 employee hours
over a 3-year period:
Injury/Illness Rate = (Total FRA Reportable On-Duty Employee
Injuries + Total FRA Reportable On-Duty Employee Occupational
Illnesses over a 3-year period) / (Total Employee Hours over a 3-
year period/200,000)
(iii) A railroad's rail equipment accident/incident rate,
calculated using information reported on FRA Forms 6180.54 and 6180.55
pursuant to FRA's accident/incident reporting regulations in part 225
of this chapter. This rate will be calculated using the following
formula, which gives the rate of rail equipment accidents/incidents per
1,000,000 train miles over a 3-year period:
Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail
Equipment Accidents/Incidents over a 3-year period / (Total Train
Miles over a 3-year period/1,000,000)
(iv) A railroad's violation rate. This rate will be calculated
using the following formula, which gives the rate of violations issued
by FRA to a railroad per 1,000,000 train miles over a 3-year period:
Violation Rate = Total FRA Violations over a 3-year period /
(Total Train Miles over a 3-year period/1,000,000)
(2) Identification. The quantitative analysis will identify
railroads as possibly having inadequate safety performance if at least
one of the following two conditions exists within the scope and
timeframe of the analysis:
(i) A railroad has one or more fatality; or
(ii) A railroad is at or above the 95th percentile in at least two
of three factors described in paragraphs (b)(1)(ii) through (iv) of
this section.
(c) Qualitative assessment. The second phase of FRA's analysis will
be a qualitative assessment of railroads identified in the quantitative
analysis as possibly having inadequate safety performance.
(1) Notification and railroad/employee comment. FRA will notify a
railroad in writing if it will be subject to a qualitative assessment
because it was identified in the quantitative analysis as possibly
having inadequate safety performance.
(i) No later than 15 days after receiving FRA's written notice, a
railroad shall notify its employees of FRA's written notice. This
employee notification shall be posted at all locations where the
railroad reasonably expects its employees to report and to have an
opportunity to observe the notice. The notification shall be posted and
remain continuously displayed until 45 days after FRA's initial written
notice. Employees who do not have a regular on-duty point for reporting
to work shall be notified by other means, in accordance with the
railroad's standard practice for communicating with employees. The
notification shall inform railroad employees that they may
confidentially submit comments to FRA regarding the railroad's safety
performance for a period of 45 days following FRA's initial written
notice, and shall contain instructions for doing so.
(ii) No later than 45 days after receiving FRA's written notice, a
railroad may provide FRA documentation supporting any claims that the
railroad does not have inadequate safety performance.
(2) Methodology. No later than 90 days after providing the initial
notice to a railroad identified by the quantitative analysis, FRA will
conduct a qualitative assessment of the identified railroad and make a
final determination regarding whether it has inadequate safety
performance. The qualitative assessment will consider any documentation
provided by the railroad, comments submitted by railroad employees, and
any other pertinent information.
(d) Final notification and compliance. FRA will provide a final
written notice to each railroad that receives an initial written
notice, informing the railroad whether or not FRA determines that the
railroad has demonstrated inadequate safety performance. A railroad
with inadequate safety performance shall develop and implement an RRP
meeting the requirements of this part. As provided by Sec. 271.301(a),
a railroad with inadequate safety performance shall submit to FRA an
RRP plan no later than 90 days after receiving final written notice
from FRA that it shall comply with this part, or no later than [545
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], whichever is later.
(e) Compliance. A railroad with inadequate safety performance shall
comply with the requirements of this part for a minimum period of five
years, running from the date on which FRA approves the railroad's RRP
plan pursuant to subpart D of this part.
[[Page 10992]]
(f) Petition. After the five-year compliance period, the railroad
may petition FRA for approval to discontinue compliance with this part.
A petition shall be filed according to the procedures for waivers
contained in part 211 of this chapter. Upon receiving a petition, FRA
will reevaluate the railroad's safety performance for the purpose of
determining whether the railroad's RRP has resulted in significant and
sustained safety improvements, and whether these measured improvements
are likely sustainable in the long term. FRA's evaluation will include
a quantitative analysis as described in paragraph (b) of this section.
FRA will also examine qualitative factors and review information from
FRA RRP audits and other relevant sources. After completing its
evaluation, FRA will notify the railroad in writing whether or not it
shall be required to continue compliance with this part.
Sec. 271.15 Voluntary compliance.
(a) General. A railroad not otherwise subject to this part may
voluntarily comply by establishing and fully implementing an RRP
meeting the requirements of this part. A voluntary RRP shall be
supported by an RRP plan that has been submitted to FRA for approval
pursuant to the requirements of subpart D of this part. After FRA has
approved its RRP plan, a voluntarily-compliant railroad could be
subject to civil penalties or other enforcement action for failing to
comply with the requirements of this part.
(b) Duration. A voluntarily-compliant railroad will be required to
comply with the requirements of this part for a minimum period of five
years, running from the date on which FRA approves the railroad's plan
pursuant to subpart D of this part.
(c) Petition. After this five-year period, a voluntarily-compliant
railroad may petition FRA for approval to discontinue compliance with
this part. This petition shall be filed according to the procedures for
waivers contained in part 211 of this chapter.
(d) Discovery and admission as evidence of certain information. The
information protection provisions found in Sec. 271.11 apply only to
information compiled or collected pursuant to a voluntary RRP that is
conducted in accordance with the requirements of this part.
Subpart B--Risk Reduction Program Requirements
Sec. 271.101 Risk reduction programs.
(a) Program required. Each railroad shall establish and fully
implement an RRP meeting the requirements of this part. An RRP shall
systematically evaluate safety hazards on a railroad's system and
manage the resulting risks to reduce the number and rates of railroad
accidents/incidents, injuries, and fatalities. An RRP is not a one-time
exercise, but an ongoing program that supports continuous safety
improvement. An RRP shall include the following:
(1) A risk-based hazard management program, as described in Sec.
