Risk Reduction Program, 9262-9325 [2020-00425]

Download as PDF 9262 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 271 [Docket No. FRA–2009–0038, Notice No. 7] RIN 2130–AC11 Risk Reduction Program Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: FRA is issuing this final rule to require each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP) to improve the safety of its operations. RRP is a comprehensive, system-oriented approach to safety that determines a railroad operation’s level of risk by identifying and analyzing applicable hazards, and involves developing plans to mitigate, if not eliminate, that risk. Each railroad has flexibility to tailor an RRP to its specific railroad operations. Each railroad shall implement its RRP under a written RRP plan that FRA has reviewed and approved. Each railroad shall conduct an annual internal assessment of its RRP, and FRA will audit a railroad’s RRP processes and procedures. SUMMARY: This final rule is effective April 20, 2020. ADDRESSES: Docket: For access to the docket to read background documents or comments received, go to https:// www.regulations.gov at any time or visit U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk Reduction Program Division, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202–493–6224), Miriam.Kloeppel@dot.gov; or Elizabeth Gross, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202– 493–1342), Elizabeth.Gross@dot.gov. SUPPLEMENTARY INFORMATION: lotter on DSKBCFDHB2PROD with RULES2 DATES: VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Table of Contents for Supplementary Information I. Executive Summary A. Statutory Authority for This Rulemaking B. Summary of Major Provisions C. Summary of Costs and Benefits II. Abbreviations III. Background and History A. What is a Risk Reduction Program? B. Summary of NPRM C. Proceedings Since the NPRM D. Regulatory Review E. Summary of Comments F. Update on Other Federal Safety Management System Programs IV. Statutory Background A. Rail Safety Improvement Act of 2008 B. Related System Safety and Fatigue Management Plans Rulemakings C. Consultation Process Requirements D. Risk Reduction Information Protection 1. Exemption From Freedom of Information Act Disclosure 2. Discovery and Other Use of Risk Analysis Information in Litigation a. The Statutory Mandate b. The Final Study Report and Its Conclusions V. Discussion of General Comments A. Information Protection 1. Comments Supporting the Proposed Information Protections 2. Comments on Final Study Report 3. Comments Against Any Information Protections a. Comments That the Information Protections Are Unprecedented b. Comments That the Information Protections Will Reduce the Rights of Litigants c. Comments That the Information Protections Will Allow Railroads To Hide Safety Hazards 4. Comments That the RRP Final Rule Does Not Need To Limit the Disclosure of Evidence 5. Comments Requesting Preservation of State Tort Law Based Claims 6. Comments That a Judge Should Determine Information Admissibility 7. Comments Suggesting FRA Should Only Protect a Railroad’s Hazard Analysis Form 8. Comments That the Information Protections Are Too Narrow B. Other Topics 1. Transportation of Hazardous Materials 2. Comments on Performance-Based Rule and Flexibility 3. Comments on Streamlined Safety Management System (SMS) 4. Comments on Plan Approval 5. Comments on Fatigue Management Plans 6. Comments on the RSAC Process 7. Comments on the Relationship Between RRP and SSP 8. Comments on the Short Line Safety Institute 9. Comments on Other SMS Programs VI. Section-by-Section Analysis VII. Regulatory Impact and Notices A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT Regulatory Policies and Procedures PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 B. Regulatory Flexibility Act and Executive Order 13272 C. Federalism D. International Trade Impact Assessment E. Paperwork Reduction Act F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Executive Summary A. Statutory Authority for This Rulemaking FRA’s general authority to issue rules on railroad safety is 49 U.S.C. 20103(a), which establishes the authority of the Secretary of Transportation (Secretary) to promulgate regulations for every area of railroad safety. The Secretary has delegated such statutory responsibilities to the Administrator of FRA. See 49 CFR 1.89. FRA is issuing this rule to satisfy the statutory mandate in sections 103 and 109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110– 432, Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156 and 20118– 20119. The Secretary delegated responsibility to carry out her responsibilities under RSIA sections 103 and 109, and the general responsibility to conduct rail safety rulemakings under 49 U.S.C. 20103(a), to the Administrator of FRA. See 49 CFR 1.89(a) and (b). B. Summary of Major Provisions FRA is issuing this RRP rule as part of its efforts to continually improve rail safety and to satisfy the statutory mandate in RSIA sections 103 and 109 requiring each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement an RRP.1 A railroad not otherwise required to comply with the rule may also voluntarily submit an RRP plan for FRA review and approval. On August 12, 2016, 81 FR 53850, FRA published a separate system safety program (SSP) rule implementing this mandate for commuter and intercity passenger railroads. An RRP is implemented by a written risk reduction program plan (RRP plan). The RRP rule sets forth various elements that a railroad’s RRP plan must contain to properly implement an RRP. As part of its RRP plan, a railroad must also 1 FRA understands that each railroad subject to this RRP rule has a unique operating system, and not all railroads have the same amount of resources. Best practices for implementing an RRP will therefore differ from railroad to railroad. Accordingly, this rule does not establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Instead, the rule establishes general, performancebased requirements. This approach provides each railroad flexibility to tailor those requirements to its specific operations. E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations describe the various procedures and processes for implementing this rule’s requirements. This includes procedures and processes for, but not limited to, the following RRP components: Risk-based hazard management program; safety performance evaluation; safety outreach; technology implementation plan; RRP employee/contractor training; railroad employee involvement; and internal assessment. The main components of an RRP are the risk-based hazard management program and risk-based hazard analysis. A properly implemented risk-based hazard management program and riskbased hazard analysis will identify the hazards and resulting risks on the railroad’s system, develop methods to mitigate or eliminate (if practicable) these hazards and risks, and set forth a plan to implement these methods. As part of its RRP, a railroad will also consider various technologies that may mitigate or eliminate the identified hazards and risks. An RRP will affect almost all facets of a railroad’s operations. To ensure all railroad employees an RRP directly affects have an opportunity to provide input on the development, implementation, and evaluation of a railroad’s RRP, the rule requires railroads to consult in good faith, and use their best efforts to reach agreement with, such employees on the RRP plan contents and any substantive amendments to the plan. Appendix A to the rule contains guidance on what constitutes good faith and best efforts. An RRP can be successful only if a railroad engages in a systematic assessment of the hazards and resulting risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad’s assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death. See 49 U.S.C. 20119. Further, Congress authorized FRA, by delegation from the Secretary, to prescribe a rule, subject to notice and comment, to address the results of the study. See 49 U.S.C. 20119(b). FRA contracted to have the study performed, and the RRP notice of proposed rulemaking (NPRM) addressed the study’s results and set forth proposed protections for certain information from discovery, admission into evidence, or use for other purposes VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 in a proceeding for damages. See 80 FR 10963–10966 (Feb. 27, 2015). To minimize the information protected, information a railroad compiles or collects solely to plan, implement, or evaluate an RRP is protected from discovery, admissibility into evidence, or use for other purposes in a proceeding for damages involving personal injury, wrongful death, or property damage. The rule also preempts State discovery rules and sunshine laws which could be used to require the disclosure of protected information in such proceedings. This rule does not protect information a railroad compiles or collects for a purpose unrelated to the railroad’s RRP. Under section 20119(b), the information protection provision is not effective until one year after its publication. All other provisions of this final rule will become effective 60 days after the date of publication. Section 20118 also specifies that certain risk reduction records the Secretary obtains are exempt from the Freedom of Information Act (FOIA) public disclosure requirements. This exemption is subject to two exceptions for disclosure (1) necessary to enforce or carry out any Federal law and (2) when a record is comprised of facts otherwise available to the public and FRA determines disclosure would be consistent with the confidentiality needed for RRPs. See 49 U.S.C. 20118. Unless an RSIA exception applies, FRA would not disclose such records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and 49 CFR 7.23(c)(3). Therefore, FRA concludes railroad risk reduction records in FRA’s possession would be exempted from mandatory disclosure under FOIA unless one of the two exceptions applies. The rule requires a Class I railroad to submit its RRP plan to FRA for review no later than August 16, 2021. This submission deadline accounts for the statutory one-year delay before the information protection provision becomes effective. Similarly, the rule does not require railroads with inadequate safety performance (ISP railroads) or railroads the Surface Transportation Board (STB) either reclassifies or newly classifies as Class I railroads after the effective date of the final rule to submit RRP plans before the information protection provisions go into effect. An ISP railroad must submit an RRP plan either 180 days after receiving notice FRA determined the ISP railroad had inadequate safety performance or no later than August 16, 2021, whichever is later. A railroad the STB reclassifies or newly classifies as a Class I railroad must submit its RRP PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 9263 either no later than 90 days following the effective date of the classification or reclassification or no later than August 16, 2021, whichever is later. Within 90 days of receipt of a railroad’s RRP plan, FRA will review the plan and determine if it meets the requirements of the rule. If FRA determines the railroad’s RRP plan does not comply with the rule, FRA will notify the railroad of how the plan is deficient. The railroad will then have 90 days to correct the deficiencies and resubmit the plan to FRA. Whenever a railroad amends its RRP plan, it must submit the amended plan to FRA for approval and provide a cover letter describing the amendments. (FRA approval is not required for amendments limited to adding or changing a name, title, address, or telephone number of a person, although a railroad must still file the amendment with FRA.) A similar approval process and timeline will apply whenever a railroad substantively amends its RRP. C. Summary of Costs and Benefits The rule requires each Class I freight railroad and each ISP railroad to develop and implement an RRP in accordance with a written RRP plan approved by FRA. The rule sets forth required elements that must be included in a railroad’s RRP. FRA estimates that the rule’s costs for these elements include: Developing a risk-based hazard management program (HMP); documenting an RRP plan and any RRP plan amendments; consulting with directly affected employees and preparing consultation statements; conducting a safety performance evaluation; conducting safety outreach; conducting a technology analysis and developing a technology implementation plan; ensuring employee involvement; providing RRP training; retaining RRP records; and conducting internal assessments. FRA did not estimate the full incremental costs of railroads conducting additional and systematic hazard and risk analyses or implementing actions to mitigate identified hazards and risks. FRA lacks information to reliably estimate such costs because FRA cannot predict the level of hazards and risks on impacted railroads nor the means these railroads will use to mitigate these risks. Costs begin in the first year of analysis. The below tables summarize the rule’s total costs over a ten-year period based on Class I railroads having a 43-percent pre-compliance rate and ISP railroads having no pre-compliance, with a total cost of $40.2 million, using a 7-percent discount rate (present value (PV), 7-percent) (Table 1) and $51.0 E:\FR\FM\18FER2.SGM 18FER2 9264 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations million, using a 3-percent discount rate (PV, 3-percent) (Table 2). The annualized costs are $5.7 million (PV, 7- percent) and $5.9 million (PV, 3percent). TABLE 1—SUMMARY OF THE RULE’S TOTAL COSTS (TEN-YEAR PERIOD), ASSUMING 43-PERCENT CLASS I PRE-RULE COMPLIANCE; PV, 7-PERCENT Class I railroads Costs Subpart Subpart Subpart Subpart Subpart Subpart ISP railroads All railroads A: General ...................................................................................................................... B: RR Programs ............................................................................................................. C: RRP Plans ................................................................................................................. D: Review and Approval of Plans .................................................................................. E: Internal Assessments ................................................................................................ F: External Audits .......................................................................................................... ........................ 35,725,000 656,000 2,000 171,000 28,000 $7,000 2,216,000 1,053,000 7,000 312,000 32,000 $7,000 37,941,000 1,709,000 9,000 483,000 60,000 Total Cost, 7% present value ............................................................................................... 36,582,000 3,627,000 40,209,000 Annualized, 7% ............................................................................................................................ 5,210,000 516,000 5,726,000 TABLE 2—SUMMARY OF THE RULE’S TOTAL COSTS (TEN-YEAR PERIOD), ASSUMING 43-PERCENT CLASS I PRE-RULE COMPLIANCE; PV, 3-PERCENT Class I railroads Costs lotter on DSKBCFDHB2PROD with RULES2 Subpart Subpart Subpart Subpart Subpart Subpart ISP railroads All railroads A: General ...................................................................................................................... B: RR Programs ............................................................................................................. C: RRP Plans ................................................................................................................. D: Review and Approval of Plans .................................................................................. E: Internal Assessments ................................................................................................ F: External Audits .......................................................................................................... ........................ 45,156,000 771,000 2,000 230,000 37,000 $9,000 3,011,000 1,329,000 8,000 413,000 43,000 $9,000 48,167,000 2,100,000 10,000 643,000 80,000 Total Cost, 3% present value ............................................................................................... 46,197,000 4,813,000 51,000,000 Annualized, 3% ............................................................................................................................ 5,416,000 564,000 5,979,000 Benefits that come from the final rule will vary from railroad to railroad. These benefits are based on each railroad’s organizational structure, the ability for labor and management to collaborate, and the steps the railroad takes to implement hazard analysis and mitigation. FRA could not reliably predict the specific risks that each freight railroad will identify, the actions each freight railroad will take to mitigate such risks, or the success rate of such actions. Therefore, this analysis qualitatively describes benefits. Details on the estimated benefits of this final rule can be found in the rule’s Regulatory Impact Analysis (RIA), which FRA has prepared and placed in the docket (docket no. FRA–2009– 0038).2 FRA expects that the final rule will increase the effectiveness of railroad hazard mitigation strategies, which will reduce the frequency of accidents and incidents on the general railroad system. FRA also expects that the final rule will result in increased employee morale and improved working conditions, which will improve railroad productivity. These benefits will result because the final rule: (1) Ensures that railroads keep their RRPs current and in place; (2) Improves safety culture; (3) Requires ongoing employee involvement and proactive collaboration between labor and management; and (4) Provides information protection which allows for a systematic risk-based hazard analysis. The final rule requires each Class I railroad to have a fully implemented RRP within five years of the rule’s effective date and requires the first set of ISP railroads to implement all portions of their RRPs within six years after the final rule’s effective date.3 FRA anticipates that railroads may implement some components of their RRP plan before the required 2 Document inspection and copying facilities are available at Room W12–140 on the ground level of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590. The docket for this rulemaking is also available online at www.regulations.gov under docket no. FRA–2009– 0038. 3 An ISP railroad should begin to realize benefits approximately three years after FRA approves its RRP plan, the point when the final rule requires the ISP railroad to have fully implemented its RRP. The final rule requires each ISP railroad that is part of the first group of ISP railroads to implement in full an RRP by the sixth year. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 implementation dates specified in the final rule. Therefore, this analysis estimates that the final rule will start generating benefits in the fourth year (year 2022), when Class I railroads will have substantially implemented their RRPs. As previously discussed, Class I railroads have in place existing activities related to the final rule’s required components. The existing levels of pre-rule compliance reduce the size of potential benefits that follow from issuing the final rule. II. Abbreviations The following abbreviations are used in this preamble and are collected here for the convenience of the reader: CFR Code of Federal Regulations DOT United States Department of Transportation FMP Fatigue Management Plan FOIA Freedom of Information Act FR Federal Register FRA Federal Railroad Administration HMP Hazard Management Program NPRM Notice of Proposed Rulemaking OST Office of the Secretary, United States Department of Transportation PTC Positive Train Control Pub. L. Public Law RRP Risk Reduction Program RSAC Railroad Safety Advisory Committee E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations RSIA Railroad Safety Improvement Act of 2008, Public Law 110–432, Div. A, 122 Stat. 4848 Secretary Secretary of Transportation SSP System Safety Program U.S.C. United States Code III. Background and History lotter on DSKBCFDHB2PROD with RULES2 A. What is a Risk Reduction Program? Risk reduction is a comprehensive, system-oriented approach to improving safety by which an organization formally identifies and analyzes applicable hazards and takes action to mitigate, if not eliminate, the risks associated with those hazards. It provides a railroad with a set of decision making processes and procedures that can help it plan, organize, direct, and control its railroad operations in a way that enhances safety and promotes compliance with regulatory standards. As such, risk reduction is a form of safety management system, which is a term generally referring to a comprehensive, process-oriented approach to managing safety throughout an organization. The principles and processes of risk reduction are based on safety management systems (SMS) developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. SMS methodologies have evolved through experience to include a multitude of equally important elements without which the organization’s safety performance does not reliably improve. These SMS elements are typically grouped into the following larger descriptive categories: (1) An organization-wide safety policy; (2) formal methods for identifying hazards and prioritizing and mitigating risks associated with those hazards; (3) data collection, data analysis, and evaluation processes to determine the effectiveness of mitigation strategies and to identify emerging hazards; and (4) outreach, education, and promotion of an improved safety culture within the organization. B. Summary of NPRM On February 27, 2015, FRA published the NPRM proposing to require each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement an RRP to improve the safety of their railroads operations. See 80 FR 10950. The NPRM proposed the following RRP components: (1) A risk-based hazard management program; (2) safety performance evaluation; (3) safety outreach; (4) technology analysis and VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 technology implementation plan; (5) implementation and support training; (6) internal assessments; and (7) external audits. The NPRM also proposed requiring a railroad to submit its RRP plan to FRA for review and approval and to consult in good faith and use its best efforts to reach agreement with all its directly affected employees on the contents of the RRP plan. Finally, the NPRM proposed to protect certain RRP information from discovery, admission into evidence, or use for other purposes in a proceeding for damages. In addition to these specific proposals, the NPRM contained a general background discussion of risk reduction programs and discussed FRA’s experience with risk reduction programs, such as passenger railroads that have implemented system safety programs. The NPRM also summarized the rulemaking proceedings that occurred before NPRM publication, including publication of an advanced notice of proposed rulemaking (ANPRM) and related proceedings of the RSAC RRP Working Group. FRA is providing relevant updates to these discussions below. C. Proceedings Since the NPRM The comment period for the NPRM closed on April 28, 2015. As several commenters requested, FRA held a public meeting on August 27, 2015 and invited interested parties to present oral statements and to offer information and views on the proposed rulemaking at the hearing. FRA placed the transcript for the public hearing in the docket for this rulemaking. FRA also reopened the public comment period from July 30, 2015 through September 10, 2015 and from September 15, 2015 through September 18, 2015 to accommodate the public hearing and to allow interested parties to submit comments in response to views and information provided at the public hearing. On September 29, 2015, the RSAC RRP Working Group met to review and discuss comments received in response to both the NPRM and the public hearing. FRA then reopened the comment period for this rulemaking from October 7, 2015 through October 21, 2015 to allow interested parties to submit written comments in response to views or information provided at the RRP Working Group meeting. D. Regulatory Review DOT has invited the public to provide input on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. See 82 FR 45750 (Oct. 2, PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 9265 2017). As appropriate, this final rule responds to comments submitted in response to DOT’s regulatory review initiative that address railroad safety risk reduction programs under the RSIA. E. Summary of Comments FRA received 80 comments in response to the NPRM, the public hearing, and the RRP Working Group Meeting. Some interested parties submitted multiple comments. FRA received comments from a variety of entities, including railroads, trade associations, non-profit employee labor organizations, State elected representatives, non-profit advocacy organizations, and private citizens.4 Various interested labor organizations (Labor Organizations I) jointly filed a comment in response to the NPRM,5 and a different group of labor organizations (Labor Organizations II) also filed a comment in response to information presented at the RRP Working Group meeting.6 Finally, some organizations also filed a joint comment (Group Letter).7 Additionally, in response to DOT’s regulatory review initiative, American Short Line and 4 Commenters included: Academy of Railroad Labor Attorneys; American Association of Justice; American Public Transportation Association; American Short Line and Regional Railroad Association; Association of American Railroads; Association of Tourist Railroads and Railway Museums; Bureau of Locomotive Engineers and Trainmen (BLET); California State Senator (3rd District) Lois Wolk; Chesapeake Climate Action Network; City of Portland, Oregon; DNV GL Oil & Gas Risk Advisory Services; Friends of the Earth; International Association of Sheet Metal, Air, Rail and Transportation Workers—Transportation Division (SMART Transportation Division); Mountain Watershed Association; National Safety Council; New Jersey Work Environment Council; North Platte Peer Review Team; Orion’s Angels; Public Citizen Texas; Rancho Rail Line; State of Washington Representative (46th Legislative District) Jessyn Farrell; Toxics Use Reduction Institute; Transport Action Canada; Union Pacific Railroad; and 45 individuals. 5 These included: American Train Dispatchers Association (ATDA); BLET; Brotherhood of Maintenance of Way Employes Division (BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood Railway Carmen Division TCU/IAM; SMART Transportation Division; and Transport Workers Union of America (TWU). 6 These included: BLET; BMWED; BRS; SMART Transportation Division; and Transportation Communication Union (TCU). 7 Group Letter organizations were: Alliance for Justice; Bay Area Refinery Corridor Coalition; Blue Ridge Environmental Defense League; Center for Effective Government; Center for Justice and Democracy; Citizens Acting for Rail Safety; Citizens for a Clean Harbor; Crockett-Rodeo United to Defend the Environment; Benicians for a Safe and Healthy Community; Delaware Riverkeeper Network; Forest Ethics; Friends of Grays Harbor; Friends of the Earth; Idaho Conservation League; Milwaukee Riverkeeper; Protect All Children’s Environment; Public Citizen; United Steelworkers; US PIRG; Sciencecorps; Sierra Club; The SunFlower Alliance; Yolo MoveOn; and Youghiogheny Riverkeeper, Mountain Watershed Association. E:\FR\FM\18FER2.SGM 18FER2 9266 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Regional Railroad Association (ASLRRA) and the Virginia Railway Express (VRE) each submitted a comment discussing railroad safety risk reduction programs under the RSIA. Generally, all commenters were in favor of RRP. While the comments contained varying suggestions on the structure and breadth of an RRP, most commenters agreed a properly implemented RRP would increase the safety of railroad operations. Many commenters, however, expressed concern about the FRA proposal to limit the use of some RRP information in legal proceedings for damages. FRA discusses this and other specific comments in further detail below. E. Update on Other Federal Safety Management System Programs The RRP NPRM discussed other Federal agencies that had established or proposed safety management system requirements or guidance for regulated entities. Specifically, the NPRM discussed Federal Transit Administration regulations, regulations the Federal Aviation Administration (FAA) proposed, and guidelines the U.S. Department of Defense published. See 80 FR 10953 (Feb. 27, 2015). For a discussion of post-NPRM developments with these programs and new Federal safety management system initiatives please see the SSP final rule at 81 FR 53853–53854 (Aug. 12, 2016). IV. Statutory Background lotter on DSKBCFDHB2PROD with RULES2 A. Rail Safety Improvement Act of 2008 RSIA section 103(a) directs the Secretary to issue a regulation requiring Class I railroads, railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads), and railroads with inadequate safety performance to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. RSIA section 103(a)(4) also states that railroads not required to comply with this rule may voluntarily submit to FRA for approval an RRP plan meeting the requirements. Section 20156 codifies these provisions. This RRP rule implements section 20156 as it applies to Class I freight railroads, freight railroads with inadequate safety performance, and voluntarily-compliant railroads. The RRP rule is a risk reduction program in that it requires subject railroads to assess and manage risk and to develop proactive hazard management methods to promote safety improvement. The rule contains provisions that, while not explicitly required by the statutory VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 safety risk reduction program mandate, are necessary to properly implement the mandate and are consistent with the intent behind the mandate. B. Related System Safety and Fatigue Management Plans Rulemakings This RRP final rule addresses the RSIA sections 103 and 109 RRP mandate for Class I freight railroads and freight railroads with inadequate safety performance. Two separate rulemakings address the mandate for passenger railroads and for Fatigue Management Plans. The NPRM discussed both these rulemakings and how they related to the RRP rulemaking. See 80 FR at 10955. FRA published an SSP final rule for passenger railroads on August 12, 2016. See 81 FR 53850.8 Section 20156(d)(2) states an RRP must include a fatigue management plan (FMP) that meets the requirements of section 20156(f). However, this RRP final rule does not implement this mandate because FRA is addressing FMPs in a separate rulemaking. The RSAC Fatigue Management Plans Working Group (FMP Working Group), which completed its work in September 2013, submitted its recommendations to FRA for further consideration. FRA is currently drafting an FMP NPRM. Once FRA publishes an FMP rule, FRA will consider any FMP a railroad develops and implements under that rule part of a railroad’s RRP or SSP. Before FRA issues an FMP final rule, FRA will approve RRP plans that do not contain an FMP component, if the RRP plan meets all other applicable RRP requirements. A railroad may still, however, elect to use processes and procedures in its RRP plan to address fatigue-related railroad safety issues. C. Consultation Process Requirements Section 20156(g)(1) states that a railroad required to establish a safety risk reduction program must ‘‘consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.’’ Section 20156(g)(2) further provides that if a railroad and its directly affected employees ‘‘cannot reach consensus on the proposed contents of the plan, then directly affected employees and such organizations may file a statement with 8 On August 30, 2019, FRA issued a final rule extending a stay of the SSP rule’s requirements to March 4, 2020. See 84 FR 45683 (2019). FRA issued the stay to develop its response to various petitions for reconsideration of the SSP final rule. Id. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 the Secretary explaining their views on the plan on which consensus was not reached.’’ Section 20156(g)(2) further provides that FRA must consider these views during review and approval of a railroad’s RRP plan. As proposed in the NPRM, the rule implements this mandate by requiring each railroad required to establish an RRP to consult with its directly affected employees (using good faith and best efforts) on the contents of its RRP plan. A railroad must also include a consultation statement in its submitted plan describing how it consulted with its employees. If a railroad and its employees cannot reach consensus, directly affected employees may file a statement with FRA describing their views on the plan. Like the information protection provisions discussed below, the RRP and SSP rules have essentially identical provisions regarding the consultation process requirements because there was significant discussion during the SSP and RRP RSAC processes on how to implement section 20156(g). FRA worked with the General Passenger Safety Task Force’s System Safety Task Group to receive input on how to address the consultation process, with the understanding that FRA would include the same language in both the SSP and RRP NPRMs for review and comment. The minor differences between the consultation provisions in the RRP and SSP rules are discussed in the section-by-section analysis for § 271.207. D. Risk Reduction Information Protection 1. Exemption From Freedom of Information Act Disclosure In section 20118, Congress exempted railroad safety analysis records from public disclosure in response to FOIA requests. Generally, FOIA requires a Federal agency to make most records available upon request, unless a record is protected from mandatory disclosure by one of nine exemptions. One of those exemptions, Exemption 3, applies to records specifically exempted from disclosure by statute if the statute requires the matters be withheld from the public in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld. See 5 U.S.C. 552(b)(3). See also 49 CFR 7.23(c)(3). The NPRM explains FRA’s conclusion that section 20118 is a FOIA Exemption 3 statute and, therefore, exempts RRP records in FRA’s possession from mandatory disclosure under FOIA, unless one of E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations the two RSIA exceptions discussed above applies. See 80 FR at 10957– 10958. FRA did not receive any comments questioning its conclusion so FRA refers interested readers to the NPRM’s analysis of this conclusion. Id. 2. Discovery and Other Use of Risk Analysis Information in Litigation a. The Statutory Mandate Section 20119(a) directed FRA to conduct a study to determine whether it is in the public interest to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any information (including a railroad’s analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program. Section 20119(a) required FRA to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public for the study. Section 20119(b) also states that upon completion of the study, if in the public interest, FRA could prescribe a rule addressing the results of the study. Section 20119(b) states any such rule is not effective until one year after its adoption. lotter on DSKBCFDHB2PROD with RULES2 b. The Final Study Report and Its Conclusions FRA contracted with a law firm, Baker Botts L.L.P. (Baker Botts), to conduct the study for FRA. Various study documents are available for review in public docket no. FRA–2011–0025, which interested parties can access online at www.regulations.gov. First, Baker Botts prepared an initial report identifying and evaluating other Federal safety programs that protect safetyrelated information from use in litigation. See Report on Federal Safety Programs and Legal Protections for Safety-Related Information, FRA, docket no. FRA–2011–0025–0002, April 14, 2011. Next, as section 20119(a) requires, FRA published a Federal Register document seeking public comment on whether it would be in the public interest to protect certain railroad risk reduction information from use in litigation. See 76 FR 26682 (May 9, 2011). Interested parties may view comments received in response to this document in the public docket. On October 21, 2011, Baker Botts produced a final report on the study. See Study of Existing Legal Protections VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 for Safety-Related Information and Analysis of Considerations For and Against Protecting Railroad Safety Risk Reduction Program Information (Final Study Report), FRA, docket no. FRA– 2011–0025–0031, Oct. 21, 2011. The Final Study Report contains analyses of other Federal programs that protect similar safety-related information, the public comments submitted to the docket, and whether it would be in the public interest, including the interests of public safety and the legal rights of persons injured in railroad accidents, to protect railroad risk reduction information from disclosure during litigation. The Final Study Report determines that substantial support exists for the conclusion that a rule that protects ‘‘railroad safety risk information from use in civil litigation involving claims for personal injuries or wrongful death would serve the broader public interest.’’ Final Study Report at 63. The Final Study Report highlights that, in the past, with similar programs, Congress deemed it is in the public’s interest to place statutory limitations on disclosing or using certain information used by the Federal Government. Id. The safety risk reduction programs that RSIA mandates, according to the Final Study Report, involve public interest considerations similar to the ones Congress has protected through statutory limitations, and courts have upheld these limitations. The Final Study Report explains that many of the public comments submitted to the docket agree that limiting the use of information collected for a safety risk reduction program mandated by RSIA in discovery or litigation would serve the broad public interest by encouraging and facilitating the timely and complete disclosure of safety-related information to FRA. Further, the Final Study Report underscores FRA’s statutory duty to protect the broader public interest in ensuring rail safety and concludes that this public interest outweighs the individual interests of future litigants who may bring damage claims against railroads. Therefore, the Final Study Report concludes that after balancing all of the considerations that bear upon the public interest . . . the balance weighs in favor of adopting rules prohibiting the admissibility or discovery of information compiled or collected for FRA railroad safety risk reduction programs in a civil action where a plaintiff seeks damages for personal injury or wrongful death. Id. at 64. In response to the Final Study Report, the RRP NPRM proposed in § 271.11 to protect any information compiled or collected for the sole purpose of PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 9267 developing, implementing, or evaluating an RRP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. The NPRM clarified that the protected information would include a railroad’s identification of safety hazards, analysis of safety risks, and statement of the mitigation measures for addressing those risks. Protected information could be in the form of plans, reports, documents, surveys, schedules, lists, data, or any other form. FRA received multiple comments in response to the information protections that both the SSP and RRP NPRM proposed and has modified its approach based on these comments. These changes are discussed further in the discussion of comments section and the corresponding sectionby-section analysis. V. Discussion of General Comments This section discusses general comments FRA received on the RRP NPRM relating to the proposed information protections and the overall nature of the proposed rule. The section-by-section analysis discusses all other comments as they relate to specific sections, including any changes to the rule text FRA made in response. A. Information Protection FRA received numerous comments regarding the proposed information protections and has modified the proposed information protections based on both the received comments and the information protection provisions in the SSP final rule. As discussed in the NPRM, this RRP final rule contains an information protection provision substantively identical to the information protection provision in the SSP final rule.9 See 81 FR 53900 (Aug. 12, 2016). FRA believes different RRP and SSP provisions governing information protection would be confusing. Further, the SSP and RRP RSAC processes significantly discussed how to implement the information protections. FRA worked with both the General Passenger Safety Task Force’s System Safety Task Group and the RRP Working Group to receive input on how 9 The minor differences between the RRP and SSP information protections involve the use of ‘‘risk reduction program’’ instead of ‘‘system safety program’’ and citations to relevant provisions in the RRP rule instead of provisions in the SSP rule. To correct a minor typo in the SSP information protection provision, the RRP information protection provision also uses the term ‘‘proceeding’’ instead of ‘‘proceedings.’’ No substantive difference is intended by this correction. E:\FR\FM\18FER2.SGM 18FER2 9268 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations the SSP and RRP rules should address information protection, with the understanding that both rules would likely contain the same language. lotter on DSKBCFDHB2PROD with RULES2 1. Comments Supporting the Proposed Information Protections Several commenters agreed with FRA’s conclusion that the proposed information protections are necessary, including Association of American Railroads (AAR), American Public Transportation Association (APTA), ASLRRA, Union Pacific Railroad (UP), and Labor Organizations I. These commenters support FRA’s position that the litigation protections are necessary for a railroad to engage in a thorough and candid analysis of the hazards and resulting risks on its system. Based on those comments, FRA believes both railroad management and railroad labor generally agree an RRP final rule must have some form of information protections. 2. Comments on Final Study Report Several commenters questioned the neutrality and the substance of the Baker Botts Final Study Report. Commenters questioning the neutrality of Final Study Report included American Association for Justice (AAJ), Academy of Railroad Labor Attorneys (ARLA), Labor Organizations I, Labor Organizations II, and several individuals. These commenters provided several examples of Baker Botts’ alleged bias, including: (1) Citations to Baker Botts’ website; (2) a book by William G. Thomas titled Lawyering for the Railroad: Business, Law, and Power in the South (Louisiana State University Press, 1999), which describes Baker Botts’ historical representation of Southern Pacific Railroad beginning in the later 1800s until sometime in the 1900s; (3) a Baker Botts associate’s prior employment with Norfolk Southern Corporation; and (4) a website indicating that Baker Botts was involved in litigation related to the July 6, 2013 rail accident in Lac-Me´gantic, Quebec. The commenters did not provide a specific example of Baker Botts representing a railroad in litigation involving claims for damages at the time of the study. After evaluating these comments, FRA concludes that it complied with all legal requirements, including the RSIA and the Federal Acquisitions Regulations (FAR), in selecting Baker Botts and conducting the study. See section 20119 and FAR 48 CFR 9.505 through 9.505– 4 and 9.508. Further, FRA has not found any conflict or representation indicating that Baker Botts had a bias in favor of railroad management at the time of the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 study. For example, any involvement of Baker Botts in Lac-Me´gantic-related litigation occurred after the firm completed the study in October 2011. FRA also reviewed Lawyering for the Railroad: Business, Law, and Power in the South. Although the book correctly states that Baker Botts represented Southern Pacific railroad beginning in the late 1800s until sometime in the 1900s, the book does not have an example of Baker Botts representing a railroad at the time of the study. Baker Botts also conducted its own conflict check when submitting its bid in response to FRA’s request for proposal (RFP) 10 and only found one matter involving advice it provided to a railroad on environmental issues, not rail safety. Further, Baker Botts, as a law firm, must comply with the legal ethical standards of the appropriate State or risk discipline or disbarment of its attorneys. AAJ, ARLA, and Labor Organizations II also submitted comments arguing that the Final Study Report did not give adequate consideration to the interests of railroad accident victims, their families, and the general public. For example, ARLA and Labor Organizations II assert the report only focuses on the railroads’ alleged interests and why FRA should protect risk reduction information. FRA disagrees and believes the Final Study Report adequately considered the interests of railroad accident victims, their families, and the general public. As section 20119(a) required, FRA solicited input for the report from railroads, railroad nonprofit employee labor organizations, railroad accident victims and their families, and the general public, including AAJ. See 76 FR 26682 (May 9, 2011) and Letters Dated May 12, 2011, to Stakeholders Inviting Comments (FRA–2011–0025– 0006). In response, FRA received 22 comments representing 25 affected entities, including railroads, AAJ, Public Citizen (a non-profit public interest organization), various railroad nonprofit employee labor organizations, and individuals. The Final Study Report summarizes comments both supporting and opposing a rule that would protect risk reduction information. See generally Final Study Report at 37–46. The Final Study Report also analyzes the relevant public interest considerations, including considerations opposing a rule limiting discovery and admissibility. See 10 FRA’s RFP, Solicitation Number DTFR–53–10– R–00008, is available at https://www.fbo.gov/index ?s=opportunity&mode=form&id=56e2462fb07 daa6e45155c3be66ddf02&tab=core&tabmode=list. PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 generally Id. at 53–63. Specifically, the Final Study Report considers: (1) Victims’ compensation; (2) the necessity of a regulation; (3) promoting railroad safety; (4) promoting the reporting of railroad accidents; (5) promoting open government and freedom of information; (6) what kinds of documents a regulation should protect; and (7) administrative procedure. Therefore, FRA concludes the Final Study Report adequately considered the public interest and the rights of railroad accident victims and their families. 3. Comments Against Any Information Protections Several commenters objected to including any information protections in the final rule. These included AAJ, ARLA, the non-profit organizations represented by the Group Letter, California State Senator Wolk, Washington State Representative Farrell, the City of Portland, and several individuals and other non-profit organizations. Overall, the primary objections of many commenters opposed to any information protections are that the protections would (1) ignore the importance of transparency in railroad safety and (2) reduce, not improve, railroad safety. FRA disagrees. First, in section 20118, Congress specifically exempted railroad safety analysis records from mandatory disclosure under FOIA, indicating that Congress concluded the benefits of improved railroad safety outweighed the benefits of complete transparency in railroad safety. Second, the information protections will not change the information available to litigants today, as information currently discoverable and admissible will remain discoverable and admissible. Further, the information protections will improve railroad safety by encouraging railroads to engage in a systematic and honest assessment of the hazards and resulting risks on their systems. A railroad’s risk-based Hazard Management Program (HMP) will not improve railroad safety if a railroad is reluctant to reveal risks and hazards because a litigant could use that information against the railroad in a court proceeding for damages. a. Comments That the Information Protections Are Unprecedented AAJ contends the proposed information protections are unprecedented. While AAJ recognizes certain existing programs have information protections, AAJ argues those programs have two key features: (1) Congress directed disclosure of documents be limited, and (2) limited E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations disclosure applies predominately to documents actually submitted to a Federal agency. AAJ believes that the RRP information protections do not have either of these key features. ARLA also claims the safety-related statutes and regulations the Final Study Report cites only protect data a governmental agency holds, not a private entity such as a railroad. (FRA notes that not all railroads are private entities.) While Congress did not set forth specific information protections in section 20119, Congress explicitly gave FRA authority to promulgate such protections. As discussed previously, section 20119(a) directs FRA to conduct a study to determine if certain information protections would be in the public interest, and Congress described the specific parameters of the information protections the study had to consider. Congress then authorized FRA to promulgate a rule, subject to notice and comment, which addresses the results of the study. Id. FRA has complied with Congress’ mandate and has included information protections in this rule consistent with the specific parameters Congress described. FRA does not believe the information protections are invalid simply because Congress didn’t promulgate specific protections. Additionally, nothing in section 20119 limits the information protections to documents a railroad submits to FRA. Congress’ language in section 20119 states that the information protections, depending on the results of the study, could apply to information a railroad does not submit to FRA. Under section 20119(a), the study must consider information protections that would apply to documents a railroad compiles and collects for ‘‘the purpose of planning, implementing, or evaluating a safety risk reduction program.’’ Because Congress did not limit the information protections only to documents a railroad submits to FRA, FRA has authority to protect documents a railroad possesses. Further, nothing in 23 U.S.C. 409 (section 409), the statute FRA used as a model for the proposed information protections, or the Supreme Court’s decision in Pierce County v. Guillen, 537 U.S. 129 (2003) (which upheld the validity and constitutionality of section 409),11 limits the information protections to documents submitted to the Federal Highway Administration (FHWA) as part of the Hazard Elimination Program. In that case, the 11 For additional discussion on FRA’s decision to base the RRP information protection provisions on section 409 and Guillen, FRA refers readers to the NPRM. See 80 FR 10963–10964 (Feb. 27, 2015). VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Supreme Court did not base its interpretation of section 409 on whether documents were submitted to FHWA. Rather, the Supreme Court held the information protections extended to information because the Hazard Elimination Program required compiling or collection of that information. See Guillen, 537 U.S. at 146. Like the statute at issue in that case, because the RSIA requires railroads to compile and collect information for an RRP, it is appropriate to protect any information the railroad compiles or collects for that purpose, even if the railroad never submits that information to FRA. AAJ claims that in the limited circumstances where provisions have protected data, the provisions have been narrowly tailored and construed. AAJ believes the proposed information protections are overly broad and inconsistent with any other government program that limits some disclosure of evidence. FRA agrees with AAJ that the information protections must be narrowly tailored and construed. In Guillen, the Supreme Court recognized that ‘‘statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for truth.’’ Guillen at 144–45. Because section 409 established a privilege, the Court construed it narrowly to the extent the text of the statute permitted. Id. at 145. FRA believes the RRP information protections are consistent with the Court’s narrow interpretation of section 409. Further, FRA has tailored the RRP protections even more narrowly than section 409 by limiting them to information a railroad originally compiled or collected ‘‘solely’’ for the purpose of planning, implementing or evaluating an RRP, as the section-bysection analysis for § 271.11 discusses. Labor Organizations II commented that, with the exception of section 409, each safety law or regulation the Final Study Report cites allows discovery of information. FRA believes Labor Organizations II’s characterization of the Final Study Report is inaccurate because the final report identifies two additional safety statutes prohibiting both the discoverability and the admissibility of information. The first is 49 U.S.C. 6307(b)(2)(B)(i), which specifies reports submitted to DOT’s Bureau of Transportation Statistics (BTS) under 49 U.S.C. 6302(b)(3)(B) are ‘‘immune from legal process.’’ 12 12 The Final Study Report discussed a previous version of section 6307(b)(2)(B)(i), 49 U.S.C. 111(k)(a)(2)(B)(i), repealed in 2012. See Pub. L. 112– 141, Div. E, Title II, section 52011(c)(1), July 6, 2012, 126 Stat. 895. However, substantively, sections 6307(b)(2)(B)(i) and 111(k)(a)(2)(B)(i) are PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 9269 ‘‘Accordingly, no litigant may subpoena the report in discovery or obtain it through any other legal proceeding.’’ Final Study Report at 20. The second statute is 46 U.S.C. 6308(a), which protects from discovery marine casualty reports the U.S. Coast Guard creates under 46 U.S.C. 6301.13 Further, Labor Organizations II’s argument acknowledges that section 409 prohibits discovery. As discussed in the NPRM, FRA believes section 409 is the best model for the RRP information protections because Congress used similar language in section 409 and section 20119 authorizing information protection and because Guillen determined section 409 was constitutional. See 80 FR at 10963. ARLA also commented that virtually every safety law the Final Study Report discussed has exceptions to the protection against disclosure and admissibility. FRA notes that the information protections in § 271.11 are narrowly tailored and will not provide blanket protection for all railroad RRP information. The rule excepts from protection several categories of RRP information, such as (1) information discoverable and admissible before publication of the RRP final rule, (2) information another provision of law or regulation requires the railroad to compile or collect, and (3) information a railroad does not use ‘‘solely’’ for an RRP purpose. Accordingly, FRA concludes this rule contains several exceptions to the information protections and is not inconsistent with other safety laws with exceptions to protections against discoverability and admission into evidence. b. Comments That the Information Protections Will Reduce the Rights of Litigants AAJ argues the RRP information protections will reduce the rights of persons injured in railroad accidents. AAJ asserts that evidence a railroad knew or should have known of a hazard is key in many cases to prove the railroad’s liability, particularly for Federal Employers’ Liability Act cases. AAJ believes the Final Study Report concluded without analysis that injured people could continue to pursue legal remedies because access to currently discoverable documents would remain identical and have the same ‘‘immune from legal process’’ language. Because section 6302(b)(3)(B)(vi)(1) requires BTS to collect statistics on ‘‘transportation safety across all modes and modally,’’ FRA believes section 6307(b)(2)(B)(i) is a safety law. 13 Because marine casualty investigations identify the cause of accidents resulting in fatalities, FRA believes section 6308(a) is also a safety law. E:\FR\FM\18FER2.SGM 18FER2 9270 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 discoverable. AAJ does not believe this conclusion is accurate because it contends the information protections may shield the documents/data necessary to show the railroad knew or should have known of the hazard. AAJ also commented that the information protections are one-sided because they shield the railroad from discovery, while permitting the railroad to obtain extensive discovery regarding a plaintiff’s knowledge of a hazard or risk. The Chesapeake Climate Action Network (CCAN) expressed similar concerns. FRA has drafted the RRP information protections so a plaintiff or defendant is no worse off than he or she would have been if the RRP rule never existed. This is consistent with section 409 and the Supreme Court’s interpretation of that section. See Guillen at 146. To ensure a plaintiff is no worse off, § 271.11(b) has certain exceptions to the information protections. Under § 271.11(b), the information protections are not extended to information compiled or collected for a purpose other than that specifically identified in § 271.11(a). Further, if certain information was discoverable and admissible before the enactment of the RRP rule, § 271.11(b) ensures the information remains discoverable and admissible. This is true even if the railroad (1) continues to compile or collect that information as part of its RRP or (2) stops compiling or collecting that information outside the RRP and then begins to compile or collect that information again as part of its RRP. These exceptions are discussed extensively in the section-by-section analysis for § 271.11(b). These exceptions strike a reasonable balance between ensuring that plaintiffs are no worse than they would have been if the RRP rule had not existed and encouraging railroads to undertake a systematic and candid assessment of the hazards and resulting risks on their system. c. Comments That the Information Protections Will Allow Railroads To Hide Safety Hazards AAJ asserts the information protections will allow railroads to hide safety hazards. AAJ believes the threat of disclosure of these hazards creates an incentive for railroads to correct them immediately. AAJ points to multiple cases it believes prove railroads routinely hide evidence of hazards. CCAN also argues that the information protections would allow railroads to hide knowledge of safety problems and delay correcting known or suspected hazards. Labor Organizations II express a similar concern that the information VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 protections would prevent knowledge of future risks known by railroads. Specifically, Labor Organizations II assert the information protections would hide risks uncovered by a railroad resulting from future rulemakings. FRA disagrees. The purpose of the RRP is for railroads to identify hazards and resulting risks and to take the appropriate measures to mitigate or eliminate these hazards. Without the information protections, an RRP could result in an effort-free tool for plaintiffs in litigation against railroads, which would discourage railroads from identifying hazards and resulting risks, thus frustrating the intent behind section 20156. The RRP rule and information protections will encourage railroads to identify and address hazards. Further, if a railroad is already required by another law or regulation to collect information to show compliance with existing laws or regulations, that information will not be protected. Further, the information protections’ narrow application to information that a railroad compiles or collects ‘‘solely’’ for an RRP purpose will not allow a railroad to claim that the provisions protect all information regarding risks relating to future technologies or rulemakings. Once a railroad uses such information beyond the scope of its RRP, § 271.11 will not protect the nonRRP use of the information outside the railroad’s RRP. For example, if the railroad gives RRP information to a contractor to use while performing maintenance work for the railroad, § 271.11 will not extend to the contractor’s use of the information. Therefore, railroads will not be able to use the RRP information protections to hide issues of non-compliance or avoid future regulatory requirements. Several commenters also expressed concern the information protection provisions would allow railroads to hide information related to the transportation of crude oil by rail. One individual specifically commented that the RRP final rule should require railroads to provide detailed crude-byrail information. The information protection provisions in this final rule explicitly do not protect any information that a railroad must compile or collect ‘‘pursuant to any other provision of law or regulation.’’ This excludes from protection any crude oil information a railroad must collect under Federal law, including (but not limited to) the Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHFT Final Rule) that FRA and the Pipelines and PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 Hazardous Materials Safety Administration (PHMSA) jointly issued. See generally 80 FR 26644–26750 (May 8, 2015). Further, because the HHFT Final Rule and other Federal regulations contain provisions requiring the provision and maintenance of certain hazardous material information, FRA does not believe that this RRP final rule should impose additional crude-by-rail information requirements. See e.g., DOT’s Emergency Restriction/ Prohibition Order, DOT–OST–2014– 0067, May 7, 2014, available at https:// www.transportation.gov/briefing-room/ emergency-order. 4. Comments That the RRP Final Rule Does Not Need To Limit the Disclosure of Evidence AAJ contends that FRA can issue an RRP rule without limiting the discovery of evidence, just like FAA did in its Safety Management System (SMS) rulemaking. FRA disagrees. A significant difference between the FRA and FAA programs is the scope of statutory authority Congress gave each agency to protect information collected or maintained as part of an SMS. The FAA’s authority under 49 U.S.C. 44735 limits the protection of SMS voluntarily-submitted information (such as reports, data, or other information produced or collected for purposes of developing and implementing an SMS) to protection from FOIA disclosure by the FAA. Congress similarly protects risk reduction information from mandatory FOIA disclosure in section 20118. However, Congress gave FRA authority to further protect RRP information in section 20119, which directed FRA to conduct the study and authorized FRA to issue a regulation addressing the results of that study. As discussed above, the Final Study Report concludes that it would be within FRA’s authority and in the public interest for FRA to promulgate a regulation protecting certain risk analysis information held by the railroads from discovery and use in litigation. The final report also makes recommendations for the drafting and structuring of such a regulation. See Final Study Report at 63–64. Therefore, FRA determined the information protections in this final rule are consistent with the authority Congress provided in section 20119 and the conclusion of the Final Study Report. ARLA also argues that railroads will honestly identify risks and mitigations without the information protections because labor unions will assure a railroad’s compliance by participating E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations in the identification of risks and mitigations. FRA agrees with ARLA that employee participation in the risk-based HMP is essential and will improve a railroad’s RRP. FRA does not believe, however, that employee participation alone can overcome a railroad’s reluctance to fully identify hazards and risks. Further, employees and labor unions may not represent the interests of the public or other accident victims. FRA therefore believes the information protections will provide important additional encouragement for a railroad to assess its hazards and risks. lotter on DSKBCFDHB2PROD with RULES2 5. Comments Requesting Preservation of State Tort Law Based Claims AAJ requests that FRA specifically preserve State tort law based claims. AAJ believes that because railroads must submit their RRP plans to FRA for approval, railroads may claim they are immune from any safety hazard claim or that FRA’s approval of the RRP plan preempts any State law claim. Nonprofit employee labor organizations also raised this concern in response to the SSP NPRM. To address this issue, FRA is including § 271.301(d)(4) in the final rule, which provides that approval of a railroad’s RRP plan under this part does not constitute approval of the specific actions the railroad will implement under its RRP plan and shall not be construed as establishing a Federal standard regarding those specific actions. FRA will not approve the specific mitigation and elimination measures a railroad adopts to address identified hazards and risks. FRA also does not intend the RRP rule to preempt State standards of care regarding the specific risk mitigation actions a railroad will implement under its RRP plan. Accordingly, § 271.301(d)(4) clarifies that FRA approval of a railroad’s RRP plan is not approval of any specific actions a railroad implements under that RRP plan, including any specific mitigation and elimination measures a railroad chooses. 6. Comments That a Judge Should Determine Information Admissibility Labor Organizations II propose a compromise position where ‘‘risk reduction facts would be admissible if it is determined by a judge that the information would be ‘in furtherance of the highest degree of safety in railroad transportation.’ ’’ As Labor Organizations II explain, the phrase ‘‘in furtherance of the highest degree of safety in railroad transportation’’ comes from 49 U.S.C. 103(c), which is the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 safety standard Congress mandated FRA to follow in its administration of railroad safety. FRA does not believe this suggestion would improve the proposed information protections. Labor Organizations II’s proposal only addresses the admission of risk reduction information into evidence and does not indicate whether discovery protections are necessary. The suggestion also does not clarify when a judge should determine whether admissibility of information is in furtherance of the highest degree of safety in railroad transportation. As such, FRA believes the suggestion would lead to the type of litigation avalanche that AAJ and ARLA fear, where courts would have to routinely interpret the meaning of ‘‘in furtherance of the highest degree of safety in railroad transportation.’’ Labor Organizations II’s suggestion is therefore too imprecise to implement and would lead to an increase in costly litigation. 7. Comments Suggesting FRA Should Only Protect a Railroad’s Hazard Analysis Form One individual suggested that FRA narrowly draft the regulation to only protect a railroad’s hazard analysis form from disclosure. FRA declines to implement this individual’s suggestion. The suggested approach would leave too much risk reduction information unprotected, resulting in inadequate information protections. For example, the suggested approach would not protect information a railroad might not include in the hazard analysis form, such as supporting data spreadsheets or candid discussions with employees about hazards and risks. The suggested approach also would not protect information a railroad uses to track the effectiveness of an implemented mitigation measure. Further, an effective RRP cannot lock important information in a hazard analysis form forever, as a railroad must use such information for other mandatory RRP components (such as its Safety Performance Evaluation or annual Internal Assessment). Moreover, the suggested approach could encourage a railroad to claim protection for non-RRP information simply by placing it in a hazard analysis form. FRA believes, however, that information should be protected based on how the railroad is using the information (e.g., is the railroad using the information solely for RRP purposes?), not merely on whether or not the railroad included the information in a hazard analysis form. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 9271 Finally, protecting information beyond a railroad’s hazard analysis is consistent with section 20119(a), which directed FRA to study protecting RRP information in various forms, including ‘‘any report, survey, schedule, list, or data compiled or collected’’ for various RRP purposes. The final rule also does not require a railroad to use a specific hazard analysis form for its RRP, so it would be unclear which document would be the ‘‘hazard analysis form.’’ Therefore, the information protections would be applied inconsistently based on which document was considered the ‘‘hazard analysis form.’’ For these reasons, FRA declines to adopt the suggested approach. 8. Comments That the Information Protections Are Too Narrow FRA received several comments arguing that the proposed information protections are too narrow. ASLRRA commented that FRA is not protecting data as Congress intended in the RSIA, asserting FRA improperly relied on section 409 and the Supreme Court’s decision in Guillen because both significantly predate the RSIA. Instead, ASLRRA believes that FRA should only rely on the RSIA and protect ‘‘any report, survey, schedule, list or data compiled or collected for the purpose of evaluating, planning or implementing a railroad safety risk reduction program . . . including a railroad carrier’s analysis of its safety risks and its statement of the mitigation measures with which it will address those risks.’’ According to ASLRRA, any limitations FRA imposes on this language are inappropriate. FRA disagrees and believes it has properly limited the scope of the information protections. As explained above, FRA believes it correctly used section 409 and Guillen as models for the information protections. ASLRRA provided no reason, other than age, why FRA should not consider Guillen’s analysis sound guidance for establishing RRP information protections. FRA also believes ASLRRA mischaracterized Congress’ intent in section 20119. Section 20119 does not directly establish parameters for protecting risk reduction information. Rather, it requires FRA to conduct a study and authorizes FRA to promulgate a rule addressing the results of that study. Section 20119(b) also does not mandate the scope of any information protections. FRA therefore concludes that the proposed information protections are consistent with Congress’ intent in the RSIA to authorize FRA to decide the scope of the information protections. E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9272 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations ASLRRA also questions FRA’s explanation in the NPRM preamble that the information protections would extend to the Short Line Safety Institute (Institute) only if FRA finds the Institute is part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). Specifically, ASLRRA asserts there is no evidence small railroads will attempt to obtain approval for, or operate under, inadequate programs. FRA supports development of the Institute. FRA does not believe, however, it has authority under RSIA to extend information protections to programs that do not fully meet the requirements of this RRP final rule. Section 20119(a) (emphasis added) only mandated FRA (as delegated by the Secretary) to study protections for information ‘‘compiled or collected for the purpose of evaluating, planning, or implementing a railroad safety risk reduction program required under this chapter.’’ Under the rule, a complete RRP must contain several components, including (but not limited to) a railroad’s risk-based HMP and safety performance evaluation. A railroad must also comply with the rule’s requirements for RRP internal assessment and external evaluations. If the Institute either does not meet all the rule’s requirements for a railroad, or is otherwise not part of a railroad’s broader RRP that does meet the requirements, the Institute is neither a complete RRP nor part of a complete RRP, and the information protections may not extend to Institute information. In a joint comment, AAR and ASLRRA (AAR/ASLRRA) commented on the NPRM’s discussion in the preamble, which states § 271.11 would only protect information once FRA approves a railroad’s RRP plan. They believe that approach does not make sense and would weaken the rule’s protections. After reviewing the NPRM’s discussion, FRA agrees with AAR/ ASLRRA that the discussion in the preamble to the proposed rule does not properly reflect the scope of the information protections. See 80 FR 10952 (Feb. 27, 2015). In the preamble to the NPRM, FRA explained that railroads should not begin implementing an RRP plan before FRA approval, erroneously stating the information protections would not apply to information a railroad did not compile or collect for an FRA-approved RRP plan. FRA’s intent was to explain that a railroad should not begin performing hazard analysis or implementing mitigation measures under its RRP plan before FRA approves the plan. However, FRA overlooked that once the information protections are in VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 effect, but before FRA approves a railroad’s RRP plan, a railroad could compile or collect information for the purpose of developing its RRP plan that should be protected. FRA therefore does not intend to limit the information protections only to information a railroad compiles or collected for an RRP plan FRA has already approved. Accordingly, § 271.11 protects information compiled or collected solely for the purpose of planning, implementing, or evaluating an RRP. B. Other Topics 1. Transportation of Hazardous Materials Some commenters (including Friends of the Earth, Mountain Watershed Association, and approximately four individuals) suggested that an RRP final rule should require railroads to address issues related to high-hazard flammable trains and routing of hazardous materials. One individual asserted that the RRP final rule should simply ban the transportation of Bakken crude oil, while another individual suggested constructing a tank car inspection facility on the Canadian border. FRA shares the commenters’ concerns regarding the safe transportation of large quantities of crude oil and other hazardous materials by rail, and DOT has taken numerous actions to reduce the risk to public safety and the environment posed by the movement of crude oil and other energy products by rail. A summary of those actions and more information are available online at: https://www.phmsa.dot.gov/safetransportation-energy-products/safetransportation-energy-productsoverview. DOT has also addressed the routing of hazardous materials by rail. Under 49 CFR 172.820, railroads must perform a routing analysis for HHFTs and other trains carrying certain explosives, material poisonous by inhalation, and radioactive materials. See § 172.820(a). At a minimum, this routing analysis must consider 27 separate safety and security factors. See § 172.820(d) and part 172, appendix D. FRA enforces these routing requirements under 49 CFR 209.501 and can (in consultation with PHMSA, the Transportation Security Administration, and the STB) direct a railroad to use an alternative route if the railroad’s route selection documentation and underlying analysis are deficient and fail to establish that the chosen route poses the least overall safety and security risk. See § 209.501(a) and (d). Because these (and other) DOT actions address hazardous materials PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 routing and the safety of transporting crude oil by rail, FRA does not believe the RRP final rule needs to impose additional—and potentially duplicative—requirements directed at these issues. Nothing in the final rule, however, prohibits a railroad from including HHFTs and hazardous materials routing in its risk-based HMP, and many railroads may choose to do so, particularly if they find that doing so allows them to more efficiently comply with both the RRP rule and the other DOT requirements addressing hazardous materials. A railroad including HHFTs and hazardous materials routing in its risk-based HMP would still, of course, remain subject to requirements of Federal hazardous materials and rail safety laws and regulations that apply independently of this final rule. (FRA notes that the rule’s information protection provisions will not apply to any hazardous materials routing or safety information a railroad must collect under another Federal law or regulation.) FRA further notes that the mitigating actions a railroad may take to reduce the risk of any accident/ incident will often be the same actions a railroad would take to reduce the risk of an accident/incident resulting in a release of hazardous materials (e.g., mitigating actions taken to prevent derailments). Finally, FRA’s approach is consistent with the RSIA, which does not specifically require a railroad to include HHFTs and hazardous materials routing in its risk analysis. See 49 U.S.C. 20156(c). 2. Comments on Performance-Based Rule and Flexibility The NPRM preamble described RRP as a performance-based rule that would provide a railroad flexibility to tailor RRP requirements to its specific operations. See 80 FR 10950–10951 (Feb. 27, 2015). As the NPRM preamble explains, each railroad has a unique operating system and not all railroads have the same amount of resources. Id. Accordingly, FRA did not propose to establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Id. To clarify, the NPRM’s description of RRP as a performance-based rule refers primarily to how a railroad identifies hazards and chooses strategies to mitigate risks associated with those hazards. FRA is requiring railroads to specify the performance standard (reduction in safety risk as identified in a statement defining specific, measurable goals of the RRP and describing clear strategies for reaching those goals under § 271.203(c)) but is not specifying the specific subject areas, E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations processes, or tools to be used by the railroads in complying with the rule. The purpose of an RRP is to reduce a railroad’s accidents/incidents, injuries, and fatalities, but the railroad has flexibility to identify hazards and mitigate risks in a manner best-suited to its unique system. FRA would not, for example, require a railroad to use a specific hazard analysis tool or mandate implementation of a certain mitigation strategy to address a risk. How a railroad prepares, adopts, and implements an RRP, however, is subject to minimum Federal standards, in that a railroad must support its RRP with an RRP plan that contains certain components, follow the provisions of that RRP plan, and ensure that it conducts an internal assessment of its RRP. In short, requirements for an RRP’s substance are performance-based, but an RRP’s process must meet certain minimum Federal standards. Several commenters supported FRA’s decision to propose a performancebased, flexible RRP rule. AAR/ASLRRA acknowledged the performance-based nature of RRP, while Amtrak commented that the final rule ‘‘needs to be performance based and flexible. It should provide the opportunity for new creative programs rather than a prescriptive checklist of requirements or conditions.’’ DNV–GL also noted the NPRM was ‘‘to a large extent aligned with good risk management practice in potentially hazardous industries[,] particularly those that have learned the lessons of previous accidents and implemented performance-based regimes of safety regulation.’’ Labor Organizations I and several non-profit organizations and individuals expressed concern that FRA described RRP as a performance-based, flexible rule. Public Citizen Texas, for example, commented that the proposed flexibility did not comply with the RSIA mandate. The nature of SMS demands a performance-based, flexible RRP rule. Not every railroad will have the same hazards and risks, and different railroads may find different mitigation strategies equally effective for certain risks. Additionally, FRA notes that the RRP final rule reflects every RSIA requirement (except for the portions of the RSIA mandate the SSP final rule addresses and the FMP rulemaking will address). FRA therefore believes that establishing an RRP final rule that is performance-based and flexible reflects the outcome-oriented nature of SMS and meets the RSIA mandate. Regarding Labor Organizations I’s specific comment, FRA clarifies in this preamble that both the RRP and SSP rule provide railroads flexibility to tailor VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 an RRP or SSP to a railroad’s particular operations. Like the SSP rule, the RRP rule depends on a railroad’s ability to thoroughly and candidly assess its unique hazards and risks, not the railroad’s ability to meet certain prescriptive requirements. Rather, RRP requires a railroad to engage in selfanalysis that a railroad will conduct in conjunction with the railroad’s directly affected employees and FRA oversight. Since no two railroads’ operations are exactly the same, no two RRPs will be exactly the same. Further, regardless of the amount of flexibility the RRP rule affords railroads, the directly affected employees, including Labor Organizations I, will have an opportunity to provide input and work with the railroads on the development of the RRP plan. FRA also added provisions to the final rule clarifying that a railroad must involve its employees in the RRP. The section-bysection analysis will specifically discuss these provisions further. 3. Comments on Streamlined Safety Management System (SMS) The NPRM preamble also described the proposed RRP rule as a streamlined version of an SMS, explaining that FRA had not included a number of components common to SMS to closely adhere to the RSIA mandate. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble specifically identified the following components that FRA did not propose: (1) Processes ensuring that safety concerns are addressed during the procurement process; (2) development and implementation of processes to manage emergencies; (3) processes and procedures for a railroad to manage changes that have a significant effect on railroad safety; (4) processes and permissions for making configuration changes to a railroad; and (5) safety certification prior to the initiation of operations or implementation of major projects. See 80 FR 10959 (Feb. 27, 2015). Generally, the non-profit organizations and individuals who expressed concern about the flexibility of the proposed RRP rule also questioned FRA’s description of RRP as streamlined and asserted that the proposed RRP rule was less rigorous than the RSIA mandate, which requires a ‘‘comprehensive and systematic’’ safety management system. DNV–GL shared the concerns of these commenters, arguing that every element of a safety management system is important and that ‘‘it is better to have a basic program in place for every element than to be excellent in some and have no program in others.’’ Labor PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 9273 Organizations I also asked to better understand why FRA was not requiring the additional components, arguing that they would expect an RRP to contain the ‘‘proven safety systems such as the items FRA identifies.’’ FRA disagrees with the commenters that the proposed rule does not comply with the RSIA mandate (except for the portions of the RSIA mandate the SSP final rule addresses and the FMP rulemaking will address). As the NPRM explained, FRA proposed a streamlined version of a safety management system ‘‘to adhere as closely as possible to the requirements of the RSIA.’’ Id. The RSIA does not mandate a full SMS 14 but requires railroad RRPs to contain certain components, each of which the RRP final rule also contains (as supplemented by the SSP and FMP rulemakings). The RRP final rule adequately addresses railroad safety hazards by following the RSIA mandate, particularly as the core of the program is a systematic risk-based hazard management program that includes a risk-based hazard analysis. 4. Comments on Plan Approval The NPRM preamble stated FRA would only approve the processes and procedures in a railroad’s RRP plan, not the entire RRP. See 80 FR 10977 (Feb. 27, 2015). FRA will not, for example, approve specific mitigation measures in a railroad’s RRP plan. FRA received several comments from individuals and non-profit organizations urging FRA to approve entire RRPs, not just RRP plans. These commenters were concerned FRA’s decision to only approve RRP plans represented a diminished role for FRA implementation and oversight of RRPs and did not comply with the RSIA mandate. FRA disagrees and believes its decision to approve only RRP plans satisfies the RSIA mandate. Section 20156(a)(3) directs FRA to ‘‘review and approve or disapprove railroad safety risk reduction program plans within a reasonable period of time.’’ (Emphasis added.) Further, an RRP is an ongoing program that supports continuous safety improvement. As discussed in the NPRM, ‘‘a railroad that conducts a onetime risk-based hazard analysis and does nothing further after addressing the 14 The NPRM explained that a full SMS would contain numerous components FRA was not proposing to mandate in the RRP rule, such as a description of the railroad management and organizational structure (including charts or other visual representations) or a description of the processes and procedures used for maintenance and repair of infrastructure and equipment, rules compliance and procedures review, workplace safety, workplace safety assurance, or public safety outreach. Id. E:\FR\FM\18FER2.SGM 18FER2 9274 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations results of that analysis will not have established a compliant RRP.’’ 80 FR at 10969 (Feb. 27, 2015). An RRP is not a one-time exercise. As such, FRA does not believe it is possible to meaningfully approve a railroad’s entire RRP, because an RRP should be continuously moving forward and improving. If FRA approved a railroad’s program, it would require a railroad to freeze an RRP at the moment of approval. That position is not consistent with the dynamic and changing nature of a successful RRP. FRA therefore is not changing the final rule to require FRA approval of a railroad’s RRP. lotter on DSKBCFDHB2PROD with RULES2 5. Comments on Fatigue Management Plans The RSIA requires an RRP to include an FMP meeting certain requirements. The RRP NPRM did not address this mandate because FRA, with the assistance of industry stakeholders, is implementing it through the separate FMP rulemaking process. Labor Organizations I commented that FRA was violating the RSIA mandate by failing to require FMPs in the proposed rule text and that ‘‘the proposal of the FRA to provide an unknown number of years of additional delay is the functional equivalent of an open-ended waiver.’’ Labor Organizations I also commented that RSIA section 108 required FRA to promulgate a fatigue rulemaking no later than October 2011. FRA notes that RSIA section 108 applies specifically to hours-of-service reform, not the fatigue management programs that RSIA section 103 mandates for RRP. See 49 U.S.C. 20156(f). As such, arguments based on RSIA section 108 are inapplicable to FMPs. Nevertheless, FRA is working to issue a proposed FMP rulemaking. As the NPRM discussed, the RSAC voted to establish the FMP Working Group to address the FMP mandate in December 2011. The FMP Working Group completed its work in September 2013 and submitted its recommendations to FRA. FRA is considering these recommendations as it develops an FMP rulemaking. Ultimately, any fatigue management plans that FRA requires pursuant to section 20156(d)(2) and (f) would be part of a railroad’s overall RRP. FRA does not believe that it is failing to meet the RSIA mandate by addressing the FMP requirements in a separate rulemaking process with stakeholder assistance. The SSP final rule takes the same approach and does not include FMP requirements. See 81 FR 53856–53857 (Aug. 12, 2016). VerDate Sep<11>2014 20:34 Feb 14, 2020 Jkt 250001 6. Comments on the RSAC Process FRA received comments from several individuals arguing that the RSAC RRP Working Group process was flawed because it did not include an industry risk reduction analysis expert. One commenter specifically noted the RSAC process did not include participation from those in high-risk industries, including chemical shipping industries, universities, and consultants. These commenters suggested that FRA should reopen the comment period and reconsider the proposed rule based on much more information from the at-risk public and public officials and from experts on industrial SMS. FRA declines to reopen the comment period again for several reasons. First, FRA representatives who have participated in the APTA system safety program have significant experience with industry risk reduction programs, as explained in the SSP NPRM. See 77 FR 55375 (Sept. 7, 2012). Railroad representatives who participated in the RSAC process also brought to the process experience with risk reduction programs. Overall, the RRP Working Group included a number of certified safety professionals, certified industrial hygienists, system safety managers, and safety directors. FRA therefore concludes that the RSAC RRP Working Group included ample expertise in the area of industry risk reduction analysis. Second, FRA has provided the public—including public officials, private individuals, and experts on industrial SMS—ample notice and opportunity to participate in the RRP rulemaking process. The RSIA mandate first notified the public FRA must require certain railroads to implement railroad safety risk reduction programs. The Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions (published by the Regulatory Information Service Center and made available to the public at www.Reginfo.gov) have also included the risk reduction rulemaking since the fall of 2009. See https://www.reginfo.gov/ public/do/eAgendaMain?operation= OPERATION_GET_AGENCY_RULE_ LIST&currentPubId=200910&showStage =active&agencyCd=2100&Image58.x=35 &Image58.y=17. The ANPRM also solicited public comment on how FRA could best develop and implement a risk reduction regulation based on the RSIA requirements. See 75 FR 76345–76351 (Dec. 8, 2010). Interested persons could submit comments to the ANPRM. FRA received 12 written comments in response to the ANPRM from a variety of entities, including railroads, industry PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 organizations, non-profit employee labor organizations, a consulting firm, and a private citizen. The RSAC subsequently discussed in depth many of the questions and issues these comments raised. After it published the ANPRM and the comment period closed, FRA also held two public hearings (announced in the Federal Register) giving interested persons an additional opportunity to present oral statements and to offer information and views on development of a risk reduction regulation in response to the ANPRM. See 76 FR 40320 (July 8, 2011). As with the ANPRM, the hearing testimony focused on topics the RSAC RRP Working Group continued to discuss. As noted above, FRA also held a public hearing and reopened the comment period on several occasions following the publication of the NPRM. The RSAC RRP Working Group also met to review and discuss comments received in response to the NPRM and the public hearing. Overall, FRA concludes reopening the RRP NPRM for further consideration and comment is not necessary because the RSAC RRP Working Group contained sufficient expertise in risk reduction and because FRA provided interested risk reduction experts numerous opportunities to participate in the rulemaking process. 7. Comments on the Relationship Between RRP and SSP FRA explained in the NPRM preamble that it worked with both the RSAC RRP Working Group and the RSAC System Safety Task Group on language implementing the RSIA mandate on information protection and consultation process requirements, with the understanding the RRP and SSP NPRMs would include the same language on both issues for review and comment. See 80 FR 10955 (Feb. 27, 2015). As such, the RRP NPRM did not respond to comments that FRA received in response to the SSP NPRM, but explained that FRA would consider comments responding to both NPRMs when developing the RRP final rule. See 80 FR 10958–10959 (Feb. 27, 2015). Labor Organizations I objected to FRA’s position, arguing that FRA had a duty to address comments on the SSP NPRM in the RRP NPRM. FRA disagrees. SSP and RRP are separate rulemakings that apply to different entities. FRA concluded, therefore, that it would be fair to allow Class I railroads and potential ISP railroads the same opportunity to respond to the proposed information protections and E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 consultation process requirements that the passenger railroads had in responding to the SSP NPRM. Moreover, because this final rule contains the same information protection provision as the SSP final rule, it incorporates FRA’s response to all comments received on the matter in both the SSP and RRP rulemakings. 8. Comments on the Short Line Safety Institute ASLRRA commented that small railroad participation in the Short Line Safety Institute (Institute) should suffice as complete compliance with the requirements in the NPRM. According to ASLRRA, the Institute assessment process is a comprehensive review of safety practices and culture, which it believes is consistent with the intent of an RRP. ASLRRA acknowledges that a key component of an effective RRP is performance of a risk assessment and claims the Institute has teams of assessors specifically trained (using FRA-approved materials) in a welldocumented safety assessment process. ASLRRA also claims FRA would fulfill the Small Business Regulatory Enforcement Fairness Act (SBREFA) requirement to grant special considerations to small businesses by accepting participation in the Institute as satisfying RRP requirements. In response to DOT’s request for public comments on its regulatory review initiative, ASLRRA similarly commented that FRA should utilize the Institute to work with short line railroads as the mechanism for risk reduction within the short line industry and not place unnecessary and burdensome regulations on short lines. See 82 FR 45750–45753 (Oct. 2, 2017) and DOT–OST–2017–0069–2666. The following discussion is FRA’s response to ASLRRA’s comments discussing the Institute for both the NPRM and DOT’s regulatory reform initiative. FRA supports the development of the Institute to promote the safety of short line and regional railroad operations. However, for Institute participation to constitute an RRP, the Institute would have to fully comply with each RRP requirement this final rule establishes, which are consistent with the RSIA requirements. FRA currently cannot determine whether the Institute will fully comply with the RSIA mandate or the requirements of this final rule. For example, FRA cannot determine whether the Institute will include certain mandated components, such as an RRP plan reviewed and approved by FRA, consultation with directly affected employees on the contents of an RRP plan, annual internal assessments, and a VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 technology implementation plan. Rather, FRA believes it is more appropriate to make this determination when reviewing RRP plans under § 271.301 of the final rule. Further, FRA does not believe it has to accept the Institute as a fullycompliant RRP to comply with SBREFA or otherwise avoid placing unnecessary and burdensome regulations on short line and regional railroads. Because an RRP is scalable by design, a short line or regional railroad’s full compliance with an RRP final rule is not likely to be as complex and comprehensive as it would be for a larger railroad. The rule will therefore not unduly burden short line and regional railroads. The Final Regulatory Flexibility Analysis in Section VII.B further discusses how FRA has considered small business concerns in developing the RRP final rule. 9. Comments on Other SMS Programs As both the NPRM and this preamble discuss, other Federal agencies have established or proposed SMS requirements, and SMS programs have developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. FRA received several comments urging FRA to consider other such SMS programs as both positive and negative models for RRP. Transport Action Canada (TAC) commented that the effect of SMS in the Canadian railroad industry has not been positive. Specifically, TAC expressed concern that SMS-type programs such as RRP are ‘‘incapable of assuming . . . the role of government in ensuring public safety.’’ FRA does not believe this RRP rule will result in FRA abdicating its role ensuring railroad safety, as any alleged weakness of SMS programs in Canada does not mean SMS programs in the United States cannot be successful. The United States’ railroad safety laws and regulations are different than Canada’s, and the RRP rule will not replace or modify any of FRA’s railroad safety regulations, responsibilities, or enforcement tools. An RRP will supplement FRA oversight of railroad safety, not replace it. Various commenters suggested other SMS programs as models for RRP, such as the United States Environmental Protection Agency’s (EPA) Risk Management Program, the Moving Ahead for Progress in the 21st Century Act (MAP–21) and the Federal Transit Administration (FTA) approach, and the PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 9275 Massachusetts Toxics Use Reduction Act (TURA). FRA notes that some of these SMS programs operate very differently from the way FRA exercises its railroad safety authority. For example, States have primary responsibility for enforcing SMS programs under MAP–21 through the State Safety Oversight (SSO) Program. See State Safety Oversight (SSO) Program, available at https:// www.fta.dot.gov/tso_15863.html (‘‘The SSO program is administered by eligible States with rail transit systems in their jurisdiction. FTA provides Federal funds through the SSO Formula Grant Program for eligible States to develop or carry out their SSO programs. Under 49 U.S.C. Section 5329(e), as amended by [MAP–21], FTA is required to certify each State’s program to ensure compliance with MAP–21.’’). Further, as FRA has already stressed elsewhere, this final rule hews closely to the RSIA mandate. If FRA used other SMS programs as a model for RRP, rather than the RSIA requirements, this could cause FRA to either fail to meet or exceed the limits of RSIA’s statutory mandate. VI. Section-by-Section Analysis FRA is adding a new part 271 to chapter 49 of the CFR. This part satisfies the RSIA requirements for safety risk reduction programs for Class I railroads and railroads with inadequate safety performance. See 49 U.S.C. 20156(a)(1). This part also protects certain information compiled or collected for a safety risk reduction program from admission into evidence or discovery during court proceedings for damages. See 49 U.S.C. 20119. Subpart A—General Subpart A of the final rule contains general provisions (including a formal statement of the rule’s purpose and scope) and provisions limiting the discovery and admissibility of certain RRP information. Section 271.1—Purpose and Scope Section 271.1 explains the rule’s purpose and scope. Paragraph (a) states the purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. Paragraph (a) also states this rule requires each affected railroad to establish an RRP that systematically evaluates railroad safety hazards on its system and manages the risks generated by those hazards to reduce the number and rates of railroad accidents/ incidents, injuries, and fatalities. Except for replacing the phrase ‘‘in order to’’ E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9276 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations with ‘‘to’’ for the purpose of streamlining the regulatory language, FRA has not changed paragraph (a) from the NPRM. As the NPRM explained, the rule does not require an RRP to address every safety hazard on a railroad’s system. For example, rather than identifying every safety hazard on its system, a large railroad could take a more focused and project-specific view of safety hazard identification. See 80 FR 10959 (Feb. 27, 2015). An individual commenter suggested FRA’s RRP rule should use an ‘‘AllHazards’’ approach. FRA declines to adopt this suggestion because the RSIA requires an RRP to address only ‘‘railroad safety risks’’ and § 271.1(a) of the final rule accurately reflects this mandate by requiring RRPs to ‘‘systematically evaluate railroad safety hazards.’’ The RSIA does not authorize RRPs that address hazards other than railroad safety hazards. Paragraph (b) states that this part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. A railroad is not restricted from adopting and enforcing additional or more stringent requirements that are not inconsistent with the rule. FRA did not receive any comments on this paragraph and adopts it as proposed. Paragraph (c) states that the rule protects information a railroad compiles or collects solely for the purpose of planning, implementing, or evaluating an RRP. While paragraph (c) in the proposed rule specified that the rule would protect information ‘‘generated’’ solely for developing, implementing, or evaluating an RRP, FRA has replaced the term ‘‘generated’’ with the phrase ‘‘compiles or collects’’ to promote consistency with § 271.11. FRA has also replaced the term ‘‘developing’’ with the term ‘‘planning’’ from § 271.11. FRA made these changes only to improve clarity and consistency between this section and § 271.11 and not to make any substantive change in this part’s information protections. Paragraph (d) explains the final rule does not require an RRP to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. For example, an RRP is not required to address environmental hazards that would fall under the exclusive jurisdiction of the United States Environmental Protection Agency (EPA) or workplace safety hazards that would fall under the exclusive jurisdiction of the United States Department of Labor’s Occupational Safety and Health Administration (OSHA). Paragraph (d) also explains an RRP should not address VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 the safety of employees while performing inspections, tests, and maintenance. The only exception is where FRA has exercised its jurisdiction over the safety issue, as in 49 CFR part 218, subpart B, which establishes blue signal protection for workers. FRA will not approve any specific portion of an RRP plan that addresses hazards related to a safety issue that falls under the exclusive jurisdiction of another Federal agency unless FRA has exercised its jurisdiction over the safety issue. Paragraph (d) of the NPRM proposed the same language regarding working conditions, but did not include the first sentence discussing hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble explained that while FRA is always concerned with the safety of railroad employees performing their duties, employee safety in maintenance and servicing areas generally falls under OSHA’s jurisdiction. Id. The NPRM similarly explained that FRA did not intend RRPs to address environmental hazards and risks unrelated to railroad safety that fall under EPA’s jurisdiction. Id. For example, the NPRM stated FRA would not expect a railroad’s RRP to address environmental hazards regarding particulate emissions from locomotives that otherwise comply with FRA’s safety regulations. Id. AAR/ASLRRA commented the language in proposed paragraph (d) did not achieve clarification and specifically suggested FRA clarify its intent by precisely stating that the scope of an RRP does not include matters within OSHA’s jurisdiction. AAR/ASLRRA also stated paragraph (d) did not address environmental issues under EPA jurisdiction. To address AAR/ASLRRA’s concern regarding EPA’s jurisdiction, FRA changed paragraph (d) in the final rule to add the first sentence plainly stating that an RRP is not required to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. The purpose of this language is to incorporate the NPRM’s explanation that an RRP should not address hazards that fall exclusively under the jurisdiction of another Federal agency, such as EPA. FRA has otherwise not changed the proposed text of paragraph (d) that relates to working conditions, as similar language appears in the SSP final rule and FRA’s regulations on passenger PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 equipment safety standards.15 See §§ 270.103(g)(4) and 238.107(c). The purpose of the language is to make clear that FRA neither intends to displace OSHA jurisdiction with respect to employee working conditions generally nor specifically with respect to the maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety. FRA does not intend to approve any specific portion of an RRP plan that relates exclusively to employee working conditions covered by OSHA. The term ‘‘approve’’ is used to make clear that any part of an RRP plan that relates to employee working conditions exclusively covered by OSHA will not be approved even if the overall plan is approved. Additionally, the term ‘‘specific’’ reinforces that the particular portion of the plan that relates to employee working conditions exclusively covered by OSHA will not be approved; however, the rest of the plan may still be approved. If there is any confusion whether an RRP plan covers an OSHAregulated area, FRA is available to provide assistance. The preamble to the SSP final rule contains this same explanation regarding SSP plans and working conditions exclusively covered by OSHA. See 81 FR 53871 (Aug. 12, 2016). Overall, FRA’s intent behind paragraph (d) in the NPRM and this final rule has not changed, and FRA has changed the language solely to address AAR/ASLRRA’s concerns regarding clarity. The NPRM discussion of paragraph (d) therefore remains applicable to paragraph (d) in this final rule. See 80 FR 10959 (Feb. 27, 2015). Section 271.3—Application This section sets forth application of the rule. Except for additional language in paragraph (c), this section is the same as in the NPRM. Thus, FRA is not repeating the NPRM section-by-section analysis for paragraphs (a) and (b) in this final rule, but refers interested readers to the NPRM. See 80 FR 10959– 10960 (Feb. 27, 2017). FRA is, however, discussing comments it received 15 While §§ 270.103(g)(4) and 238.107(c) contain reference to working conditions ‘‘as set forth in the plan,’’ the RRP final rule does not contain this language because an RRP plan is not required to specifically address working conditions that arise in the course of conducting maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety. FRA is also leaving the reference to FRA regulations on blue signal protection, which does not appear in the corresponding SSP language, to improve clarity. FRA does not intend this difference to indicate any substantive difference between the SSP and RRP language, as the preamble to the SSP final rule contains the same example regarding blue signal protection. See 81 FR 53870 (Aug. 12, 2016). E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations regarding tourist railroads and Class II and Class III railroads in response to the NPRM. Paragraph (b)(2) of the NPRM proposed that the rule would not apply to tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation. See 80 FR 10989 (Feb. 27, 2015). The NPRM specifically requested public comment on how an RRP final rule should address tourist operations that may create hazards for freight operations. In response, Labor Organizations I responded that FRA should require all railroads to account for tourist operations on their lines in performing the self-critical analysis and include such operations in the railroad’s RRP. FRA agrees with Labor Organizations I that a railroad required to comply with this rule must account for tourist operations on its system. FRA has made changes responding to this comment in § 271.101(d), which requires railroads to identify tourist operations that operate over the railroad’s track (even if the tourist railroad is exempt from this rule) and to ensure the tourist railroad supports and participates in the railroad’s RRP. The section-by-section analysis for § 271.101(d) discusses these changes further. In this final rule, FRA added a paragraph (c) that includes language from the SSP final rule. See § 270.107(a)(2). This language clarifies that 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 this rule’s purposes, including the consultation process and employee involvement requirements in §§ 271.113 and 271.207, discussed below. This language is necessary to address how directly affected employee consultation and involvement will be handled when a railroad contracts out significant portions of its operations to other entities. Contractors and contractor employees will only be considered directly affected employees when the contracts are ongoing and involve significant aspects of the railroad’s operations. For example, if a railroad contracts out maintenance of its locomotive and rail cars to another entity, it is vital for the employees who are performing this maintenance to be involved in that railroad’s RRP and have the opportunity to provide their valuable input on the RRP plan. Another example would be if a railroad contracts out the actual operations of its railroad to another entity. In such cases, the contracted entity and its employees VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 operating trains on behalf of the railroad would certainly need to be part of the consultation process and otherwise involved in the railroad’s RRP. If a railroad is unsure whether a contracted entity and its employees are directly affected employees for purposes of this part, FRA encourages the railroad and other interested stakeholders to contact FRA for guidance. The Association of Tourist Railroads and Railway Museums (ATRRM) commented it supported FRA’s proposed approach for tourist railroads. ATRRM commented an RRP was poorly suited to a small tourist railroad, but agreed with FRA’s approach to tourist railroads that conduct their own freight operations, or which operate on RRP host railroads. ATRRM correctly understood FRA’s position, and the changes made in § 271.101(d) are consistent with this position. FRA received approximately four comments from individuals arguing that FRA should expand the scope of the RRP final rule to Class II and Class III railroads. FRA declines to incorporate this recommendation for two principle reasons. First, applying the RRP final rule to Class II and Class III railroads would go beyond the RSIA mandate and increase the number of RRP plans submitted for FRA review. FRA would therefore need more time to review all submitted plans, as well as more time to conduct external reviews of RRPs. This would divert FRA resources away from Class I railroads, which have more complex operations than Class II and Class III railroads, and ISP railroads, which FRA will have determined demonstrate inadequate safety. Adhering to the RSIA mandate, which only directs FRA to require compliance from Class I railroads, passenger railroads, and railroads with inadequate safety performance, therefore represents the best and most efficient use of FRA resources. Second, the methodology for identifying railroads with inadequate safety performance will require certain Class II and Class III railroads to comply with the RRP rule. FRA also notes that Class II and III freight railroads may voluntarily comply with the final rule. Section 271.5—Definitions This section contains definitions clarifying the meaning of important terms used in the rule. FRA worded the definitions carefully to minimize potential misinterpretation of the rule. Commenters on the NPRM did not have significant issues with the proposed definitions, except for a few comments FRA received on the proposed definitions of ‘‘hazard’’ and ‘‘safety culture,’’ discussed below. FRA also PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 9277 made changes discussed below to the definitions of ‘‘accident/incident’’ and ‘‘pilot project.’’ For definitions that did not receive any comment and have not been changed, FRA is not repeating the NPRM’s section-by-section analysis in this final rule but refers interested readers to the NPRM’s discussion. See 80 FR 10960–10962 (Feb. 27, 2015). The NPRM preamble stated FRA was proposing an ‘‘accident/incident’’ definition identical to the definition contained in FRA’s accident/incident reporting regulations at 49 CFR part 225. See 80 FR 10960 (Feb. 27, 2015). However, the proposed definition did not match the part 225 definition exactly, because it did not include occupational illnesses. See 49 CFR 225.5. This inconsistency was merely an oversight. To correct this inconsistency and to ensure future conformity with the part 225 definition and any amendments thereto, FRA has changed the final rule’s definition to simply cross-reference the part 225 definition. The NPRM proposed to define ‘‘hazard’’ as any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. See 80 FR 10989 (Feb. 27, 2015). In response, AAR/ASLRRA commented the definition of hazard did not help clarify the proposed jurisdiction statement in § 271.1(d). AAR/ASLRRA also claimed the definition places conditions that do not impact human safety or property damage squarely within the definition of hazard. As discussed above, FRA has made changes to § 271.1(d) to clarify an RRP does not have to address safety issues that are completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency, such as EPA. This does not mean, however, an RRP should not address railroad safety hazards that could result in damage to the environment, such as a derailment that could result in a hazardous materials release. See also 80 FR 10959 (Feb. 27, 2015). As § 271.1(a) provides, an RRP is required to address ‘‘railroad safety hazards.’’ The final rule adopts the NPRM’s definition for ‘‘hazard’’ unchanged. The NPRM proposed to define ‘‘pilot project’’ as a limited scope project used to determine whether quantitative proof suggests that a particular system or mitigation strategy has potential to succeed on a full-scale basis. See 80 FR 10989–10990 (Feb. 27, 2015). FRA modified this definition to replace the word ‘‘proof’’ with the phrase ‘‘evaluation and analysis.’’ FRA made this change to avoid implying that a E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9278 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations railroad had to meet an established quantitative threshold as proof that a pilot project has potential to succeed. FRA did not intend to establish a quantitative proof threshold, and believes ‘‘evaluation and analysis’’ more accurately describes the purpose of a pilot project. FRA also modified this definition slightly by changing ‘‘potential to succeed on a full-scale basis’’ to ‘‘potential for full-scale success.’’ The purpose of this change is only to streamline the language, and FRA does not intend any substantive change. The NPRM proposed defining ‘‘safety culture’’ as the shared values, actions, and behaviors that demonstrate a commitment to safety over competing goals and demands. This definition is the same in the final rule and was also included in the SSP rule. See § 270.5 and 81 FR 53863–53864 (Aug. 12, 2016). As the NPRM explained, FRA based the definition on a research paper published by the DOT Safety Council. See 80 FR 10962 (Feb. 27, 2015). The DOT Safety Council developed this definition after extensive review of definitions used in a wide range of industries and organizations over the past two decades. Id. See also U.S. Dep’t of Transp., John A. Volpe Nat’l Transp. Sys. Ctr., ‘‘Safety Culture: A Significant Influence on Safety in Transportation,’’ 2–3 (2017), available at https://www.fra.dot.gov/ eLib/details/L18784#p1_z50_gD_ksafety %20culture. The NPRM also acknowledged the proposed definition was different than the definition that the RRP Working Group recommended. Specifically, FRA noted that some participants during RRP Working Group discussion expressed concern that the language ‘‘over competing goals and demands’’ would require a railroad to make safety the ultimate priority to the exclusion of all other concerns, without providing flexibility for a railroad to balance the concerns of profit and efficiency. The NPRM explained FRA selected the proposed definition because it was important to use a definition the DOT Safety Council formulated. See 80 FR 10962 (Feb. 27, 2015). The definition also would not require a railroad to prioritize absolute safety over competing goals and demands (i.e., it would not require a railroad to have a perfect safety culture). Rather, FRA explained that the proposed definition merely expressed how a railroad should evaluate safety culture by measuring the extent to which a railroad emphasizes safety over competing goals and demands. Id. AAR/ASLRRA responded to this discussion by commenting there was no doubt that the proposed definition VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 requires ‘‘a commitment to safety over competing goals and demands,’’ because that is what the definition says. AAR/ ASLRRA further suggested that if FRA’s intent was to measure the extent to which a railroad emphasizes safety over competing goals and demands, that language should be included. FRA declines to change the proposed ‘‘safety culture’’ definition as suggested because doing so would eliminate the benefits of having a general definition the DOT Safety Council developed and approved. There is value in establishing a shared understanding of safety culture that can be applied across many contexts, and developing a common understanding of the elements that comprise a strong safety culture can help DOT agencies have a better basis for improving safety programs, policies, and strategies. See U.S. Dep’t of Transp., John A. Volpe Nat’l Transp. Sys. Ctr., ‘‘Safety Culture: A Significant Influence on Safety in Transportation,’’ 2 (2017), available at https://www.fra.dot.gov/eLib/details/ L18784#p1_z50_gD_ksafety%20culture. As explained in the NPRM, FRA also disagrees with AAR/ASLRRA and believes the definition does not require railroads to ‘‘absolutely and necessarily’’ demonstrate a commitment to safety over competing goals and demands but only describe how certain shared values, actions, and behaviors demonstrate such a commitment. Rather, the rule requires that a railroad design its RRP to promote and support a positive safety culture (§ 271.101(a)), develop processes for identifying and analyzing its safety culture (§ 271.105(a)), and include in its RRP plan a statement describing the railroad’s safety culture and how it promotes improvements to its safety culture (§ 271.203(b)(1) and (2)).16 FRA believes these provisions generally require a railroad to define its own safety culture and develop processes for analyzing and improving it. Nowhere does the RRP final rule require a railroad to establish a safety culture that absolutely prioritizes safety. For these reasons, FRA believes the definition for safety culture is appropriate. Section 271.7—Reserved The NPRM proposed to include a provision on waivers in § 271.7, explaining that 49 CFR part 211 16 The SSP rule contains similar requirements related to safety culture. See § 271.101(b) (‘‘A railroad’s system safety program shall be designed so that it promotes and supports a positive safety culture at the railroad.’’), § 271.103(b) (‘‘This policy statement shall . . . [d]escribe the . . . safety culture of the railroad’’), and § 271.103(t) (‘‘A railroad shall set forth a statement in its SSP plan that describes how it measures the success of its safety culture. . . .’’). PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 generally contains rules governing the FRA waiver process. See 80 FR 10990 (Feb. 27, 2015). ASLRRA commented suggesting that ‘‘it is best to have a single waiver rule to reduce confusion and increase familiarity with proper waiver procedures.’’ FRA agrees with ASLRRA on this issue and finds that the NPRM’s proposed provision on waivers is unnecessary because part 211 already contains the rules governing the FRA waiver process. The provision would have therefore served only as a crossreference to part 211 and not have had any independent legal effect. The SSP final rule also does not contain its own provision on waivers. See 81 FR 53864 (Aug. 12, 2016). FRA has therefore not included a provision on waivers in this RRP final rule although FRA is reserving this section in case FRA decides to add such a provision in the future. Section 271.9—Penalties and Responsibility for Compliance This section contains provisions regarding penalties and the responsibility for compliance. Except for the change discussed below, FRA adopts this section from the NPRM unchanged. Therefore, FRA refers interested readers to the NPRM discussion. See 80 FR 10962 (Feb. 27, 2015). This section in the NPRM proposed a civil penalty of at least $650 and not more than $25,000 per violation, except for a penalty not to exceed $105,000 that may be assessed for a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to individuals, or has caused death or injury. Id. Since the NPRM was published in 2015, DOT has issued a final rule, in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act),17 that provides the 2018 inflation adjustment to civil penalty amounts that may be imposed for violations of certain DOT regulations. See 83 FR 60732 (Nov. 27, 2018). To avoid the need to update this section every time the civil penalty amounts are adjusted for inflation, FRA has changed this section by replacing references to specific penalty amounts with general references to the minimum civil monetary penalty, ordinary maximum civil monetary penalty, and aggravated maximum civil monetary penalty. FRA has also added language to 17 The FCPIAA and the 2015 Act require federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. See 83 FR 60732 (Nov. 27, 2018). E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 this section referring readers to 49 CFR part 209, appendix A, where FRA will continue to specify statutorily provided civil penalty amounts updated for inflation. While this section in the NPRM noted the final rule would include a schedule of civil penalties, FRA has decided to provide such a schedule on its website instead of as an appendix to the final rule. FRA therefore changed the final sentence of paragraph (a) in this section to direct readers to the FRA’s website for a schedule of civil penalties. This penalty schedule will reflect the requirements of the final rule. Because such penalty schedules are statements of agency policy, notice and comment are not required before their issuance, and FRA did not propose a penalty schedule in the NPRM. See 5 U.S.C. 553(b)(3)(A). Nevertheless, FRA invited comment on what a final penalty schedule should contain. See 80 FR 10978 (Feb. 27, 2015). However, FRA did not receive any comments other than Labor Organizations I’s comment the NPRM did not include a proposed penalty for violation of the § 271.207 requirements to consult with directly affected railroad employees using good faith and best efforts. The penalty schedule on FRA’s website will include guideline penalty amounts for violations of various requirements in § 271.207. Section 271.11—Discovery and Admission as Evidence of Certain Information As discussed in the Statutory Background (Section IV.D), the Final Study Report concluded that it is in the public interest to protect certain information generated by railroads from discovery or admission into evidence in litigation. Section 20119(b) provides FRA the authority to promulgate a regulation if FRA determines that it is in the public interest, including public safety and the legal rights of persons injured in railroad accidents, to prescribe a rule addressing the results of the Study. This section establishes protections based on the Final Study Report for information a railroad compiles or collects solely for RRP purposes in Federal or State court proceedings for damages involving personal injury, wrongful death, or property damage. These protections are narrow and apply only to information generated solely for a railroad’s RRP, aiming to ensure that a litigant will not be better or worse off than if the protections had never existed. FRA intends these protections to be strictly construed. In Sections IV.D and V.A of this preamble’s discussion, FRA explains the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 statutory background of this section, general comments on the NPRM’s proposed information protections, and FRA’s response to those comments. This section-by-section analysis will not revisit the general issues and comments FRA discussed above, but will focus on responding to specific comments on the proposed rule text and explaining the final rule. The language of this section is also substantively identical to the language promulgated by the SSP final rule in § 270.105. See 81 FR 53900 (Aug. 12, 2016). The preamble to the SSP final rule contains a significant discussion on the protections’ background. Id. at 53878–53879. Under § 271.11(a) there are certain circumstances in which information will 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. This information may not be used in such litigation when it is compiled or collected solely for the purpose of planning, implementing, or evaluating an RRP. Section 271.11(a) applies to information whether or not it is also in the Federal Government’s possession. FRA reformatted paragraph (a) for clarity from the NPRM. Paragraph (a) is divided into paragraphs (a)(1) and (2) after new introductory text. The formatting change does not, however, result in any substantive change to the paragraphs (a)(1) and (2). The new introductory text of paragraph (a) contains language implementing the section 20119(b) provision preventing the protections from becoming effective until one year after the adoption of the RRP rule. Paragraph (a)(1) describes what may be considered ‘‘information’’ for the purposes of this section. Section 20119(a) identifies reports, surveys, schedules, lists, and data as the forms of information that FRA must consider in its study. However, FRA does not view the RSIA’s list as limiting the forms of information that a rule may protect based on the study. In the statute, Congress directed FRA to consider the need for protecting information that includes a railroad’s analysis of its safety risks and its statement of the mitigation measures to address those risks. Id. While the railroad is not required to provide in the RRP plan that it submits to FRA the results of the riskbased hazard analysis and the specific elimination or mitigation measures it will implement, the railroad may have a specific plan within its RRP that does contain this information. Therefore, to adequately protect this type of PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 9279 information, the term ‘‘plan’’ is included in the definition of ‘‘information’’ to cover a railroad’s submitted RRP plan and any elimination or mitigation plans the railroad otherwise develops within its RRP. FRA also deems it necessary to include ‘‘documents’’ in this provision to maintain consistency and properly effectuate Congress’ directive in section 20119. This paragraph does not protect all information that is part of an RRP; these protections will extend only to information that is compiled or collected after February 17, 2021 solely for purpose of planning, implementing, or evaluating a risk reduction program. The term ‘‘compiled or collected’’ comes directly from section 20119(a). The term ‘‘compiled’’ refers to information that was generated by the railroad for the purposes of an RRP; whereas the term ‘‘collected’’ refers to information that was not necessarily generated for the purposes of the RRP, but was assembled in a collection for use by the RRP. It is important to note for collections, only the collection assembled for RRP purposes is protected; however, each separate piece of information that was not originally generated for use by the RRP remains subject to discovery and admission into evidence subject to any other applicable provision of law or regulation. For example, if a railroad originally collected or generated information for a non-RRP use, the rule does not protect that original non-RRP information, even if the railroad afterwards collects the information for protected RRP purposes. The rule would protect, however, the assembled collection of that information for RRP purposes. In response to the SSP NPRM, APTA commented the rule text does not adequately explain the use of the term ‘‘solely’’ in the text of the regulation. See 81 FR 53879 (Aug. 12, 2016). APTA proposed that FRA either use a more appropriate term such as ‘‘primarily’’ or ‘‘initially’’ or that FRA define ‘‘solely’’ in the rule text, not just in the preamble. Id. FRA agrees. The use of the term ‘‘solely’’ is deliberate, and it is important that the term is understood as used within the four corners of the regulation. Therefore, FRA has included paragraph (a)(2), which defines the term ‘‘solely,’’ in both this rule and the § 270.105 of SSP final rule. See 81 FR 53900 (Aug. 12, 2016). The term ‘‘solely’’ is intended to narrow circumstances in which the information will be protected. The use of the term ‘‘solely’’ means that the original purpose of compiling or collecting the information was E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9280 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations exclusively for the railroad’s RRP. A railroad cannot compile or collect information for one purpose and then try to use paragraph (a) to protect that information because it uses that information for its RRP as well. The railroad’s original and singular purpose for compiling or collecting the information must be for planning, implementing, or evaluating its RRP in order for the protections to be extended to that information. The term ‘‘solely’’ also means that a railroad must continue to use the information only for its RRP. If a railroad subsequently uses, for any other purpose, information the railroad initially compiled or collected for its RRP, paragraph (a) does not protect that information to the extent the railroad uses it for the non-RRP purpose. The use of that information within the railroad’s RRP, however, will remain protected. If another provision of law or regulation requires the railroad to collect the information, the protections of paragraph (a) do not extend to that information because the railroad is not compiling or collecting the information solely for the purpose of planning, implementing, or evaluating an RRP. For example, 49 CFR 234.313 requires railroads to retain records regarding emergency notification system (ENS) reports of unsafe conditions at highwayrail grade crossings. Those individual records are not protected by § 271.11. However, if as part of its risk-based hazard analysis a railroad collects several of its § 234.313 reports from a specific time period for the sole purpose of determining if there are any hazards at highway-rail grade crossings, this collection will be protected as used in the RRP. If the railroad decides to use the collection for another purpose other than in its RRP, such as submitting it to an ENS maintenance contractor for routine maintenance, the protections do not extend to that non-RRP use. APTA commented that the term ‘‘sole purpose,’’ because it is ill-defined and railroads use safety data to make many decisions, would effectively nullify this section’s protections. APTA specifically recommended that FRA remove the phrase ‘‘sole purpose,’’ arguing that ‘‘if a railroad is creating and using data for safety, it should be protected.’’ APTA claims that it will ‘‘not be difficult for plaintiffs’ counsel to find any other use safety data has been used for,’’ as railroads use safety data to make procurement, personnel, and other decisions on a routine basis. FRA is declining to implement this suggestion for several reasons. First, as discussed above, FRA has concluded this section should not protect information a VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 railroad takes from its RRP to use for other purposes, and APTA’s suggestion would allow a railroad to obtain protection for all safety information simply by incorporating it into a railroad’s RRP. Second, FRA’s changes to the information protections in § 271.11(a)(2) clarify that even if a railroad uses RRP information for other purposes, such as procurement or personnel decisions, the use of that information within the railroad’s RRP remains protected. Finally, APTA’s suggestion would create a discrepancy between the RRP and SSP final rules, and FRA’s intent has always been to ensure the information protection provisions of both rules are consistent. A railroad must compile or collect the information solely for the purpose of planning, implementing, or evaluating an RRP. The three terms—planning, implementing, or evaluating—come directly from section 20119(a). These terms cover the necessary uses of the information compiled or collected solely for the RRP. To properly plan and develop an RRP, a railroad will need to determine the proper processes and procedures to identify hazards, the resulting risks, and elimination or mitigation measures to address those hazards and risks. This planning will involve gathering information about the various analysis tools and processes best suited for that particular railroad’s operations. This type of information is essential to the risk-based hazard analysis and is information that a railroad does not necessarily already have. In order for the railroad to plan its RRP, the protections are extended to the RRP planning stage. The NPRM used the term ‘‘developing’’ instead of ‘‘planning’’; however, to remain consistent with section 20119(a), FRA has determined that the term ‘‘planning’’ is more appropriate. Based on the information generated by the risk-based hazard analysis, the railroad will implement measures to eliminate or mitigate the hazards and risks identified. To properly implement these measures, the railroad will need the information regarding the hazards and risks on the railroad’s system identified during the development stage. Therefore, the protection of this information extends to the implementation stage. The protections do not apply to information regarding mitigations that the railroad implements. Rather, § 271.11 protects the railroad’s statement of mitigation measures, which could include various proposed and alternate mitigations for a specific hazard, that address the hazards identified by the risk-based hazard PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 analysis. Additionally, § 271.11 protects the underlying risk analysis information that the implemented mitigation measure addresses. For example, if a railroad builds a structure to address a risk identified by the risk-based hazard analysis, this section does not protect the information regarding that structure (e.g., blueprints, contracts, permits, etc.). This section does protect, however, the underlying risk-based hazard analysis that identified the hazard and any statement of mitigations that included the structure. The protections also do not apply to any hazards, risks, or mitigations that fall under the exclusive jurisdiction of another Federal agency. If FRA does not have jurisdiction over a hazard, risk, or mitigation, then the protections under this paragraph cannot cover that hazard, risk, or mitigation. The railroad must also evaluate whether the measures it implements to mitigate or eliminate the hazards and risks identified by the risk-based hazard analysis are effective. To do so, it will need to review the information developed by the risk-based hazard analysis and the methods used to implement the elimination/mitigation measures. This section protects the use of this information in the evaluation of the railroad’s RRP. The information covered by this section shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. The first two situations come from section 20119(a); however, FRA determined that for the protections to be effective they must also apply to any other situation where a litigant might try to use the information in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. For example, this section prohibits a litigant from admitting into evidence a railroad’s risk-based hazard analysis. Nonetheless, without the additional language: ‘‘or considered for other purposes,’’ a litigant could use the railroad’s risk-based hazard analysis for the purpose of refreshing the recollection of a witness or an expert witness could use the analysis to support an opinion. The additional language ensures that the protected information remains out of such a proceeding completely. The protections would be ineffective if a litigant were able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations implement truly effective elimination or mitigation measures, the protections must extend to any use in a proceeding. This section applies to Federal or State court proceedings that involve a claim for damages involving personal injury, wrongful death, or property damage. This means, for example, if a proceeding has a claim for personal injury and a claim for property damage, the protections extend to that entire proceeding; therefore, a litigant cannot use any of the information protected by this section as it applies to either the personal injury or property damage claim. Section 20119(a) required the study to consider proceedings that involve a claim for damages involving personal injury or wrongful death; however, to effectuate Congress’ intent behind section 20156, that railroads engage in a systematic and candid hazard analysis and develop meaningful mitigation measures, FRA has determined that it is necessary for the protections to extend to proceedings that involve a claim solely for property damage. The typical railroad accident resulting in injury or death also involves some form of property damage. Without extending the protection to proceedings that involve a claim for property damage, a litigant could bring two separate claims arising from the same incident in two separate proceedings, the first for property damages and the second one for personal injury or wrongful death, and be able to conduct discovery regarding the railroad’s risk analysis and to introduce this analysis in the property damage proceeding but not in the personal injury or wrongful death proceeding. This would mean that a railroad’s risk analysis could be used against the railroad in a proceeding for damages. If this were the case, a railroad would be hesitant to engage in a systematic and candid hazard analysis and develop meaningful elimination or mitigation measures. Such an approach would be nonsensical and would completely frustrate Congress’ intent in providing FRA the ability to protect that information which is necessary to ensure that railroads perform open and complete risk assessments and select and implement appropriate mitigation measures. Therefore, to be consistent with Congressional intent behind section 20156, FRA is extending the protections in paragraph (a) to proceedings that involve a claim for property damage. Further, RSAC recommended in the context of the SSP rulemaking that FRA extend the protections in this way to proceedings that involve a claim for property VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 damage. See 81 FR 53881 (Aug. 12, 2016). Paragraph (b) ensures the protections in paragraph (a) do not extend to information compiled or collected for a purpose other than specifically identified in paragraph (a). This type of information shall continue to be discoverable, admissible into evidence, or considered for other purposes if it was before the date the protections take effect. The types of information that will not receive the protections paragraph (a) provides include: (1) Information compiled or collected on or before February 17, 2021; (2) information compiled or collected on or before February 17, 2021 and continues to be compiled or collected, even if used to plan, implement, or evaluate a railroad’s SSP; or (3) information compiled or collected after February 17, 2021 for a purpose other than specifically identified in paragraph (a) of this section. Paragraph (b) affirms FRA’s meaning for the term ‘‘solely’’ in paragraph (a)—that a railroad may not compile or collect information for a different purpose and then expect to use paragraph (a) to protect that information just because the information is also used in its RRP. In such cases the information is unprotected and will continue to be unprotected. Examples of the types of information that paragraph (b) applies to may be records related to prior accidents/ incidents and reports prepared in the normal course of railroad business (such as inspection reports). Generally, this type of information is often discoverable, may be admissible in Federal and State proceedings, and should remain discoverable and admissible where it is relevant and not unduly prejudicial to a party after the implementation of this part. However, FRA recognizes that evidentiary decisions are based on the facts of each particular case; therefore, FRA does not intend this to be a definitive and authoritative list. Rather, FRA merely provides these as examples of the types of information that paragraph (a) is not intended to protect after the implementation of this part. Under paragraph (b)(2), if a railroad compiled or collected certain information that was subject to discovery, admissibility, or consideration for other purposes before the protections take effect and the railroad continues to collect the same type of information pursuant to its RRP required by this part, that information will not be protected by paragraph (a) of this section. For example, before this section takes effect and all else being equal, a litigant that would have been PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 9281 able to have admitted into evidence certain information the railroad compiled will still be able to have that type of information admitted after this section takes effect even if the railroad compiles the information pursuant to this rule. The protections are designed to apply only when the original purpose for the generation of the information was for an RRP required by this part. The original purpose of the generation of the information for the RRP-like programs that existed before the RRP rule would be for an RRP required by this part; therefore, such information is not protected by paragraph (a). While objecting to any information protections whatsoever, AAJ also commented that any protections FRA does promulgate ‘‘should be clear and not result in satellite litigation.’’ AAJ is particularly concerned that the information protections would increase litigation and litigation costs by generating litigation over which information the rule protects or does not protect. AAJ therefore recommends that FRA should ‘‘require all applicable railroads [to] report all classes of documents that would remain discoverable.’’ ARLA, Labor Organizations I, and Labor Organizations II similarly urged FRA to reduce litigation costs by including a list of documents currently available for use in litigation in the final rule. Labor Organizations I and Labor Organizations II also asked FRA to include a list of examples of information currently discoverable and admissible. AAJ, ARLA, Labor Organizations I, and Labor Organizations II all provided FRA examples of such a list either in comments or during the RRP Working Group process. As discussed, FRA changed the proposed information protection to include a definition of ‘‘solely’’ that further clarifies what information § 271.11 protects and does not protect. FRA does not, however, believe that AAJ’s proposal to require all railroads to report documents that remain discoverable or include lists of discoverable information as other commenters suggested would be effective. First, the suggested approach does not account for future information railroads will compile or collect the information for non-RRP purposes, which § 271.11 will not protect. Railroads also cannot predict what future statutes or regulations will require them to collect information. Such reports or lists, therefore, would fail to include vast swathes of future information that should be discoverable. Further, courts are responsible for determining which documents are E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9282 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations discoverable under the applicable rules of discovery and evidence, not railroads. In addition, the commenters have not suggested how FRA would ensure a railroad accurately reported which documents would remain discoverable or how FRA would update lists. FRA therefore declines to require railroads to report documents that will remain discoverable and declines to publish lists of discoverable documents. This section is not intended to replace any other protections provided by law or regulation. Accordingly, paragraph (c) states the protections in this section will not affect or abridge in any way any other protection of information provided by another provision of law or regulation. Any such provision of law or regulation shall apply independently of the protections provided by this section. While the NPRM did not propose this provision, FRA believes this language should be non-controversial. The SSP final rule also contains the same language. See 81 FR 53882 (Aug. 12, 2016). Paragraph (d) clarifies that a litigant cannot rely on State discovery rules, evidentiary rules, or sunshine laws to require the disclosure of information protected by paragraph (a) in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. This is the same language that proposed paragraph (c) in the NPRM contained. Because FRA did not receive any comments on this proposal, FRA refers readers to the NPRM’s discussion. See 80 FR 10966 (Feb. 27, 2015). Paragraph (e) contains new language clarifying that § 271.11 does not protect information during civil or criminal law enforcement proceedings. For example, § 271.11 would not apply to a civil or criminal action brought to enforce Federal railroad safety laws, or proceedings such as a civil action brought by the Department of Justice under the Clean Water Act to address a discharge of pollutants into waters of the United States following a rail accident. Because paragraph (a) of this section plainly states that the information protections apply to ‘‘Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage,’’ FRA believes a court would not find that the protections apply to a civil or criminal enforcement case. Nevertheless, to help ensure no attempt is made to rely on the rule’s information protections in a civil or criminal enforcement proceeding, paragraph (e) explicitly states that § 271.11 does not apply to civil or criminal enforcement actions. FRA plans to similarly clarify VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 the information protection provision in § 270.105 of the SSP rule, which also apply only to Federal or State court proceedings for damages involving personal injury, wrongful death, or property damage. The NPRM proposed that FRA might extend the information protections in an SSP final rule to the RRP final rule. The effect of this approval would have been that the protections for the RRP final rule would be applicable one year after publication of the SSP final rule. FRA sought comment on this proposal, and AAR/ASLRRA commented in support. AAJ, however, objected to FRA’s proposal to use the information protection provisions in the SSP final rule to protect RRP information. AAJ stated FRA’s proposal would ‘‘prematurely curtail the rights of rail accident victims’’ and ‘‘cut short the full regulatory process on the Risk Reduction Rule.’’ Instead, AAJ suggests FRA should stay the effective date for the SSP final rule until the RRP final rule goes into effect. Upon further consideration, FRA determined this final rule should implement the information protections for RRPs, not the SSP final rule. Section 20119(b) (emphasis added) states ‘‘Any such rule prescribed pursuant to this subsection shall not become effective until 1 year after its adoption.’’ Thus, FRA concluded the RSIA requires each rule implementing information protections to have its own independent implementation timeline. FRA believes this approach is a better and more reasonable interpretation of Congressional intent in section 20119(b). Further, the modified approach ensures FRA has complied with notice and comment procedures of the Administrative Procedure Act for both the RRP and SSP rulemakings. Section 271.13—Determination of Inadequate Safety Performance This section describes how FRA will determine which railroads must comply with this rule because they have inadequate safety performance. This section explains that FRA’s analysis has two phases: A statistically-based quantitative analysis phase and then a qualitative assessment phase. Only railroads identified as possibly having inadequate safety performance in the quantitative analysis will continue to the qualitative assessment, as discussed further below. The RSIA directs FRA to require railroads with inadequate safety performance (as determined by FRA) to develop and implement an RRP. See 49 U.S.C. 20156(a)(1). Before publishing the NPRM, FRA discussed potential PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 definitions of inadequate safety performance during RSAC Working Group meetings and conference calls. Based on these discussions, which explored various ASLRRA concerns, FRA developed a methodology to determine inadequate safety performance. FRA received tentative agreement from the RRP Working Group on this methodology, but did not seek consensus. The RRP NPRM proposed a two-phase annual process FRA would use to determine if a railroad’s safety performance was inadequate. The proposed process would evaluate only railroads not already complying with an SSP or RRP rule, including voluntarilycompliant railroads. For the first phase of the process, FRA proposed conducting a statistical quantitative analysis to determine a railroad’s safety performance index. This quantitative analysis would use railroad data maintained by FRA from the three full calendar years before the analysis. As proposed, the quantitative analysis would utilize the following four factors: (1) On-duty employee fatalities; (2) FRA reportable on duty employee injury/illness rate; (3) FRA reportable accident/incident rate; and (4) FRA violation rate. The proposed quantitative analysis would specifically identify railroads that either had a fatality or were at or above the 95th percentile in at least two of the three other factors. For the second phase of the process, FRA proposed performing a qualitative assessment of railroads that the quantitative analysis identified as warranting further review. FRA proposed notifying a railroad identified for the qualitative assessment and providing it an opportunity to comment and submit documentation supporting any claim that it has adequate safety performance. FRA also proposed requiring an identified railroad to inform its employees of the FRA notification so that the employees could submit confidential comments on the matter directly to FRA. FRA’s qualitative analysis would then consider comments from the railroad and the railroad’s employees, as well as any other pertinent evidence, in determining the railroad’s safety performance. Following the qualitative assessment, FRA would inform an identified railroad whether or not it must comply with the RRP rule. As an initial matter, FRA notes the language in this section in the final rule uses the present tense, while the proposed rule used future tense. This change does not affect the substance of this section. E:\FR\FM\18FER2.SGM 18FER2 9283 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations The National Safety Council (NSC) commented that programs like RRP are ‘‘essential safety tools for all companies, irrespective of past safety performance.’’ NSC claims that railroads that wait to implement an RRP until identified with inadequate safety performance are ‘‘weak links in the system’’ and that creating an inadequate safety performance threshold for smaller railroads will make RRP compliance punitive, rather than a ‘‘safety best practice that benefits all railroads and is part of normal planning and operations.’’ NSC suggests that all railroads should be encouraged to implement RRPs, and that FRA should determine which railroads’ safety performance warrants additional regulatory oversight. FRA agrees with NSC that encouraging all railroads to implement risk reduction programs is important. As mandated by section 20156(a)(4), and as proposed in the NPRM, this final rule allows railroads to voluntarily comply. This final rule’s information protection provisions will also encourage voluntary RRP compliance by ensuring that information a railroad compiles or collects solely for RRP purposes is not discoverable or admissible in certain litigation proceedings. While this final rule encourages voluntary compliance, FRA must fulfill the clear RSIA mandate to require RRP compliance for railroads with inadequate safety performance, as determined by FRA. FRA therefore concludes that this final rule encourages voluntary compliance while also meeting the RSIA mandate to require compliance for railroads demonstrating inadequate safety performance. In response to both the NPRM and DOT’s regulatory review initiative, ASLRRA expressed concern that the methodology proposed in the NPRM for identifying railroads with inadequate safety performance would result in a disproportionate number of the smallest railroads being selected simply because they have a lower number of employees. To assess this concern, FRA conducted several analyses of data from FRA’s Rail Accident/Incident Reporting System (RAIRS), the system that would provide the data for determining which railroads demonstrate inadequate safety performance. To approximate the NPRM’s proposed methodology, FRA conducted the analyses for the 3-year period from 2016 through 2018, the latest years for which a full 12 months’ data were available at the time of the analysis. As part of the first analysis, FRA identified all Class II and Class III railroads the NPRM’s methodology would analyze for inadequate safety performance (all Class II and III railroads that would be subject to the rule; a total of 745 railroads). For these railroads, FRA used data from 2016 through 2018 to calculate: (1) The average total train miles operated, and (2) average total employee hours. FRA then calculated the same averages for the 11 railroads within the group of 745 that reported an employee fatality and the other 734 railroads that did not report an employee fatality during that same time period. As Table 3 shows, between 2016 and 2018, the entire pool of 745 Class II and Class III railroads reported an average of 213,466 total train miles operated and 168,476 employee labor hours. The 11 railroads reporting an employee fatality had substantially higher averages, with 3,147,087 train miles operated and 2,081,274 employee hours, while the 734 railroads without an employee fatality reported an average of 169,501 total train miles operated, and 139,810 employee labor hours, which is substantially below the overall averages for the entire population of 745 railroads. TABLE 3—OPERATIONAL DATA OF CLASS II AND CLASS III FREIGHT RAILROADS BETWEEN 2016 AND 2018 Number of railroads Railroads on which employee fatalities occurred ........................................................................ Railroads without employee fatalities .......................................................................................... All ................................................................................................................................................. lotter on DSKBCFDHB2PROD with RULES2 Figure 1 contains a histogram showing the distribution of Class II and Class III railroads by reported employee labor hours between 2016 and 2018. Each tick mark along the x-axis VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 represents a range of employee hours. The bar heights along the y-axis illustrate the number of railroads that reported employee labor hours within a given range of employee hours. Figure 1 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 11 734 745 Average train miles 3,147,087 169,501 213,466 Average employee hours 2,081,274 139,810 168,476 demonstrates that the vast majority of Class II and III railroads report approximately 100,000 annual employee labor hours. E:\FR\FM\18FER2.SGM 18FER2 9284 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Figure 1. Distribution of Class II and Class III railroads by employee labor hours reported between 2016 and 2018. 0 0 "' ... 0 0 ., 0 0 0 0 N 0 0 0 300 600 900 1200 1600 2000 2400 2800 3200 3600 4000 4400 4800 5200 5600 6000 6400 6800 Thousand Employee Hours VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 this period ranged from zero to about 15 million. As with Figure 1, the bar heights along the y-axis in Figures 2 and 3 indicate how many railroads reported train miles in the ranges along the xaxis. Figures 2 and 3 demonstrate that PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 the vast majority of Class II and Class III railroads reported 100,000 train miles or less between 2016 and 2018. BILLING CODE 4910–06–P E:\FR\FM\18FER2.SGM 18FER2 ER18FE20.047</GPH> lotter on DSKBCFDHB2PROD with RULES2 Figures 2 and 3 show the distribution of Class II and Class III railroads by train miles reported between 2016 and 2018. (FRA has broken this data into 2 separate charts to ensure legibility). The number of train miles reported during Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations 9285 Figure 2. Distribution of Class II and Class III railroads by train miles reported between 2016 and 2018, for railroads reporting fewer than 5 million train miles. 0 0 ID a a . u "' e -.,a: '<t 0 0 "' 0 0 N 0 ~ 0 0 500 1000 1500 2000 2500 3000 3500 4000 4500 5000 Thousand Train Miles Figure 3. Distribution of Class II and Class III railroads by train miles reported between 2016 and 2018, for railroads reporting more than 5 million train miles. 5000 6500 8000 9500 11000 12500 14000 15500 17000 18500 20000 lotter on DSKBCFDHB2PROD with RULES2 BILLING CODE 4910–06–C The data presented in Table 1, as well as the illustrations in Figures 1, 2, and 3, strongly suggest that the overall averages for Class II and Class III railroads are influenced by a small number of larger Class II or Class III railroads. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 As a second analysis, FRA used the NPRM’s quantitative analysis methodology to evaluate the 734 Class II and III railroads that did not report an employee fatality. FRA excluded the 11 railroads that reported an employee fatality from this analysis because the NPRM’s quantitative analysis would PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 automatically advance them to the qualitative assessment. See 80 FR 10967 (Feb 27, 2015). Using the NPRM’s quantitative analysis methodology, FRA identified railroads for further analysis (i.e., identified railroads for qualitative assessment) and found that these railroads reported an average 24,645 E:\FR\FM\18FER2.SGM 18FER2 ER18FE20.048</GPH> Thousand Train Miles 9286 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations total train miles and 43,040 employee hours between 2016 and 2018. See Table 4. These averages are substantially lower than averages for both the entire pool of Class II and Class III railroads (see Table 3) and the pool of railroads not reporting an employee fatality. FRA believes that the population of railroads selected for further analysis should, with respect to size, resemble the overall population from which they were drawn. The fact that the railroads selected by the NPRM’s methodology are so different from the overall population of Class II and Class III railroads indicates that the NPRM’s quantitative analysis potentially overidentified smaller railroads for the qualitative assessment. Despite the numbers above, FRA considered the possibility that the NPRM’s quantitative analysis fairly identified smaller Class II and Class III railroads as possibly demonstrating inadequate safety performance. Accordingly, FRA conducted a third analysis to test this possibility. In this analysis, FRA compared the number of railroads selected under the NPRM’s proposed quantitative analyses methodology with the number of railroads reporting accidents but no fatalities (the majority of railroads selected using the NPRM methodology were included in part because of their accident rates). As Table 4 shows, the population of all railroads on which a nonfatal train equipment accident/ incident occurred reported an average of 390,091 total train miles and an average of 348,824 employee labor hours between 2016 and 2018. This suggests that the railroads with inadequate safety performance should not only be the smaller railroads. For example, assuming a full-time employee works 2080 hours per year, the railroads selected for qualitative assessment using the NPRM’s methodology averaged 7 employees each, while the railroads experiencing a nonfatal train equipment accident/incident between 2016 and 2018 had an estimated 56 employees on average. Based on this result, FRA shares ASLRRA’s concern that the proposed methodology would overselect the smallest railroads. TABLE 4—COMPARISON OF DATA FOR RAILROADS IDENTIFIED BY THE NPRM’S QUANTITATIVE ANALYSIS (EXCLUDING THOSE WITH AT LEAST ONE FATAL ACCIDENT BETWEEN 2016–2018) AND DATA FOR ALL CLASS II AND CLASS III FREIGHT RAILROADS ON WHICH NONFATAL TRAIN ACCIDENTS/INCIDENTS OCCURRED Number of railroads Class II and Class III railroads, 2016–2018 Railroads selected under the NPRM-proposed method ............................................................. Railroads with nonfatal train accidents/incidents ........................................................................ lotter on DSKBCFDHB2PROD with RULES2 Therefore, as explained below, FRA has changed the quantitative analysis methodology to avoid over-selecting the smallest railroads for the qualitative assessment. Applying the changed methodology to RAIRS data, railroads identified for quantitative assessment on average reported 106,520 train miles VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 operated and 258,881 employee hours from 2016 through 2018. These averages are much closer to the averages for the entire pool of Class II and III freight railroads that the quantitative analysis will initially evaluate. As Figures 4 and 5 show, 10 out of 12 railroads identified for qualitative assessment using the PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 12 204 Average train miles 24,645 390,091 Average employee hours 43,040 348,824 NPRM’s quantitative analysis reported under 50,000 total train miles, but only 4 out of 15 railroads identified using the final rule’s quantitative analysis methodology reported under 50,000 total train miles operated. BILLING CODE 4910–06–P E:\FR\FM\18FER2.SGM 18FER2 9287 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Figure 4. Number of railroads without fatalities identified for further analysis by the NPRM's quantitative analysis by total train miles (2016-2018). 0 ~ ID a, ""Cl (0 "' e -.; ir '<f N 0 0 50 100 150 200 250 300 350 400 450 500 Thousand Train Miles Figure 5. Number ofrailroads without fatalities identified for further analysis by the final rule's quantitative analysis by total train miles (2016-2018). 