[Federal Register Volume 84, Number 113 (Wednesday, June 12, 2019)]
[Proposed Rules]
[Pages 27215-27230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12125]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 270 and 271

[Docket No. FRA-2011-0060, Notice No. 10 and FRA-2009-0038, Notice No. 
7]
RIN 2130-AC73


System Safety Program and Risk Reduction Program

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

ACTION: Notice of proposed rulemaking (NPRM); response to petitions for 
reconsideration.

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SUMMARY: In response to petitions for reconsideration of a final rule, 
FRA proposes to amend its regulations requiring commuter and intercity 
passenger railroads to develop and implement a system safety program 
(SSP) to improve the safety of their operations. The proposed 
amendments would include clarifying that while all persons providing 
intercity passenger rail (IPR) service or commuter rail passenger 
transportation share responsibility for ensuring compliance with the 
SSP final rule, the rule does not restrict a person's ability to 
provide for an appropriate designation of responsibility. FRA proposes 
extending the stay of the SSP final rule's requirements to allow FRA 
time to review and address any comments on this NPRM. FRA also proposes 
to amend the SSP rule to adjust the rule's compliance dates to account 
for FRA's prior stay of the rule's effect and to apply the rule's 
information protections to the Confidential Close Call Reporting System 
(C\3\RS) program included in a railroad's SSP. FRA is expressly 
providing notice of possible conforming amendments to a Risk Reduction 
Program (RRP) final rule that would ensure that the RRP and SSP rules 
have essentially identical consultation and information protection 
provisions.

DATES: Written comments on this proposed rule must be received on or 
before August 12, 2019. Comments received after that date will be 
considered to the extent possible without incurring additional expense 
or delay.

ADDRESSES: Comments related to Docket No. FRA-2011-0060 may be 
submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting 
comments;

[[Page 27216]]

     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 
20590;
     Hand Delivery: The Docket Management Facility is located 
in Room W12-140, West Building Ground Floor, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, and 
open between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays; or
     Fax: 202-493-2251.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Identification Number (RIN) for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov; this includes any personal information. 
Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION 
section of this document for Privacy Act information related to any 
submitted comments or materials.
    Docket: For access to the docket to read background documents, 
petitions for reconsideration, or comments received, go to http://www.regulations.gov and follow the online instructions for accessing 
the docket or visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, Room W12-140, Washington, DC 
20590.

FOR FURTHER INFORMATION CONTACT: Robert Adduci, Senior System Safety 
Engineer, U.S. Department of Transportation, Federal Railroad 
Administration, Office of Railroad Safety, Passenger Rail Division; 
telephone: 781-447-0017; email: [email protected]; Larry Day, 
Passenger Rail Safety Specialist, U.S. Department of Transportation, 
Federal Railroad Administration, Office of Railroad Safety, Passenger 
Rail Division; telephone: 909-782-0613; email: [email protected]; or 
Elizabeth A. Gross, Attorney Adviser, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel; telephone: 202-493-1342; email: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Background
II. Summary of Labor Petition and FRA's Response to Labor Petition
    A. Labor Petition--General Chairperson
    B. FRA's Response--General Chairperson
    C. Labor Petition--Statements From Directly Affected Employees
    D. FRA's Response--Statements From Directly Affected Employees
III. Summary of State Petitions
    A. Requested Revisions
    i. Requested Revisions to Section 270.3, Applicability
    ii. Requested Changes to Section 270.5, Definitions, Railroad
    iii. Requested Changes to Section 270.107(a)(2), Consultation 
Requirements, General Duty
    B. State Petitions Arguments
    i. Substantial Burden Arguments
    ii. Statutory Authority Arguments
    iii. Scope of NPRM
    iv. Guidance Argument
IV. Summary of FRA's Response to the State Petitions
    A. Substantial Burdens
    B. Statutory Authority
    C. Scope of NPRM
    D. Guidance
V. FRA's Proposed Amendments in Response to the State Petitions
VI. Other Proposed Revisions
VII. Conforming Amendments to an RRP Final Rule
VIII. Section-by-Section Analysis
IX. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact
    H. Privacy Act Statement

I. Background

    On August 12, 2016, FRA published a final rule requiring each 
commuter and intercity passenger railroad to develop and implement an 
SSP. See 81 FR 53850 (Aug. 12, 2016). This final rule was required by 
section 103 of the Rail Safety Improvement Act of 2008 (RSIA) (Pub. L. 
110-432, Div. A, 122 Stat. 4883 (Oct. 16, 2008)), codified at 49 U.S.C. 
20156). The Secretary of Transportation delegated the authority to 
conduct this rulemaking and implement the rule to the Federal Railroad 
Administrator. See 49 CFR 1.89(b).
    On October 3, 2016, FRA received four petitions for reconsideration 
(Petitions) of the final rule: (1) Certain labor organizations (Labor 
Organizations) \1\ filed a joint petition (Labor Petition); (2) certain 
State and local transportation departments and authorities \2\ filed a 
joint petition (Joint Petition); (3) North Carolina Department of 
Transportation (NCDOT) filed a separate petition; and (4) Vermont 
Agency of Transportation (VAOT) filed a separate petition. The Joint, 
NCDOT, and VAOT petitions are hereinafter referred to as the ``State 
Petitions.''
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    \1\ The Labor Organizations in the Labor Petition are the: 
American Train Dispatchers Association (ADTA); Brotherhood of 
Locomotive Engineers and Trainmen (BLET); Brotherhood of Maintenance 
of Way Employes Division (BMWED); Brotherhood of Railroad Signalmen 
(BRS); Brotherhood Railway Carmen Division; and Transport Workers 
Union of America.
    \2\ The State and local transportation departments and 
authorities in the Joint Petition are the: Capitol Corridor Joint 
Powers Authority (CCJPA); Indiana Department of Transportation 
(INDOT); Northern New England Passenger Rail Authority (NNEPRA); and 
San Joaquin Joint Powers Authority (SJJPA).
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    Massachusetts Department of Transportation filed a comment in 
support of the Joint Petition on November 15, 2016. Three other 
individual comments were filed, but relate to the rule generally, not 
the petitions.
    On February 10, 2017, FRA stayed the SSP final rule's requirements 
until March 21, 2017, consistent with the new Administration's guidance 
issued January 20, 2017, intended to provide the Administration an 
adequate opportunity to review new and pending regulations. See 82 FR 
10443 (Feb. 13, 2017). FRA's review also included the Petitions. To 
provide additional time for that review, FRA extended the stay until 
May 22, 2017; June 5, 2017; December 4, 2017; December 4, 2018; and 
then September 4, 2019. See 83 FR 63106 (Dec. 7, 2018). FRA proposes to 
further extend the stay to allow FRA time to review any comments on 
this NPRM and issue a final rule in this proceeding. FRA specifically 
requests public comment on a possible stay extension. On October 30, 
2017, FRA met with the Passenger Safety Working Group and the System 
Safety Task Group of the Railroad Safety Advisory Committee (RSAC) to 
discuss the Petitions and comment received in response to the 
Petitions.\3\ See FRA-2011-0060-0046. This meeting allowed FRA to 
receive input from industry and the public and to discuss potential 
paths forward to respond to the Petitions. During the meeting, FRA made 
an introductory presentation and invited discussion on the issues 
raised by the Labor Petition. FRA also presented for discussion draft 
rule text that would respond to the State

[[Page 27217]]

Petitions by amending the SSP final rule to include a delegation 
provision that would allow a railroad that contracts all activities 
related to its passenger service to another person to designate that 
person as responsible for compliance with the SSP final rule. FRA 
uploaded this proposed draft rule text to the docket for this 
rulemaking. See FRA-2011-0060-0045. The draft rule text specified that 
any such designation did not relieve a railroad of legal responsibility 
for compliance with the SSP final rule. In response to the draft rule 
text, the State Petitioners indicated they would need an extended 
caucus to discuss. On March 16, 2018, the Executive Committee of the 
States for Passenger Rail Coalition (SPRC) \4\ provided and FRA 
uploaded to the rulemaking docket proposed revisions to the draft rule 
text. See FRA-2011-0060-0050. FRA has reviewed and considered these 
suggested revisions in formulating the proposals in this NPRM.
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    \3\ Attendees at the October 30, 2017, meeting included 
representatives from the following organizations: ADS System Safety 
Consulting, LLC; American Association of State Highway and 
Transportation Officials; American Public Transportation 
Association; American Short Line and Regional Railroad Association; 
ATDA; Association of American Railroads (AAR); BLET; BMWED; BRS; 
CCJPA; The Fertilizer Institute; Gannett Fleming Transit and Rail 
Systems; International Brotherhood of Electrical Workers; 
Metropolitan Transportation Authority; National Railroad Passenger 
Corporation (Amtrak); National Transportation Safety Board; NCDOT; 
NNEPRA; San Joaquin Regional Rail Commission/Altamont Corridor 
Express; Sheet Metal, Air, Rail, and Transportation Workers; and 
United States Department of Transportation--Transportation Safety 
Institute.
    \4\ SPRC's website indicates it is an ``alliance of State and 
Regional Transportation Officials,'' and each State Petitioner 
appears to be an SPRC member. See https://www.s4prc.org/state-programs (last accessed Sept. 20, 2018).
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    As discussed in detail below, this NPRM proposes revisions to the 
SSP final rule that respond to the Petitions. FRA is also proposing to 
adjust the rule's compliance dates to account for FRA's stay of the 
rule's effect and to specify that the rule's information protections 
apply to C\3\RS programs included in a railroad's SSP.

II. Summary of Labor Petition and FRA's Response to Labor Petition

    Under Sec.  270.107, a railroad must consult in good faith and use 
its best efforts to reach agreement with its directly affected 
employees on the contents of its SSP plan. The Labor Petition requested 
several amendments to this section regarding the consultation process. 
In response, FRA is proposing several amendments that would grant in 
part or deny in part the Labor Petition.