271.103;
(2) A safety performance evaluation component, as described in
Sec. 271.105;
(3) A safety outreach component, as described in Sec. 271.107;
(4) A technology analysis and technology implementation plan, as
described in Sec. 271.109; and
(5) RRP implementation and support training, as described in Sec.
271.111.
(b) RRP plans. A railroad's RRP shall be supported by an FRA-
approved RRP plan meeting the requirements of subpart C of this part.
(c) Host railroads and system safety programs. As part of its RRP,
each railroad that hosts passenger train service for a railroad subject
to FRA system safety program requirements shall communicate with the
railroad that provides or operates such passenger service and
coordinate the portions of the system safety program applicable to the
railroad hosting the passenger train service.
(d) Persons that utilize or perform significant safety-related
services. Under Sec. 271.205(b), a railroad's RRP plan shall identify
persons utilizing or performing on the railroad's behalf significant
safety-related services (including entities such as host railroads,
contract operators, shared track/corridor operators, or other
contractors utilizing or performing significant safety-related
services). A railroad shall ensure that these persons utilizing or
performing significant safety-related services on its behalf support
and participate in its RRP.
Sec. 271.103 Risk-based hazard management program.
(a) General. (1) An RRP shall include an integrated, system-wide,
and ongoing risk-based hazard management program (HMP) that proactively
identifies hazards and mitigates the risks resulting from those
hazards.
(2) A risk-based HMP shall be fully implemented (i.e., activities
initiated) within 36 months after FRA approves a railroad's RRP plan
pursuant to Sec. 271.301(b).
(b) Risk-based hazard analysis. As part of its risk-based HMP, a
railroad shall conduct a risk-based hazard analysis that addresses, at
a minimum, the following aspects of a railroad's system:
Infrastructure; equipment; employee levels and work schedules;
operating rules and practices; management structure; employee training;
and other areas impacting railroad safety that are not covered by
railroad safety laws or regulations or other Federal laws or
regulations. A railroad shall make the results of its risk-based hazard
analysis available to FRA upon request. At a minimum, a risk-based
hazard analysis shall:
(1) Identify hazards by analyzing:
(i) Aspects of the railroad's system, including any operational
changes, system extensions, or system modifications; and
(ii) Accidents/incidents, injuries, fatalities, and other known
indicators of hazards;
(2) Calculate risk by determining and analyzing the likelihood and
severity of potential events associated with identified risk-based
hazards; and
(3) Compare and prioritize the identified risks for mitigation
purposes.
(c) Mitigation strategies. (1) As part of its risk-based HMP, a
railroad shall design and implement mitigation strategies that improve
safety by:
(i) Mitigating or eliminating aspects of a railroad's system that
increase risks identified in the risk-based hazard analysis; and
(ii) Enhancing aspects of a railroad's system that decrease risks
identified in the risk-based hazard analysis.
(2) A railroad may use pilot projects, including pilot projects
conducted by other railroads, to determine whether quantitative data
suggests that a particular mitigation strategy has potential to succeed
on a full-scale basis.
Sec. 271.105 Safety performance evaluation.
(a) General. As part of its RRP, a railroad shall develop and
maintain ongoing processes and systems for evaluating the safety
performance of its system and measuring its safety culture. A
railroad's safety performance evaluation shall consist of both a safety
monitoring and a safety assessment component.
(b) Safety monitoring. A railroad shall monitor the safety
performance of its system by, at a minimum, establishing processes and
systems to acquire safety data and information from the following
sources:
[[Page 10993]]
(1) Continuous monitoring of operational processes and systems
(including any operational changes, system extensions, or system
modifications);
(2) Periodic monitoring of the operational environment to detect
changes that may generate new hazards;
(3) Investigations of accidents/incidents, injuries, fatalities,
and other known indicators of hazards;
(4) Investigations of reports regarding potential non-compliance
with Federal railroad safety laws or regulations, railroad operating
rules and practices, or mitigation strategies established by the
railroad; and
(5) A reporting system through which employees can report safety
concerns (including, but not limited to, hazards, issues, occurrences,
and incidents) and propose safety solutions and improvements.
(c) Safety assessment. For the purpose of assessing the need for
changes to a railroad's mitigation strategies or overall RRP, a
railroad shall establish processes to analyze the data and information
collected pursuant to paragraph (b) of this section (as well as any
other relevant data regarding its operations, products, and services).
At a minimum, this assessment shall:
(1) Evaluate the overall effectiveness of the railroad's RRP in
reducing the number and rates of railroad accidents/incidents,
injuries, and fatalities;
(2) Evaluate the effectiveness of the railroad's RRP in meeting the
goals described by its RRP plan (see Sec. 271.203(c));
(3) Evaluate the effectiveness of risk mitigations in reducing the
risk associated with an identified hazard. Any hazards associated with
ineffective mitigation strategies shall be reevaluated through the
railroad's risk-based HMP, as described in Sec. 271.103; and
(4) Identify new, potential, or previously unknown hazards, which
shall then be evaluated by the railroad's risk-based HMP, as described
in Sec. 271.103.
Sec. 271.107 Safety outreach.
(a) Outreach. An RRP shall include a safety outreach component that
communicates RRP safety information to railroad personnel (including
contractors) as that information is relevant to their positions. At a
minimum, a safety outreach program shall:
(1) Convey safety-critical information;
(2) Explain why RRP-related safety actions are taken; and
(3) Explain why safety procedures are introduced or changed.
(b) Reporting to management. The status of risk-based HMP
activities shall be reported to railroad senior management on an
ongoing basis.
Sec. 271.109 Technology analysis and technology implementation plan.
