[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  

[[Page 10950]]


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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

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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

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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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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:
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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