A. Labor Petition--General Chairperson

    The Labor Petition requested that FRA make two amendments to Sec.  
270.107 related to the points of contact for the consultation process. 
Paragraph (a)(3) specifies a railroad must hold a preliminary meeting 
with its directly affected employees to discuss how the consultation 
will proceed. The Labor Petition requested FRA amend this paragraph to 
add that the primary point of contact shall be the ``general 
chairperson'' of any non-profit employee labor organization 
representing directly affected employees. Paragraph (b)(3) specifies a 
railroad's consultation statement \5\ must include a service list 
containing the name and contact information for each international/
national president of any non-profit employee labor organization 
representing a class or craft of the railroad's directly affected 
employees.\6\ When a railroad submits its SSP plan and consultation 
statement to FRA under Sec.  270.201, it must simultaneously send a 
copy of these documents to all individuals identified in the service 
list. The Labor Petition requested FRA amend paragraph (b)(3) to add 
that the service list must also contain the name and contact 
information for the general chairperson of any non-profit employee 
labor organization representing directly affected employees.
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    \5\ Under Sec.  270.107(b)(1) and (2), a railroad must submit a 
consultation statement to FRA (along with its SSP plan) describing 
the railroad's process for consulting with its directly affected 
employees. If the railroad was unable to reach consensus with its 
employees on the contents of its SSP plan, the consultation 
statement must identify any known areas of disagreement and explain 
why agreement was not reached.
    \6\ The service list must also contain the name and contact 
information for any directly affected employee who significantly 
participated in the consultation process independent of a non-profit 
employee labor organization.
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    In support of those requested amendments, the Labor Petition 
asserts a general chairperson is the appropriate contact for 
consultation purposes because he or she is the duly accredited 
representative of the craft or class of employees represented by the 
non-profit employee labor organization. See Labor Pet. at 3-4. 
According to the Labor Petition, there are already well-known and well-
established procedures and points of contact between labor 
organizations and railroads, and the SSP consultation is a property-
specific matter that a railroad must address directly with a general 
chairperson. Id.
    The SSP NPRM proposed a requirement similar to the Labor Petition 
requests. See 77 FR 55383 and 55403 (Nov. 26, 2012). In response, AAR 
commented, opposing the proposed language and requesting the service 
list be limited to the international/national president of the labor 
organization. AAR asserted it would be burdensome to serve the general 
chairperson for each non-profit employee labor organization on the 
railroad and that a railroad's inadvertent failure to serve a general 
chairperson could be considered not using ``best efforts'' in the 
consultation process and lead to FRA not approving the railroad's plan. 
AAR also pointed to the Surface Transportation Board's regulations, 
which require giving notice to the national office of the labor unions 
of the employees affected when notification of labor unions is 
required. In response to AAR's concerns, FRA decided not to require 
notification of a general chairperson in the final rule. See 81 FR 
53886 (Aug. 12, 2016).

B. FRA's Response--General Chairperson

    Upon reconsideration, FRA believes it is consistent with the intent 
of the consultation requirements to add the general chairperson of a 
non-profit employee labor organization as the point of contact for 
directly affected employees represented by that non-profit employee 
labor organization. Adding the general chairpersons for the non-profit 
employee labor organizations on a railroad property will ensure the 
directly affected employees receive SSP information effectively and 
efficiently because these chairpersons often are the labor 
representatives that work directly with the represented employees at 
the railroad. As discussed further in the section-by-section analysis, 
FRA is therefore proposing amendments to Sec.  270.107 that would 
clarify a general chairperson is the railroad's primary contact for the 
consultation process with the directly affected employees represented 
by a non-profit employee labor organization and must be included in the 
consultation statement service list. These proposed amendments would 
grant this part of the Labor Petition.
    To alleviate AAR's concern that FRA could consider a railroad's 
inadvertent failure to serve a general chairperson as not using ``best 
efforts'' in the consultation process, FRA also proposes including an 
alternative point of contact. Under FRA's proposal, a non-profit 
employee labor organization's point of contact could be a person the 
railroad and non-profit employee labor organization agree on at the 
beginning of the consultation process. FRA would consider serving any 
agreed-upon points of contact ``best efforts'' as it applies to proper 
notification of non-profit employee labor organizations. Unless agreed 
otherwise, however, the primary point of contact would remain a general 
chairperson.

C. Labor Petition--Statements From Directly Affected Employees

    Under Sec.  270.107(c)(1), if a railroad and its directly affected 
employees do not reach agreement on the contents of the railroad's SSP 
plan, directly affected employees may file a statement with FRA 
explaining their views on the portions of the plan on which agreement 
was not reached. Under Sec.  270.107(c)(2), directly affected employees 
have 30 days following the date the railroad

[[Page 27218]]

submits its SSP plan and consultation statement to FRA to file their 
own statement.
    The Labor Petition requests FRA amend Sec.  270.107(c)(2) to 
provide directly affected employees 60 days to file a statement rather 
than 30 days. See Labor Pet. at 4.

D. FRA's Response--Statements From Directly Affected Employees

    While the NPRM proposed to provide directly affected employees 60 
days to file such a statement, FRA explained in the final rule why it 
believes the 30 days provided is sufficient. See 81 FR 53886 (Aug. 12, 
2016). Section 270.107(b)(3) ensures a railroad simultaneously provides 
FRA and directly affected employees its SSP plan and consultation 
statement, as the Labor Organizations requested in their comments on 
the NPRM. Id. Moreover, under Sec.  270.201(b), FRA will review an SSP 
plan within 90 days of receipt. If the directly affected employees had 
up to 60 days to submit a statement, FRA could be left with only 30 
days to consider the directly affected employees' views when reviewing 
the SSP plan. Thirty days is not enough time to ensure FRA sufficiently 
addresses the directly affected employees' views.
    The Labor Petition does not provide any additional justification to 
extend this deadline. Therefore, FRA is not proposing to extend the 
deadline, for the reasons explained above and in the final rule. See 81 
FR 53886. FRA's position would deny this part of the Labor Petition.

III. Summary of State Petitions

A. Requested Revisions

    Generally, the State Petitions request FRA amend the SSP final rule 
to clarify it does not apply to States \7\ that ``sponsor'' \8\ IPR 
service. These amendments would involve three sections of the final 
rule--Sec. Sec.  270.3, 270.5, and 270.107(a)(3)--as discussed below.
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    \7\ As used in this NPRM, ``State'' refers generally to any 
State agency or authority, including: A State department of 
transportation or analogous governmental agency or authority; a 
regional or local governmental agency or authority whether or not 
directly funded or overseen by a State (including, e.g., a joint 
powers authority where counties or localities jointly sponsor a 
passenger rail service, yet the State itself is not directly 
involved); or a public benefit corporation chartered by a State, 
regional, or local government.
    \8\ There is currently no statutory or regulatory definition of 
the term ``sponsor'' in relation to IPR service. The Joint Petition 
appears to understand ``sponsor'' as being a State that ``provide[s] 
financial support'' for IPR routes and ``contract[s] for the 
operation of IPR.'' See Joint Pet. at 2, fn. 2. The NCDOT petition 
defines ``sponsors'' as ``State or other public entities that own 
railroads, equipment or that financially sponsor intercity passenger 
rail service.'' NCDOT Pet. at 3. In its proposed revisions to the 
strawman text FRA presented during the October 2017 RSAC meeting, 
SPRC suggested defining ``State sponsor'' as ``a State, regional or 
local authority, that contracts with a railroad to provide intercity 
passenger railroad transportation pursuant to Section 209 of the 
Passenger Rail Investment and Improvement Act of 2008, as amended.'' 
See Comments of the SPRC at 2.
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i. Requested Revisions to Section 270.3, Applicability
    Section 270.3 establishes the applicability of the final rule. 
Paragraph (a) specifies that, except as provided in paragraph (b), part 
270 applies to all: (1) Railroads that operate intercity or commuter 
passenger train service on the general railroad system of 
transportation (general system); and (2) railroads that provide 
commuter or other short-haul passenger train service in a metropolitan 
or suburban area (as described by 49 U.S.C. 20102(2)), including public 
authorities operating passenger train service. Paragraph (b) states the 
final rule does not apply to: (1) Rapid transit operations in an urban 
area that are not connected to the general system; (2) tourist, scenic, 
historic, or excursion operations, whether on or off the general 
system; (3) operation of private cars, including business/office cars 
and circus trains; or (4) railroads that operate only on track inside 
an installation that is not part of the general system (i.e., plant 
railroads, as defined in Sec.  270.5).
    NCDOT and VAOT request FRA amend Sec.  270.3 to add paragraphs 
(b)(5) through (7) that would exempt: (5) States, State agencies and 
instrumentalities, and political subdivisions of States that own (but 
do not operate) railroads; (6) States, State agencies and 
instrumentalities, and political subdivisions of States that own (but 
do not operate) railroad equipment; or (7) States, State agencies and 
instrumentalities, and political subdivisions of States that provide 
financial support for (but do not operate) intercity passenger rail 
service. See NCDOT Pet. at 2 and VAOT Pet. at 3.
ii. Requested Changes to Section 270.5, Definitions, Railroad
    FRA based the Sec.  270.5 definition of ``railroad'' on 49 U.S.C. 
20102(2) and (3).\9\ The definition encompasses any person providing 
railroad transportation directly or indirectly, including a rail 
authority that owns the railroad and provides railroad transportation 
by contracting out the operation of the railroad to another person, and 
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.
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    \9\ The NPRM and final rule erroneously refer to 49 U.S.C. 
20102(1) and (2). See 77 FR 55381 and 81 FR 53863.
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    The State Petitions request FRA amend this ``railroad'' definition 
to remove States that contract operation of the railroad to another 
person, i.e., limiting the definition to ``a person or organization 
that provides railroad transportation.'' Joint Pet. at 2, NCDOT Pet. at 
2, and VAOT Pet. at 4. Alternatively, the Joint Petition asks FRA to 
provide a formal mechanism for State providers of IPR service to 
delegate regulatory responsibility under the final rule. See Joint Pet. 
at 2.
iii. Requested Changes to Section 270.107(a)(2), Consultation 
Requirements, General Duty
    In the final rule, FRA clarified that if a railroad contracts out 
significant portions of its operations, the contractor and the 
contractor's employees performing the railroad's operations shall be 
considered ``directly affected employees'' for the purposes of part 
270. FRA provided this clarification of the meaning of ``directly 
affected employees'' to make more explicit how the consultation process 
will be handled when a railroad contracts out significant portions of 
its operations to other entities. See 81 FR 53883 (Aug. 12, 2016).
    The Joint Petition requests FRA amend this section to remove the 
requirement that a railroad consult with contractors performing 
significant portions of the railroad's operations. See Joint Pet. at 2.

B. State Petitions Arguments

    The State Petitions set forth multiple arguments for their 
requested changes to the final rule. To summarize, FRA divides these 
arguments into four categories: (1) The SSP final rule places a 
substantial burden on States, which FRA did not consider; (2) FRA 
exceeded its statutory authority in requiring States to comply with the 
SSP final rule; (3) the SSP final rule exceeded the scope of the NPRM 
when clarifying that, if a railroad contracts out significant portions 
of its operations, employees of a contractor are considered directly 
affected employees; and (4) FRA must amend the SSP final rule to 
reconcile it with FRA guidance. While FRA briefly summarizes these 
arguments below, FRA refers readers interested in greater specificity 
to the State Petitions in the docket for this rulemaking. See generally 
FRA-2011-0060.