(a) General. As part of its RRP, a Class I railroad shall conduct a
technology analysis and develop and adopt a technology implementation
plan no later than [1095 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER]. A railroad with inadequate safety
performance shall conduct a technology analysis and develop and adopt a
technology implementation plan no later than three years after
receiving final written notification from FRA that it shall comply with
this part, pursuant to Sec. 271.13(e), or no later than [1095 DAYS
AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER],
whichever is later. A railroad that the STB reclassifies or newly
classifies as a Class I railroad shall conduct a technology analysis
and develop and adopt a technology implementation plan no later than
three years following the effective date of the classification or
reclassification or no later than [1155 DAYS AFTER DATE OF PUBLICATION
OF THE FINAL RULE IN THE FEDERAL REGISTER], whichever is later. A
voluntarily-compliant railroad shall conduct a technology analysis and
develop and adopt a technology implementation plan no later than three
years after FRA approves the railroad's RRP plan.
(b) Technology analysis. A technology analysis shall evaluate
current, new, or novel technologies that may mitigate or eliminate
hazards and the resulting risks identified through the risk-based
hazard management program. The railroad shall analyze the safety
impact, feasibility, and costs and benefits of implementing
technologies that will mitigate or eliminate hazards and the resulting
risks. At a minimum, the technologies a railroad shall consider as part
of its technology analysis are: processor-based technologies, positive
train control systems, electronically-controlled pneumatic brakes, rail
integrity inspection systems, rail integrity warning systems, switch
position monitors and indicators, trespasser prevention technology, and
highway-rail grade crossing warning and protection technology.
(c) Technology implementation plan. A railroad shall develop, and
periodically update as necessary, a technology implementation plan that
contains a prioritized implementation schedule describing the railroad
carrier's plan for development, adoption, implementation, maintenance,
and use of current, new, or novel technologies on its system over a 10-
year period to reduce safety risks identified in the railroad's risk-
based hazard management program.
(d) Positive train control. Except as required by subpart I of part
236 of this chapter, if a railroad decides to implement positive train
control systems as part of its technology implementation plan, the
railroad shall set forth and comply with a schedule for implementation
of the positive train control system no later than December 31, 2018.
Sec. 271.111 Implementation and support training.
(a) A railroad shall provide RRP training to each employee,
including an employee of any person identified by the railroad's RRP
plan pursuant to Sec. 271.205(a)(3) as utilizing or performing
significant safety-related services on the railroad's behalf, who has
significant responsibility for implementing and supporting the
railroad's RRP. This training shall help ensure that all personnel with
significant responsibility for implementing and supporting the RRP
understand the goals of the program, are familiar with the elements of
the railroad's program, and have the requisite knowledge and skills to
fulfill their responsibilities under the program.
(b) A railroad shall keep a record of training conducted under this
section and update that record as necessary.
(c) Training under this section may include, but is not limited to,
interactive computer-based training, video conferencing, or formal
classroom training.
Subpart C--Risk Reduction Program Plan Requirements
Sec. 271.201 General.
A railroad shall adopt and implement its RRP through a written RRP
plan containing the elements described in this subpart. A railroad's
RRP plan shall be approved by FRA according to the requirements
contained in subpart D of this part.
Sec. 271.203 Policy, purpose and scope, and goals.
(a) Policy statement. An RRP plan shall contain a policy statement
endorsing the railroad's RRP. This statement shall be signed by the
chief official at the railroad (e.g., Chief Executive Officer).
(b) Purpose and scope. An RRP plan shall contain a statement
describing the purpose and scope of the railroad's RRP.
[[Page 10994]]
This purpose and scope statement shall describe:
(1) The railroad's safety philosophy and safety culture;
(2) How the railroad promotes improvements to its safety culture;
(3) The roles and responsibilities of railroad personnel (including
management) within the railroad's RRP; and
(4) How any person that utilizes or provides significant safety-
related services to a railroad (including host railroads, contract
operators, shared track/corridor operators, or other contractors) will
support and participate in the railroad's RRP.
(c) Goals. An RRP plan shall contain a statement that defines the
specific goals of the RRP and describes clear strategies for reaching
those goals. These goals shall be long-term, meaningful, measurable,
and focused on the mitigation of risks arising from identified safety
hazards.
Sec. 271.205 System description.
(a) An RRP plan shall contain a description of the characteristics
of the railroad's system. At a minimum, the system description shall:
(1) Support the identification of hazards by establishing a basic
understanding of the scope of the railroad's system;
(2) Include components briefly describing the railroad's history,
operations, scope of service, maintenance, physical plant, and system
requirements; and
(3) Identify all persons that utilize or perform significant
safety-related services on the railroad's behalf (including entities
such as host railroads, contract operations, shared track/corridor
operators, or other contractors).
(b) [Reserved]
Sec. 271.207 Consultation process description.
(a) General duty. (1) Each railroad required to establish an RRP
under this part shall in good faith consult with, and use its best
efforts to reach agreement with, all of its directly affected
employees, including any non-profit labor organization representing a
class or craft of directly affected employees, on the contents of the
RRP plan.
(2) A railroad that consults with a non-profit employee labor
organization is considered to have consulted with the directly affected
employees represented by that organization.
(3) A Class I railroad shall meet no later than [240 DAYS AFTER THE
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] with its
directly affected employees to discuss the consultation process. The
Class I railroad shall notify the directly affected employees of this
meeting no less than 60 days before it is scheduled.
(4) A railroad determined to have inadequate safety performance
shall meet no later than 30 days following FRA's notification with its
directly affected employees to discuss the consultation process. The
inadequate safety performance railroad shall notify the directly
affected employees of this meeting no less than 15 days before it is
scheduled.
