[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.
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\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.'').
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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\
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\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.
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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\
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\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.
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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.
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\16\ See 49 U.S.C. 20156(a)(1)(A).
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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.
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\17\ See supra footnote 8.
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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.
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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.
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\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.
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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.
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\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.
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\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.''
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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\
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\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.
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\29\ FRA published an RRP NPRM on February 27, 2015, and is
currently developing an RRP final rule. See 80 FR 10950.
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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