[[Page 27219]]

i. Substantial Burden Arguments
    The State Petitions assert FRA did not properly consider the costs 
and burdens the final rule would impose on States that provide IPR 
service. Specifically, the State Petitions argue:
     The Regulatory Impact Analysis (RIA) \10\ for the SSP 
final rule referenced only two intercity passenger railroads, Amtrak 
and the Alaska Railroad Corporation (ARC), indicating the final rule 
did not appropriately consider States that provide IPR service as 
railroads and, therefore, did not consider costs for other States that 
provide IPR service; and
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    \10\ See FRA-2011-0060-0029.
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     The SSP final rule imposes substantial burdens on State 
providers of IPR service without improving safety.
ii. Statutory Authority Arguments
    The State Petitions claim Congress did not intend the final rule to 
apply to States that ``sponsor,'' but do not operate, IPR service, and 
FRA exceeded its statutory authority in doing so. State Petitioners 
argue requiring ``State sponsors'' of IPR service to develop and 
implement an SSP exceeds FRA's authority under the RSIA, and is 
inconsistent with Congress' intent in enacting section 209 of the 
Passenger Rail Investment and Improvement Act of 2008 (PRIIA) (Pub. L. 
110-432, Div. B (Oct. 16, 2008)). See Joint Pet. at 9.\11\
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    \11\ Section 209 of PRIIA requires that the Amtrak Board of 
Directors, in consultation with the Secretary of Transportation, the 
governors of each relevant State, and the Mayor of the District of 
Columbia, or entities representing those officials, develop and 
implement a single, nationwide standardized methodology for 
establishing and allocating the operating and capital costs of 
providing IPR service among the States and Amtrak for the trains 
operated on designated high-speed rail corridors (outside the 
Northeast Corridor), short-distance corridors, or routes of not more 
than 750 miles, and services operated at the request of a State, a 
regional or local authority, or another person.
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    The Joint Petition argues Congress did not separately define ``rail 
carrier'' for purposes of the SSP mandate in the RSIA and that States 
``sponsoring'' IPR service do not fall under the general statutory 
definition in 49 U.S.C. 20102(3) of a ``railroad carrier'' as a 
``person providing railroad transportation.'' Id. The Joint Petition 
asserts FRA impermissibly expanded the definition of ``rail carrier,'' 
and that there is no evidence Congress intended States to directly 
assume responsibility for the safety of such routes' operations. See 
id. at 10.
    Separately, VAOT contends State ownership of railroad property or 
financial support for Amtrak services does not make it a ``railroad 
carrier'' as defined by statute, and, therefore, the SSP mandate in the 
RSIA does not apply to it. See VAOT Pet. at 8-10. VAOT further argues 
it does not have authority to implement an SSP. Id. at 9.
iii. Scope of NPRM
    The Joint Petition argues the SSP final rule's extension of the 
consultation requirement to contractors and contractors' employees was 
not proposed in the NPRM, was not a logical outgrowth of the proposal, 
imposes burdens on current operating agreements, and substantially 
alters the nature of the independent contractor relationship. See Joint 
Pet. at 16-21.
iv. Guidance Argument
    Finally, the Joint and NCDOT Petitions assert FRA must amend the 
final rule to reconcile it with the Guidance on Safety Oversight and 
Enforcement Principles for State-Sponsored Intercity Passenger Rail 
Operations (Guidance), which FRA informally provided to the States on 
August 11, 2016. See Joint Pet. at 12-16 and NCDOT at 6 and 16.

IV. Summary of FRA's Response to the State Petitions

    For the reasons discussed below, FRA generally disagrees with the 
arguments supporting the State Petitions.

A. Substantial Burdens

    FRA disagrees with the States and believes that it properly 
considered the costs and burdens of the final rule on States that 
provide IPR service.
    Regarding the States' argument that the RIA's mention of only 
Amtrak and ARC IPR service indicates FRA did not appropriately consider 
costs for State sponsors of IPR service, FRA believes the States 
mischaracterize the following passage:

    FRA determined there will be only two passenger railroads 
affected by the SSP rule as small entities. In applying the 
guidelines of the Regulatory Flexibility Act (RFA), FRA includes 
most Class III railroads impacted by a rule as a small business. In 
further defining the types of entities qualifying as small 
businesses, RFA guidelines state that if the entity is a part of/or 
agent of governments of cities, counties, towns, townships, 
villages, or special districts serving a population of more than 
50,000 they would not be classified as a small business. Essentially 
all railroads subject to this rule, except the two FRA classified as 
small businesses (Saratoga & North Creek Railway (SNC) and the 
Hawkeye Express, operated by the Iowa Northern Railway Company 
(IANR)), are either a governmental-related transportation agency 
serving population areas of 50,000 or more and or an intercity 
service provider (National Railroad Passenger Corporation (Amtrak) 
and Alaska Railroad)). [. . .]

FRA-2011-0020-0028 (emphasis added). This passage does not define the 
scope of the RIA's cost analysis, but describes FRA's process of 
identifying which passenger railroads affected by the SSP rules are 
small entities under the RFA. The States' argument therefore 
inappropriately applies FRA's limited RFA discussion to the RIA's 
broader cost analysis, without otherwise providing evidence that the 
cost analysis improperly calculated costs.
    Further, although FRA's analysis describes Amtrak and ARC as IPR 
railroads, it does not state that Amtrak and ARC are the only IPR 
railroads. In fact, the final rule's RFA analysis expressly noted the 
vast majority of State providers of IPR service would fall under 
Amtrak's SSP. See 81 FR 53892, n. 14. This is because most States 
contract with Amtrak to provide IPR service, which was true at the time 
of final rule publication and remains true today.
    Regardless, the States' assertion that FRA did not consider the 
costs for State sponsors of IPR service is incorrect. Because most 
States contract with Amtrak to provide IPR service, as noted above, the 
typical IPR service is an Amtrak-scheduled service using equipment 
Amtrak operates and maintains. In fact, for all State-sponsored IPR 
service FRA is aware of, Amtrak is the contractor operator. The RIA 
therefore attributed the costs of implementing the SSP rule for current 
IPR service to Amtrak (consistent with FRA's past rulemaking 
practice),\12\ on the assumption that Amtrak would implement SSPs on 
behalf of State sponsors of IPR service as part of Amtrak's integrated 
national system. See 81 FR 53892, n. 14. Further, FRA believes the RIA 
captured any costs for future State-sponsored IPR service using 
operators other than Amtrak by estimating there would be one new 
startup IPR service or commuter railroad in Years 2 and 3 of the 
analysis and one new startup every other year thereafter. See 81 FR 
53852. For these reasons, FRA believes the RIA properly accounted for 
the costs associated with State-sponsored IPR service, even though 
those costs were attributed to Amtrak rather than specific State 
sponsors.
---------------------------------------------------------------------------

    \12\ See Passenger Equipment Safety Standards, final rule, 64 FR 
25560, 25654 (May 12, 1999) (``The [regulatory] evaluation . . . 
takes into consideration that individual States will contract with 
Amtrak for the provision of rail service on their behalf. In this 
regard, for example, a State may utilize Amtrak's inspection forces 
trained under the rule, and thus not have to train inspection forces 
on its own.'').
---------------------------------------------------------------------------

    Moreover, the plain intent of the regulatory language clearly 
indicated

[[Page 27220]]

the rule would apply to States providing IPR service. Both the proposed 
and final SSP rule contain the same applicability section and 
definition for ``railroad.'' See 77 FR 55402-03 (Sept. 7, 2012) and 81 
FR 53896-97 (Aug. 12, 2016). Specifically, in both the proposed and 
final rule, Sec.  270.5 defines ``railroad'' as ``[a] person or 
organization that provides railroad transportation, whether directly or 
by contracting out operation of the railroad to another person,'' and 
Sec.  270.3(a)(1) unambiguously states the rule applies to 
``[r]ailroads that operate intercity or commuter passenger train 
service on the general railroad system of transportation . . . .'' 
These provisions indicate FRA intended the rule to apply to providers 
of IPR service, including ``State sponsors'' of IPR service. Further, 
at no point in the rulemaking process did FRA indicate it intended to 
exempt States providing IPR service from the rule.
    Second, the RIA carefully analyzed the potential costs and burdens 
of the SSP final rule. See generally FRA-2011-0060-0029. Ultimately, 
the RIA concluded the SSP final rule's costs were justified by the 
safety benefits, and nothing in the State Petitions indicates the RIA 
improperly estimated costs or benefits. Id. at 3.
    Further, while the State Petitions allege substantial and 
undetermined burdens, these burdens were either considered by FRA in 
the RIA or are not mandated by the SSP final rule. The Joint Petition 
claims the final rule would impose the following burdens: (1) State 
providers do not employ qualified railroad personnel with the detailed 
technical knowledge to develop, implement, and oversee compliance with 
an SSP and would have to hire such individuals; (2) State providers 
would face considerable challenges in augmenting existing human 
resources before the responsibilities imposed by the final rule could 
be fulfilled; (3) implementing the final rule will likely require State 
providers to renegotiate their existing operating agreements with 
Amtrak and other contractors to ensure the exchanges of information the 
rule requires and to implement required consultation procedures; (4) 
State providers may have to discontinue IPR service due to the costs 
imposed by the final rule, and if they discontinue service, FRA may 
require States to repay grants/loans; and (5) the final rule's 
definition of ``railroad'' potentially opens the door to attempts to 
make States that provide IPR service responsible for other statutory 
obligations, including railway labor and retirement requirements. See 
Joint Pet. at 4-9.\13\
---------------------------------------------------------------------------

    \13\ NCDOT's and VAOT's petitions assert similar arguments 
regarding the rule's costs and burdens and FRA's alleged failure to 
consider them.
---------------------------------------------------------------------------

    The first two burdens the States allege relate to burdens the rule 
does not mandate, as the rule does not require States to hire 
additional technical or human resources personnel. Further, this NPRM 
proposes amendments that would clarify that the rule does not restrict 
the ability to designate another entity to fulfill the States' 
responsibilities under the rule. FRA discusses delegation of SSP 
responsibility more fully below when discussing the revisions proposed 
in this NPRM in response to the State Petitions.
    Further, the States' claim that they may have to discontinue IPR 
service due to the rule's costs is unsubstantiated. FRA notes that 
States providing IPR service have always had to comply with FRA safety 
regulations to ensure the safety of their passengers, and the States 
have done so successfully. For example, the application of the rule is 
essentially the same as FRA's Passenger Train Emergency Preparedness 
and Passenger Equipment Safety Standards rules,\14\ both issued almost 
two decades ago and implicating the same concerns the States now raise. 
Because States have been complying with their responsibilities under 
these and other statutorily-based rules, their assertion that the SSP 
rule somehow will prevent their ability to provide IPR service is not 
persuasive.\15\
---------------------------------------------------------------------------