(5) A railroad that the STB reclassifies or newly classifies as a
Class I railroad shall meet with its directly affected employees to
discuss the consultation process no later than 30 days following the
effective date of the classification or reclassification. The
reclassified or newly classified Class I railroad shall notify the
directly affected employees of this meeting no less than 15 days before
it is scheduled.
(6) A voluntarily-compliant railroad shall in good faith consult
with, and use its best efforts to reach agreement with, all of its
directly affected employees, including any non-profit labor
organization representing a class or craft of directly affected
employees, on the contents of the RRP plan. However, as there is no
deadline for a voluntarily-compliant railroad to file an RRP plan with
FRA, there is also no requirement for a voluntarily-compliant railroad
to meet with its directly affected employees within a certain
timeframe.
(7) Appendix B to this part contains guidance on how a railroad
might comply with the requirements of this section.
(b) Railroad consultation statements. A railroad required to submit
an RRP plan under Sec. 271.301(a) shall also submit, together with
that plan, a consultation statement that includes the following
information:
(1) A detailed description of the process the railroad utilized to
consult with its directly affected employees;
(2) If the railroad was not able to reach agreement with its
directly affected employees on the contents of its RRP plan,
identification of any known areas of non-agreement and an explanation
why it believes agreement was not reached;
(3) If the RRP plan would affect a provision of a collective
bargaining agreement between the railroad and a non-profit employee
labor organization, identification of any such provision and an
explanation how the RRP plan would affect it; and
(4) A service list containing the names and contact information for
the international/national president of any non-profit employee labor
organization representing a class or craft of the railroad's directly
affected employees and any directly affected employee not represented
by a non-profit employee labor organization who significantly
participated in the consultation process. If an international/national
president did not participate in the consultation process, the service
list shall also contain the name and contact information for a
designated representative who participated on his or her behalf. When a
railroad submits its RRP plan and consultation statement to FRA, it
shall also send a copy of these documents to all individuals identified
in the service list. A railroad may send the documents to the
identified individuals via electronic means or utilizing other service
means reasonably calculated to succeed.
(c) Statements from directly affected employees. (1) If a railroad
and its directly affected employees cannot reach agreement on the
proposed contents of an RRP plan, then directly affected employees may
file a statement with the FRA Associate Administrator explaining their
views on the plan on which agreement was not reached. The FRA Associate
Administrator shall consider any such views during the plan review and
approval process.
(2) As provided in Sec. 271.301(a)(4), a railroad's directly
affected employees have 60 days following the railroad's submission of
a proposed RRP plan to submit the statement described in paragraph
(c)(1) of this section.
Sec. 271.209 Consultation on amendments.
A railroad's RRP plan shall include a description of the process
the railroad will use to consult with its directly affected employees
on any subsequent substantive amendments to the railroad's system
safety program. The requirements of this paragraph do not apply to non-
substantive amendments (e.g., amendments that update names and
addresses of railroad personnel).
Sec. 271.211 Risk-based hazard management program process.
(a) Risk-based hazard analysis. An RRP plan shall describe the
railroad's method for conducting its risk-based hazard analysis
pursuant to Sec. 271.103(b). The description shall specify:
(1) The processes the railroad will use to identify hazards and the
risks associated with those hazards;
(2) The sources the railroad will use to support the ongoing
identification of
[[Page 10995]]
hazards and the risks associated with those hazards; and
(3) The processes the railroad will use to compare and prioritize
identified risks for mitigation purposes.
(b) Mitigation strategies. An RRP plan shall describe the
railroad's processes for:
(1) Identifying and selecting mitigation strategies; and
(2) Monitoring an identified hazard through the mitigation of the
risk associated with that hazard.
Sec. 271.213 Safety performance evaluation process.
An RRP plan shall describe a railroad's processes for measuring its
safety culture pursuant to Sec. 271.105(a), monitoring safety
performance pursuant to Sec. 271.105(b), and conducting safety
assessments pursuant to Sec. 271.105(c).
Sec. 271.215 Safety outreach process.
An RRP plan shall describe a railroad's process for communicating
safety information to railroad personnel and management pursuant to
Sec. 271.107.
Sec. 271.217 Technology implementation plan process.
(a) An RRP plan shall contain a description of the railroad's
processes for:
(1) Conducting a technology analysis pursuant to Sec. 271.109(b);
and
(2) Developing a technology implementation plan pursuant to Sec.
271.109(c).
(b) [Reserved]
Sec. 271.219 Implementation and support training plan.
(a) An RRP plan shall contain a training plan describing the
railroad's processes, pursuant to Sec. 271.111, for training employees
with significant responsibility for implementing and supporting the RRP
(including employees of a person identified pursuant to Sec.
271.205(a)(3) as utilizing or performing significant safety-related
services on the railroad's behalf who have significant responsibility
for implementing and supporting the railroad's RRP).
(b) The training plan shall describe the frequency and content of
the RRP training for each position or job function identified pursuant
to Sec. 271.223(b)(3) as having significant responsibilities for
implementing the RRP.
Sec. 271.221 Internal assessment process.
(a) An RRP plan shall describe the railroad's process for
conducting an internal assessment of its RRP pursuant to subpart E of
this part. At a minimum, this description shall contain the railroad's
processes used to:
(1) Conduct an internal assessment of its RRP;
(2) Internally report the results of its internal assessment to
railroad senior management; and
(3) Develop improvement plans, including developing and monitoring
recommended improvements (including any necessary revisions or updates
to the RRP plan) for fully implementing the railroad's RRP, complying
with the implemented elements of the RRP plan, or achieving the goals
identified in the railroad's RRP plan pursuant to Sec. 271.203(c).
(b) [Reserved]
Sec. 271.223 RRP implementation plan.
(a) An RRP plan shall describe how the railroad will implement its
RRP. A railroad may implement its RRP in stages, so long as the entire
RRP is fully implemented within 36 months of FRA's approval of the
plan.
(b) At a minimum, a railroad's implementation plan shall:
(1) Cover the entire implementation period;
(2) Contain a timeline describing when certain implementation
milestones will be achieved. Implementation milestones shall be
specific and measurable;
(3) Describe the roles and responsibilities of each position or job
function that has significant responsibility for implementing the
railroad's RRP or any changes to the railroad's RRP (including any such
positions or job functions held by an entity or contractor that
utilizes or performs on the railroad's behalf significant safety-
related services); and
(4) Describe how significant changes to the RRP may be made.
Subpart D--Review, Approval, and Retention of Risk Reduction
Program Plans
Sec. 271.301 Filing and approval.
(a) Filing. A Class I railroad shall submit one copy of its RRP
plan to the FRA Associate Administrator for Railroad Safety/Chief
Safety Officer at Mail Stop 25, 1200 New Jersey Avenue SE., Washington,
DC, 20590, no later than [545 DAYS AFTER THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER]. A railroad with inadequate safety
performance shall submit its RRP plan no later than 90 days after
receiving final written notification from FRA that it shall comply with
this part, pursuant to Sec. 271.13(d), or no later than [545 DAYS
AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], whichever is later. A railroad that the STB reclassifies or
newly classifies as a Class I railroad shall submit its RRP plan no
later than 90 days following the effective date of the classification
or reclassification or no later than [545 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], whichever is
later. A voluntarily-compliant railroad may submit an RRP plan at any
time. A railroad's submitted RRP plan shall include:
(1) The signature, name, title, address, and telephone number of
the chief official responsible for safety and who bears the primary
managerial authority for implementing the submitting railroad's safety
policy. By signing, this chief official is certifying that the contents
of the RRP plan are accurate and that the railroad will implement the
contents of the program as approved by FRA;
(2) The contact information for the primary person responsible for
managing the RRP;
(3) The contact information for the senior representatives of the
persons that the railroad has determined utilize or provide significant
safety-related services (including host railroads, contract operators,
shared track/corridor operators, and other contractors); and
(4) As required by Sec. 271.207(b), a statement describing how it
consulted with its directly affected employees on the contents of its
RRP plan. Directly affected employees have 60 days following the
railroad's submission of its proposed RRP plan to file a statement in
accordance with Sec. 271.207(c).
(b) Approval. (1) Within 90 days of receipt of an RRP plan, or
within 90 days of receipt of each RRP plan submitted prior to the
commencement of railroad operations, FRA will review the proposed RRP
plan to determine if it sufficiently addresses the required elements.
This review will also consider any statement submitted by directly
affected employees pursuant to Sec. 271.207(c).
(2) FRA will notify the primary contact person of the submitting
railroad in writing whether FRA has approved the proposed plan and, if
not approved, the specific points in which the RRP plan is deficient.
FRA will also provide this notification to each individual identified
in the service list accompanying the consultation statement required
under Sec. 271.207(b)(4).
(3) If FRA does not approve an RRP plan, the submitting railroad
shall amend the proposed plan to correct all identified deficiencies
and shall provide FRA a corrected copy no later than 60
[[Page 10996]]
days following receipt of FRA's written notice that the submitted plan
was not approved. If FRA determines that the necessary corrections are
substantively significant, it will direct the railroad to consult
further with its directly affected employees regarding the corrections.
If the corrections are substantively significant, a railroad will also
be required to include an updated consultation statement, along with
its resubmitted plan, pursuant to Sec. 217.107(b). Directly affected
employees will also have 30 days following the railroad's resubmission
of its proposed RRP plan to file a statement addressing the
substantively significant changes in accordance with Sec. 271.207(c).
(c) Electronic Submission. All documents required to be submitted
to FRA under this part may be submitted electronically pursuant to the
procedures in Appendix C to this part.
Sec. 271.303 Amendments.
(a) Consultation requirements. For substantive amendments, a
railroad shall follow the process, described in its RRP plan pursuant
to Sec. 271.209, for consulting with its directly affected employees.
(b) Filing. (1) A railroad shall submit any amendment(s) to its
approved RRP plan to FRA's Associate Administrator not less than 60
days prior to the proposed effective date of the amendment(s). The
railroad shall file the amendment(s) with a cover letter outlining the
proposed change(s) to the approved RRP plan.
(2) If the proposed amendment is limited to adding or changing a
name, title, address, or telephone number of a person, FRA approval is
not required under the process of this section, although the railroad
shall still file the amended RRP plan with FRA's Associate
Administrator for Railroad Safety/Chief Safety Officer. These proposed
amendments may be implemented by the railroad upon filing with FRA. All
other proposed amendments must comply with the formal approval process
described by this section.
(c) Review. (1) FRA will review a proposed amendment to an RRP plan
within 45 days of receipt. FRA will then notify the primary contact
person of the railroad, whether the proposed amendment has been
approved by FRA. If not approved, FRA will inform the railroad of the
specific points in which the proposed amendment is deficient.
(2) If FRA has not notified the railroad by the proposed effective
date of the amendment whether the amendment has been approved or not,
the railroad may implement the amendment, subject to FRA's decision.
(3) If a proposed RRP plan amendment is not approved by FRA, no
later than 60 days following the receipt of FRA's written notice, the
railroad shall either provide FRA a corrected copy of the amendment
that addresses all deficiencies noted by FRA or notice that the
railroad is retracting the amendment.
Sec. 271.305 Reopened review.
Following approval of an RRP plan or an amendment to such a plan,
FRA may reopen consideration of the plan or amendment, in whole or in
part, for cause stated.
Sec. 271.307 Retention of RRP plans.