    \14\ See 63 FR 24630 (May 4, 1998) and 64 FR 25560 (May 12, 
1999).
    \15\ The vast majority of states that provide IPR service comply 
with FRA's Passenger Train Emergency Preparedness regulations by 
having Amtrak prepare and implement the required emergency 
preparedness plans on their behalf. FRA does not require the States 
to duplicate the efforts of the entities that prepare and implement 
SSP plans on their behalf.
---------------------------------------------------------------------------

    Regarding the States' claim that implementing the final rule will 
incur costs associated with renegotiating contracts, FRA notes that the 
rule itself does not require contract renegotiation. Rather, to the 
extent any such costs would be incurred, they would result from the 
States' own decisions on how to provide IPR service, and not a 
requirement of the rule.
    Finally, FRA disagrees with the States that being subject to the 
SSP rule will open them up to application of other statutes. To the 
extent another agency might argue that labor, tax, or other statutes 
apply to the States based on the application of this rule, the 
challenge would be to that agency's statute, not the SSP rule. Further, 
FRA was mandated by the RSIA to issue an SSP rule that specifically 
applies to providers of IPR service.\16\ There is no basis for 
disregarding a statutory mandate because another agency might use it to 
apply an unrelated statute. This rule would also not apply any 
additional hook for applying other laws to States providing IPR than is 
already present through States' compliance with FRA's Passenger Train 
Emergency Preparedness and Passenger Equipment Safety Standards rules.
---------------------------------------------------------------------------

    \16\ See 49 U.S.C. 20156(a)(1)(A).
---------------------------------------------------------------------------

B. Statutory Authority

    FRA disagrees with the State Petitions that applying the SSP final 
rule to ``State sponsors'' of IPR service goes beyond FRA's statutory 
authority. First, by the plain language of the RSIA mandate, the law 
applies to ``each railroad carrier that is a Class I railroad, a 
railroad carrier that has inadequate safety performance (as determined 
by the Secretary), or a railroad carrier that provides intercity rail 
passenger or commuter rail passenger transportation . . . .'' 49 U.S.C. 
20156(a)(1). A ``railroad carrier'' is also statutorily defined as ``a 
person providing railroad transportation.'' 49 U.S.C. 20102(3). FRA 
believes ``State sponsors'' of IPR service meet the definition of a 
person providing railroad transportation. Although there is no official 
definition for the term ``State sponsors,'' FRA generally understands 
that ``State sponsors'' provide financial support for IPR service, 
contract for that service, and, in some cases, provide safety 
oversight. See Joint Pet. at 2, fn. 2; and NCDOT Pet. at 13.\17\ FRA 
believes each of these activities for IPR service that States 
``sponsor'' constitutes providing railroad transportation. Congress did 
not exclude ``State sponsors'' in the definition of a person providing 
railroad transportation, and nothing in the RSIA legislative history 
indicates Congress intended to exempt States that ``sponsor'' or 
otherwise provide IPR service from the SSP rule. There is therefore no 
statutory basis for deviating from either the plain language of the 
RSIA or the definition of ``railroad carrier,'' both of which encompass 
States that ``sponsor'' or otherwise provide IPR service.
---------------------------------------------------------------------------

    \17\ See supra footnote 8.
---------------------------------------------------------------------------

    Second, passenger rail operations have always been subject to FRA's 
safety jurisdiction. See 49 CFR part 209, app. A. FRA has exercised 
jurisdiction over all passenger operations for decades under the 
Federal Railroad Safety Act of 1970, and the 1982, 1988, and 2008 
amendments to that act. See

[[Page 27221]]

Federal Railroad Safety Act of 1970 (Pub. L. 91-458, 84 Stat. 971, 
enacted Oct. 16, 1970); Federal Railroad Safety Authorization Act of 
1982 (Pub. L. 97-468, 96 Stat. 2579, enacted Jan. 14, 1983); Rail 
Safety Improvement Act of 1988 (Pub. L. 100-342, 102 Stat. 624, enacted 
June 22, 1988); and Rail Safety Improvement Act of 2008 (Pub. L. 110-
432, 122 Stat. 4883, Div. A, enacted Oct. 16, 2008). FRA has previously 
explained in a rulemaking proceeding that public authorities may act in 
a private capacity to provide rail service and that, in doing so, 
public authorities have the same powers and obligations for purposes of 
rail safety as similarly-situated private actors. See 75 FR 1180, 1211-
12 (Jan. 8, 2010).
    The SSP final rule neither expands FRA's jurisdiction nor requires 
States to incur additional costs to contract for such services. 
Historically, this has not been an issue because FRA has typically 
looked to Amtrak with respect to enforcement and application of Federal 
rail safety requirements for IPR service. However, Congress' enactment 
of PRIIA section 209 has led to several important changes to the nature 
of the relationship between Amtrak and State departments of 
transportation (or other public authorities) that provide funding for, 
and oversight of, IPR service. Beginning in fiscal year 2014, section 
209 of PRIIA required all applicable States to provide funding to 
Amtrak for passenger rail services along certain corridors using a 
consistent nationwide methodology.\18\ As a result, some States have 
become more active in funding, managing, organizing, performing, or 
contracting their passenger rail services. With respect to some 
operations, this has increased the State's role in making substantive 
operational and safety-related decisions, including selecting 
contractors to perform such services. However, the fact that States 
choose to contract out certain services based on section 209 of PRIIA 
does not absolve the States from safety responsibility or remove them 
from FRA safety jurisdiction.
---------------------------------------------------------------------------

    \18\ See supra footnote 11.
---------------------------------------------------------------------------

    As noted above, FRA has a long history of applying its safety 
regulations to State providers of passenger rail service. See generally 
49 CFR parts 213, 238 and 239. It is not uncommon for multiple entities 
to be involved in providing passenger rail service, with each entity 
having varying safety responsibilities.\19\ However, as explained in 
the NPRM and final rule, and earlier notably in the Passenger Equipment 
Safety Standards rulemaking,\20\ each entity involved in providing 
passenger rail service--including ``State sponsors''--is responsible 
for complying with Federal rail safety requirements.\21\ See also 77 FR 
55380-82 (Sept. 7, 2012) and 81 FR 53861, 53864 (Aug. 12, 2016). 
Overall, FRA believes compliance with the SSP final rule does not 
differ from compliance with FRA's other regulations that may apply to 
IPR service providers, e.g., 49 CFR parts 213, 238 and 239.
---------------------------------------------------------------------------

    \19\ For example, an entity, such as a State agency or 
authority, may organize and finance the rail service; a primary 
contractor may oversee the day-to-day operation of the rail service; 
one subcontractor may operate the trains along the route; another 
subcontractor may maintain the train equipment; and another entity 
may own the track.
    \20\ Passenger Equipment Safety Standards, final rule; response 
to petitions for reconsideration, 65 FR 41284, 41291 (July 3, 2000) 
(addressing responsibility for compliance of the sponsoring 
governmental authority and other entities that may be involved in a 
single passenger train service).
    \21\ The SSP final rule addressed a specific scenario involving 
a passenger railroad contracting out portions of its operations and 
explained that the passenger railroad would be required to comply 
with the final rule. See 81 FR 53857.
---------------------------------------------------------------------------

C. Scope of NPRM

    FRA also believes that clarifying the consultation process 
requirements in the final rule falls within the scope of the NPRM. 
Section 270.107(a)(2) clarifies that if a railroad contracts out 
significant portions of its operations, the contractor and the 
contractor's employees performing the railroad's operations will be 
considered directly affected employees for the purposes of the SSP 
final rule. This language is consistent with the NPRM, and the final 
rule simply further explained the requirements proposed in the NPRM. 
The rule text and preamble of the NPRM made it clear that entities 
providing railroad transportation, such as States that provide IPR 
service, would be treated as railroads and are required to comply with 
the rule. The NPRM also proposed that railroads would be required to 
consult with directly affected employees on the contents of the SSP 
plan, a requirement directly from the RSIA. See 77 FR 55403 and 49 
U.S.C. 20156(g). Therefore, the NPRM put States on notice that: (1) 
They will be treated like railroads under the SSP rule for providing 
railroad transportation, even if they contract out operations; and (2) 
railroads will be required to consult with directly affected employees. 
Consistent with the NPRM, the final rule went on to clarify who will be 
considered directly affected employees for railroads that contract out 
significant portions of their operations. Section 270.107(a)(2) did not 
add any new requirements, and States were given sufficient notice that 
FRA intended to apply the consultation requirements to them.

D. Guidance

    Finally, the Guidance document FRA informally provided to the 
States is not an extension or an explanation of the SSP final rule. 
Rather, the Guidance addressed how FRA regulations generally apply to 
States that provide IPR service, merely used the SSP final rule as an 
example, and is unrelated to the SSP rulemaking.

V. FRA's Proposed Amendments in Response to the State Petitions

    Although FRA generally disagrees with the State Petitions for the 
reasons discussed above, FRA nevertheless proposes to amend the final 
rule in response to the petitions. The proposed amendments would 
clarify that while all persons providing IPR or commuter rail passenger 
transportation share responsibility for ensuring compliance with the 
SSP final rule, the rule does not restrict a person's ability to 
provide for an appropriate designation of responsibility. The proposed 
amendments would also explain that any such designation must be 
included in the SSP plan, although a person may also notify FRA of a 
designation by submitting a notice of such designation before 
submitting the SSP plan. Further, the proposed amendments would 
establish requirements for describing the designation in an SSP plan. 
The section-by-section analysis discusses these proposed amendments in 
detail below. FRA believes the proposed amendments would clarify the 
States' ability to have another entity fulfill the States' 
responsibilities under the SSP final rule. If another entity performs 
SSP functions on a State's behalf, FRA would not expect a State to 
duplicate that work and effort.
    The proposed amendments also specify that a person designating 
responsibility would remain responsible for ensuring compliance with 
the SSP final rule. As explained in the SSP final rule, it would be 
inconsistent with FRA's statutory jurisdiction over passenger rail 
service to allow a party to completely assign or otherwise contract 
away its entire responsibility for compliance under the law. See 81 FR 
53861 (Aug. 12, 2016). A State providing IPR service can have other 
parties fulfill safety responsibilities on its behalf, but it cannot 
entirely disclaim

[[Page 27222]]

responsibility.\22\ Allowing a State provider of IPR service to 
completely divest itself of responsibility for ensuring the passenger 
operation's compliance with Federal rail safety requirements is not 
consistent with FRA's exercise of its rail safety jurisdiction because 
FRA has consistently indicated that responsibility for compliance does 
not rest solely with whichever service providers the States contract 
with.\23\ However, if a State provider of IPR service appropriately 
designates another person as responsible for compliance with the SSP 
rule, FRA would consider the designated entity as the person with 
primary responsibility for SSP compliance. FRA's policy would therefore 
be to primarily look to the designated entity when reviewing and 
approving a submitted SSP plan, auditing the implementation of that 
plan, and deciding whether to take action to enforce the SSP rule 
requirements.
---------------------------------------------------------------------------

    \22\ See e.g., 49 CFR 213.5(d) (FRA may hold the owner of track 
responsible for compliance with FRA's Track Safety Standards even if 
the track owner has assigned track maintenance responsibility to 
another entity).
    \23\ For example, the duty for compliance with passenger 
equipment standards in part 238 lies with railroads, including those 
that ``operate intercity or commuter passenger train service,'' 49 
CFR 238.3(a), and that duty remains with the railroad even though 
contractors must also comply. See 49 CFR 238.9(c). Railroads subject 
to the passenger train emergency preparedness regulation in part 
239, including intercity and commuter passenger railroads, also have 
a non-delegable duty to comply with the standards in that part. See 
49 CFR 239.3(a), 239.9.
---------------------------------------------------------------------------

VI. Other Proposed Revisions

    In addition to the proposed revisions discussed above, FRA is also 
proposing the following revisions to the SSP final rule.