(a) Railroads. A railroad shall retain at its system and division
headquarters one copy of its RRP plan and each subsequent amendment(s)
to that plan. A railroad may comply with this requirement by making an
electronic copy available.
(b) Inspection and copying. A railroad shall make a copy of the RRP
plan available to representatives of the FRA or States participating
under part 212 of this chapter for inspection and copying during normal
business hours.
Subpart E--Internal Assessments
Sec. 271.401 Annual internal assessments.
(a) Beginning with the first calendar year after the calendar year
in which FRA approves a railroad's RRP plan pursuant to Sec.
271.301(b), the railroad shall annually (i.e., once every calendar
year) conduct an internal assessment of its RRP.
(b) The internal assessment shall determine the extent to which the
railroad has:
(1) Achieved the implementation milestones described in its RRP
plan pursuant to Sec. 271.223(b);
(2) Complied with the implemented elements of the approved RRP
plan;
(3) Achieved the goals described in its RRP plan pursuant to Sec.
271.203(c);
(4) Implemented previous internal assessment improvement plans
pursuant to Sec. 271.403; and
(5) Implemented previous external audit improvements plans pursuant
to Sec. 271.503.
(c) A railroad shall ensure that the results of its internal
assessments are internally reported to railroad senior management.
Sec. 271.403 Internal assessment improvement plans.
(a) Within 30 days of completing its internal assessment, a
railroad shall develop an improvement plan that addresses the findings
of its internal assessment.
(b) At a minimum, a railroad's improvement plan shall:
(1) Describe recommended improvements (including any necessary
revisions or updates to the RRP plan, which would be made through the
amendment process described in Sec. 271.303) that address the findings
of the internal assessment for fully implementing the railroad's RRP,
complying with the implemented elements of the RRP plan, achieving the
goals identified in the railroad's RRP plan pursuant to Sec.
271.203(c), and implementing previous internal assessment improvement
plans and external audit improvement plans;
(2) Identify by position title the individual who is responsible
for carrying out the recommended improvements;
(3) Contain a timeline describing when specific and measurable
milestones for implementing the recommended improvements will be
achieved; and
(4) Specify processes for monitoring the implementation and
evaluating the effectiveness of the recommended improvements.
Sec. 271.405 Internal assessment reports.
(a) Within 60 days of completing its internal assessment, a
railroad shall submit a copy of an internal assessment report to the
FRA Associate Administrator for Railroad Safety/Chief Safety Officer at
Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC, 20590.
(b) This report shall be signed by the railroad's chief official
responsible for safety and who bears primary managerial authority for
implementing the railroad's safety policy. The report shall include:
(1) A description of the railroad's internal assessment;
(2) The findings of the internal assessment;
(3) A specific description of the recommended improvements
contained in the railroad's internal assessment improvement plan,
including any amendments that would be made to the railroad's RRP plan
pursuant to Sec. 271.303; and
(4) The status of the recommended improvements contained in the
railroad's internal assessment improvement plan and any outstanding
recommended improvements from previous internal assessment improvement
plans.
[[Page 10997]]
Subpart F--External Audits
Sec. 271.501 External audits.
FRA will conduct (or cause to be conducted) external audits of a
railroad's RRP. Each audit shall evaluate the railroad's compliance
with the elements of its RRP required by this part. FRA will provide a
railroad written notice of the audit results.
Sec. 271.503 External audit improvement plans.
(a) Submission. Within 60 days of receiving FRA's written notice of
the audit results, if necessary, a railroad shall submit for approval
an improvement plan addressing any instances of deficiency or non-
compliance found in the audit to the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer at Mail Stop 25, 1200 New Jersey
Avenue SE., Washington, DC, 20590.
(b) Requirements. At a minimum, an improvement plan shall:
(1) Describe the improvements the railroad will implement to
address the audit findings;
(2) Identify by position title the individual who is responsible
for carrying out the improvements necessary to address the audit
findings; and
(3) Contain a timeline describing when milestones for implementing
the recommended improvements will be achieved. These implementation
milestones shall be specific and measurable.
(c) Approval. If FRA does not approve the railroad's improvement
plan, FRA will notify the railroad of the plan's specific deficiencies.
The railroad shall amend the proposed plan to correct the identified
deficiencies and provide FRA a corrected copy no later than 30 days
following receipt of FRA's notice that the proposed plan was not
approved.
(d) Status reports. Upon the request of the FRA Associate
Administrator, a railroad shall provide FRA for review a status report
on the implementation of the improvements contained in the improvement
plan.
Appendix A to Part 271--Schedule of Civil Penalties
[Reserved]
Appendix B to Part 271--Federal Railroad Administration Guidance on the
Risk Reduction Program Consultation Process
A railroad required to develop a risk reduction program (RRP) under
this part shall in good faith consult with and use its best efforts to
reach agreement with its directly affected employees on the contents of
the RRP plan. See Sec. 271.207(a)(1). This appendix discusses the
meaning of the terms ``good faith'' and ``best efforts,'' and provides
guidance on how a railroad could comply with the requirement to consult
with directly affected employees on the contents of its RRP plan.
Specific guidance will be provided for employees who are represented by
a non-profit employee labor organization and employees who are not
represented by any such organization.
I. The Meaning of ``Good Faith'' and ``Best Efforts''
``Good faith'' and ``best efforts'' are not interchangeable terms
representing a vague standard for the Sec. 271.207 consultation
process. Rather, each term has a specific and distinct meaning. When
consulting with directly affected employees, therefore, a railroad
shall independently meet the standards for both the good faith and best
efforts obligations. A railroad that does not meet the standard for one
or the other will not be in compliance with the consultation
requirements of Sec. 271.207.
The good faith obligation requires a railroad to consult with
employees in a manner that is honest, fair, and reasonable, and to
genuinely pursue agreement on the contents of an RRP plan. If a
railroad consults with its employees merely in a perfunctory manner,
without genuinely pursuing agreement, it will not have met the good
faith requirement. A railroad may also fail to meet its good faith
obligation if it merely attempts to use the RRP plan to unilaterally
modify a provision of a collective bargaining agreement between the
railroad and a non-profit employee labor organization.
On the other hand, ``best efforts'' establishes a higher standard
than that imposed by the good faith obligation, and describes the
diligent attempts that a railroad shall pursue to reach agreement with
its employees on the contents of its RRP plan. While the good faith
obligation is concerned with the railroad's state of mind during the
consultation process, the best efforts obligation is concerned with the
specific efforts made by the railroad in an attempt to reach agreement.
This would include considerations such as whether a railroad had held
sufficient meetings with its employees, or whether the railroad had
made an effort to respond to feedback provided by employees during the
consultation process. For example, a railroad would not meet the best
efforts obligation if it did not initiate the consultation process in a
timely manner, and thereby failed to provide employees sufficient time
to engage in the consultation process. A railroad would also likely not
meet the best efforts obligation if it presented employees with an RRP
plan and only permitted the employees to express agreement or
disagreement on the plan (assuming that the employees had not
previously indicated that such a consultation would be acceptable). A
railroad may, however, wish to hold off substantive consultations
regarding the contents of its RRP plan until one year after publication
of the rule in order to ensure that information generated as part of
the process is protected from discovery and admissibility into evidence
under Sec. 271.11 of the rule. Generally, best efforts are measured by
the measures that a reasonable person in the same circumstances and of
the same nature as the acting party would take. Therefore, the standard
imposed by the best efforts obligation may vary with different
railroads, depending on a railroad's size, resources, and number of
employees.
When reviewing RRP plans, FRA will determine on a case-by-case
basis whether a railroad has met its Sec. 271.207 good faith and best
efforts obligations. This determination will be based upon the
consultation statement submitted by the railroad pursuant to Sec.
271.207(b) and any statements submitted by employees pursuant to Sec.
271.207(c). If FRA finds that these statements do not provide
sufficient information to determine whether a railroad used good faith
and best efforts to reach agreement, FRA may investigate further and
contact the railroad or its employees to request additional
information. (FRA also expects a railroad's directly affected employees
to utilize good faith and best efforts when negotiating on the contents
of an RRP plan. If FRA's review and investigation of the statements
submitted by the railroad under Sec. 271.207(b) and the directly
affected employees under Sec. 271.207(c) reveal that the directly
affected employees did not utilize good faith and best efforts, FRA
could consider this as part of its approval process.)
If FRA determines that a railroad did not use good faith and best
efforts, FRA may disapprove the RRP plan submitted by the railroad and
direct the railroad to comply with the consultation requirements of
Sec. 271.207. Pursuant to Sec. 271.301(b)(3), if FRA does not approve
the RRP plan, the railroad will have 60 days, following receipt of
FRA's written notice that the plan was not approved, to correct any
deficiency identified. In such cases, the identified deficiency would
be that the railroad did not use good faith and best efforts to consult
and reach agreement with its directly affected employees. If a railroad
then does not submit to FRA within 60 days
[[Page 10998]]
an RRP plan meeting the consultation requirements of Sec. 271.207, the
railroad could be subject to penalties for failure to comply with Sec.
271.301(b)(3).
II. Guidance on How a Railroad May Consult With Directly Affected
Employees
Because the standard imposed by the best efforts obligation will
vary depending upon the railroad, there may be countless ways for
various railroads to comply with the consultation requirements of Sec.
271.207. Therefore, FRA believes it is important to maintain a flexible
approach to the Sec. 271.207 consultation requirements, in order to
give a railroad and its directly affected employees the freedom to
consult in a manner best suited to their specific circumstances.
FRA is nevertheless providing guidance in this appendix as to how a
railroad may proceed when consulting (utilizing good faith and best
efforts) with employees in an attempt to reach agreement on the
contents of an RRP plan. FRA believes this guidance may be useful as a
starting point for railroads that are uncertain about how to comply
with the Sec. 271.207 consultation requirements. This guidance
distinguishes between employees who are represented by a non-profit
employee labor organization and employees who are not, as the processes
a railroad may use to consult with represented and non-represented
employees could differ significantly.
This guidance does not establish prescriptive requirements with
which a railroad shall comply, but merely outlines a consultation
process a railroad may choose to follow. A railroad's consultation
statement could indicate that the railroad followed the guidance in
this appendix as evidence that it utilized good faith and best efforts
to reach agreement with its employees on the contents of an RRP plan.
(a) Employees Represented by a Non-Profit Employee Labor Organization
As provided in Sec. 271.207(a)(2), a railroad consulting with the
representatives of a non-profit employee labor organization on the
contents of an RRP plan will be considered to have consulted with the
directly affected employees represented by that organization.
A railroad could utilize the following process as a roadmap for
using good faith and best efforts when consulting with represented
employees in an attempt to reach agreement on the contents of an RRP
plan.
(1) Pursuant to Sec. 271.207(a)(3), a railroad shall meet with
representatives from a non-profit employee labor organization
(representing a class or craft of the railroad's directly affected
employees) within 240 days from [THE DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER] to begin the process of consulting on the
contents of the railroad's RRP plan. A railroad should provide notice
at least 60 days before the scheduled meeting.
(2) During the time between the initial meeting and the
applicability date of Sec. 271.11 the parties may meet to discuss
administrative details of the consultation process as necessary.
(3) Within 60 days after [365 DAYS AFTER THE DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL REGISTER], a railroad should have a
meeting with the representatives of the directly affected employees to
discuss substantive issues with the RRP plan.