Discovery and Admission as Evidence of Certain Information

    The final rule protects certain information a railroad compiles or 
collects after August 14, 2017, solely for SSP purposes from discovery, 
admission into evidence, or use for any other purpose in a Federal or 
State court proceeding for damages involving personal injury, wrongful 
death, or property damage. See 49 CFR 270.105(a). The final rule also 
specified certain categories of information that are not protected, 
including information a railroad compiled or collected on or before 
August 14, 2017, and that the railroad continues to compile and 
collect, even if the railroad uses that information to plan, implement, 
or evaluate its SSP. See 49 CFR 270.105(b)(2). The NPRM and final rule 
contain significant discussion of the protections and exceptions. See 
77 FR 55373, 55378-79, 55390-92, and 55406 (Sept. 7, 2012); 81 FR 
53851, 53855-56, 53858-60, 53878-82, and 53900 (Aug. 12, 2016).
    FRA is proposing to amend the SSP final rule's information 
protections to specify that they apply to a C\3\RS program included as 
part of a railroad's SSP, even if the railroad joined C\3\RS on or 
before August 14, 2017. C\3\RS is a partnership currently between FRA 
and the National Aeronautics and Space Administration (NASA), in 
conjunction with participating railroads and labor organizations, that 
allows participating railroads and their employees to voluntarily and 
confidentially report close calls.\24\ Employees of participating 
railroads can submit C\3\RS reports to NASA, which protects the 
identity of both the reporting employee and the railroad by 
generalizing or removing all identifying information.
---------------------------------------------------------------------------

    \24\ See generally https://c3rs.arc.nasa.gov/information/summary.html.
---------------------------------------------------------------------------

    As discussed in the NPRM and final rule, C\3\RS embodies many of 
the concepts and principles found in an SSP, including: 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. See 77 FR 55376 (Sept. 7, 2012) and 81 
FR 53854 (Aug. 12, 2016). For example, railroads participating in 
C\3\RS establish peer review teams (PRT) that receive de-identified 
close call reports. After evaluating a close call report or reports, a 
PRT may develop and recommend corrective actions responding to the 
hazards and risks identified by the report.
    While FRA does not require any railroad to implement a C\3\RS 
program, FRA encourages railroads to include a C\3\RS program as part 
of their SSPs. See 81 FR 53854 (Aug. 12, 2016). For a railroad that 
establishes a C\3\RS program as part of its SSP after August 14, 2017, 
the final rule already protects the railroad's C\3\RS information.\25\ 
For clarity and to preserve continued participation by railroads that 
established C\3\RS programs on or before August 14, 2017, FRA is 
specifically proposing to add paragraph (a)(3) to Sec.  270.105 to 
provide that for Federal or State court proceedings initiated after 365 
days from publication of the final rule,\26\ the information protected 
includes C\3\RS information a railroad includes in its SSP, even if the 
railroad compiled or collected the C\3\RS information on or before 
August 14, 2017. FRA is also proposing to add a definition for C\3\RS 
in Sec.  270.5.
---------------------------------------------------------------------------

    \25\ The C\3\RS information protected would include not only the 
reports submitted by employees, but also a PRT's identification and 
analysis of any hazards and risks associated with those reports.
    \26\ FRA's authority for issuing a rule protecting SSP 
information is found in 49 U.S.C. 20119(b). The proposed protections 
for C\3\RS information would apply only to court proceedings 
initiated 365 days after publication of a final rule because sec. 
20119(b) provides that ``[a]ny such rule prescribed pursuant to this 
subsection shall not become effective until 1 year after its 
adoption.''
---------------------------------------------------------------------------

    FRA's proposed amendment would ensure the protections apply equally 
to every railroad that includes C\3\RS information (including PRT 
analyses) as part of its SSP, regardless of when the railroad joined 
C\3\RS. Because C\3\RS is a Federal safety program designed to increase 
the safety of railroad operations, and by its design it generates risk 
and hazard identification information, FRA believes it is important to 
provide clarity ensuring that early C\3\RS adopters receive the same 
SSP information protections as railroads that waited to join C\3\RS 
until after August 14, 2017. Further, FRA believes this clarity will 
promote safety because early C\3\RS adopters will be more willing to 
perform robust analyses of C\3\RS reports if they are confident that 
the SSP information protections will apply to those analyses. The 
proposal also avoids a situation where early C\3\RS adopters may even 
decide to drop out of the program because they fear they will not 
receive the same SSP information protections as newer participants. FRA 
believes the proposed amendment is also consistent with the spirit of 
the RSIA, which provides that FRA ``may conduct behavior-based safety 
and other research, including pilot programs, before promulgating 
regulations under this section and thereafter.'' 49 U.S.C. 20156(a)(2) 
(emphasis added).
    As a practical matter, FRA's proposed approach is also appropriate 
because the C\3\RS de-identification process could make it difficult to 
determine the applicability of the current SSP information protections, 
which generally apply based on when a railroad began to compile or 
collect certain information. For example, C\3\RS reports are de-
identified to protect the reporter's confidentiality, and this de-
identification process involves removing references to the reporting 
employee and the involved railroad and generalizing or eliminating 
dates and times.\27\ Protecting C\3\RS information included in an SSP, 
regardless of when a railroad joined the program, would avoid creating 
a situation where a participating railroad could not

[[Page 27223]]

establish applicability of the SSP information protections because, due 
to the de-identification process that is essential to the program, the 
date the information was compiled or collected was unknown.
---------------------------------------------------------------------------

    \27\ See https://c3rs.arc.nasa.gov/information/confidentiality.html.
---------------------------------------------------------------------------

    Further, FRA notes that C\3\RS does not provide railroads a 
mechanism for gathering unlimited safety information. A railroad would 
not, therefore, be able to expand the scope of C\3\RS unilaterally to 
strategically gain information protections for a larger universe of 
safety information. For example, C\3\RS information a railroad can 
compile or collect is limited by the nature of the program, which only 
provides for voluntary reporting of close call events by railroad 
employees. Implementing memoranda of understanding among FRA, 
railroads, and labor organizations also limit the scope of close call 
events that can be reported to the program. For example, events 
involving a train accident or injury are generally ineligible to be 
reported as close calls.\28\
---------------------------------------------------------------------------

    \28\ See e.g., Confidential Close Call Reporting System 
Implementing Memorandum of Understanding (C\3\RS/IMOU) for Amtrak, 
Article 6.1 (Criteria for Close Call Report Acceptance), May 11, 
2010, available at https://www.fra.dot.gov/eLib/details/L16140.
---------------------------------------------------------------------------

    FRA requests public comment on this proposal and any potential 
alternatives. FRA is specifically requesting comment on a potential 
alternative under which FRA would only protect C\3\RS information a 
railroad compiles or collects as part of an SSP after 365 days 
following publication of a final rule, even if the railroad established 
the C\3\RS program on or before that date. Like with the proposal 
discussed above, this alternative would reflect that C\3\RS embodies 
many of the concepts and principles in SSP and would provide C\3\RS-
participating railroads similar information protection, regardless of 
when the railroads joined the program. The notable difference under 
this potential alternative is that C\3\RS information a railroad 
compiled or collected on or before 365 days following publication of a 
final rule would not receive protection. FRA also notes that this 
alternative may be difficult to administer because the process of de-
identifying C\3\RS information could make it difficult to determine 
when a railroad compiled or collected the information.

Compliance Dates

    FRA has stayed the SSP final rule requirements until September 4, 
2019. See 83 FR 63106 (Dec. 7, 2018). As discussed above, FRA proposes 
to extend the stay beyond September 4, 2019, to allow FRA time to issue 
a final rule in this proceeding. FRA seeks public comment on a possible 
stay extension. FRA proposes to adjust the various compliance dates in 
the SSP final rule to account for the stay--specifically, the 
compliance dates in Sec. Sec.  270.107(a)(3)(i) and 270.201(a)(1) and 
appendix B to part 270. These adjustments are discussed further in the 
section-by-section analysis.

VII. Conforming Amendments to an RRP Final Rule

    The SSP rule implements the RSIA mandate for railroad safety risk 
reduction programs for passenger railroads, while a separate RRP 
rulemaking is addressing the mandate for certain freight railroads. See 
49 U.S.C. 20156(a)(1). Throughout both the SSP and RRP rulemaking 
proceedings, FRA has consistently stated both an SSP and RRP final rule 
would contain consultation and information protection provisions that 
were essentially identical. See 81 FR 53855 (Aug. 12, 2016) and 80 FR 
10955 (Feb. 27, 2015). While this NPRM proposes amendments to the 
consultation and information protection provisions of the SSP final 
rule, there is currently no RRP final rule FRA can propose similarly 
amending.\29\ If FRA publishes an RRP final rule before a final rule in 
this rulemaking proceeding, FRA may use a final rule in this proceeding 
to make conforming changes to the consultation and information 
protection provisions of an RRP final rule. FRA therefore welcomes and 
encourages comments from railroads, labor organizations, and other 
parties interested in an RRP final rule on the amendments this NPRM 
proposes to the SSP rule's provisions on consultation and information 
protection.
---------------------------------------------------------------------------

    \29\ FRA published an RRP NPRM on February 27, 2015, and is 
currently developing an RRP final rule. See 80 FR 10950.
---------------------------------------------------------------------------

VIII. Section-by-Section Analysis

    In response to petitions for reconsideration, FRA is proposing 
various amendments to part 270--System Safety Program. FRA is also 
proposing to clarify that the SSP rule's information protections apply 
to C\3\RS programs included in an SSP and to extend certain compliance 
dates to account for the stay of the rule.