(4) Within 180 days after [365 DAYS AFTER THE DATE OF PUBLICATION
OF THE FINAL RULE IN THE FEDERAL REGISTER], a railroad would file its
RRP plan with FRA.
(5) As provided by Sec. 271.207(c), if agreement on the contents
of an RRP plan could not be reached, a labor organization (representing
a class or craft of the railroad's directly affected employees) could
file a statement with the FRA Associate Administrator explaining its
views on the plan on which agreement was not reached.
(b) Employees Who Are Not Represented by a Non-Profit Employee Labor
Organization
FRA recognizes that some (or all) of a railroad's directly affected
employees may not be represented by a non-profit employee labor
organization. For such non-represented employees, the consultation
process described for represented employees may not be appropriate or
sufficient. For example, FRA believes that a railroad with non-
represented employees shall make a concerted effort to ensure that its
non-represented employees are aware that they are able to participate
in the development of the railroad's RRP plan. FRA therefore is
providing the following guidance regarding how a railroad may utilize
good faith and best efforts when consulting with non-represented
employees on the contents of its RRP plan.
(1) Within 120 days from [THE DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a railroad should notify non-represented
employees that--
(A) The railroad is required to consult in good faith with, and use
its best efforts to reach agreement with, all directly affected
employees on the proposed contents of its RRP plan;
(B) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in this
process); and
(C) If a railroad is unable to reach agreement with its directly
affected employees on the contents of the proposed RRP plan, an
employee may file a statement with the FRA Associate Administrator
explaining his or her views on the plan on which agreement was not
reached.
(2) This initial notification (and all subsequent communications,
as necessary or appropriate) could be provided to non-represented
employees in the following ways:
(A) Electronically, such as by email or an announcement on the
railroad's Web site;
(B) By posting the notification in a location easily accessible and
visible to non-represented employees; or
(C) By providing all non-represented employees a hard copy of the
notification.
A railroad could use any or all of these methods of communication,
so long as the notification complies with the railroad's obligation to
utilize best efforts in the consultation process.
(3) Following the initial notification (and before the railroad
submits its RRP plan to FRA), a railroad should provide non-represented
employees a draft proposal of its RRP plan. This draft proposal should
solicit additional input from non-represented employees, and the
railroad should provide non-represented employees 60 days to submit
comments to the railroad on the draft.
(4) Following this 60-day comment period and any changes to the
draft RRP plan made as a result, the railroad should submit the
proposed RRP plan to FRA, as required by this part.
(5) As provided by Sec. 271.207(c), if agreement on the contents
of an RRP plan cannot be reached, then a non-represented employee may
file a statement with the FRA Associate Administrator explaining his or
her views on the plan on which agreement was not reached.
Appendix C to Part 271--Procedures for Submission of Railroad Risk
Reduction Program Plans and Statements From Directly Affected Employees
This appendix establishes procedures for the submission of a
railroad's RRP plan and statements by directly affected
[[Page 10999]]
employees in accordance with the requirements of this part.
Submission by a Railroad and Directly Affected Employees
(a) As provided for in Sec. 271.101, each railroad must establish
and fully implement an RRP that continually and systematically
evaluates railroad safety hazards on its system and manages the
resulting risks to reduce the number and rates of railroad accidents,
incidents, injuries, and fatalities. The RRP shall be fully implemented
and supported by a written RRP plan. Each railroad must submit its RRP
plan to FRA for approval as provided for in Sec. 271.201.
(b) As provided for in Sec. 271.207(c), if a railroad and its
directly affected employees cannot come to agreement on the proposed
contents of the railroad's RRP plan, the directly affected employees
have 30 days following the railroad's submission of its proposed RRP
plan to submit a statement to the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer explaining the directly affected
employees' views on the plan on which agreement was not reached.
(c) The railroad's and directly affected employees' submissions
shall be sent to the Associate Administrator for Railroad Safety/Chief
Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey
Avenue SE., Washington, DC 20590. When a railroad submits its RRP plan
and consultation statement to FRA pursuant to Sec. 270.201, it must
also simultaneously send a copy of these documents to all individuals
identified in the service list pursuant to Sec. 271.107(b)(4).
(d) Each railroad and directly affected employee is authorized to
file by electronic means any submissions required under this part.
Prior to any person submitting anything electronically, the person
shall provide the Associate Administrator with the following
information in writing:
(1) The name of the railroad or directly affected employee(s);
(2) The names of two individuals, including job titles, who will be
the railroad's or directly affected employees' points of contact and
will be the only individuals allowed access to FRA's secure document
submission site;
(3) The mailing addresses for the railroad's or directly affected
employees' points of contact;
(4) The railroad's system or main headquarters address located in
the United States;
(5) The email addresses for the railroad's or directly affected
employees' points of contact; and
(6) The daytime telephone numbers for the railroad's or directly
affected employees' points of contact.
(e) A request for electronic submission or FRA review of written
materials shall be addressed to the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad Administration,
1200 New Jersey Avenue SE., Washington, DC 20590. Upon receipt of a
request for electronic submission that contains the information listed
above, FRA will then contact the requestor with instructions for
electronically submitting its program or statement. A railroad that
electronically submits an initial RRP plan or new portions or revisions
to an approved program required by this part shall be considered to
have provided its consent to receive approval or disapproval notices
from FRA by email. FRA may electronically store any materials required
by this part regardless of whether the railroad that submits the
materials does so by delivering the written materials to the Associate
Administrator and opts not to submit the materials electronically. A
railroad that opts not to submit the materials required by this part
electronically, but provides one or more email addresses in its
submission, shall be considered to have provided its consent to receive
approval or disapproval notices from FRA by email or mail.
Issued in Washington, DC on February 11, 2015, under the
authority provided by 49 U.S.C. 20156.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-03268 Filed 2-26-15; 8:45 am]
BILLING CODE 4910-06-P