Section 270.5--Definitions

    FRA is proposing to amend the definitions section of part 270 to 
add a definition for ``Confidential Close Call Reporting System 
(C\3\RS),'' which would mean an FRA-sponsored voluntary program 
designed to improve the safety of railroad operations by allowing 
railroad employees to confidentially report unsafe events that are 
either currently not required to be reported or are underreported. The 
proposed definition closely parallels the description of C\3\RS on 
FRA's website. See https://www.fra.dot.gov/c3rs.

Section 270.7--Penalties and Responsibility for Compliance

    Currently, this section contains provisions relating to compliance 
with part 270 and penalties for violations of part 270. For reasons 
discussed in Section V of the preamble, FRA is proposing to add a new 
paragraph (c)(1) to this section to clarify that even though all 
persons providing IPR or commuter (or other short-haul) rail passenger 
transportation share responsibility for ensuring compliance with the 
SSP final rule, the rule does not restrict the ability of such persons 
to designate to another person responsibility for compliance with this 
part. The new paragraph would also clarify that a designator 
(designating entity) would not be relieved of responsibility for 
compliance. As discussed above in Section V of this preamble, FRA's 
policy would be to consider a designated entity as the person with 
primary responsibility for compliance with the SSP final rule. Section 
V further explains that it would be inconsistent with FRA's statutory 
jurisdiction over passenger rail service to allow the designator to 
completely assign or otherwise contract away its entire responsibility 
for compliance under the law.
    As proposed in paragraph (c)(2)(i), a person may designate another 
person as responsible for compliance with part 270 by including a 
designation of responsibility in the SSP plan. This designation must be 
included in the SSP plan's statement describing the railroad's 
management and organizational structure and include the information 
specified by proposed Sec.  270.103(e)(6), the details of which are 
discussed below in the section-by-section analysis for that section. 
Any rescission or modification of a designation would have to be made 
in accordance with the requirements for amending SSP plans in Sec.  
270.201(c).
    FRA notes that the use of ``may'' in proposed paragraph (c)(2) was 
intentional, as this section does not require a person to designate 
another person as responsible for compliance--any person can comply 
with the SSP requirements on its own behalf. However, if a person 
intends to designate another person as responsible for compliance, the 
SSP plan must

[[Page 27224]]

describe the railroad management and organizational structure, 
including management responsibilities within the SSP and the 
distribution of safety responsibilities within the railroad 
organization, in addition to the requirements of Sec. Sec.  270.7(c)(2) 
and 270.103(e)(6).
    Nonetheless, FRA further notes that in approving SSP plans, FRA 
would consider how a designation of responsibility for SSP compliance 
would be consistent with the holistic, system-wide nature of safety 
management systems. FRA believes that the systemic nature of SSP 
requires a single entity to have overall responsibility for the entire 
SSP, to ensure that the SSP is properly implemented throughout the 
railroad's entire system by the potentially various entities 
responsible for separate aspects of the system's safety. FRA therefore 
expects that a designation would identify only a single entity with 
overall responsibility for SSP compliance, as opposed to designating 
SSP responsibility piecemeal to multiple entities.
    Including a designation provision in an SSP plan would not, 
however, relieve a person of responsibility for ensuring that host 
railroads and other persons that provide or utilize significant safety-
related services appropriately support and participate in an SSP, as 
required under Sec.  270.103(e)(5). Designating a single person as 
responsible for SSP compliance would not mean that no other entity 
participates in the SSP. Rather, it means that the designated person 
has the primary responsibility for ensuring overall SSP compliance, 
which can include ensuring the participation of other persons as 
appropriate.
    FRA acknowledges that some railroads may wish to make a designation 
of responsibility for SSP compliance clear before submitting an SSP 
plan to FRA, particularly if the designation would involve 
responsibility for consulting with directly affected employees on the 
contents of an SSP plan. Proposed paragraph (c)(2)(ii) therefore states 
that a person may notify FRA of a designation of responsibility before 
submitting an SSP plan by submitting a designation notice to the 
Associate Administrator for Railroad Safety and Chief Safety Officer. 
The notice must include all information required under Sec.  
270.103(e)(6), although this information must still be included in the 
SSP plan. If a person does submit a designation notice under this 
proposed provision, FRA would encourage the person to share the notice 
with directly affected employees before and during the consultation 
process. FRA is not proposing a deadline for this notification, but is 
specifically requesting public comment on whether such a deadline would 
be necessary.

Section 270.103--System Safety Program Plan

    Currently, this section requires a railroad to adopt and fully 
implement an SSP through a written SSP plan containing the information 
required in this section. Paragraph (e) specifically states an SSP plan 
must include a statement describing the railroad's management and 
organizational structure, and paragraphs (e)(1) through (5) specify 
information this statement must contain.
    FRA is proposing to amend this section to add a new paragraph 
(e)(6), which would contain the requirements for a designation included 
in an SSP plan and any designation submitted under proposed Sec.  
270.7(c)(2). Under paragraph (e)(6), a designation would have to 
include the name and contact information for the designator 
(designating entity) and the designated entity; a statement signed by 
an authorized representative of the designated entity acknowledging 
responsibility for compliance with part 270; a statement affirming a 
copy of the designation has been provided to the primary contact for 
each non-profit employee labor organization representing directly 
affected employees for consultation purposes under Sec.  270.107(a)(2); 
and a description of how the directly affected employees not 
represented by a non-profit employee labor organization would be 
notified of the designation for consultation purposes under Sec.  
270.107(a).
    FRA is also proposing minor formatting amendments to paragraphs 
(e)(4) and (5) to account for the additional proposed paragraph (e)(6).

Section 270.105--Discovery and Admission as Evidence of Certain 
Information

    Currently, this section sets forth the discoverability and 
admissibility protections for certain SSP information. The SSP final 
rule preamble discussed these protections in depth. See 81 FR 53878-
53882 (Aug. 12, 2016). For reasons discussed in Section VI of the 
preamble, FRA proposes to add paragraph (a)(3) to this section to 
clarify that for court proceedings initiated after 365 days following 
publication of the final rule, the protections established by this 
section apply to C\3\RS information a railroad includes in its SSP, 
even if a railroad compiled or collected the C\3\RS information on or 
before August 14, 2017, for non-SSP purposes. FRA is also proposing to 
add language to the introductory text of paragraph (a) to indicate the 
information protections apply except as provided in paragraph (a)(3).
    FRA is also proposing minor formatting amendments to paragraphs 
(a)(1) and (2) to account for the additional proposed paragraph (a)(3).

Section 270.107--Consultation Requirements

    Currently, this section implements the RSIA's mandate that a 
railroad required to establish an SSP must consult with its directly 
affected employees on the contents of its SSP plan. See 49 U.S.C. 
20156(g)(1). The SSP final rule preamble discussed the requirements of 
this section in depth. See 81 FR 53882-53887 (Aug. 12, 2016). As 
discussed in Section II.B of the preamble, FRA is proposing several 
amendments to this section to include language proposed in the Labor 
Petitions, as modified and clarified by FRA. To account for the stay of 
the SSP final rule, FRA is also proposing to extend the compliance date 
for holding the preliminary meeting with directly affected employees.
Paragraph (a)--General Duty
    Currently, paragraph (a)(2) of this section states 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. If a railroad contracts out 
significant portions of its operations, the contractor and the 
contractor's employees performing the railroad's operations are 
considered directly affected employees for part 270 purposes.
    For reasons discussed in Section II.B of the preamble, FRA proposes 
to amend paragraph (a)(2) to add that the primary point of contact for 
directly affected employees represented by a non-profit employee labor 
organization shall be the general chairperson for that non-profit 
employee labor organization or a primary point of contact the non-
profit employee labor organization and the railroad agree upon at the 
beginning of the consultation process. Unless agreed otherwise, the 
primary point of contact for consultation purposes will be a labor 
organization's general chairperson. While the Labor Petition requested 
FRA amend paragraph (a)(3) to establish the general chairperson of a 
non-profit employee labor organization as a railroad's primary point of 
contact,

[[Page 27225]]

FRA believes such a provision belongs more appropriately in paragraph 
(a)(2), which contains requirements addressing the consultation process 
generally. Paragraph (a)(3), in contrast, only addresses the 
preliminary meeting portion of the consultation process. By proposing 
to amend paragraph (a)(2) instead of paragraph (a)(3), FRA's intent is 
to clarify that a general chairperson is the primary contact for the 
entire consultation process, not just the preliminary meeting. FRA 
specifically requests public comment on whether proposing to amend 
paragraph (a)(2) instead of paragraph (a)(3) adequately addresses the 
Labor Petition's concerns.
    Currently, paragraph (a)(3) requires a railroad to have a 
preliminary meeting with its directly affected employees to discuss how 
the consultation process will proceed and states the railroad must hold 
this meeting no later than April 10, 2017. To account for the stay of 
the SSP final rule, as discussed in Section VI of the preamble above, 
FRA is proposing to amend paragraph (a)(3)(i) to extend the deadline 
for the preliminary meeting from April 10, 2017, to 120 days after the 
date a final rule arising from this NPRM is published.
Paragraph (b)(3)--Railroad Consultation
    Currently, paragraph (b)(3) requires a railroad consultation 
statement to include a service list containing the name and contact 
information for each international/national president of any non-profit 
employee labor organization representing a class or craft of the 
railroad's directly affected employees.\30\ When a railroad submits its 
SSP plan and consultation statement, it must simultaneously send a copy 
of both to all individuals identified in the service list.
---------------------------------------------------------------------------

    \30\ Paragraph (b)(3) also requires the service list to contain 
the name and contact information for any directly affected employee 
who significantly participated in the consultation process 
independently of a non-profit employee labor organization.
---------------------------------------------------------------------------

    FRA proposes to amend paragraph (b)(3) to add that the service list 
must also include the name and contact information for either each 
general chairperson of any non-profit employee labor organization 
representing a class or craft of the railroad's directly affected 
employees or the agreed-upon point of contact that the non-profit 
employee labor organization and the railroad agree upon at the 
beginning of the consultation process.

Section 270.201--Filing and Approval

    This section contains the requirements for filing an SSP plan and 
FRA's approval process. As discussed in Section VI of the preamble, FRA 
proposes to amend paragraph (a)(1) to account for the stay of the 
requirements of the SSP final rule. Because FRA is proposing to extend 
the date of the preliminary meeting under Sec.  270.107(a)(3), it would 
also be necessary to extend the time for a railroad to submit its SSP 
plan to FRA. FRA is proposing to provide railroads one year after the 
publication of a final rule to submit their SSP plans to FRA for review 
and approval. FRA specifically requests public comment on whether 
railroads will need an entire year following the publication of a final 
rule to submit SSP plans to FRA, or whether a shorter deadline, such as 
six months, would provide sufficient time.

Appendix B to Part 270--Federal Railroad Administration Guidance on the 
SSP Consultation Process

    Appendix B contains guidance on how a railroad could comply with 
the consultation requirements of Sec.  270.107. FRA proposes to amend 
appendix B to reflect the proposed amended compliance dates in 
Sec. Sec.  270.107(a)(3)(i) and 270.201(a)(1).

IX. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM is a non-significant rulemaking and evaluated in 
accordance with existing policies and procedures under Executive Order 
12866 and DOT Order 2100.6. See 58 FR 51735, Sep. 30, 1993 and https://www.transportation.gov/regulations/2018-dot-rulemaking-order. The scope 
of this analysis is limited to the revisions that FRA is proposing to 
make in this rulemaking. FRA concluded that because this NPRM generally 
includes only voluntary actions or alternative action by designated 
entities that would be voluntary, this NPRM does not impart additional 
burdens on regulated entities.
    Pursuant to petitions for reconsideration FRA received in response 
to the SSP final rule, this NPRM proposes five sets of amendments to 
the SSP rule. The following paragraphs describe the costs and benefits 
that would follow from implementation of the proposals in this NPRM.
    First, to address the State Petitions' concerns discussed in 
Section III of this NPRM, the NPRM would amend the SSP rule to clarify 
that a person subject to the SSP rule may designate another entity as 
being responsible for SSP compliance under Sec. Sec.  270.7(c) and 
270.103(e)(6). As any such designation would be voluntary, such 
clarification would add no additional burden nor provide any additional 
safety benefit. In addition, the proposed revisions to Sec. Sec.  
270.7(c) and 270.103(e)(6) would clarify the responsibilities of the 
designated entity and the designator. Because both the designated 
entity and the designator would be responsible for compliance under 
Sec.  270.7(c), issuing the NPRM would not affect safety benefits. FRA 
requests comment from the public on the costs and benefits described in 
this paragraph.
    Second, to address the Labor Petition's concerns discussed in 
Section II of this NPRM, FRA proposes to amend the SSP rule to add the 
general chairperson of a non-profit employee labor organization as the 
point of contact for directly affected employees represented by that 
non-profit employee labor organization.
    Third, FRA received a comment from AAR voicing concern that an 
inadvertent failure to serve a general chairperson may result in FRA 
deeming a railroad as not using ``best efforts'' in the consultation 
process. In response to such concern, FRA is proposing to allow a 
railroad and a non-profit employee labor organization to establish an 
alternative point of contact within the non-profit employee labor 
organization. This point of contact could be a person the railroad and 
non-profit employee labor organization agree on at the beginning of the 
consultation process. FRA anticipates any burden associated with 
requiring the inclusion of a general chairperson in the service list 
would be significantly alleviated, if not eliminated altogether, by the 
provision allowing railroads and non-profit employee labor 
organizations to agree on an alternative point of contact. FRA 
specifically requests comment from the public on this conclusion.
    Further, as discussed in Section VI of this NPRM, FRA is proposing 
to amend the SSP final rule's information protections to address the 
C\3\RS program. Because this proposed amendment merely addresses the 
scope of the protections provided by the SSP final rule, there are no 
burdens associated with it.
    Finally, FRA is also proposing to adjust the various compliance 
dates in the SSP final rule to account for the stay of the final rule's 
requirements. Because the adjustments are necessary only to conform the 
final rule's deadlines with the stay, they have already been accounted 
for in the regulatory impact analysis that accompanied the final rule 
extending the stay. See 82 FR 56745 (Nov. 30, 2017).

[[Page 27226]]

    This proposed rule is not expected to be an Executive Order 13771 
regulatory action because this proposed rule is not significant under 
Executive Order 12866.

B. Regulatory Flexibility Act and Executive Order 13272

    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 impact on small 
entities. An agency must prepare an Initial Regulatory Flexibility 
Analysis unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. The five sets of proposed revisions within 
this NPRM would not impart any additional burden on regulated entities. 
Three of the proposed sets of revisions would add clarity to the final 
rule, and the proposed revision requiring submission of the designation 
notice to FRA is voluntary and would only apply if a designation is 
made. Another proposed revision would allow each railroad and labor 
union to decide jointly on an alternative contact person, thereby 
eliminating or significantly mitigating any burden associated with the 
proposed revision requiring inclusion of a general chairperson in the 
service list.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``linehaul railroad'' 
that has fewer than 1,500 employees, a ``short line railroad'' with 
fewer than 1,500 employees, or a ``commuter rail system'' with annual 
receipts of less than $15.0 million dollars. See ``Size Eligibility 
Provisions and Standards,'' 13 CFR part 121, subpart A. 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 at 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. 
FRA is using this definition for this rulemaking.
    For purposes of this analysis, this proposed rule will apply to 30 
commuter or other short-haul passenger railroads and two intercity 
passenger railroads, Amtrak and the ARC. Neither is considered a small 
entity. Amtrak serves populations well in excess of 50,000, and the ARC 
is owned by the State of Alaska, which has a population well in excess 
of 50,000.
    Based on the definition of ``small entity,'' only one commuter or 
other short-haul railroad is considered a small entity: The Hawkeye 
Express (operated by the Iowa Northern Railway Company). Although the 
proposed regulation may impact a substantial number of small entities, 
by virtue of its impact on the only identified small identity, it would 
merely provide additional clarifying information without introducing 
any additional burden. The proposed regulation would therefore not have 
a significant impact on a substantial number of small entities.
    A substantial number of small entities may be impacted by this 
regulation; however, any impact would be minimal and positive. FRA 
requests comments as to the impact that the rule would have on both 
small passenger railroads as well as all passenger railroads in 
general.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and Budget (OMB) for approval 
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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                          Respondent                                                                                       Total annual
          CFR section/subject              universe       Total annual responses         Average time  per response        Total annual     dollar cost
                                          (railroads)                                                                      burden hours     equivalent
--------------------------------------------------------------------------------------------------------------------------------------------------------
270.103--System Safety Program Plan                 32  32 plans.................  40 hours.............................           1,280        $140,800
 (SSPP)--Comprehensive written SSPP
 meeting all of this section's
 requirements.
--Copies of railroad (RR) designations              32  27 copies................  2 minutes............................               1              73
 to non-profit employee labor
 organizations.
--Designation notifications to                      32  27 notices...............  5 minutes............................               2             146
 employees not represented by non-
 profit employee labor organizations.
--System safety training by RR of                   32  450 trained individuals..  2 hours..............................             900          65,700
 employees/contractors/others.
--Records of system safety training                 32  450 records..............  2 minutes............................              15           1,095
 for employees/contractors/others.
--Furnishing of RR results of risk-                 32  10 analyses results......  20 hours.............................             200          14,600
 based hazard analyses upon request of
 FRA/participating part 212 States.
--Furnishing of descriptions of RR's                32  10 mitigation methods      10 hours.............................             100           7,300
 specific risk mitigation methods that                   descriptions.
 address hazards upon request of FRA/
 participating part 212 States.
--Furnishing of results of railroad's               32  32 results of technology   40 hours.............................           1,280          93,440
 technology analysis upon request of                     analysis.
 FRA/participating part 212 States.

[[Page 27227]]

 
270.107(a)--Consultation requirements--             32  32 consults (w/labor       40 hours.............................           1,280          93,440
 RR consultation with its directly                       union reps.).
 affected employees on SSPP.
--RR notification to directly affected              32  32 notices...............  8 hours..............................             256          18,688
 employees of preliminary meeting at
 least 60 days before being held.
--(b) RR consultation statements that               32  30 statements + 2          80 hours + 2 hours...................           2,404         175,492
 includes service list with name &                       statements.
 contact information for labor
 organization chairpersons & non-union
 employees who participated in process.
--Copies of consultations statements                32  32 copies................  1 minute.............................               1              73
 by RR to service list individuals.
270.201--SSPPs found deficient by FRA               32  4 amended plans..........  40 hours.............................             160          11,680
 and requiring amendment.
--Review of amended SSPPs found                     32  1 further amended plan...  40 hours.............................              40           2,920
 deficient and requiring further
 amendment.
--Reopened review of initial SSPP                   32  2 amended plans..........  40 hours.............................              80           5,840
 approval for cause stated.
270.203--Retention of SSPPs--Retained               32  37 copies................  10 minutes...........................               6             438
 copies of SSPPs.
270.303--Annual internal SSPP                       32  32 evaluations/reports...  40 hours.............................           1,280          93,440
 assessments/reports conducted by RRs.
--Certification of results of RR                    32  32 certification           8 hours..............................             256          28,160
 internal assessment by chief safety                     statements.
 official.
270.305--External safety audit--RR                  32  6 plans..................  40 hours.............................             240          26,400
 submission of improvement plans in
 response to results of FRA audit.
--Improvement plans found deficient by              32  2 amended plans..........  24 hours.............................              48           3,504
 FRA and requiring amendment.
--RR status report to FRA of                        32  2 reports................  4 hours..............................               8             584
 implementation of improvements set
 forth in the improvement plan.
Appendix B--Additional documents                    32  2 documents..............  30 minutes...........................               1              73
 provided to FRA upon request.
--Notifications/good faith                           2  2 notices/consults.......  8 hours..............................              16           1,168
 consultation with non-represented
 employees by RRs.
--Meeting with non-represented                       2  2 meetings...............  8 hours..............................              16           1,168
 employees within 180 days of final
 rule effective date about
 consultation process.
Appendix C--Written requests by RRs to              32  20 written requests......  30 minutes...........................              10             730
 file required submissions
 electronically.
                                       -----------------------------------------------------------------------------------------------------------------
    Totals............................              32  1,310 replies/responses..  N/A..................................           9,880         768,952
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information.
    Under 44 U.S.C. 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 Collection Clearance 
Officer, Office of Railroad Safety, Federal Railroad Administration, at 
202-493-6292 or Ms. Kimberly Toone, Records Management Officer, Office 
of Railroad Safety, Federal Railroad Administration, 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 at [email protected] or Ms. Toone 
at [email protected].
    OMB must 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 that do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection

[[Page 27228]]

requirements resulting from this rulemaking action prior to the 
effective date of the final rule, and will announce the OMB control 
number, when assigned, by separate notice in the Federal Register.

D. Environmental Impact

    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 Federal 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).
    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 proposed rule 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.

E. Federalism Implications

    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.
    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. This 
proposed rule generally clarifies or makes technical amendments to the 
requirements contained in part 270, System Safety Program. FRA has 
determined that this final rule has no federalism implications, other 
than the possible preemption of State laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed rule is not required.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 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 one 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. 
This proposed rule would not result in such an expenditure, and thus 
preparation of such a statement is not required.

G. 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). FRA evaluated this proposed rule in accordance 
with Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of the 
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic 
Growth,'' requires Federal agencies to review regulations to determine 
whether they potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy resources. See 82 FR 16093 (Mar. 31, 
2017). FRA determined this proposed rule would not burden the 
development or use of domestically produced energy resources.

H. 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, to www.regulations.gov, as described in the 
system of records notice, DOT/ALL-14 FDMS, accessible through 
www.dot.gov/privacy. To facilitate comment tracking and response, we 
encourage commenters to provide their name, or the name of their 
organization; however, submission of names is completely optional. 
Whether or not commenters identify themselves, all timely comments will 
be fully considered. If you wish to provide comments containing 
proprietary or confidential information, please contact the agency for 
alternate submission instructions.

List of Subjects in 49 CFR Part 270

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements, System safety.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 270 of chapter II, subtitle B of title 49, Code of Federal 
Regulations, as follows:

PART 270--[AMENDED]

0
1. The authority citation for part 270 continues to read as follows:

    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.

0
2. In Sec.  270.5, add a definition in alphabetical order for 
Confidential Close Call Reporting System (C\3\RS) to read as follows:


Sec.  270.5   Definitions.

* * * * *
    Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad 
operations by allowing railroad employees to confidentially report 
currently unreported or underreported unsafe events.
* * * * *
0
3. In Sec.  270.7, add paragraph (c) to read as follows:

[[Page 27229]]

Sec.  270.7   Penalties and responsibility for compliance.

* * * * *
    (c)(1) All persons providing intercity rail passenger or commuter 
(or other short-haul) rail passenger service share responsibility for 
ensuring compliance with this part. Nothing in this paragraph (c), 
however, shall restrict the ability to provide for an appropriate 
designation of responsibility for compliance with this part. A 
designator, however, shall not be relieved of responsibility for 
compliance with this part.
    (2)(i) Any person subject to this part may designate another person 
as responsible for compliance with this part by including a designation 
of responsibility in the SSP plan. This designation must be included in 
the SSP plan's statement describing the railroad's management and 
organizational structure and include the information specified by Sec.  
270.103(e)(6).
    (ii) A person subject to this part may notify FRA of a designation 
of responsibility before submitting an SSP plan by first submitting a 
designation of responsibility notice to the Associate Administrator for 
Railroad Safety and Chief Safety Officer. The notice must include all 
information required under Sec.  270.103(e)(6), and this information 
must also be included in the SSP plan.
0
4. In Sec.  270.103, revise paragraph (e)(4) and the last sentence of 
paragraph (e)(5) and add paragraph (e)(6) to read as follows:


Sec.  270.103   System safety program plan.

* * * * *
    (e) * * *
    (4) Clear identification of the lines of authority used by the 
railroad to manage safety issues;
    (5) * * * As part of this description, the railroad shall describe 
how each host railroad, contractor operator, shared track/corridor 
operator, and any persons utilizing or providing significant safety-
related services as identified by the railroad pursuant to paragraph 
(d)(2) of this section supports and participates in the railroad's 
system safety program, as appropriate; and
    (6) If a person subject to this part designates another person as 
responsible for compliance with this part under Sec.  270.7(c)(2), the 
following information must be included in the designator's SSP plan and 
any notice of designation submitted under Sec.  270.7(c)(2):
    (i) The name and contact information of the designator;
    (ii) The name and contact information of the designated entity and 
a statement signed by an authorized representative of the designated 
entity acknowledging responsibility for compliance with this part;
    (iii) A statement affirming that a copy of the designation has been 
provided to the primary point of contact for each non-profit employee 
labor organization representing directly affected employees for 
consultation purposes under Sec.  270.107(a)(2); and
    (iv) A description of how directly affected employees not 
represented by a non-profit employee labor organization were notified 
of the designation for consultation purposes under Sec.  270.107(a).
* * * * *
0
5. In Sec.  270.105, revise paragraphs (a) introductory text and (a)(1) 
and the last sentence of paragraph (a)(2) and add paragraph (a)(3) to 
read as follows:


Sec.  270.105   Discovery and admission as evidence of certain 
information.

    (a) Protected information. Except as provided in paragraph (a)(3) 
of this section, any information compiled or collected after August 14, 
2017, solely for the purpose of planning, implementing, or evaluating a 
system safety program under this part 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. For purposes of this 
section--
    (1) ``Information'' includes plans, reports, documents, surveys, 
schedules, lists, or data, and specifically includes a railroad's 
analysis of its safety risks under Sec.  270.103(q)(1) and a railroad's 
statement of mitigation measures under Sec.  270.103(q)(2);
    (2) * * * This section does not protect information that is 
required to be compiled or collected pursuant to any other provision of 
law of regulation; and
    (3) A railroad may include a Confidential Close Call Reporting 
System (C\3\RS) program in a system safety program established under 
this part. For Federal or State court proceedings described by this 
paragraph (a) that are initiated after (date 365 days after date of 
publication of the final rule), the information protected by this 
paragraph (a) includes C\3\RS information a railroad includes in its 
system safety program, even if the railroad compiled or collected the 
C\3\RS information on or before August 14, 2017, for purposes other 
than planning, implementing, or evaluating a system safety program 
under this part.
* * * * *
0
6. In Sec.  270.107, add a sentence after the first sentence of 
paragraph (a)(2) and revise paragraph (a)(3)(i) and the first sentence 
of paragraph (b)(3) to read as follows:


Sec.  270.107   Consultation requirements.

    (a) * * *
    (2) * * * For directly affected employees represented by a non-
profit employee labor organization, the railroad's primary point of 
contact shall be either the general chairperson of that non-profit 
employee labor organization or a non-profit employee labor organization 
primary point of contact the railroad and the non-profit employee labor 
organization agree on at the beginning of the consultation process. * * 
*
    (3) * * *
    (i) Hold the preliminary meeting no later than (date 120 days after 
date of publication of the final rule); and
* * * * *
    (b) * * *
    (3) A service list containing the name and contact information for 
either each international/national president and general chairperson of 
any non-profit employee labor organization representing a class or 
craft of the railroad's directly affected employees, or each non-profit 
employee labor organization primary point of contact the railroad and 
the non-profit employee labor organization agree on at the beginning of 
the consultation process. * * *
* * * * *
0
7. In Sec.  270.201, revise paragraph (a)(1) to read as follows:


Sec.  270.201   Filing and approval.

    (a) Filing. (1) Each railroad to which this part applies shall 
submit one copy of its SSP plan to the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, 
Washington, DC 20590, no later than (date 365 days after date of 
publication of the final rule), or not less than 90 days before 
commencing passenger operations, whichever is later.
* * * * *
0
8. In appendix B to part 270:
0
a. Revise the section titled ``Employees Represented by a Non-Profit 
Employee Labor Organization''; and
0
b. Revise the section titled ``Employees Who Are Not Represented by a 
Non-Profit Employee Labor Organization.''
    The revisions read as follows:

Appendix B to Part 270--Federal Railroad Administration Guidance on the 
System Safety Program Consultation Process

* * * * *

[[Page 27230]]

Employees Represented by a Non-Profit Employee Labor Organization

    As provided in Sec.  270.107(a)(2), a railroad consulting with 
the representatives of a non-profit employee labor organization on 
the contents of a SSP plan will be considered to have consulted with 
the directly affected employees represented by that organization.
    A railroad may 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 a SSP 
plan.
     Pursuant to Sec.  270.107(a)(3)(i), a railroad must 
meet with representatives from a non-profit employee labor 
organization (representing a class or craft of the railroad's 
directly affected employees) no later than (date 120 days after date 
of publication of the final rule) to begin the process of consulting 
on the contents of the railroad's SSP plan. A railroad must provide 
notice at least 60 days before the scheduled meeting.
     During the time between the initial meeting and the 
applicability date of Sec.  270.105 the parties may meet to discuss 
administrative details of the consultation process as necessary.
     Within 60 days after the applicability date of Sec.  
270.105 a railroad should have a meeting with the directed affected 
employees to discuss substantive issues with the SSP.
     Pursuant to Sec.  270.201(a)(1), a railroad would file 
its SSP plan with FRA no later than (date 365 days after date of 
publication of the final rule), or not less than 90 days before 
commencement of new passenger service, whichever is later.
     As provided by Sec.  270.107(c), if agreement on the 
contents of a SSP plan could not be reached, a labor organization 
(representing a class or craft of the railroad's directly affected 
employees) may file a statement with the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer explaining its views on 
the plan on which agreement was not reached.

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 should 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 SSP 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 SSP plan.
     By (date 45 days after date of publication of the final 
rule), a railroad should notify non-represented employees that--
    (1) 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 SSP plan;
    (2) The railroad is required to meet with its directly affected 
employees by (date 120 days after date of publication of the final 
rule) to address the consultation process;
    (3) Non-represented employees are invited to participate in the 
consultation process (and include instructions on how to engage in 
this process); and
    (4) If a railroad is unable to reach agreement with its directly 
affected employees on the contents of the proposed SSP plan, an 
employee may file a statement with the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer explaining his or her 
views on the plan on which agreement was not reached.
     This initial notification (and all subsequent 
communications, as necessary or appropriate) could be provided to 
non-represented employees in the following ways:
    (1) Electronically, such as by email or an announcement on the 
railroad's website;
    (2) By posting the notification in a location easily accessible 
and visible to non-represented employees; or
    (3) 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.
     Following the initial notification and initial meeting 
to discuss the consultation process (and before the railroad submits 
its SSP plan to FRA), a railroad should provide non-represented 
employees a draft proposal of its SSP 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.
     Following this 60-day comment period and any changes to 
the draft SSP plan made as a result, the railroad should submit the 
proposed SSP plan to FRA, as required by this part.
     As provided by Sec.  270.107(c), if agreement on the 
contents of a SSP plan cannot be reached, then a non-represented 
employee may file a statement with the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer explaining his or her 
views on the plan on which agreement was not reached.

    Issued in Washington, DC.
Ronald L. Batory
Administrator, Federal Railroad Administration.

[FR Doc. 2019-12125 Filed 6-11-19; 8:45 am]
 BILLING CODE 4910-06-P