50 0 100 150 200 250 300 lotter on DSKBCFDHB2PROD with RULES2 BILLING CODE 4910–06–C These numbers suggest that the changed quantitative analysis method is less likely to identify railroads for qualitative analysis that are statistical outliers or aberrations due solely to their small size. FRA discusses the specific changes it has made to the rule text to reflect the new methodology (and other changes) in the section-by-section VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 analysis below. For clarity, FRA is discussing each provision of this important section, even where FRA did not change certain provisions from the NPRM. Paragraph (a) describes FRA’s methodology as a two-phase annual analysis, comprised of both a quantitative analysis and a qualitative assessment. This analysis will not PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 include railroads excluded under § 271.3(b) (e.g., commuter or intercity passenger railroads that are subject to FRA SSP requirements), railroads otherwise required to comply with this rule (i.e., Class I railroads and railroads previously determined to have inadequate safety performance under this section), railroads that voluntarily comply with this rule under proposed E:\FR\FM\18FER2.SGM 18FER2 ER18FE20.049</GPH> ER18FE20.050</GPH> Thousand Train Mites lotter on DSKBCFDHB2PROD with RULES2 9288 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations § 271.15, and new railroads that have reported accident/incident data to FRA for fewer than three years. However, paragraph (a)(2) states FRA will include new railroads formed through an amalgamation of operations (for example, railroads formed through consolidations, mergers, or acquisitions of control) in the analysis using the combined accident/incident data of the pre-amalgamation entities. Paragraph (b) describes the quantitative analysis, which makes a threshold identification of railroads that might have inadequate safety performance. This paragraph includes a preliminary selection FRA has added to the quantitative analysis to both address ASLRRA’s concern that the NPRM’s proposed methodology would overselect the smallest railroads and to filter out railroads with small enough operations that the rate-based analysis would lack statistical stability. This preliminary selection will help avoid over-selecting the smallest railroads by utilizing the absolute number (rather than rates) of two factors regarding a railroad’s safety performance; FRA selected the specific factors in response to comments from the ASLRRA during RSAC discussions. Addition of the preliminary selection resulted in FRA reorganizing several paragraph (b) NPRM provisions. Paragraph (b)(1) specifies the quantitative analysis will be statistically-based and include each railroad within the scope of the analysis using historical safety data FRA maintains for the three most recent full calendar years. The quantitative analysis will include both the added preliminary selection and a rate-based analysis, and only railroads the preliminary selection identifies will proceed to the rate-based analysis. Paragraph (b)(1)(i) describes the preliminary selection FRA has added to the quantitative analysis. The first factor for the preliminary selection, in paragraph (b)(1)(i)(A), is a railroad’s number of worker on duty fatalities during the 3-year period, determined using Worker on Duty—Railroad Employee (Class A), Worker on Duty— Contractor (Class F), and Worker on Duty—Volunteer (Class H) information reported on FRA Form 6180.55 under FRA’s accident/incident reporting regulations in part 225. The second factor for the preliminary selection, in paragraph (b)(1)(i)(B), is a railroad’s number of FRA reportable worker on duty injuries/illnesses during the 3-year period, calculated using ‘‘Worker on Duty—Railroad Employee’’, Worker on Duty—Contractor (Class F), and Worker on Duty—Volunteer (Class H) information reported on FRA Form VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 6180.55 under FRA’s accident/incident reporting regulations in part 225, added to a railroad’s number of FRA reportable rail equipment accidents/incidents during the 3-year period, using information reported on FRA Form 6180.54. For railroads with operations large enough for rates to be statistically stable, FRA believes that using rates enables a fair comparison between operations that might otherwise be very different in size. As paragraph (b)(1) explains, FRA will perform the next rate-based analysis only on railroads the preliminary selection identifies. The rate-based analysis will incorporate three factors regarding a railroad’s safety performance. The first factor, described in paragraph (b)(1)(ii)(A) (proposed paragraph (b)(1)(i) in the NPRM), is a railroad’s number of on-duty employee fatalities during the 3-year period, using Worker on Duty—Railroad Employee (Class A) Worker on Duty—Contractor (Class F), and Worker on Duty— Volunteer (Class H) information reported on FRA Form 6180.55 under FRA’s accident/incident reporting regulations in part 225. The second factor, described in paragraph (b)(1)(ii)(B) (proposed paragraph (b)(1)(ii) in the NPRM), is a railroad’s FRA Worker on Duty injury/ illness rate, calculated using Worker on Duty—Railroad Employee (Class A) Worker on Duty—Contractor (Class F), and Worker on Duty—Volunteer (Class H) information reported on Form 6180.55 under FRA’s accident/incident reporting regulations in part 225. FRA will calculate this rate using the following formula: Injury/Illness Rate = (Total FRA Reportable Worker on Duty Injuries + Total FRA Reportable Worker on Duty Illnesses over a 3-year Period) ÷ (Total Employee Hours over a 3year Period/200,000) This calculation gives the rate of employee injuries and illnesses per 200,000 employee hours calculated over a 3-year period. In the NPRM, the calculation for this factor specified ‘‘Total FRA Reportable On Duty Employee Occupational Illnesses over a 3-year period’’ (emphasis added). FRA is removing the term ‘‘occupational’’ from the calculation in the final rule because part 225 does not always use the term ‘‘occupational illness.’’ For example, Form 6180.55 is titled ‘‘Railroad Injury and Illness Summary.’’ For clarity, FRA is phrasing the requirement in terms of illnesses a railroad must report using Form 6180.55. This change does not affect the substance of this provision. PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 Additionally, while the NPRM proposed also using information reported on Form 6180.55a (which a railroad must file for each reportable injury or illness) for both the first and second factors of the quantitative analysis, FRA decided the summary information reported on Form 6180.55 is sufficient for these calculations. This change also does not affect the substance of this provision. AAR/ASLRRA (jointly) and ASLRRA (independently) commented that fatalities and injuries should only count if they relate to the operation of a railroad (i.e., not natural causes, suicides, etc.). AAR/ASLRRA also commented that few Class III railroads approach the 200,000-person-hour denominator in the employee injuries and occupational illnesses calculation, which can skew results. While FRA generally agrees fatalities that do not relate to railroad operations are not necessarily indicative of inadequate safety performance, the quantitative analysis in paragraph (b) is merely a threshold determination and cannot account for every mitigating circumstance. As such, the qualitative assessment paragraph (c) establishes (discussed below) gives a railroad (and railroad employees) the opportunity to provide any such mitigating information regarding the railroad’s number of fatalities, and FRA will consider that information when making its final determination. Regarding AAR/ ASLRRA’s concern that the 200,000person-hour denominator would skew results for small railroads, although FRA does not agree that a scaling factor alone induces sampling bias, FRA does agree that the results of the quantitative analysis presented in the NPRM did over-select the smallest railroads. FRA therefore added the preliminary selection to the quantitative analysis to avoid over-selecting the smallest railroads, as discussed above. The third factor, described in paragraph (b)(1)(ii)(C) (proposed paragraph (b)(1)(iii) in the NPRM), is a railroad’s FRA reportable rail equipment accident/incident rate, calculated using information reported on FRA Form 6180.54 and Form 6180.55. FRA will calculate this rate using the following formula: Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail Equipment Accidents/Incidents over a 3-year Period ÷ (Total Train Miles over a 3-year Period/ 1,000,000) This calculation gives the rate of rail equipment accidents/incidents per E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations 1,000,000 train miles calculated over a 3-year period. Paragraph (b)(1)(iv) of the NPRM proposed a fourth factor for the ratebased analysis: A railroad’s FRA violation rate, calculated using FRA’s field inspector data system. AAR/ ASLRRA and ASLRRA commented that the proposed violation rate factor was meaningless because many violations relate to records or are dropped by FRA due to mitigating circumstances or failure to adequately document the violation. In response to DOT’s regulatory review initiative, ASLRRA also commented that including violations, which are at an inspector’s discretion, could be utilized to ensure a short line’s inclusion. FRA’s analysis suggests that a very small number of railroads were selected for qualitative assessment because of violation rates, and that removing this factor would likely not materially affect the number of railroads that are determined to have inadequate safety performance. Given the commenters’ concerns and the negligible effect of removing this factor, in this final rule, FRA is not including a railroad’s FRA violation rate as a factor in the rate-based analysis. To the extent a railroad’s FRA violations may indicate inadequate safety performance, FRA will consider them as ‘‘other pertinent information’’ during the qualitative assessment, as discussed below in the section-by-section analysis for paragraph (c)(2) of this section. Paragraph (b)(2)(i) states the preliminary selection will identify a railroad for rate-based analysis if the railroad meets at least one of two conditions. The first condition is when a railroad has one or more fatalities. FRA considers an on duty employee fatality a strong indication of inadequate safety performance. If a railroad has at least one fatality within the 3-year period of the quantitative analysis, FRA will examine that railroad further in the rate-based analysis. The second condition is when a railroad was at or above the 90th percentile in the factor described in paragraph (b)(1)(i)(B) of this section (e.g., the sum of a railroad’s FRA injury/ illness count and its FRA accident/ incident count). For example, if the scope of data includes a set of 100 railroads, FRA would identify the railroads with the ten highest total injury/illness and accident/incident count. For railroads that advance to the ratebased analysis from the preliminary selection, the rate-based analysis will identify railroads as possibly having inadequate safety performance based on the factors described in paragraph VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 (b)(2)(ii). Paragraph (b)(2)(ii) (proposed paragraph (b)(2) in the NPRM) states the rate-based analysis will identify a railroad as possibly having inadequate safety performance if at least one of two conditions is met. The first condition, described in paragraph (b)(2)(ii)(A), is when a railroad has one or more fatalities. As stated above regarding the preliminary selection, FRA considers an on-duty employee fatality a strong indication of inadequate safety performance. If a railroad has at least one fatality within the 3-year period of the quantitative analysis, FRA will examine that railroad further in the qualitative assessment. AAR/ASLRRA commented paragraph (b)(2)(i) in the NPRM stated the quantitative analysis would identify a railroad if the ‘‘railroad has one or more fatalities,’’ without reference to the 3year period. Corresponding paragraph (b)(2)(ii)(A) in the final rule clarifies that the rate-based analysis will identify a railroad if it has one or more fatalities ‘‘as calculated in paragraph (b)(1)(ii)(A).’’ Because paragraph (b)(1)(ii)(A) specifically references the 3year period, the final rule clarifies the 3-year period applies when identifying railroads with one or more fatalities. The second condition, described in paragraph (b)(2)(ii)(B), is when a railroad is at or above the 90th percentile in either of the factors described in paragraphs (b)(1)(ii)(B) and (C) of this section (e.g., a railroad’s injury/illness rate, or FRA accident/ incident rate). FRA will examine further those railroads identified in one or more of these factors in the qualitative assessment. Paragraph (b)(2)(ii) in the NPRM proposed that the quantitative analysis would identify for further analysis railroads at the 95th percentile in at least two of three factors. (The third factor was a railroad’s FRA violation rate, which FRA has removed from the rate-based analysis as discussed above.) The NPRM explained that this percentile would identify approximately 42 railroads over a fiveyear period, and that FRA considered this a reasonable pool of railroads to examine further in the qualitative assessment. See 80 FR 10967 (Feb. 2015). While FRA still believes this is a reasonable number of railroads to examine in the qualitative analysis, the addition of the preliminary selection to the ISP determination process will reduce the number of railroads considered in the rated-based analysis. The removal of a railroad’s FRA violation rate from consideration will also reduce the number of factors considered when identifying railroads for the qualitative assessment. To obtain PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 9289 a similar pool of railroads for the qualitative analysis under the final rule, FRA has therefore changed the second condition of the rate-based analysis to the 90th percentile of railroads in either of the two remaining factors. Preliminary analyses estimate FRA’s approach will identify approximately 40–45 railroads over a five-year period,18 which is consistent with FRA’s position in the NPRM that 43 potential railroads are a reasonable pool to examine further in the qualitative analysis. AAR/ASLRRA commented that when FRA determines whether it should subject a railroad to a qualitative analysis, the two conditions should be causally-related, and not two completely unrelated measurements. Specifically, AAR/ASLRRA commented that the conditions related to employee casualties and reportable accident/ incident data should be related to railroad operations. Issues regarding causation, however, will be part of the qualitative analysis. FRA has therefore not made any changes in response to this comment. An individual commented supporting a previous individual comment submitted in response to the ANPRM, asserting a ‘‘key metric for deciding if a non-Class I railroad has an ‘inadequate safety record’ . . . should be whether it transports the most dangerous hazmat cargoes through urban areas or sensitive environmental areas.’’ The New Jersey Work Environment Council’s comment shared this concern. FRA does not believe that simply transporting dangerous hazardous materials through urban or sensitive environmental areas is a valid metric for determining whether a railroad has inadequate safety performance. Such operations only indicate a railroad’s specific hazards and risks, and do not indicate whether a railroad is safely performing such operations. FRA’s quantitative analysis will identify such railroads, however, if they have a worker on-duty fatality or a high number and rate of FRA reportable accidents/incidents, FRA reportable illnesses/injuries, and FRA violations (as calculated by the rule’s methodology). Once the quantitative analysis identifies such a railroad, FRA can review factors such as the shipment of dangerous hazardous materials through urban or sensitive environmental areas as part of the qualitative analysis. For example, FRA has data regarding shippers of 18 FRA’s analysis estimated that approximately eight to nine railroads would be identified each year. E:\FR\FM\18FER2.SGM 18FER2 9290 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations hazardous materials, commodity flows, and other GIS-related data that can be considered in the qualitative analysis. Additionally, the HHFT Final Rule establishes requirements regarding the routing of certain hazardous materials. FRA therefore concludes this final rule should not consider imposing an additional regulatory requirement upon railroads simply based on whether a railroad transports dangerous hazardous materials through urban or sensitive environmental areas. To summarize, the below flow chart illustrates how the quantitative analysis will identify railroads for the qualitative assessment. Paragraph (c) describes FRA’s qualitative assessment of railroads the quantitative analysis identifies as possibly having inadequate safety performance. FRA made several nonsubstantive changes in this paragraph to replace passive voice with active voice. During the qualitative assessment, FRA will consider documentation from the railroad, comments from the railroad’s employees, and any other pertinent information. This input will help FRA determine whether the quantitative analysis accurately identified a problem with the railroad’s safety performance. Essentially, the qualitative assessment serves as a safety valve that helps FRA VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 avoid determining a railroad demonstrates ISP merely because of one or more statistical outliers in FRA’s data. Paragraph (c)(1) states FRA will provide initial written notification to railroads identified in the threshold quantitative analysis as possibly having inadequate safety performance. Paragraph (c)(1)(i) further specifies that a notified railroad must inform its employees of FRA’s notice within 15 days of receiving notification. A railroad must post this employee notification at all locations where a railroad reasonably expects its employees to report for work and have an opportunity to observe the PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 notice. The railroad must continuously display the notice until 45 days following FRA’s initial notice. A railroad must use other means to notify employees who do not have a regular on duty point to report for work, consistent with the railroad’s standard practice for communicating with employees. Such a notification could take place by email, for example. The notification must inform employees that they may submit confidential comments to FRA regarding the railroad’s safety performance, and must contain instructions for doing so. Any such employee comments must be submitted within 45 days of FRA’s initial notice. FRA changed this E:\FR\FM\18FER2.SGM 18FER2 ER18FE20.051</GPH> lotter on DSKBCFDHB2PROD with RULES2 Q.Liantltative Analysis pf E~ch Railroad St1bject to lriclus.ion in Annu~I Assessment lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations paragraph from the NPRM to add additional language specifying the railroad must also inform employees they must file any comments with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. Likewise, paragraph (c)(1)(ii) provides railroads 45 days from FRA’s initial notice to provide FRA documentation supporting any claim the railroad does not have inadequate safety performance. For example, if a fatality on railroad property was determined to be due to natural causes (such as cardiac arrest), or if an accident/incident was due to an act of God, the railroad’s chief safety officer could provide a signed letter attesting to the facts and explaining why FRA should not find the railroad has inadequate safety performance. A railroad could also submit information regarding any extenuating circumstances of an incident or the severity of an injury (for example, a bee sting may not be as serious a safety concern as a broken bone, depending on the circumstances), or evidence that the railroad has already taken steps that effectively address a problem that led to the railroad being identified as possibly demonstrating inadequate safety performance. Further, although FRA has removed a railroad’s FRA violation rate from the rated-based analysis, FRA may consider violations during the qualitative assessment (see below discussion of paragraph (c)(2)). FRA therefore still encourages a railroad to submit information regarding its FRA violations for consideration during the qualitative assessment. For example, FRA will consider explanations regarding FRA-issued violations and any mitigating action the railroad has taken to remedy the violations. FRA adopts this provision unchanged from the NPRM. Paragraph (c)(2) describes the qualitative assessment of railroads the quantitative analysis identified. During the qualitative assessment, FRA will consider information a railroad or its employees provide under paragraph (c)(1) of this section and any other pertinent information. Even though FRA is removing a railroad’s FRA violation rate from consideration in the quantitative analysis in response to concerns from AAR and ASLRRA (as discussed above), FRA does not agree with AAR and ASLRRA’s contention that violations are ‘‘meaningless’’ when determining whether a railroad has inadequate safety performance. For example, frequent or severe violations of safety regulations can be an important indicator of a railroad’s overall safety VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 culture. This could be especially true in situations where FRA has issued the violations only after other attempts to correct the railroad’s repeated noncompliance (e.g., by issuing notices of defects or other written or verbal notices of non-compliance) have failed. Similarly, FRA also issues violations for one-time instances of non-compliance that are particularly egregious from a railroad safety perspective (e.g., interference with a grade crossing system that results in an activation failure). In determining whether a railroad demonstrates inadequate safety performance, FRA considers it essential to consider violations to the extent they indicate either a poor safety culture or a one-time instance of non-compliance that is egregious or critical to safety. FRA is therefore adding language to paragraph (c)(2) clarifying that FRA may consider violations during the qualitative assessment. FRA may communicate with the railroad during the qualitative assessment to clarify its understanding of any information the railroad submitted. Based upon the qualitative assessment, FRA will make a final determination regarding whether a railroad has inadequate safety performance no later than 90 days following FRA’s initial notice to the railroad. Except for the added language regarding violations, FRA adopts this provision unchanged from the NPRM. Paragraph (d) states FRA will provide a final notification to each railroad given an initial notification under paragraph (c) of this section, informing the railroad whether FRA has found it has inadequate safety performance. FRA has made a minor, non-substantive change to the NPRM’s language to make the first sentence of this paragraph easier to read. Additionally, proposed paragraph (d) contained language addressing ISP railroad compliance, which FRA has moved to paragraph (e) of this section for organizational purposes. Consequently, there are nonsubstantive organizational changes to paragraph (e). Paragraph (e)(1) contains language from proposed paragraph (d) of the NPRM, stating that an ISP railroad must develop and implement an RRP meeting the requirements of this rule and must submit an RRP plan meeting the filing and timing requirements of § 271.301. FRA has made minor changes to this language to streamline its content and avoid needlessly repeating the requirements of § 271.301. These changes do not affect the substance of the requirement. Paragraph (e)(2) contains language from proposed paragraph (e) and states PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 9291 a railroad with inadequate safety performance must comply with the requirements of this rule for at least five years from the date FRA approves the railroad’s RRP plan. FRA has made minor, non-substantive changes to streamline this language. As the NPRM explained, a five-year compliance period provides the minimum time necessary for an RRP to improve a railroad’s safety performance. See 80 FR 10968 (Feb. 27, 2015). FRA expects a railroad with inadequate safety performance will take 36 months (3 years) following FRA plan approval to fully implement its RRP under § 271.225(a).19 FRA does not expect an RRP, in itself, to improve a railroad’s safety performance during this threeyear implementation period, as a railroad will need this time to conduct a risk-based hazard analysis, prioritize risks, and develop mitigation strategies. A railroad will then begin applying mitigation strategies when it fully implements its RRP after three years. Once a railroad fully implements its RRP and begins applying mitigation strategies, the RRP will have at least two years to improve the railroad’s safety performance by implementing mitigation measures and tracking their success. FRA bases this belief on an evaluation of an FRA Confidential Close Call Reporting System (C3RS) demonstration site showing that C3RS generated safety improvements two-anda-half years after the railroad implemented the program.20 See Ranney, J. and Raslear, T., ‘‘Derailments decrease at a C3RS site at midterm,’’ FRA Research Results: RR12–04, April 2012, available at https:// www.fra.dot.gov/eLib/details/L03582. The five-year compliance period therefore gives a railroad three years to fully implement its RRP and two years for a fully-implemented RRP to generate safety improvements. The two-year period after full implementation also provides FRA at least one opportunity 19 FRA considered requiring a railroad with inadequate safety performance to comply with this rule for two years after submitting a notice to FRA demonstrating it had fully implemented its RRP. FRA concludes, however, that such a notice would impose an additional paperwork and cost burden on both the railroad and FRA. Rather, FRA believes most railroads will take three years to fully implement an RRP as § 271.225(a) allows. 20 Specifically, the evaluation found the following safety improvements at the C3RS demonstration site: (1) A 31-percent increase in the number of cars moved between incidents; (2) improved labormanagement relations and employee engagement (i.e., an improved safety culture); and (3) a reduction in discipline cases. See Ranney, J. and Raslear, T., ‘‘Derailments decrease at a C3RS site at midterm,’’ FRA Research Results: RR12–04, April 2012, available at https://www.fra.dot.gov/eLib/ details/L03582. E:\FR\FM\18FER2.SGM 18FER2 9292 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 to conduct an external audit of the railroad’s fully-implemented RRP and to provide the railroad written results. FRA concludes, therefore, that the fiveyear compliance period is necessary to determine whether a railroad’s fullyimplemented RRP is generating safety improvements that are sustainable. FRA adopts this paragraph unchanged from the NPRM. FRA is adding language in paragraph (f) establishing an appeals process for railroads that FRA determines demonstrate inadequate safety performance. AAR/ASLRRA commented urging FRA to establish an appeals process for railroads that the proposed methodology identifies as having inadequate safety performance. AAR/ASLRRA noted that other FRA regulations include such a process (e.g., part 240—Qualification and Certification of Locomotive Engineers and part 242—Qualification and Certification of Conductors), and FRA has acknowledged such processes are fair and successful. AAR/ASLRRA specifically suggested that the process should ‘‘allow neutral persons to review and provide a determination, which would enhance objectivity.’’ AAR/ ASLRRA did not provide a specific suggestion indicating who should be the ‘‘neutral persons.’’ FRA agrees including an appeals process for railroads determined to have inadequate safety performance would be fair. FRA therefore changed § 271.13 to add a process allowing railroads to petition the FRA Administrator for reconsideration of inadequate safety performance determinations under 49 CFR 211.7(b)(1), 211.56, and 211.59, which are procedures to appeal various FRA actions to the Administrator (e.g., Railroad Safety Board decisions regarding petitions for waiver of safety rules under 49 CFR part 211, subpart C). These procedures are well-established and should be familiar to the railroad industry. Providing a direct appeal to the Administrator is appropriate because FRA will have already created a record of the inadequate safety performance determination as part of the quantitative and qualitative analysis. This record will also include comments and documentation railroads and railroad employees have submitted to FRA as part of the qualitative assessment.21 21 Because AAR/ASLRRA’s comment specifically referenced the appeals processes of parts 240 and 242 (which govern locomotive engineer and conductor certification), FRA notes that the record created during the inadequate safety performance analysis parallels the record created during an administrative hearing under §§ 240.409 and 242.509. FRA does not believe it is necessary to VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 After reviewing the record, the Administrator may either affirm, modify, or revoke the determination. Using existing procedures for appealing inadequate safety performance determinations reduces both uncertainty and unnecessary duplication. Paragraph (f)(1) states that a railroad wishing to appeal a final written ISP determination must file a petition for reconsideration with the Administrator. Paragraph (f)(1)(A) states a railroad must file the petition no later than 30 days after the date the railroad receives FRA’s final written notice under paragraph (d) of this section, and paragraph (f)(1)(B) states a railroad must comply with the procedures in §§ 211.7(b)(1) and 211.57. Paragraph (f)(2) states FRA will process petitions under § 211.59. Because FRA is including an appeals process in paragraph (f) of the final rule, FRA has moved proposed paragraph (f) from the NPRM to paragraph (g) in this final rule. At the end of the five-year period, paragraph (g) provides that the railroad may petition FRA for approval to discontinue compliance with this rule, and FRA will process the petition using the procedures for waivers in 49 CFR 211.41. While the NPRM merely referenced the waiver provisions of part 211 in general, FRA is specifying § 211.41 in the final rule to clarify that the railroad must follow the procedures for waivers of safety rules (and not other petition processes in part 211, such as petitioning for a rulemaking in § 211.11). Further, while the NPRM did not specify how FRA would process the petition, FRA also changed this language to clarify that FRA will process the petition under § 211.41. As a result, FRA also removed language in the NPRM stating that FRA will notify a railroad in writing whether or not the railroad must continue compliance with the rule. This language is unnecessary because § 211.41 contains provisions regarding what notification FRA must provide a railroad. Upon receiving a petition, FRA will evaluate the railroad’s safety performance to determine whether the railroad’s RRP has resulted in significant safety improvements, and whether these measured improvements are likely to be sustainable in the long term. FRA’s establish a board similar to the Operating Crew Review Board (OCRB) to review these determinations before an appeal to the Administrator, as the OCRB only reviews railroad certification decisions under parts 240 and 242 and does not act in a fact-finding capacity. Unlike with locomotive engineer and conductor certification proceedings, there will be no railroad determination in the RRP context for such a board to review. FRA also believes incorporating too many layers of appeal would unduly slow down the inadequate safety performance determination process. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 evaluation will include a quantitative analysis as described in paragraph (b). FRA has added language to this paragraph clarifying that FRA will not automatically grant a petition to discontinue compliance if the quantitative analysis results do not meet the identification thresholds described for moving on to the qualitative analysis (although FRA would certainly consider such results). For all petitions, FRA will also examine qualitative factors and review information from FRA RRP audits and other relevant sources. This approach ensures that a railroad is not granted permission to discontinue compliance when its safety record has not substantively improved, but, rather, the rest of the railroad industry has become statistically less safe, thereby making the ISP railroad appear only comparatively safer. In such a scenario, FRA believes it will be appropriate to effectively increase the pool of ISP railroads by requiring continued compliance for ISP railroads that have not substantively improved their safety performance. While ASLRRA commented in response to DOT’s regulatory review initiative that there was no performance benchmark for removal from mandatory ISP compliance, FRA believes that this approach—combining a new ISP analysis with an evaluation of whether the ISP railroad’s RRP has generated long-term, sustainable safety benefits— provides a sufficient benchmark for judging whether an ISP railroad must continue RRP compliance. Analysis of the railroad’s safety performance to decide whether FRA should grant its petition will depend on the unique characteristics of the railroad and its RRP. Therefore, it is not possible to enumerate the types of data FRA will examine to evaluate a petition to discontinue compliance. In general, FRA will look at information it needs to determine whether there are real and lasting changes to the operational safety and organizational safety culture. The Safety Board will use staff recommendations and other information it deems necessary to make a final determination about whether granting a petition is in the interest of public safety. After completing the evaluation, FRA will notify the railroad in writing whether it will be required to continue compliance with this part. FRA will encourage a railroad to continue its RRP voluntarily even if FRA grants its petition to discontinue compliance with this part. If a railroad decides to continue its RRP after FRA grants its petition to discontinue compliance, FRA will consider the railroad a E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 voluntarily-compliant railroad under § 271.15. This will continue application of § 271.11 to protect information the railroad continues to compile or collect under its voluntary RRP from discovery and admission as evidence in litigation. If a railroad decides not to continue with a voluntarily-compliant RRP meeting the requirements of this part, information it compiled or collected under the RRP will remain protected under § 271.11. However, § 271.11 will not protect any new information compiled or collected after the railroad discontinues its RRP. Section 271.15—Voluntary Compliance The RSIA provides that railroads not required to establish a railroad safety risk reduction program may nevertheless voluntarily submit for FRA approval a plan meeting the requirements of the statute. See 49 U.S.C. 20156(a)(4). Section 271.15(a) implements this language by permitting a railroad not otherwise subject to the rule to voluntarily comply by establishing and fully implementing an RRP that meets the requirements of the rule. While this paragraph in the NPRM said a voluntarily-compliant railroad ‘‘could be subject to civil penalties for failing to comply with the requirements of this part,’’ FRA is rephrasing this sentence and changing ‘‘could’’ to ‘‘is’’ in the final rule to make this language consistent with other provisions in FRA regulations discussing civil penalties (See e.g., § 271.9 of this final rule). This change does not affect the substance of this paragraph. Because FRA otherwise adopts paragraph (a) unchanged from the NPRM, FRA is not repeating the NPRM’s section-by-section analysis here but refers interested readers to the NPRM’s discussion. See 80 FR 10969 (Feb. 27, 2015). Paragraph (b) specifies that a voluntarily-compliant railroad must comply with this rule’s requirements for a minimum period of five years, running from the date on which FRA approves the railroad’s RRP plan. As with ISP railroads, the rule therefore provides a voluntarily-compliant railroad three years to fully implement an RRP under § 271.225(a) and two years following full implementation to realize RRPrelated safety improvements. Further, as the NPRM and the above section-bysection analysis for § 271.13(e)(2) explain, a five-year period provides the minimum amount of time necessary for an RRP to have a substantive effect on a railroad’s safety performance. See 80 FR 10969 (Feb. 27, 2015). AAR/ASLRRA and ASLRRA both commented that a five-year compliance period was unnecessary and that FRA VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 should require railroads to voluntarily comply only for two years, asserting small railroads can make changes quickly and efficiently. As explained above, a minimum five-year compliance period appropriately provides a voluntarily-compliant railroad three years to fully implement its RRP and two years following full implementation to realize safety improvements. Further, because there is a wide range of size among Class II and Class III railroads, FRA does not believe all voluntarily compliant railroads will be able to establish an RRP and achieve safety improvements in two years.22 An RRP is also an ongoing commitment to safety, not a program a railroad temporarily implements to address a specific problem and then abandons once the problem is fixed. Such an approach would make RRP another reactive program, instead of a proactive approach to improving railroad safety. Moreover, a railroad that volunteers to comply with the RRP rule, knowing such compliance must last five years, is making an important demonstration of that safety commitment. If a voluntarily-compliant railroad concludes that an RRP has either achieved the railroad’s safety goals or is not producing safety benefits before the end of the five-year compliance period, the railroad could petition FRA for a waiver from this rule’s requirements under part 211, subpart C’s procedures for requesting waivers of safety rules. The five-year compliance period also helps prevent situations in which a railroad will voluntarily comply for a few months or years only to selectively take advantage of this rule’s information protections, abandoning the program once the railroad has achieved its information protection goals. If a railroad wishes to have this rule’s information protection benefits, the railroad should earnestly commit to complying for a minimum of five years, which gives the railroad three years to fully implement its RRP and two years to realize safety improvements following full implementation. Finally, FRA will expend agency time and resources in approving a voluntarily-compliant railroad’s RRP plan and auditing the railroad’s RRP. In return, FRA expects a voluntarilycompliant railroad to commit to complying with this rule for five years. Otherwise, FRA could expend agency 22 FRA also notes that the STB classifies railroads based on revenue, not system size or complexity. See 49 CFR 1201.1–1. Further, revenue alone may not be an adequate indicator of how quickly a railroad could implement an RRP. PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 9293 resources for limited or even nonexistent safety benefits. Conversely, Labor Organizations I argued that FRA should require voluntarily-compliant railroads to comply with the rule permanently. A permanent compliance approach, however, could disincentivize voluntary compliance to the extent that no (or very few) railroads would ever volunteer. FRA therefore declines to require permanent, voluntary compliance. The NPRM also requested public comment on whether FRA should allow railroads to voluntarily comply with an SSP final rule instead of an RRP final rule. No commenters responded to FRA’s questions, and FRA is not including a voluntary SSP compliance provision in this final rule. FRA concludes that any such provision would properly belong in the SSP rule, not the RRP rule. Paragraph (c) in the NPRM proposed that a voluntarily-compliant railroad could petition FRA to discontinue compliance with the rule after the minimum five-year compliance period. ASLRRA commented that the requirement to comply should terminate automatically, unless FRA determines otherwise. After reassessing proposed paragraph (c), FRA is concerned that the proposed approach would disincentivize voluntary compliance by making it more difficult for a voluntarily-compliant railroad to leave the program once it joins. Paragraph (c) of the final rule therefore provides that a voluntarily-compliant railroad may discontinue mandatory compliance with this rule after the five-year period by providing written notice to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer. This approach will not negatively impact safety, because FRA will add the former voluntarily-compliant railroad to the pool of railroads FRA annually analyzes for inadequate safety performance. Some inefficiencies may occur if a former voluntarily-compliant railroad dismantles its RRP, but then must recreate the program if FRA determines that the railroad demonstrates inadequate safety performance. However, this scenario is unlikely for several reasons. First, the rule’s information protections will be an incentive for a railroad to continue compliance, as the protections will not apply to information that a railroad compiles or collects for non-RRP purposes. This incentive will lower the number of voluntarily-compliant railroads that decide to discontinue mandatory compliance. Second, a voluntarily-compliant railroad will not discontinue compliance if it reasonably E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9294 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations believes FRA will thereafter determine that the railroad demonstrates inadequate safety performance because, if FRA then found the railroad had inadequate safety performance, the railroad could discontinue compliance only if FRA granted its petition to discontinue under § 271.13(g). Finally, FRA believes many voluntarilycompliant railroads will comply indefinitely with the RRP rule because they will realize the safety benefits an RRP generates. Once a voluntarilycompliant railroad implements an RRP and begins to realize its safety benefits, it is unlikely the railroad would dismantle its program. Paragraph (d) provides that the information protection provisions of § 271.11 apply to information a voluntarily-compliant railroad compiles or collects under a voluntarilycompliant RRP meeting the requirements of this rule. As discussed in the section-by-section analysis for § 271.11, voluntary risk reduction programs (for example, programs generated as part of a Short Line Safety Institute) must fully comply with this rule for the information generated to be protected from discovery and use as evidence in litigation. FRA changed this provision from the NPRM to include a reference to § 271.301(b)(4)(ii), discussed further below, which provides that the § 271.11 information protections will apply to a voluntarilycompliant railroad starting on the day the railroad notifies FRA it intends to file an RRP plan for review and approval. FRA also modified this provision by removing the word ‘‘only,’’ which could have implied that § 271.11 applied only to voluntarily-compliant railroads. ASLRRA generally commented that ‘‘FRA has proposed requirements designed to limit the number of railroads that comply voluntarily. The ASLRRA submits that any requirement to limit the number of small railroads that comply voluntarily is antithetical to the letter and spirit of the RSIA.’’ ASLRRA’s comment is unclear to FRA, as FRA does not believe § 271.15 establishes requirements to limit the number of railroads that comply voluntarily. To the extent ASLRRA’s comment means the five-year compliance period would disincentivize voluntary participation, FRA refers to the above discussion of why FRA believes this compliance period is necessary. FRA also believes that this rule’s information protections provide a reasonable incentive for voluntarilycompliant railroads, even with the fiveyear compliance period. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Subpart B—Risk Reduction Program Requirements Subpart B contains the basic RRP elements the rule requires. The rule provides a railroad significant flexibility in developing and implementing an RRP. Section 271.101—Risk Reduction Programs Section 271.101 contains general RRP requirements. Paragraph (a) requires railroads to establish and fully implement an RRP meeting the requirements of this rule. Except for the minor changes discussed below, FRA adopts paragraph (a) unchanged from the NPRM. FRA therefore refers interested readers to the NPRM’s discussion. See 80 FR 10969 (Feb. 27, 2015). As proposed in the NPRM, the third sentence of paragraph (a) stated, ‘‘An RRP is not a one-time exercise, but an ongoing program that supports continuous safety improvement.’’ FRA has removed the phrase ‘‘not a one-time exercise, but’’ in the final rule, so the sentence now reads, ‘‘An RRP is an ongoing program that supports continuous safety improvement.’’ This change does not affect the substantive meaning of the sentence (which is to indicate the ongoing nature of an RRP) and was made solely to streamline the regulatory language. FRA also changed paragraph (a) to include a sentence clarifying that a railroad must design its RRP to promote and support a positive safety culture at the railroad. Although the NPRM did not propose this specific language, FRA believes promoting a positive safety culture is intrinsic to SMS programs like RRP, and improving a railroad’s safety culture was extensively discussed in the NPRM. See id. at 10952, 10953, 10968, 10971, and 10973. A railroad must also identify and analyze its safety culture under § 271.105(a), describe its safety philosophy and safety culture under § 271.203(b)(1), and describe how it promotes improvements to its safety culture under § 271.203(b)(2). The added language reflects that an important component of an RRP is an improved safety culture. Further, the SSP NPRM proposed identical language, which is included in the SSP rule, and FRA is including this language in paragraph (a) to promote consistency between the two rules. See 77 FR 55403 (Sept. 7, 2012) and 81 FR 53878, 53897 (Aug. 12, 2016). FRA inadvertently omitted including this language in the RRP NPRM. Paragraphs (a)(1) through (5) list necessary components that an RRP must PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 contain, including: (1) A risk-based hazard management program (described in § 271.103); (2) a safety performance evaluation component (described in § 271.105); (3) a safety outreach component (described in § 271.107); (4) a technology analysis and technology implementation plan (described in § 271.109); and (5) RRP implementation and support training (described in § 271.111). FRA adopts these paragraphs unchanged from the NPRM. Paragraph (a)(6) references a component the NPRM did not specifically include: Involvement of railroad employees in the establishment and implementation of an RRP under § 271.113. The section-by-section analysis for § 271.113 discusses the substance of this additional component in detail. Paragraph (b) requires a railroad to support its RRP with an FRA-approved RRP plan meeting subpart C requirements. FRA adopts paragraph (b) unchanged from the NPRM. Proposed paragraph (c) of the NPRM addressed railroads subject to the RRP rule that host passenger train service for passenger railroads subject to the requirements of the SSP rule. Under § 270.103(a)(2) of the SSP rule, a passenger railroad must communicate with each host railroad to coordinate the portions of its SSP plan applicable to the host railroad. See 81 FR 53897 (Aug. 12, 2016). Paragraph (c) of the NPRM proposed requiring a host railroad, as part of its RRP, to participate in this communication and coordination with the passenger railroad. APTA commented that proposed paragraph (c) ‘‘aspires to communication and cooperation, but provides no framework for accomplishing either and no standard by which to measure either.’’ FRA does not agree that this provision requires additional framework or standards. Because no two arrangements between a passenger railroad and a host railroad will be the same, a passenger railroad and host railroad should have the flexibility to communicate and cooperate in the manner best suited to their particular operations. However, FRA made minor changes to proposed paragraph (c) for clarity. FRA also designated proposed paragraph (c) as paragraph (c)(1). FRA does not intend these changes to affect the substance of the provision. In response to DOT’s regulatory review initiative, VRE commented expressing concern that it may be subject to enforcement action if, despite attempting in good faith to communicate with its host railroads (which include CSX Transportation, E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Norfolk Southern Corporation, and Amtrak) as the SSP rule requires, its host railroads did not cooperate in producing data or other information necessary for VRE’s SSP. See DOT– OST–2017–0069–2405. Paragraph (c) addresses VRE’s concern, as it specifically requires an RRP railroad to communicate and coordinate with a tenant SSP railroad as required by the SSP final rule. A host RRP railroad that does not participate in this communication and coordination could then be subject to FRA enforcement action under the RRP final rule. FRA also added a paragraph (c)(2) to the final rule, requiring a host railroad to incorporate its communication and coordination with the SSP railroad into its own RRP. This language ensures a railroad’s SSP communication is not completely isolated from the railroad’s own RRP. Because RRP and SSP are systemic programs intended to promote analysis and proactive mitigation measures, communication and coordination between a railroad’s RRP and SSP activities will improve railroad safety. In paragraph (d) of the NPRM, FRA proposed requiring a railroad to ensure persons utilizing or performing a significant safety-related service on its behalf support and participate in the railroad’s RRP. The NPRM identified such persons as host railroads, contract operators, shared track/corridor operators, or other contractors. AAR/ ASLRRA commented that the term ‘‘utilize’’ could mean anyone interested in railroad safety, including passengers and the general public. Although AAR/ ASLRRA indicated they were not concerned with the substance of the provision, they recommended that FRA remove the term ‘‘utilize.’’ FRA agrees with AAR/ASLRRA that paragraph (d) should not be interpreted to require a railroad to ensure passengers or the general public support and participate in the railroad’s RRP as persons ‘‘utilizing’’ significant safetyrelated services. FRA’s intent was to address persons who utilize a railroad’s significant safety-related services on a routine or systemic basis to conduct railroad operations, such as a passenger railroad that operates over an RRP railroad’s track and utilizes its dispatching service. FRA has, therefore, changed the language of this provision to clarify its requirements and reflect FRA’s original intent. Paragraph (d) of the final rule first references § 271.205(a)(3), which requires a railroad’s RRP plan to identify persons that enter into a contractual relationship with the railroad to either perform significant safety-related services on the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 railroad’s behalf or to utilize significant safety-related services the railroad provides for railroad operations purposes. The changed language then clarifies the term ‘‘utilize’’ in two ways. First, the relationship between the railroad and the person utilizing its significant safety-related services must be contractual. This language ensures there is a formalized agreement between the railroad and the person regarding the significant safety-related service. With the formalized agreement, the duties of the contractor will be clear and, therefore, the extent to which they are performing or utilizing significant safety-related services of the railroad will be clear as well. This language clarifies that this section does not require a railroad to ensure the general public (or any other entity with only an interest in the safe operation of a railroad as a matter of due course (for example, schools or residents located near an RRP railroad’s track)) supports and participates in the railroad’s RRP. Second, the final rule’s language clarifies that the person must be utilizing the railroad’s significant safetyrelated services to conduct railroad operations. For example, if a railroad contracts with a company to perform bridge maintenance, that company provides a significant safety-related service to the railroad on behalf of the railroad. If during the bridge maintenance the company uses the railroad’s roadway worker protection, that company is then also utilizing a significant safety-related service (roadway worker protection) provided by the railroad. A railroad does not have to identify persons providing or utilizing significant safety-related services for purposes unrelated to railroad operations, such as railroad passengers or motor vehicle drivers who benefit from a highway-rail grade crossing warning system. The SSP final rule contains similar language in § 270.103(d)(2). See 81 FR 53897 (Aug. 12, 2016). FRA also added language clarifying that a railroad must identify such a person even if the person is not otherwise required to comply with this rule (for example, a tourist railroad that operates over an RRP railroad’s track). The final sentence of paragraph (d) is also essentially the same as the NPRM, and requires a railroad to ensure the identified persons support and participate in the railroad’s RRP. Section 271.103—Risk-Based Hazard Management Program Except for changing a reference to § 271.301(b) in the proposed rule to § 271.301(d) to account for PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 9295 organizational changes in § 271.301, FRA adopts this section, which contains the requirements for each risk-based hazard management program (HMP), unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10970– 10971 (Feb. 27, 2015). FRA is, however, discussing comments it received in response to the proposed requirements of this section, although FRA is not making changes in response. AAR/ASLRRA commented on proposed paragraph (b). As proposed under paragraph (b), a railroad must conduct a risk-based hazard analysis as part of its risk-based HMP and specified that, at a minimum, a risk-based hazard analysis must address the following components of a railroad’s system: Infrastructure; equipment; employee levels and work schedules; operating rules and practices; management structure; employee training; and other areas impacting railroad safety that are not covered by railroad safety laws or regulations or other Federal laws or regulations. AAR/ASLRRA commented that FRA should omit the reference to employee levels and work schedules because FRA carved fatigue management plans out for treatment in the separate FMP rulemaking. Thus, they conclude this language is not appropriate and should be removed. FRA disagrees with AAR/ASLRRA because the language ‘‘employee levels and work schedules’’ may encompass issues unrelated to fatigue the FMP rulemaking will not address. For example, whether a railroad has a sufficient number of track inspectors for a certain territory may involve a question of employee levels, but not necessarily fatigue. As proposed under paragraph (c) of the NPRM, a railroad must design and implement mitigation strategies that improve safety as part of its risk-based HMP, although the NPRM also clarified it was not defining a level or risk that railroad’s risk-based HMP must target. See 80 FR 10971 (Feb. 27, 2015). FRA observed, however, that FRA’s Passenger Equipment Safety Standards require passenger railroads, when procuring new passenger cars and locomotives, to ensure fire considerations and features in the equipment design reduce the risk of personal injury caused by fire to an acceptable level using a formal safety methodology such as MIL–STD–882. See 80 FR 10971 (Feb. 27, 2015) (citing 49 CFR 238.103(c)). FRA also noted passenger railroads operating Tier II passenger equipment must eliminate or E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9296 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations reduce risks posed by identified hazards to an acceptable level. See Id. (citing 49 CFR 238.603(a)(3)). FRA specifically requested comment on whether a final RRP rule should define levels of risks a railroad’s risk-based HMP must target. Id. Only AAR/ASLRRA commented in response, urging FRA not to define levels of risk railroads should target.23 In support, AAR/ASLRRA distinguished the two part 238 provisions FRA cited from the proposed RRP rule, observing that the part 238 provisions involve risks associated with equipment design or operation, not risks associated with an entire railroad system. AAR/ASLRRA therefore observed it is not clear how the level of railroad-wide risk could be determined, given the number of component hazards and risks involved. AAR/ASLRRA also noted the cited part 238 provisions require reduction of risk to an acceptable level and refer to the methodology in MIL–STD–882, which requires reduction of risk to the lowest acceptable level within the constraints of cost, schedule, and performance, arguing these provisions themselves do not define acceptable or unacceptable levels of risk, but rather exhort actors to reduce risk to the lowest acceptable level, all things considered. AAR/ ASLRRA assert that any additional requirement defining risk levels or resembling MIL–STD–882 would only add process, not substance. Having considered these comments, FRA clarifies that neither § 271.103 nor any other section in this final rule defines a level of risk a railroad should target. An individual also commented generally that an RRP final rule should require fitness-for-duty standards and railroads must do more to monitor and prevent human performance lapses leading to train collisions and derailments. The individual suggested that instead of using inward-facing cameras to monitor and enforce rules, railroads should utilize inward-facing cameras with facial monitoring software to apply train brakes when operating personnel are falling asleep or otherwise inattentive. FRA declines to incorporate these suggestions because they address specific mitigations measures for specific railroad safety risks, and therefore are inappropriate for the process-oriented, performance-based nature of this final rule. 23 AAR/ASLRRA’s comment indicated that they were responding to proposed § 271.103(e). Because the NPRM did not contain a § 271.103(e), however, FRA assumes that AAR/ASLRRA’s comment was in response to proposed paragraph (c) and FRA’s solicitation of public comment. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Section 271.105—Safety Performance Evaluation This section contains requirements for safety performance evaluations. Safety performance evaluation is a necessary part of a railroad’s RRP because it determines whether the RRP is effectively reducing risk. It also monitors the railroad’s system to identify emerging or new risks. The following are examples of changes to a railroad’s system that may constitute a new or emerging risk: (1) A change in operating rules; (2) implementation of new technology, or (3) a reduction in crew staffing levels. Safety performance evaluation is essential for ensuring that a railroad’s RRP is an ongoing process, and not merely a one-time exercise. Except for paragraph (a) and a minor editorial change in paragraph (c), discussed below, FRA adopts this section unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule and refers interested readers to the NPRM’s discussion. See 80 FR 10971 (Feb. 27, 2015). FRA also discusses comments it received in response to proposed paragraph (b)(5), but makes no changes based on those comments. In addition to requiring a railroad to develop and maintain ongoing processes and systems for evaluating the safety performance of the railroad’s system, paragraph (a) in the NPRM proposed requiring a railroad to develop and maintain processes and systems for measuring its safety culture. AAR/ ASLRRA commented in response that section 20156 does not require a railroad to measure its safety culture as FRA proposed in this section and in § 271.213, discussed below. They argued the RSIA did not require a railroad to measure safety culture because it is hard to do so effectively and reliably, and culture can be described and evaluated, but not be meaningfully quantified. According to AAR/ASLRRA, each railroad is different, and their cultures and the ways those cultures present in the workplace are different. Further, as an RRP matures, they argued the approach each railroad takes to assessing its safety culture may change. AAR/ASLRRA specifically suggested that FRA should leave to each railroad the decisions regarding how to evaluate, assess, and support its safety culture without prescribing generation of measurement data. Contrary to AAR/ASLRRA’s comment, FRA did not intend proposed paragraph (a) to require a specific datadriven and quantifiable measurement of a railroad’s safety culture. As the NPRM PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 explained, a railroad could measure its safety culture by surveying employees and management to establish an initial baseline safety culture, and then comparing the initial baseline to subsequent surveys. See 80 FR 10971 (Feb. 27, 2015). The NPRM further clarified FRA would give a railroad substantial flexibility to decide which safety culture measurement best fit the organization—for example, a survey or other instrument that has been validated and proven to correlate with safety outcomes (i.e., the survey or other instrument has been studied to determine whether it reliably and repeatedly measures what it intends to measure). FRA’s primary concern would be to ensure the selected measurement provided a way to demonstrate that an improvement in the safety culture would reliably lead to a corresponding improvement in safety. Id. This approach gives a railroad sufficient flexibility to measure its safety culture in a manner that works best for the railroad, as AAR/ASLRRA urge. In response to AAR/ASLRRA’s comment, instead of the term ‘‘measuring,’’ this section of the final rule uses the phrase ‘‘identifying and analyzing,’’ which comes directly from section 20156(c) of the statutory mandate. A railroad will still have the flexibility to decide how to identify and analyze its safety culture if the tools the railroad uses provide a way to connect improvements in safety culture to corresponding improvement in safety. Labor Organizations I also commented on how a railroad could measure safety culture. Referencing the FAA and ‘‘Weick and Sutcliffe,’’ Labor Organizations I noted that traits of a health safety culture can be identified within High Reliability Organizations. Labor Organizations I urged FRA to establish criteria mandating that railroad RRPs adhere to standards proven in other industries where the principles of safety are the same despite operational or other differences. FRA is not adopting specific standards regarding how a railroad must identify and analyze its railroad safety culture. Although various such standards exist, FRA is unaware of a universal standard for safety culture this final rule could adopt. Further, the final rule contains a DOT-wide definition of safety culture, discussed in the sectionby-section analysis for § 270.5, which provides substance for the meaning of safety culture. Even if there was a universal safety culture standard fitting every railroad that FRA could mandate, doing so would codify today’s safety culture standards into the rule, requiring an amendment process every E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations time such standards advanced or progressed. FRA anticipates the understanding of safety culture will change as time progresses and does not want to restrict railroads to using today’s standards for tomorrow’s analysis. FRA is therefore declining to mandate specific safety culture standards in the final rule, but is instead implementing an approach where a railroad must describe in its RRP plan how it will identify and analyze its safety culture, noted above. Paragraph (b)(5) in the NPRM proposed that one of the sources a railroad must establish to monitor safety performance is a reporting system through which employees can report safety concerns (including, but not limited to, hazards, issues, occurrences, and incidents) and propose safety solutions and improvements. The NPRM explained this would not require a railroad to establish an extensive program like FRA’s C3RS, although FRA specifically requested public comment elsewhere in the NPRM on the extent to which programs like C3RS might be useful to develop an RRP or as a component of an RRP. See 80 FR 10954 and 10971 (Feb. 27, 2015). Labor Organizations I commented in response that the confidentiality component of C3RS programs may make them difficult to contain within the confines of an RRP. Specifically, Labor Organizations I urged separation between RRP and C3RS because they believe C3RS confidentiality is incompatible with the level of description necessary to conform to this paragraph’s requirements. Labor Organizations I also specifically commented that C3RS programs should not simply be rebranded to comply with the RRP requirements. FRA both disagrees and agrees with Labor Organization I’s comment. FRA disagrees with Labor Organization I because a railroad could incorporate a C3RS program into its RRP. FRA also disagrees with Labor Organizations I that the confidentiality associated with C3RS programs may not be compatible with the description needed for this requirement. Even though C3RS reports are de-identified to remove information that may identify the reporter or other employees involved, sufficient information will likely still be included to allow a railroad to analyze the general risks and hazards presented by the report. Further, if a railroad wanted to obtain more information, it could establish a second reporting system to supplement C3RS for employees who are not concerned about maintaining confidentiality. FRA agrees with Labor Organizations I, however, that a railroad VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 cannot comply with an RRP final rule simply by re-branding a C3RS program as an RRP. While C3RS can be part of an RRP, a railroad must go further to meet the requirements of this final rule. An individual also commented generally that FRA should require all railroads to implement a C3RS program as part of their RRPs. FRA is not implementing this suggestion because it is not in the voluntary spirit of the C3RS program. An effective C3RS depends on the trust and voluntary participation of all parties—qualities that would lose their meaning if FRA mandated C3RS for all RRP railroads. The final change FRA made to this section is replacing the phrase ‘‘For the purpose of assessing’’ with the phrase ‘‘To assess’’ in paragraph (c). FRA made this change to streamline paragraph (c) and does not intend to affect its meaning. Section 271.107—Safety Outreach FRA adopts this section, with requirements on the safety outreach component of an RRP, unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10971–10972 (Feb. 27, 2015). Section 271.109—Technology Analysis and Technology Implementation Plan This section implements the RSIA requirement that an RRP include a technology analysis and a technology implementation plan. See 49 U.S.C. 20156(e). Except for a PTC deadline revision discussed below and changing an incorrect reference in the proposed rule from § 271.13(e) to § 271.13(d), FRA adopts this section unchanged from the NPRM, but is addressing comments received in response to this section in the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule but refers interested readers to the NPRM’s discussion. See 80 FR 10972 (Feb. 27, 2015). Paragraph (b) in the NPRM proposed requiring a railroad to conduct a technology analysis evaluating current, new, or novel technologies that may mitigate or eliminate hazards and the resulting risks identified through the risk-based hazard management program. At a minimum, proposed paragraph (b) stated a technology analysis must consider processor-based technologies, PTC systems, electronically-controlled pneumatic (ECP) brakes, rail integrity inspection systems, rail integrity warning systems, switch position monitors and indicators, trespasser PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 9297 prevention technology, and highwayrail grade crossing warning and protection technology. AAR/ASLRRA commented in response that FRA should not require a railroad to address PTC systems and ECP brakes, asserting that other rulemakings performed a cost/benefit analysis for PTC and ECP brakes. AAR/ ASLRRA argued that requiring railroads to perform the same analyses again as part of complying with the rule would be meaningless and inappropriate. Because the RSIA mandates this requirement, FRA is promulgating paragraph (b) unchanged. In addition, this section requires a railroad to only evaluate the safety impact, feasibility, and costs and benefits of PTC systems and ECP brakes, and does not necessarily require implementation. This analysis will differ from railroad to railroad, and therefore is not directly comparable to FRA’s cost/benefit analysis in other rulemakings. Paragraph (d) provides that, except as required by 49 CFR part 236, subpart I (Positive Train Control Systems), if a railroad decides to implement a PTC system as part of its technology implementation plan, the railroad shall set forth and comply with a schedule for implementation of the PTC system consistent with the deadlines in the Positive Train Control Enforcement and Implementation Act of 2015 (PTCEI Act), Public Law 114–73, 129 Stat. 576– 82 (Oct. 29, 2015), and 49 CFR 236.1005(b)(7). The NPRM proposed that the railroad would have to implement the PTC system by December 31, 2018, which was consistent with 49 U.S.C. 20156(e)(4)(B). However, Congress subsequently passed the PTCEI Act, and FRA has changed paragraph (d) to reflect the changes to PTC implementation deadlines set forth in the Act. This paragraph does not, in itself, require a railroad to implement a PTC system. In the NPRM, FRA sought comment on whether a railroad electing to implement a PTC system would find it difficult to meet the December 31, 2018 implementation deadline. If so, FRA invited comment as to what measures could be taken to assist a railroad struggling to meet the deadline and achieve the safety purposes of the statute. FRA received two comments in response to this request. AAR/ASLRRA commented that the 2018 deadline is unrealistic even for the Class I railroads. Labor Organizations I and an individual commented that FRA should not extend the 2018 deadline.24 24 Labor Organizations I identified a December 31, 2015 PTC deadline. As both the NPRM and section E:\FR\FM\18FER2.SGM Continued 18FER2 9298 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 FRA recognizes the challenges associated with implementing a PTC system; however, FRA also recognizes that PTC is a technology that a railroad may seek to implement to eliminate or mitigate hazards and the resulting risks. Therefore, the regulation provides railroads the flexibility to decide whether they want to implement a PTC system as part of their technology analysis and implementation plan; if they do so, they must comply with an implementation schedule consistent with the deadlines in the PTCEI Act. The SSP final rule establishes the same deadline in § 270.103(r)(5). See 81 FR 53877 (Aug. 12, 2016). Section 271.111—Implementation and Support Training This section requires a railroad to provide RRP training to each employee who has significant responsibility for implementing and supporting the railroad’s RRP. Except for changes made to clarify paragraphs (a) and (b) discussed below, FRA adopts this section unchanged from the NPRM but is addressing comments received in response to this section in the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule but refers interested readers to the NPRM’s discussion. See 80 FR 10972–10973 (Feb. 27, 2015). Proposed paragraph (a) specified the employees a railroad must train includes an employee of any person a railroad’s RRP plan identified under § 271.205(a)(3) when that employee has significant responsibility for implementing and supporting the railroad’s RRP. See 80 FR 10972 (Feb. 27, 2015). For reasons explained in the section-by-section analysis for § 271.101(d) above, FRA changed this provision to clarify which employees a railroad must identify under § 271.205(a)(3). FRA does not intend these changes to affect the substance of the proposed rule. Proposed paragraph (b) specified a railroad must keep a record of training conducted under this section and update that record as necessary. FRA has included language in this paragraph of the final rule clarifying a railroad must make these records available for inspection and copying upon request to FRA or State railroad safety inspectors. AAR/ASLRRA commented the proposed training requirement is an unnecessary and inappropriate overreach that belies the performance20156(e)(4)(B) state that the deadline is December 31, 2018, FRA assumes that Labor Organizations I intended to reference the 2018 deadline, and that reference to a 2015 deadline was an unintended mistake. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 based approach to rulemaking FRA claims the proposed rule effects. AAR/ ASLRRA agreed with FRA’s statement in the NPRM that the training requirement would apply to personnel not involved in operational duties and not directing or supervising those who do have such duties. However, AAR/ ASLRRA asserted it would require a railroad to train employees including the chief safety officer of the railroad, and his or her direct reports and requiring employees at that level to submit to training implies they do not know or care how to do their jobs. AAR/ ASLRRA suggest that if railroads determine effective implementation of their RRP would be aided by training certain employees, the content and timing of such training is a matter appropriately left to the railroads. Conversely, Labor Organizations I commented the NPRM proposed highly limited requirements for railroads to train their employees to understand and participate in the RRP process. They argue there needs to be continued vigilant attention to risk reduction throughout the workforce to ensure there is full understanding of the dynamics of the issues in the workplace. Labor Organizations I suggested FRA should consider broadening the scope of the proposed training. FRA is implementing the proposed training requirement in this final rule substantively unchanged, without adding additional requirements. FRA disagrees with AAR/ASLRRA that this training is unnecessary, as railroad employees, including high-level employees, may not know how to implement an RRP that complies with the specific requirements of this final rule, even if the employees are otherwise familiar with safety risk reduction programs. FRA also disagrees with Labor Organizations I that the final rule should expand the scope of the training. Section 271.113—Involvement of Railroad Employees This section requires a railroad’s RRP to involve the railroad’s directly affected employees in the establishment and implementation of an RRP. Paragraph (b) explains how a railroad should involve its directly affected employees, clarifying that a railroad must have a process for involving railroad employees when identifying hazards, developing and implementing mitigation strategies, conducting internal annual assessments, or otherwise performing actions required by this part. A railroad could involve its directly affected employees by including appropriate labor PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 representatives or other employees on hazard management teams and by employee involvement in conducting RRP outreach. While the NPRM did not specifically propose this component, employee involvement is an important component of a successful RRP. As the NPRM stated, an RRP encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what action to take to mitigate or eliminate the associated risks. See 80 FR 10950 (Feb. 27, 2015). While the NPRM contained provisions addressing railroad-employee consultation on the contents of a railroad’s RRP plan, it did not specify that a railroad must involve its directly affected employees in subsequent implementation of its RRP plan. Nonetheless, FRA did not intend that a railroad could comply with the RRP plan consultation process requirements in § 271.207 and then not involve its directly affected employees in any aspect of its RRP once FRA approves the plan. FRA does not believe that is consistent either with the collaborative and proactive nature of risk reduction or Congress’ intent in requiring railroads to consult with directly affected employees on the contents of the railroad’s RRP plan. FRA is therefore expressly including this section in the final rule. FRA is characterizing this requirement as employee ‘‘involvement’’ instead of ‘‘consultation’’ to avoid confusion between this section and the requirements for RRP plan consultation in § 271.207. These are distinct concepts because this section’s involvement requirement will last through the duration of the railroad’s RRP, while the § 271.207 plan consultation process requirement is satisfied when a railroad uses good faith and best efforts to consult with its directly affect employees on its RRP plan and when FRA approves the railroad’s submitted plan. FRA further believes this involvement requirement will improve employee engagement in the railroad’s RRP, thereby improving employee performance, safety culture, and railroad safety. See generally Wojick, Tom, Case: Engagement, Safety & Quality in Chemical Manufacturing, Oct. 29, 2013, available at https:// www.6seconds.org/2013/10/29/caseengagement-safety-quality/. Additionally, this requirement will lead to improvements in employee psychology and behavior, which are important components of safety culture. See generally Arendt, Don, Federal Aviation Administration, A Model of Organizational Culture, Dec. 2008, E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations available at https://www.faa.gov/about/ initiatives/sms/reference_library/links/ media/organizational_culture_ model.pdf. Subpart C—Risk Reduction Program Plan Requirements Subpart C contains requirements for RRP plans. lotter on DSKBCFDHB2PROD with RULES2 Section 271.201—General This section requires a railroad to adopt and implement its RRP through a written RRP plan FRA has reviewed and approved under the requirements of subpart D. Because FRA adopts this provision unchanged from the NPRM, FRA is not repeating the NPRM’s section-by-section analysis here but refers interested readers to the NPRM’s discussion. See 80 FR 10973 (Feb. 27, 2015). Section 271.203—Policy, Purpose and Scope, and Goals This section contains requirements for policy, purpose and scope, and goals statements for an RRP plan. Except for moving a provision the NPRM proposed in paragraph (b)(4) to § 271.205(a)(4), as discussed below, this section remains unchanged. FRA is therefore not repeating the NPRM’s section-by-section analysis here but refers interested readers to the NPRM’s discussion. See 80 FR 10973–10974 (Feb. 25, 2017). FRA is otherwise addressing a comment received in response to this section in the NPRM, but is making no changes in response. Paragraph (a) in the NPRM proposed requiring an RRP plan to include a policy statement endorsing the railroad’s RRP signed by the chief official of the railroad (e.g., Chief Executive Officer). AAR/ASLRRA commented FRA should require the railroad’s Chief Safety Officer to sign the policy statement, as the RRP Working Group had proposed. AAR/ASLRRA further argued the proposed requirement also departs from section 20156(b), which specifies the chief official responsible for safety shall certify the contents of the program are accurate and the railroad will implement the contents of the plan. AAR/ASLRRA also asserted the chief official for safety will be more familiar with the details of the RRP than the chief official of the railroad and therefore is the more appropriate person to sign the policy statement. FRA has not departed from the RSIA requirements because § 271.301(c)(1) of the final rule requires the railroad’s chief official for safety to sign the RRP plan and certify the contents of the RRP plan are accurate and the railroad will VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 implement the contents of the plan. This substantively mirrors the language in section 20156(b). Paragraph (a) of this section, however, requires the chief official at the railroad to sign the RRP policy statement, not the entire RRP plan. Prior experience with effective risk management programs has demonstrated to FRA how important the active involvement of the highest railroad officials is to improving safety and safety culture. Therefore, FRA determined the chief official at the railroad must sign the RRP policy statement. Paragraph (b)(4) in the NPRM proposed requiring an RRP plan’s purpose and scope statement to describe how any person that utilizes or provides significant safety-related services to a railroad (including host railroads, contract operators, shared track/corridor operators, or their contractors) will support and participate in the railroad’s RRP. Upon review of the NPRM, FRA believes this provision belongs more appropriately in the § 271.205 requirements regarding an RRP plan’s system description. FRA has therefore moved this provision to § 271.205(a)(4), and the section-by-section analysis for that section will discuss this provision further. Section 271.205—System Description This section requires an RRP plan to include a statement describing the characteristics of the railroad system. Except for changes made to clarify paragraph (a)(3) and language moved from § 271.203(b)(4) to paragraph (a)(4) of this section, discussed below, FRA adopts this section unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule but refers interested readers to the NPRM’s discussion. See 80 FR 10974 (Feb. 27, 2015). FRA did not receive any comments in response to this section. Paragraph (a)(3) in the NPRM proposed requiring an RRP plan’s system description to identify all persons that utilize or perform significant safety-related services on the railroad’s behalf (including entities such as host railroads, contract operations, shared track/corridor operators, or other contractors). FRA modified paragraph (a)(3) to clarify its requirements and refers readers to the explanation of those changes in the section-by-section analysis for § 271.101(d). FRA does not intend these changes to affect the substance of the rule. FRA is also adding a paragraph (a)(4) to this section that contains language from § 271.203(b)(4) in the NPRM, which proposed requiring an RRP plan PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 9299 to include a purpose and scope statement describing how any person that utilizes or provides significant safety-related services to a railroad (including host railroads, contract operators, shared track/corridor operators, or other contractors) will support and participate in the railroad’s RRP. Because this section requires a railroad’s RRP plan to identify such persons as part of its system description, FRA concluded the requirement to describe how such persons will support and participate in the railroad’s RRP fits better in this section. FRA’s changes are for clarity only. Paragraph (a)(4) requires an RRP plan’s system description to describe how the railroad will ensure any person identified under paragraph (a)(3) of this section will support and participate in the railroad’s RRP. As an example, paragraph (a)(4) states the system description must describe the extent to which such persons will, as part of the railroad’s RRP, help identify hazards, develop and implement mitigation strategies, conduct internal annual assessments, or otherwise perform actions this part requires. Section 271.207—Consultation Requirements Section 271.207 implements section 20156(g)(1), which states a railroad required to establish an RRP must consult with, employ good faith, and use its best efforts to reach agreement with, all its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the RRP plan. This section also implements section 20156(g)(2), which further provides that if a railroad carrier and its directly affected employees, including any nonprofit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, cannot reach consensus on the proposed contents of the RRP plan, then directly affected employees and such organizations may file a statement explaining their views on the plan on which consensus was not reached. See 49 U.S.C. 20156(g)(2). The RSIA requires FRA to consider these views during review and approval of a railroad’s RRP plan. Id. FRA made several changes to this section from the NPRM. These changes respond to comments received, conform this rule to the SSP final rule, and renumber certain paragraphs for better organization. For clarity, FRA is briefly discussing each provision of this section, even provisions FRA adopts unchanged from the NPRM. To promote consistency with the SSP final rule, E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9300 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations FRA has changed the title of this section from ‘‘consultation process description’’ to ‘‘consultation requirements.’’ See 49 CFR 270.107. This discussion also notes minor differences between the consultation provisions in the RRP and SSP rules. Paragraph (a)(1) implements section 20156(g)(1) by requiring a railroad to consult with its directly affected employees on the contents of its RRP plan, including any non-profit employee labor organization representing a class or craft of the railroad’s directly affected employees. As part of that consultation, a railroad must utilize good faith and best efforts to reach agreement with its directly affected employees on the contents of its plan. FRA has not changed this language from the NPRM. Paragraph (a)(2) specifies a railroad that consults with a non-profit employee labor organization is considered to have consulted with the directly affected employees that organization represents. Paragraph (b) states a railroad must have a preliminary meeting with its directly affected employees to discuss how the consultation process will proceed. While the NPRM did not include this language, FRA added it merely as an introductory clause for the subsequent requirements in paragraphs (b)(1) through (4), discussed below, which were all included in proposed paragraphs (a)(3) through (6) of the NPRM. FRA believes including the preliminary meeting requirements in a separate paragraph (b) improves the organization and clarity of this section. Some commenters to the corresponding consultation provision of the SSP NPRM appeared to believe this preliminary meeting must discuss the substance of the RRP plan. To rectify this misunderstanding, FRA is adding language in paragraph (b) specifying a railroad is not required to discuss the substance of an RRP plan during this preliminary meeting. Rather, the preliminary meeting may be administrative in nature so all parties understand the consultation process and may engage in substantive discussions as soon as possible after the § 271.11 protections become applicable. The preliminary meeting is also an opportunity for the railroad to educate directly affected employees on risk reduction and how it may affect them. The SSP final rule incorporates substantively identical language. See 81 FR 53883 and 53900 (Aug. 12, 2016). Paragraphs (b)(1) through (3) contain the deadlines Class I railroads, ISP railroads, and railroads that STB reclassifies or newly classifies as Class I railroads must meet to hold the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 preliminary meeting with their directly affected employees. FRA merely renumbered these provisions from paragraphs (a)(3) through (5) of the NPRM to paragraphs (b)(1) through (3) in this final rule. This reorganization does not affect the substance of these paragraphs. FRA refers interested readers to the NPRM discussion of paragraphs (a)(3) through (5) for additional information. See 80 FR 10975 (Feb. 27, 2015). Paragraph (a)(6) of the NPRM, stating a voluntarily-compliant railroad must also consult with its directly affected employees using good faith and best efforts, is in paragraph (b)(4) of the final rule. Paragraph (a)(6) also proposed, however, that because there is no deadline for a voluntarily-compliant railroad to file an RRP plan with FRA, there would also be no requirement for a voluntarily-compliant railroad to meet with its directly affected employees within a certain timeframe. Because FRA decided to include a notification and filing deadline for voluntarilycompliant railroads in § 271.301(b)(4)(i), discussed below, FRA is adding language in paragraph (b)(4) that applies to voluntarily-compliant railroads the same consultation deadlines for ISP railroads and railroads that STB reclassifies or newly classifies as Class I railroads. Labor Organizations I commented that this section requires railroad management and labor to have only one, non-substantive administrative meeting. To correct any implication that this is the only meeting a railroad must hold to comply with all the consultation process requirements of this section, FRA added language to paragraph (b)(5) clarifying the mandatory preliminary meeting does not constitute full compliance with the consultation process requirements of this section. Although the NPRM did not include this language, it does not impose any additional substantive requirement. The SSP rule does not contain this provision because a similar comment was not received in response to the SSP NPRM. FRA does not intend this to indicate a substantive difference between the consultation requirements of the SSP and RRP rules. Paragraph (a)(7) of the NPRM, which directed readers to appendix B for additional guidance on how a railroad can comply with the consultation process requirements of this section, is paragraph (c) of the final rule. FRA renumbered this paragraph for better organization and clarity and changed it to direct readers to appendix A instead of appendix B (for reasons discussed in the section-by-section analysis for PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 appendices A and B). FRA discusses appendix A later in this preamble. Paragraph (d) of the final rule, requiring a railroad to submit, together with its RRP plan, a consultation statement, was paragraph (b) in the NPRM. The consultation statement must contain specific information described in paragraphs (d)(1) through (3) of this final rule, which were renumbered from paragraphs (b)(1), (2), and (4) in the NPRM. Paragraph (d)(1), which requires a consultation statement to describe the process a railroad uses to consult with its directly affected employees, is unchanged from paragraph (b)(1) of the NPRM. If the railroad cannot reach agreement with its directly affected employees on the contents of its RRP plan, paragraph (d)(2) requires the consultation statement to identify any areas of nonagreement and provide the railroad’s explanation for why it believed agreement was not reached. FRA made a minor editorial change to paragraph (d)(2) to be consistent with the SSP final rule by changing the phrase ‘‘was not able to’’ to ‘‘could not.’’ See 81 FR 53901 (Aug. 12, 2016). This change does not affect the substance of this provision. Additionally, while the NPRM used the term ‘‘disagreement,’’ FRA changed this to ‘‘non-agreement’’ in the final rule to conform more closely with the statutory language in section 20156(g)(1). Although the SSP rule uses ‘‘disagreement’’ instead of ‘‘nonagreement,’’ FRA does not intend this to indicate a substantive difference between the consultation requirements of the SSP and RRP rules. Paragraph (b)(3) of the NPRM proposed that if the RRP plan would affect a provision of a collective bargaining agreement between the railroad and a non-profit employee labor organization, the consultation statement must identify that provision and explain how the railroad’s RRP plan would affect it. In response to the NPRM, AAR/ ASLRRA commented this provision went too far because collective bargaining is a matter between railroads and their employees beyond FRA’s jurisdiction. FRA agrees and is not including this provision in the final rule. Under paragraph (d)(3) of the final rule, proposed as paragraph (b)(4) of the NPRM, the consultation statement must include a service list of the names and contact information for the international/national president of any non-profit employee labor organization representing directly affected employees and any directly affected employee not represented by a non-profit employee labor organization who significantly E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 participated in the consultation process. FRA did not make any substantive changes to this provision but FRA made the following editorial changes to promote consistency with the SSP final rule and to improve clarity. Although the first sentence in the NPRM addressed both international/national presidents of any non-profit employee labor organization and individual directly affected employees, FRA separated this requirement into two separate sentences and made additional changes to clarify a railroad must include only a directly affected employee who significantly participated in the consultation process on the service list if that employee participated independent of a non-profit employee labor organization. FRA also modified the second to the last sentence of paragraph (d)(3) to add a reference to the plan submission requirements of § 271.301 and to clarify that a railroad must simultaneously provide its RRP plan and consultation statement to individuals the service list identifies. These changes do not affect the substance of this paragraph.25 Under paragraph (e)(1) of the final rule, proposed as paragraph (c)(1) in the NPRM, if a railroad and its directly affected employees cannot reach agreement on the proposed contents of an RRP plan, then a directly affected employee may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining his or her views on the plan on which agreement was not reached. See 49 U.S.C. 20156(g)(2). Except for correcting a typo in the proposed rule (replacing ‘‘then directly affected employees’’ with ‘‘the directly affected employees’’) and specifically identifying the address for the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, FRA has not changed this paragraph from the NPRM. The above changes do not affect the substance of this paragraph. Paragraph (e)(2) of the final rule, proposed as paragraph (c)(2) in the NPRM, specifies that a railroad’s directly affected employees have 30 days following the railroad’s submission 25 FRA notes that paragraph (d)(3) in the RRP final rule contains two provisions not in the SSP rule. The first provision states that if an international/national president did not participate in the consultation process, the service list must include information for the designated representative who participated on his or her behalf, and the second states that a railroad may send documents to individuals on the service list via electronic means or other service means reasonably calculated to succeed. The RRP NPRM proposed these provisions (see 80 FR 10994 (Feb. 27, 2015)), and their non-inclusion in the SSP final rule was an oversight. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 of its proposed RRP plan to submit the statement described in paragraph (e)(1) of this section. While the NPRM proposed giving directly affected employees 60 days to submit their statement, FRA believes that 30 days is more appropriate. This decision takes into account that paragraph (b)(3) ensures directly affected employees are provided the RRP plan and the consultation statement at the same time the railroad provides these documents to FRA for review. Moreover, under § 271.301(d) of the final rule (discussed below), FRA will review an RRP plan within 90 days of receipt. As a result, if the directly affected employees had 60 days to submit a statement when agreement on the RRP plan was not reached, FRA would have only 30 days to consider the directly affected employees’ view while reviewing the RRP plan. Thirty days would not be enough time to ensure that FRA sufficiently considered the directly affected employees’ views during the RRP review process. Finally, the deadline is identical to the deadline for directly affected employee statements in § 271.107(c)(2), which was also changed from a proposed 60-day deadline in the SSP NPRM. See 81 FR 53886 (Aug. 12, 2016). To further promote consistency with the SSP final rule, FRA has also removed a reference in proposed paragraph (c)(2) to § 271.301(a)(4). See 49 CFR 271.107(c)(2). In the preamble to the NPRM, FRA explained that it would help a railroad develop its RRP. The preamble to the SSP NPRM expressed a similar intent. Labor Organizations I commented expressing concern that this preamble language indicates that FRA will work exclusively with the railroads, precluding the involvement of any other interested party. Labor Organizations I fear that this would substitute FRA for the directly affected employees in the statutorily-mandated consultation role. This was not FRA’s intent in the preamble discussion. Rather, FRA meant to communicate that FRA would be available to provide guidance to the railroads on the various aspects of the rule, not that there would be an exclusive partnership between FRA and the railroads to develop RRPs. FRA guidance to railroads will not replace Labor Organizations I or any directly affected employee in the consultation role. Under the consultation process required by § 271.207, a railroad must use good faith and best efforts to reach agreement with directly affected employees on the railroad’s RRP plan. While the section-by-section analysis discusses ‘‘good faith’’ and ‘‘best efforts’’ further, a railroad will not be PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 9301 able to meet these standards merely by submitting the required consultation statement. Directly affected railroad employees will therefore always have an opportunity to provide input on the railroad’s RRP plan, regardless of guidance FRA provides the railroad on developing an RRP plan. Labor Organizations I also argue that FRA improperly classified the process under section 20156(g) as one of consultation. Rather, Labor Organizations I believe that section 20156(g) requires a railroad to negotiate or bargain with directly affected employees in accordance with the legal authority of the Railway Labor Act, as amended. FRA disagrees. Nothing in section 20156(g) requires a railroad to negotiate or bargain with directly affected employees on the contents of an RRP plan. Rather, section 20156(g) requires a railroad to ‘‘consult with, employ good faith and use [its] best efforts to reach agreement with’’ directly affected employees (including Labor Organizations I). Throughout SSP and RRP RSAC meetings, FRA referred to this process as one of consultation, not negotiation or bargaining. The NPRM proposed text contained language identical to language in section 20156(g), and FRA does not believe that this language requires a process of negotiation or bargaining consistent with the Railway Labor Act. Requiring a process of negotiation or bargaining would therefore be beyond the scope of FRA’s authority in section 20156(g). Labor Organizations I also expressed concern that various estimates regarding employee involvement and the consultation process in the Regulatory Impact Analysis and the Paperwork Reduction Act analysis were too low. Labor Organizations I claim the estimated time periods were too short and would result in an inconsequential amount of time for consultation on the contents of the plan. FRA notes that the time periods in the analyses were only estimates and that the analyses requested comment on these estimates. See 80 FR 10988 and Regulatory Impact Analysis, at ii (Feb. 27, 2015). While Labor Organizations I did not provide suggested estimates that they believe are more appropriate, FRA has changed the final rule to add § 271.113 (discussed above), which requires a railroad to involve its directly affected employees in the establishment and implementation of an RRP. FRA has also updated its estimates of the time RRP safety outreach is expected to take, required under § 271.107 of the final E:\FR\FM\18FER2.SGM 18FER2 9302 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations rule, from 15 minutes to 60 minutes per employee.26 Labor Organizations I also expressed concern that the NPRM did not contain a penalty schedule or otherwise propose a mechanism for enforcing the consultation process requirements. Labor Organizations I specifically suggested that the DOT Secretary and the President of the United States ‘‘publish an Executive Order supplementing enforcement of [section] 103 by providing for suspension and cancellation of federal payments and benefits to contracting railroads similar to Sec. 7 of E.O. 13,496, . . . codified at 29 CFR [ ] 471.14.’’ Regarding the lack of a penalty schedule, FRA typically does not include penalty schedules in an NPRM. Section 271.9(a) of this final rule, however, refers readers to FRA’s website for a penalty schedule. Because a penalty schedule is a statement of agency policy, FRA was not required to provide notice and comment before its issuance. See 5 U.S.C. 553(b)(3)(A). FRA also notes that none of its enforcement authority is supplemented by a Presidential executive order. FRA concludes, therefore, that an executive order is not necessary to enforce the RRP requirements, even assuming that the President concluded that such an executive order would be legal and appropriate. lotter on DSKBCFDHB2PROD with RULES2 Section 271.209—Consultation on Amendments This section describes the consultation process requirements for amendments to a railroad’s RRP plan. Except for replacing an incorrect reference to ‘‘system safety program’’ with the correct ‘‘RRP plan’’ and replacing the incorrect term ‘‘paragraph’’ with ‘‘section,’’ FRA adopts this section unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10976 (Feb. 27, 2015). FRA did not receive any comments on this section. Section 271.211—Risk-Based Hazard Management Program Process This section requires an RRP plan to describe the railroad’s process for conducting a risk-based HMP. Because FRA received no comments and adopts this section unchanged from the NPRM (except for editorial changes in paragraph (c) to standardize its 26 For additional discussion, see Section 4.1., Consultation: Time Needed to Consult (Economic Impact) and Timeline, of the Regulatory Impact Analysis accompanying this final rule. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 approach with paragraph (b) and to clarify that the section’s requirements are minimal requirements), FRA is not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10976 (Feb. 27, 2015). Section 271.213—Safety Performance Evaluation Process This section requires an RRP plan to describe the railroad’s processes for identifying and analyzing its safety culture under § 271.105, monitoring safety performance under § 271.105(b), and conducting safety assessments under § 271.105(c). While this section proposed requiring an RRP plan to describe a railroad’s processes for ‘‘measuring’’ safety culture in the NPRM, FRA replaced the term ‘‘measuring’’ with the phrase ‘‘identifying and analyzing’’ for reasons discussed in the above section-bysection analysis for § 271.105. FRA otherwise adopts this section unchanged from the NPRM. See 80 FR 10976 (Feb. 27, 2015). Section 271.215—Safety Outreach Process This section requires an RRP plan to describe a railroad’s processes for communicating safety information to railroad personnel and management under § 271.107. FRA received no comments and adopts this section unchanged from the NPRM, except for exchanging the word ‘‘process’’ with ‘‘processes.’’ FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10976 (Feb. 27, 2015). Section 271.217—Technology Implementation Plan Process This section requires an RRP plan to describe a railroad’s processes for conducting a technology analysis pursuant to § 271.109(b) and for developing a technology implementation plan pursuant to § 271.109(c). FRA received no comments and adopts this section unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10976 (Feb. 27, 2015). Section 271.219—Implementation and Support Training Plan This section requires an RRP plan to contain a training plan describing the railroad’s processes for training, under PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 § 271.111, employees with significant responsibility for implementing and supporting the RRP. Paragraph (a) in the NPRM specified these employees must include persons a railroad identifies under § 271.205(a)(3) as utilizing or performing significant safety-related services on the railroad’s behalf. For reasons explained in the section-bysection analysis for § 271.101(d) above, FRA clarified the requirements of this provision. The modified language states that the employees must include employees that a railroad identifies under § 271.205(a)(3) as performing on the railroad’s behalf significant safetyrelated services or utilizing safetyrelated services provided by the railroad for railroad operations purposes. FRA has not otherwise changed paragraph (a) of this section. Paragraph (b) in the NPRM proposed requiring the training plan to describe the content and frequency of the RRP training for each position or job function a railroad identifies under § 271.223(b)(3) as having significant responsibilities for implementing the RRP. FRA modified the proposed language in two ways. First, FRA changed the § 271.223(b)(3) reference to § 271.225(b)(3) due to FRA’s inclusion of a new § 271.221 in the final rule, discussed below, which resulted in the renumbering of subsequent sections in subpart C of the final rule. AAR/ ASLRRA also commented there was some inconsistency in the NPRM because it discusses the training requirement as a one-time event, but also mentions training frequency. FRA has addressed this inconsistency by not including the term ‘‘frequency’’ in this section, unlike the proposed language. AAR/ASLRRA are correct that the term is not necessary because the training is a one-time event. FRA has not otherwise changed paragraph (b) of this section. Section 271.221—Involvement of Railroad Employees Process This section requires an RRP plan to describe the railroad’s processes for involving railroad employees in the establishment and implementation of an RRP under § 271.113. For reasons discussed in the section-by-section analysis for § 271.113 above, FRA did not specifically propose this requirement in the NPRM, but is including it in the final rule to clarify a railroad must involve its employees in the RRP. This section in the NPRM contained RRP plan requirements for a railroad’s internal assessment process in the NPRM. To accommodate this RRP plan involvement requirement, FRA moved the internal assessment process E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations requirements to § 271.223 and renumbered the rest of subpart C accordingly. Section 271.223—Internal Assessment Process Paragraph (a) of this section, proposed as § 271.221 in the NPRM, requires an RRP plan to describe a railroad’s processes for conducting an internal assessment of its RRP under proposed subpart E. Paragraph (b) is reserved. FRA did not receive any comments on this section and, except for moving it to this section in the final rule, adopts this section unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10976– 10977 (Feb. 27, 2015). lotter on DSKBCFDHB2PROD with RULES2 Section 271.225—RRP Implementation Plan Paragraph (a) of this section, proposed as § 271.223 in the NPRM, requires an RRP plan to describe how the railroad will implement its RRP. Except for editorial changes in paragraph (a) and (b)(3), discussed below, FRA adopts this section unchanged from the NPRM. These changes do not affect the substance of this section and FRA did not receive any comments on this section. FRA is therefore not repeating the NPRM’s entire section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10977 (Feb. 27, 2015). FRA modified paragraph (a) to change language in the second sentence from passive to active voice, clarifying that the railroad must fully implement the entire RRP within 36 months of FRA’s approval of the plan. For reasons explained in the sectionby-section analysis for § 271.101(d), above, FRA modified the language of paragraph (b)(3) to clarify its requirements. Paragraph (b)(3) requires a railroad’s implementation plan to describe the roles and responsibilities of each position or job function with significant responsibility for implementing the railroad’s RRP. Paragraph (b)(3) that this includes positions held by contractors that either perform significant safety-related services on the railroad’s behalf or utilize significant safety-related services the railroad provides. Subpart D—Review, Approval, and Retention of Risk Reduction Program Plans The RSIA requires a railroad to submit its RRP, including any of the required plans, to the FRA VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Administrator (as delegate of the Secretary) for review and approval. See 49 U.S.C. 20156(a)(1)(B). Subpart D, Review, Approval, and Retention of System Safety Program Plans, contains requirements addressing this mandate. Section 271.301—Filing and Approval This section contains requirements for the filing of an RRP plan and FRA’s approval process. While FRA did not receive any comments on this section, FRA modified this section from the NPRM as discussed below. For background discussion on provisions that FRA has not changed, FRA refers readers to the NPRM’s discussion. See 80 FR 10977–10978 (Feb. 27, 2015). Paragraph (a) generally requires a railroad to submit a copy of its RRP plan to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer. Paragraph (a) of the NPRM also contained the RRP plan submission deadlines for Class I railroads, railroads with inadequate safety performance, railroads that the STB classifies or newly classifies as a Class I railroad, and voluntarily compliant railroads. For organizational clarity, FRA moved these deadlines to paragraph (b) and made each deadline separate paragraphs (b)(1) through (4). FRA is further modifying the deadline for ISP railroads in paragraph (b)(2). While the NPRM proposed requiring an ISP railroad to provide FRA an RRP plan no later than 90 days after receiving final notification from FRA under § 271.13, FRA is extending this timeline to 180 days in the final rule to account for the petition process FRA is including in § 271.13(f). Paragraphs (a)(1) through (4) of the NPRM also contained certain requirements for the RRP plan, which FRA moved to paragraph (c) in the final rule. These organizational changes resulted in the renumbering of the other paragraphs in this section but do not affect the substance of the rule. While the NPRM proposed that a voluntarily-compliant railroad could submit an RRP plan to FRA for review and approval at any time, FRA concluded the proposed approach is vague. FRA based its conclusion on the fact that it leaves uncertainty about when a voluntarily-compliant railroad begins to compile and collect information solely for RRP purposes such that the rule’s information protection provisions would apply. Paragraph (b)(4)(i) of the final rule therefore states a voluntarily-compliant railroad must provide FRA written notice of its intent to submit an RRP plan for FRA’s review and approval. Under paragraph (b)(4)(ii), the date FRA receives the written notice or February PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 9303 18, 2021, whichever is later, is the date the voluntarily-compliant railroad may begin to compile or collect information solely for the purpose of planning, implementing, or evaluating an RRP under the information protection provisions of § 271.11. To ensure a voluntarily-compliant railroad does indeed submit an RRP plan for FRA’s review and approval once the railroad begins compiling or collecting information solely for RRP purposes, paragraph (b)(4)(iii) states a voluntarilycompliant railroad must submit its RRP plan for review and approval no later than 180 days after FRA receives the railroad’s written notice. This is the same amount of time an ISP railroad has to submit its RRP plan under paragraph (b)(2). Paragraphs (c)(1) through (4), proposed as paragraphs (a)(1) through (4) of the NPRM, require a railroad to provide certain additional information as part of its submission. Aside from the reorganization, FRA did not make any changes to the language in paragraphs (c)(1) and (2). For reasons explained by the section-by-section analysis for § 271.101(d), above, FRA changed paragraph (c)(3) to clarify its requirements. Paragraph (c)(3) requires a railroad’s RRP plan to include the contact information for the senior representatives of any person that has entered into a contractual relationship with the railroad to either perform significant safety-related services on the railroad’s behalf or to utilize significant safety-related services the railroad provides for railroad operations. This includes the senior representatives of host railroads, contract operators, shared track/corridor operators, and other contractors. This change does not affect the substance of this provision. Paragraph (c)(4), proposed as paragraph (a)(4) in the NPRM, requires a railroad to submit a statement describing how it consulted with its directly affected employees on the contents of its RRP plan under § 271.207(d). This paragraph also reminds directly affected employees that they have 30 days following the railroad’s submission of its proposed RRP plan to file a statement under § 271.207(e)(2). FRA has made three changes to these requirements from the NPRM. First, this paragraph referenced § 271.207(b) and (c) in the NPRM, and FRA changed these references to § 271.207(d) and (e)(2) to reflect organizational changes to § 271.207. For plain language purposes, FRA also changed the phrase ‘‘in accordance with’’ to ‘‘under.’’ These changes do not affect the substance of this requirement. Finally, while the NPRM proposed E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9304 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations providing directly affected employees 60 days to submit a statement following a railroad’s submission of its RRP plan, FRA believes 30 days is more appropriate. The section-by-section analysis for § 271.207(e)(2) explains why FRA has made this change. Paragraph (d), proposed as paragraph (b) in the NPRM, explains how FRA will approve a railroad’s RRP plan. Except for updating references to reflect organizational changes in § 271.207, making a non-substantive editorial change in paragraph (d)(1), extending a deadline in paragraph (d)(3), and adding minor provisions in paragraphs (d)(3) and (4), FRA adopts this paragraph unchanged from the NPRM. In paragraph (d)(1), FRA changed the language ‘‘prior to the commencement of railroad operations’’ to ‘‘before the start of railroad operations’’ for plain language purposes. Under paragraph (d)(3), when a railroad receives notification that FRA has not approved its plan and notice of the specific points in which the plan is deficient, the railroad has 90 days to correct all of the deficiencies identified and resubmit the plan to FRA. Both the SSP NPRM and the RRP NPRM proposed giving a railroad 60 days to correct identified deficiencies, but FRA received comments in response to the SSP NPRM expressing concern that 60 days was not a sufficient amount of time for a railroad to address the deficient points of an SSP plan. See 81 FR 53888 (Aug. 12, 2016) and 80 FR 10995 (Feb. 27, 2015). The SSP final rule addressed this concern by extending the deadline to 90 days, and this final rule does the same to keep the rules consistent. See 49 CFR 270.201(b)(3) and 81 FR 53888 (Aug. 12, 2016). FRA has also modified paragraph (d)(3) to include language indicating that FRA will review a corrected RRP plan within 60 days of receipt. FRA has modified paragraph (d)(4) to include language stating FRA’s approval of a railroad’s RRP plan does not constitute approval of the specific actions the railroad will implement under its RRP plan and shall not be construed as establishing a Federal standard regarding those specific actions. Section V.A.5 of the preamble, above, explains that FRA has added this language to specifically preserve State claims. Paragraph (e), proposed as paragraph (c) in the NPRM, specifies that all documents required to be submitted to FRA under this part may be submitted electronically under the procedures in appendix B to this part. Other than the reorganization and directing readers to appendix B instead of appendix C, as proposed in the NPRM (for reasons VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 discussed in the section-by-section analysis for appendix B), FRA adopts this provision unchanged from the NPRM. Section 271.303—Amendments This section addresses the process a railroad must follow whenever it amends its FRA-approved RRP plan, regardless of whether the amendments are substantive or non-substantive. Except for additional language FRA added to paragraph (a) and clarifying changes in paragraphs (b) and (c), discussed below, FRA adopts this section unchanged from the NPRM. FRA also did not receive any comments on this section. For discussion on provisions FRA has not changed, FRA refers interested readers to the NPRM’s discussion. See 80 FR 10978 (Feb. 27, 2015). Paragraph (a) in the NPRM stated that for substantive amendments, a railroad must follow the process in its RRP plan under § 271.209 for consulting with its directly affected employees. In the final rule, FRA renumbered this provision paragraph (a)(1) and added language clarifying that a railroad must also submit a consultation statement to FRA. FRA also added language in paragraph (a)(2) specifying that if a railroad and its directly affected employees cannot reach agreement on the proposed contents of a substantive amendment, the directly affected employees may file a statement with FRA under § 271.207(e)(1) procedures. Paragraph (a)(2) gives directly affected employees 15 days following the railroad’s submission of the proposed amendment to submit a statement. Fifteen days is sufficient time for the statement because issues associated with amending an RRP plan are likely to be less complex than issues associated with initially developing a new RRP plan. FRA is including this provision because FRA believes a railroad substantively amending its RRP plan must follow all the consultation process requirements that apply when a railroad is initially developing a plan. A railroad cannot either evade consultation process requirements or deprive directly affected employees of the opportunity to submit a statement to FRA by substantively amending an RRP plan FRA already approved. This paragraph does not apply to non-substantive amendments (e.g., amendments updating names and addresses of railroad personnel). If a railroad is uncertain whether a proposed amendment is substantive or nonsubstantive, it should contact FRA for guidance. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 Paragraph (b) contains requirements for filing an RRP plan amendment. The only change FRA made to this paragraph was to replace ‘‘prior to’’ with ‘‘before’’ for plain language purposes. Paragraph (c) describes how FRA will review and approve a railroad’s proposed amendment. Paragraph (c)(1) in the NPRM stated that FRA will review an amendment within 45 days of receipt and then notify the primary contact person of the railroad whether FRA approves the proposed amendment. FRA made non-substantive editorial changes to this provision to improve clarity and change passive voice to active voice. FRA also added language in paragraphs (c)(1) and (2) clarifying that FRA will also provide this notification to each individual identified in the service list accompanying the consultation statement under § 271.303(a)(1). Once again, FRA added this language to ensure the process for approving substantive amendments is the same as the process for initially approving a railroad’s RRP plan. FRA adopts paragraph (c)(3) unchanged from the NPRM. See 80 FR 10978 (Feb. 27, 2015). Section 271.305—Reopened Review This section provides that, for cause stated, FRA may reopen review of an RRP plan or amendment (in whole or in part) after approval of the plan or amendment. While this section of the NPRM stated that FRA may ‘‘reopen consideration’’ of an RRP plan or amendment, FRA has replaced this phrase with ‘‘reopen review’’ because ‘‘review’’ is the term used in the section title and elsewhere in the final rule to describe FRA’s role in approving an RRP plan. The determination of whether to reopen review is solely within FRA’s discretion on a case-by-case basis. As an example, the NPRM explained that FRA could reopen review if it determines the railroad has not been complying with its plan/amendment or if FRA obtains information that was not available when FRA originally approved the plan or amendment. In response to this section in the NPRM, AAR/ASLRRA commented the phrase ‘‘for cause stated’’ was unlimited and this section was unacceptably vague. FRA does not believe this provision needs additional specificity. FRA further notes that reopening an RRP plan for review does not necessarily mean the plan does not comply with the final rule. FRA will work with a railroad and its directly affected employees if it reopens review to ensure the railroad and employees understand and can address FRA’s cause stated. E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Section 271.307—Retention of RRP Plans This section contains requirements for railroads to retain their RRP plans. Except for adding language in paragraph (b) clarifying that a railroad must also make a copy of any subsequent amendment to an RRP plan available for inspection and copying (in addition to the plan itself), FRA adopts this section unchanged from the NPRM. FRA also did not receive any comments on this section so it is therefore not repeating the NPRM’s section-by-section analysis, but refers interested readers to the NPRM’s discussion. See 80 FR 10978 (Feb. 27, 2015). Subpart E—Internal Assessments To help ensure an RRP is properly implemented and effective, a railroad must evaluate its program annually. Subpart E contains the railroad requirements to conduct an internal assessment of its RRP. FRA did not receive any comments on this subpart. Except for updating references in the NPRM to reflect organizational changes in the final rule 27 and the minor changes discussed below for §§ 271.403 and 271.405, FRA adopts this subpart unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10978– 10979 (Feb. 27, 2015). lotter on DSKBCFDHB2PROD with RULES2 Section 271.403—Internal Assessment Improvement Plans Paragraph (b)(2) in this section of the NPRM stated that a railroad’s improvement plan must describe recommended improvements, ‘‘including any necessary revisions or updates to the RRP plan which would be made through the amendment process. . . .’’ FRA believes the term ‘‘necessary’’ is vague, and therefore changed this language in the final rule to read, ‘‘including any proposed revisions or updates to the RRP plan the railroad expects to make through the amendment process . . . .’’ The changed language also clarifies that these are amendments the railroad expects to make. FRA does not intend these changes to change the substance of this paragraph. Section 271.405—Internal Assessment Reports FRA has made changes to paragraph (b)(3) of this section to conform its 27 To reflect organizational changes in the final rule, FRA changed a reference in § 271.401(a) from § 271.301(b) to § 271.301(d) and a reference in § 271.401(b)(1) from § 271.223(b) to § 271.225(b). VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 language with the changes FRA has made to § 271.403(b)(2), discussed above. Subpart F—External Audits This subpart explains FRA’s process for conducting audits of the railroad’s RRP and establishes requirements for the actions a railroad must take in response to FRA’s audits. FRA’s audits will focus on reviewing the railroad’s RRP process and ensuring that the railroad is following the processes and procedures described in its FRAapproved RRP plan. FRA did not receive any comments on this subpart and except for a modification to § 271.501 discussed below, adopts it unchanged from the NPRM. FRA is therefore not repeating the NPRM’s section-by-section analysis in this final rule, but refers interested readers to the NPRM’s discussion. See 80 FR 10979 (Feb. 27, 2015). Section 271.501—External Audits This section in the NPRM generally stated FRA would cause external audits to be conducted. FRA has modified this section to clarify that a railroad must make documentation kept pursuant to its RRP plan available to FRA or State railroad safety inspectors for copying and inspection. Appendix A to Part 271—Federal Railroad Administration Guidance on the Risk Reduction Program Consultation Process As proposed in the NPRM, FRA intended appendix A to contain a schedule of civil penalties for use in connection with this final rule. However, FRA has decided to provide such a schedule on its website instead of as an appendix to the final rule. Please see the discussion of § 271.9, Penalties and responsibility for compliance, in the section-by-section analysis for further details. FRA is therefore moving appendix B, as proposed in the NPRM, to appendix A in the final rule. Appendix A contains guidance on complying with § 271.207, which states that a railroad must in good faith consult with, and use its best efforts to reach agreement with, all of its directly affected employees on the contents of the RRP plan. The appendix begins with a general discussion of the terms ‘‘good faith’’ and ‘‘best efforts,’’ explaining they are separate terms and each has a specific and distinct meaning. For example, the good faith obligation is concerned with a railroad’s state of mind during the consultation process, and the best efforts obligation is concerned with the specific efforts a railroad makes to try to reach agreement PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 9305 with its directly affected employees. The appendix also explains that FRA will determine a railroad’s compliance with the § 271.207 requirements on a case-by-case basis and explains that FRA may disapprove a plan if a railroad fails to consult with its directly affected employees in good faith and use best efforts. Further, the appendix contains specific guidance on the process a railroad may use to consult with its directly affected employees. This guidance does not establish prescriptive requirements a railroad must comply with, but provides a road map as an example of how a railroad may conduct the consultation process. The guidance also distinguishes between employees who are represented by a non-profit employee labor organization and employees who are not, as the processes a railroad may use to consult with represented and non-represented employees could differ significantly. Overall, however, the appendix stresses there are many ways a railroad may choose to consult with its directly affected employees to comply with the rule. Therefore, it is important to maintain a flexible approach to the § 271.207 consultation process requirements, so a railroad and its directly affected employees may consult in the manner best suited to their specific circumstances. Appendix B to Part 271—Procedures for Submission of RRP Plans and Statements From Directly Affected Employees Appendix B in the NPRM proposed guidance on complying with the consultation process requirements, and has been moved to appendix A in the final rule for reasons discussed above. FRA is therefore moving appendix C, as proposed in the NPRM, to appendix B in the final rule. Appendix B provides railroads and directly affected employees the option to file RRP plans or consultation statements electronically. The NPRM requested comment regarding whether FRA should allow electronic submission of RRP materials. FRA did not receive any comments against electronic submission and, therefore, is including this appendix unchanged in the final rule. FRA will create a secure document submission site and will need basic information from railroads or directly affected employees before setting up a user’s account. To provide secure access, FRA will also need information on the railroad’s points of contact. FRA anticipates it will be able to approve or disapprove all or part of a program and generate automated notifications by E:\FR\FM\18FER2.SGM 18FER2 9306 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations email to a railroad’s points of contact. Thus, each point of contact must understand that by providing any email addresses, the railroad is consenting to receive approval and disapproval notices from FRA by email. Railroads that allow notice from FRA by email benefit from receiving such notices quickly and efficiently. Railroads that choose to submit printed materials to FRA must deliver them directly to the specified address. Some railroads may choose to deliver a CD, DVD, or other electronic storage format to FRA rather than requesting access to upload the documents directly to the secure electronic database. Although that is an acceptable method of submission, FRA encourages each railroad to utilize the electronic submission capabilities of the system. If FRA cannot read the type of electronic storage format sent, FRA will reject the submission. VII. Regulatory Impact and Notices A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT Regulatory Policies and Procedures This rule is a significant regulatory action within the meaning of Executive Order 12866 (E.O. 12866) and DOT policies and procedures. See 44 FR 11034 (Feb. 26, 1979). FRA made this determination by finding that, although the economic effects of this regulatory action would not exceed the $100 million annual threshold defined by E.O. 12866, the rule is significant because of the substantial public interest in transportation safety. Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a ‘major rule’, as defined by 5 U.S.C. 804(2). Additionally, this final rule is considered an E.O. 13771 regulatory action. Details on the estimated costs of this final rule can be found in the rule’s RIA, which FRA has prepared and placed in the docket (docket no. FRA– 2009–0038). The RIA details estimated costs the railroads regulated by the rule are likely to incur over a ten-year period. FRA did not estimate the full incremental costs of railroads conducting additional and systematic hazard and risk analyses or implementing actions to mitigate identified hazards and risks. FRA lacks information to reliably estimate such costs because FRA does not know the specific level of hazards and risks on impacted railroads or the means railroads will use to mitigate these risks. FRA nevertheless expects railroads will implement the most cost-effective mitigations to eliminate or mitigate hazards, and the rule does not require railroads to implement mitigations that would result in net costs. As such, FRA expects that a railroad will only implement mitigation efforts that are net beneficial to the railroad. The below tables summarize the rule’s total costs over a ten-year period based on Class I railroads having a 43-percent pre-compliance rate and ISP railroads having no pre-compliance, with a total cost of $40.2 million, using a 7-percent discount rate (PV), 7-percent) (Table 5) and $51.0 million, using a 3-percent discount rate (PV, 3-percent) (Table 6). The annualized costs are $5.7 million (PV, 7-percent) and $5.9 million (PV, 3percent). TABLE 5—SUMMARY OF THE RULE’S TOTAL COSTS (TEN-YEAR PERIOD), ASSUMING 43-PERCENT CLASS I PRE-RULE COMPLIANCE; PV, 7-PERCENT Class I railroads Costs Subpart Subpart Subpart Subpart Subpart Subpart ISP railroads All railroads A: General ...................................................................................................................... B: RR Programs ............................................................................................................. C: RRP Plans ................................................................................................................. D: Review and Approval of Plans .................................................................................. E: Internal Assessments ................................................................................................ F: External Audits .......................................................................................................... ........................ $35,725,000 656,000 2,000 171,000 28,000 $7,000 2,216,000 1,053,000 7,000 312,000 32,000 $7,000 37,941,000 1,709,000 9,000 483,000 60,000 Total Cost ............................................................................................................................. 36,582,000 3,627,000 40,209,000 Annualized ................................................................................................................................... 5,210,000 516,000 5,726,000 TABLE 6—SUMMARY OF THE RULE’S TOTAL COSTS (TEN-YEAR PERIOD), ASSUMING 43-PERCENT CLASS I PRE-RULE COMPLIANCE; PV, 3-PERCENT Class I railroads Costs lotter on DSKBCFDHB2PROD with RULES2 Subpart Subpart Subpart Subpart Subpart Subpart ISP railroads All railroads A: General ...................................................................................................................... B: RR Programs ............................................................................................................. C: RRP Plans ................................................................................................................. D: Review and Approval of Plans .................................................................................. E: Internal Assessments ................................................................................................ F: External Audits .......................................................................................................... ........................ $45,156,000 771,000 2,000 230,000 37,000 $9,000 3,011,000 1,329,000 8,000 413,000 43,000 $9,000 48,167,000 2,100,000 10,000 643,000 80,000 Total Cost, 3% present value ............................................................................................... 46,197,000 4,813,000 51,000,000 Annualized, 3% ............................................................................................................................ 5,416,000 564,000 5,979,000 The final rule will require each Class I and ISP railroad to create and implement an RRP. As part of an VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 ongoing process, the final rule will require each railroad and its employees to collaboratively identify, rank, and PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 address safety hazards. FRA concludes that the final rule will result in each affected railroad creating a systematic E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations approach to safety that achieves benefits from inter-department coordination similar to the type of benefits observed through the FRA-sponsored C3RS program.28 FRA expects that the final rule will improve the effectiveness of a railroad’s hazard mitigation efforts, which will result in the primary benefit of decreasing the frequency of accidents/incidents. Other benefits that will come from promulgating the rule include reduced railroad and nonrailroad property damage, railroad and highway travel delays, cleanup costs, employee absenteeism, and emergency response costs, among others. Lastly, FRA expects that the final rule will increase railroad productivity and profitability, due to substantially better employee morale, improved working conditions, and a more effective allocation of hazard safety mitigation resources. Benefits that come from the final rule will vary from railroad to railroad. These benefits are based on each railroad’s organizational structure, the ability for labor and management to collaborate, and the steps the railroad takes to implement hazard analysis and mitigation. FRA could not reliably predict the specific risks that each freight railroad will identify, the actions each freight railroad will take to mitigate such risks, or the success rate of such actions. Details on the estimated benefits of this final rule can be found in the rule’s RIA, which FRA has prepared and placed in the docket (docket no. FRA–2009–0038). FRA expects that the final rule will increase the effectiveness of railroad hazard mitigation strategies, which will reduce the frequency of accidents and incidents on the general railroad system. FRA also expects that the final rule will result in increased employee morale and improved working conditions, which will improve railroad productivity. These benefits will result because the final rule: 1. Ensures that railroads keep their RRP current and in place; 2. Improves safety culture; 3. Requires ongoing employee involvement and proactive collaboration between labor and management; and 4. Provides information protection, which allows for a systematic risk-based hazard analysis. The final rule requires each Class I railroad to have a fully implemented RRP within five years of the rule’s effective date and requires the first set 28 See U.S. Department of Transportation, Federal Railroad Administration, ‘‘Continued Improvement at One C3RS Site’’, June 2015, available at https:// rosap.ntl.bts.gov/view/dot/12204/dot_12204_ DS1.pdf (Accessed December 10, 2018). VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 of ISP railroads to implement all portions of their RRPs within six years after the final rule’s effective date.29 FRA anticipates that railroads may implement some components of their RRP plan before the required implementation dates specified in the final rule. Therefore, this analysis estimates that the final rule will start generating benefits in the fourth year (year 2022), when Class I railroads will have substantially implemented their RRPs. As previously discussed, Class I railroads have in place existing activities related to the final rule’s required components. The existing levels of pre-rule compliance reduce the size of potential benefits that follow from issuing the final rule. 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 impacts on small entities. An agency must prepare a Final Regulatory Flexibility Analysis (FRFA) unless it determines and certifies that a rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. FRA is publishing this FRFA to describe the potential impact of the final rule on small businesses. 1. Statement of Need for, and Objectives of, the Rule FRA is requiring each Class I freight railroad and ISP freight railroad to develop and implement an RRP, a structured program with proactive processes and procedures a railroad develops and implements to identify and eliminate or mitigate hazards and the resulting risks on its system. An RRP works by encouraging a railroad and its employees to proactively collaborate to identify hazards and determine what, if any, action to take to eliminate or mitigate the resulting risks. The rule provides each railroad with a substantial amount of flexibility to establish an RRP based on its specific operations. FRA is issuing the RRP rule as part of its efforts to continuously improve rail safety and to satisfy in part the statutory mandate in sections 103 and 109 of the RSIA. The rule is intended to focus on increased safety, care, and protection of 29 An ISP railroad should begin to realize benefits approximately three years after FRA approves its RRP plan, the point when the final rule requires the ISP railroad to have fully implemented its RRP. The final rule requires each ISP railroad that is part of the first group of ISP railroads to implement in full an RRP by the sixth year. PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 9307 railroad employees, customers, and the general public. The rule will also help ensure railroads provide a safer workplace environment for their employees. Conformance and compliance with the rule, rather than a voluntary system, will better facilitate and ensure industry-wide efforts, resulting in measurable improvement in the performance and quality of safety management processes. Even though FRA has issued safety regulations and guidance that address many aspects of railroad operations, there are gaps in safety and hazards. Risks may arise from these gaps. RRPs will provide railroads with the tools to systematically and continuously evaluate their systems to identify the gaps in safety and eliminate or mitigate the hazards and risks that result from these gaps. The rule responds to the Congressional mandate in section 103 of the RSIA, which provides that FRA, by delegation from the Secretary, shall require each Class I railroad and ISP railroad to establish a railroad safety risk reduction program. See 49 U.S.C. 20156(a)(1).30 The rule also conforms to section 109 of the RSIA, which directs FRA, by delegation from the Secretary, to conduct a study to determine if it is in the public interest to withhold certain information, including a railroad’s assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death. Section 109 authorizes FRA, by delegation from the Secretary, to prescribe a rule, subject to notice and comment, to address the results of the study. See 49 U.S.C. 20119. The RSIA requirements explain the congressionally mandated need for action. Under 49 U.S.C. 20103(a), ‘‘[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.’’ The Secretary’s responsibility under this provision and the balance of the railroad safety laws has been delegated to the FRA Administrator under 49 CFR 1.89. 30 While the RSIA also directs FRA to require passenger railroads to establish railroad safety risk reduction programs, FRA has published a separate SSP rule that addresses the passenger railroad mandate. See 81 FR 53850 (Aug. 12, 2016). E:\FR\FM\18FER2.SGM 18FER2 9308 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 2. Summary of Significant Issues Raised by Public Comments, Summary of Assessment of Such Issues, and Statement of Any Changes in Rule as Result of Such Comments There is an extensive section, above, discussing comments. This section discusses comments particularly applicable to small railroads. ISP Determination: ASLRRA expressed concern that FRA’s proposed methodology for identifying ISP railroads would select a disproportionate number of the smallest railroads. To assess this concern, FRA conducted several analyses of data from FRA’s RAIRS, the system that would provide FRA data for the inadequate safety performance methodology. To approximate the proposed methodology, FRA conducted the analyses for the three-year period from 2012 through 2014, the latest years for which a full 12 months’ data were available at the time of the analysis. The first analysis identified and evaluated all railroads the proposed methodology would analyze for inadequate safety performance (i.e., Class II and III freight railroads that operate on the general system). On average, these railroads reported about 231,000 total train miles operated and 200,000 employee hours between 2012 and 2014. FRA then used the proposed methodology for identifying ISP railroads to evaluate Class II and III railroads for inadequate safety performance. Railroads determined to have inadequate safety performance reported, on average, 32,000 total train miles operated and 35,000 employee hours between 2012 and 2014. These averages are substantially lower than averages for the entire pool of Class II and III railroads the proposed methodology would evaluate. Based on this result, FRA shares ASLRRA’s concern that the proposed methodology would over-select the smallest railroads. FRA has therefore changed the proposed methodology to include a preliminary selection in the quantitative analysis phase. This preliminary selection will help avoid over-selecting the smallest railroads by utilizing the absolute number (rather than rates) of two factors regarding a railroad’s safety performance. FRA has applied this methodology to RAIRS data. On average, railroads identified as having inadequate safety performance reported 146,000 train miles operated and 165,000 employee hours from 2012 through 2014. These averages are much closer to the averages for the entire pool VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 of Class II and III freight railroads that the methodology will initially evaluate. Appeal of FRA’s ISP Determination: AAR/ASLRRA commented urging FRA to establish an appeals process for railroads that the methodology identifies as having inadequate safety performance. FRA agrees including an appeals process for railroads determined to have inadequate safety performance is fair. In the final rule, FRA therefore added a process for railroads to petition the FRA Administrator for reconsideration of inadequate safety performance determinations under existing procedures to appeal to the Administrator (e.g., procedures regarding petitions for waiver of safety rules under 49 CFR part 211, subpart C). These procedures are well-established and should be familiar to the railroad industry. Information Protection: While small railroad commenters favored information protection, FRA received several comments arguing the proposed information protections are too narrow. ASLRRA commented FRA improperly relied on section 409 and the Supreme Court’s decision in Guillen, and therefore FRA is not protecting data as Congress intended in the RSIA. ASLRRA also questions FRA’s explanation in the NPRM preamble that the information protections would only extend to the Short Line Safety Institute (Institute) if FRA finds the Institute is part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). As Section V.A.8 explains above, FRA disagrees with these comments and believes it has properly limited the scope of the information protections, the protections are consistent with Congress’ intent in the RSIA, and FRA lacks authority under RSIA to extend information protections to programs that do not fully meet the requirements of this RRP final rule. AAR/ASLRRA also commented on the NPRM preamble statement that § 271.11 would only protect information once FRA approves a railroad’s RRP plan. They believe that approach does not make sense and weakens the rule’s proposed protections. As Section V.A.8 explains above, FRA agrees with AAR/ ASLRRA and does not intend to limit the information protections only to information a railroad compiles or collects for an RRP plan FRA has already approved. Performance-based rule and flexibility: As Section V.B.2 explains above, the NPRM described RRP as a performance-based rule that would not establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Several PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 commenters supported FRA’s decision to propose a performance-based, flexible RRP rule, and AAR/ASLRRA acknowledged the performance-based nature of RRP. The performance-based nature of the RRP final rule gives a smaller railroad the flexibility to tailor the rule’s requirements to its specific operations and amount of resources. Short Line Safety Institute: As Section V.B.8 explains above, ASLRRA commented that small railroad participation in the Institute should suffice as complete compliance with the requirements in the NPRM. ASLRRA also claims FRA would fulfill the SBREFA requirement to grant special considerations to small businesses by accepting participation in the Institute as satisfying RRP requirements. FRA currently cannot determine, however, whether the Institute will fully comply with the RSIA mandate or the requirements of this final rule. Rather, FRA believes it is more appropriate to make this determination when reviewing RRP plans under § 271.301 of the final rule. FRA also notes that the final rule will not unduly burden short line and regional railroads because of its scalability and flexibility. 3. The Response of the Agency to Any Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration FRA did not receive any comments from the Chief Counsel for Advocacy of the Small Business Administration. 4. Description and Estimate of Number of Small Entities to Which the Final Rule Applies ‘‘Small entity’’ is defined in 5 U.S.C. 601 as 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 ‘‘line-haul railroad’’ that has fewer than 1,500 employees, a ‘‘short line railroad’’ with fewer than 500 employees, or a ‘‘commuter rail system’’ with annual receipts of less than 15 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. E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 Under that authority, FRA published a final statement of agency policy formally establishing ‘‘small entities’’ or ‘‘small businesses’’ as railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad under 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 49 CFR part 209, appendix C). The $20 million limit is based on the STB’s revenue threshold for a Class III railroad carrier. 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 the final rule. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity. Railroads In the universe of railroads that potentially have to comply with the final rule, there are 7 Class I railroads, 11 Class II railroads (1 of which is classified as a passenger railroad that will be excepted from the final rule), and 735 Class III freight railroads. Out of the 735 Class III freight railroads, the final rule excepts railroads not on the general system and tourist railroads, leaving approximately 600 Class III railroads as small entities that may be subject to the requirements of the final rule.31 To identify Class II and Class III railroads that must comply with the final rule because they demonstrate inadequate safety performance, FRA will annually conduct a two-phase analysis. The first phase is a statistically-based quantitative analysis of fatalities, FRA-reportable injuries/ illnesses, FRA-reportable accidents/ incidents, and FRA safety violations; and the second phase is a qualitative assessment that includes input from affected railroads and their employees. See § 271.13 of the final rule for a full description of FRA’s process for determining inadequate safety performance. Because FRA’s initial inadequate safety performance analysis will occur at least one year after the RRP final rule goes into effect, it is impossible for FRA to know how many Class III railroads will be required to comply. FRA 31 Total number of Class III railroads potentially impacted = 735 Class III railroads¥43 Class III railroads not on the general system¥93 Class III railroads that are tourist railroads = 599 Class III railroads. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 reviewed a 3-year rolling average of safety data to test the selection process. This analysis accounted for the types of information that railroads and employees could present to FRA during the qualitative review process. Such information could serve to refute the quantitative analysis’ identification of a railroad as demonstrating inadequate safety performance. Based on this analysis, FRA expects to identify approximately 10 Class II and Class III freight railroads that demonstrate inadequate safety performance in year 2 of the 10-year period of the analysis. In each subsequent year, FRA expects to identify five additional ISP railroads. Therefore, by year 10, FRA will have identified approximately 50 ISP railroads. FRA expects the number of ISP railroads will reach a maximum of 50 railroads by year 10, at which point the number of ISP railroads should flatten out or decline. In estimating the maximum number of ISP railroads, FRA considered the following factors: (1) Industry-wide safety performance improvement; (2) in year 7 of the analysis, some ISP railroads will seek and receive relief from being in the program after complying for 5 years; (3) the size of the railroad pool being examined for inadequate safety performance would shrink as more railroads are required to comply with part 271; and (4) those railroads not identified as being an ISP railroad will observe the positive behaviors and results of ISP railroads and will embrace the better safety practices without having a formal RRP program. For purposes of this FRFA, FRA expects that each ISP will be a Class III railroad (small railroad). Contractors Some railroads use contractors to perform many different functions on their railroads. For some of these railroads, contractors perform safetyrelated functions, such as operating trains. For assessing the impact of an RRP, contractors fall into two groups: Larger contractors that perform a primary operating or maintenance function for the railroads, and smaller contractors that perform ancillary functions to the primary operations. Larger contractors are typically employed by sizable private companies or part of an international conglomerate. Smaller contractors may perform such duties as brush clearing or painting facilities. Safety-related policies, work rules, guidelines, and regulations are imparted to the small contractors today as part of their contractual obligations and PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 9309 qualification to work on the Class I freight railroads, and potentially to work for ISP railroads. FRA sees minimal additional burden to imparting the same type of information under each railroad’s RRP. A very small administrative burden may result. Under the final rule, contractors (small or large) that provide significant safety-related services are expected to have minimal burden under the rule. For example, while the final rule requires the railroad to involve the persons that provide significant safetyrelated services in the railroad’s RRP, it doesn’t require the entity to do any training. Thus, any burden imposed on contractors would be indirect or considered in the contract with the pertinent railroad or both. 5. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule, Including Estimate of Small Entities Regulated by Rule The rule will require an ISP railroad to develop and implement an RRP under a written RRP plan FRA has reviewed and approved. There are several reporting, recordkeeping, and compliance costs associated with the final rule. FRA believes that the added burden of recordkeeping is marginal due to the final rule requirements. The total 10-year cost of this final rule is $40.2 million (PV, 7%) and $51.0 million (PV, 3%), of which FRA estimates $3.6 million (PV, 7%) and $4.5 million (PV, 3%) or less will be attributable to small entities. Based on FRA’s RIA, which has been placed in the docket, the average Class III ISP railroad will incur an average burden per year. If, for example, ISP railroads comply with the final rule for an average of eight years, then the total cost will be approximately $143,000 (PV, 7%) and $168,000 (PV, 3%) per ISP railroad. However, due to the small number of small railroads that are estimated to be impacted by this final rule, the cost per railroad could be found to be significant. For a thorough presentation of cost estimates, please refer to the RIA, which has been placed in the docket for this rulemaking. The following section outlines the potential additional burden on small railroads for each subpart of the final rule. • Subpart A—General The policy, purpose, and definitions outlined in subpart A, alone, will not impose a significant burden on small railroads. However, there is the small requirement for notifying employees of E:\FR\FM\18FER2.SGM 18FER2 9310 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations the railroad that FRA’s quantitative analysis has found that the railroad may demonstrate inadequate safety performance. This subpart of the final rule will impose less than 1 percent of the total burden for small entities. • Subpart B—Risk Reduction Program Requirements Subpart B of the final rule will have a proportional effect directly related to the size and complexity of a railroad and will impose approximately 60 percent of the total burden for small entities. Generally, this subpart describes what a railroad must develop and include in its RRP. For example, it requires the development of a risk-based HMP (which includes a risk-based hazard analysis and the design and implementation of mitigation strategies), safety performance evaluation, and technology implementation plans. Because of the scalable nature of the final rule, the requirements of an RRP will be much less complex for a small railroad than they will be for a Class I railroad. Additionally, several characteristics of small railroads should also limit the number and types of hazards for the RRP to address. These characteristics include the concentrated geography of operation in a small area, the short distance of operation, and a non-fragmented and non-diffused work force (in other words, most employees of a small railroad are in one place). RRP requirements such as technology implementation plans should also not be burdensome. This is because small railroads are very limited in the resources they can allocate for new technologies. FRA expects that small railroads will rely on tried-and-true technologies that have been thoroughly tested elsewhere. lotter on DSKBCFDHB2PROD with RULES2 • Subpart C—Risk Reduction Program Plan Requirements Subpart C of the final rule will have a proportional effect directly related to the size and complexity of a railroad. This subpart of the final rule contains the requirements for RRP plans and will impose approximately 29 percent of the total burden for small entities. For example, it requires a plan statement on each RRP element mandated in subpart B and plan statements related to safety policy and goals, a system description, the consultation process, and an RRP implementation plan. This subpart of the final rule is primarily the paperwork or written plan that supports the processes and programs in the RRP. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 • Subpart D—Review, Approval, and Retention of Risk Reduction Program Plans Subpart D of the final rule will impose less than 1 percent of the total burden for small entities. The final requirements of this subpart are for the submission to FRA for review and approval of the initial RRP plan and any amendments thereto. Since only 10 small railroads are expected to submit RRP plans for approval in year two, and approximately 5 small railroads are expected to submit RRP plans each year thereafter, this subpart should have a very small economic impact. • Subpart E—Internal Assessments Subpart E of the final rule will impose approximately 9 percent of the total burden for small entities. This burden is for the ongoing cost of small railroads to perform an internal assessment and report on internal audits on an annual basis. As noted above, initially very few small railroads will be performing these internal assessments, which will serve to minimize the economic impact on small railroads. • Subpart F—External Audits Subpart F of the final rule will impose approximately 1 percent of the total burden for small entities. This burden is for the ongoing cost of small railroads to host an external audit by FRA or its designees on a periodic basis. This includes the burden to produce an improvement plan addressing any instances of deficiencies or noncompliance FRA identified during the audit. FRA does not expect more than five of these small railroads to receive an external audit in any given year. Market and Competition Considerations The railroad industry has several significant barriers to entry, such as the need to own or otherwise obtain access to rights-of-way and the high capital expenditure needed to purchase a fleet, as well as track and equipment. Furthermore, the small railroads under consideration will potentially be competing only with the trucking industry and typically deal with the transport of commodities or goods that are not truck-friendly. Thus, while this final rule will have an economic impact on Class I freight railroads and ISP railroads, it should not have an impact on the competitive position of small railroads. For the entire railroad industry over a 10-year period, FRA estimates the total cost for the rule will be $40.2 million (PV, 7-percent), or $51.0 million (PV, 3- PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 percent).32 Based on information currently available, FRA estimates that Class II and Class III railroads will bear 9 percent of the total railroad costs associated with implementing the rule. 6. Description of Steps Taken To Minimize Significant Adverse Economic Impact on Small Entities As discussed above, FRA estimates ISP railroads will incur approximately 9 percent of the total cost of this final rule. Based on FRA’s RIA, the average ISP railroad will incur an average burden of approximately $18,000 (PV, 7percent) and $21,000 (PV, 3-percent) per year. If ISP railroads complied with the RRP final rule for an average of eight years, then the average total cost will be approximately $144,000 (PV, 7-percent) and $168,000 (PV, 3-percent) per ISP railroad. FRA has taken several steps to minimize the final rule’s burden on small entities. For example, several provisions in the final rule respond directly to comments on the NPRM raising small entity concerns. Specifically, FRA modified the methodology for identifying ISP railroads to avoid over-selecting the smallest railroads and included a process in the final rule allowing railroads to appeal an ISP determination to the FRA Administrator. Additional steps FRA has taken include developing and promulgating a performance-based final rule, helping to create the Institute (which will help any small railroad comply with this rule), and providing information protections. FRA also intends to aid railroads, including small entities, in the development of the RRPs, starting at the planning phase and continuing through the implementation phase. The final rule is also scalable by design. Therefore, a short line or regional railroad can likely maintain full compliance with the final rule with an RRP that is not likely to have the complexity and comprehensiveness of an RRP for a larger railroad. FRA will aid railroads so that the scope and content of their RRPs are proportionate to their size and the nature of their operation. All these actions benefit small railroads and will help them comply with the final rule. Lastly, as a result of addressing the safety issues that led FRA to determine the railroad demonstrated inadequate safety performance, FRA believes an RRP will help an ISP railroad more effectively 32 FRA’s estimates follow Office of Management and Budget (OMB) guidance in OMB Circular A– 94 to use real discount rates of 7- and 3-percent for regulatory analysis. E:\FR\FM\18FER2.SGM 18FER2 9311 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations allocate resources, while also reducing the frequency of accidents. For small entities, FRA estimates the monetized value of gains will be equal to or greater than the final rule’s burden. In the Initial Regulatory Flexibility Analysis, FRA stated it had not determined whether the proposed rule would have a significant economic impact on a substantial number of small entities. See 80 FR 10982 (Feb. 27, 2015). FRA remains uncertain whether the rule may have a significant impact on affected entities, or whether the number of small entities FRA expects to be impacted, a maximum of 50 out of approximately 600, is a substantial number of small entities. Therefore, FRA is not certifying that the rule will not have a significant impact on a substantial number of small entities. In compliance with SBREFA, FRA is developing a compliance guide to assist small entities in complying with the rule. FRA is placing this guide in the public docket for this rulemaking. Overall, FRA has taken reasonable measures to ensure the rule’s impact is commensurate with business size, and FRA will aid small railroad compliance. lotter on DSKBCFDHB2PROD with RULES2 C. Federalism Executive Order 13132, ‘‘Federalism’’ (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA analyzed this final rule under the principles and criteria in Executive Order 13132. FRA has determined this rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined this rule does not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. This rule adds part 271, Risk Reduction Program. FRA notes that this part could have preemptive effect by the operation of law under a provision of the former Federal Railroad Safety Act of 1970, repealed and re-codified at 49 U.S.C. 20106 (section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the ‘‘essentially local safety or security hazard’’ exception to section 20106. FRA has determined that certain State laws may be preempted by this part. Section 271.11(d) in the final rule specifically addresses the preemption of State discovery rules and sunshine laws to the extent those laws would require disclosure of information protected by § 271.11 in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. The preemption of State discovery rules and sunshine laws is discussed further in the section-by-section analysis of § 271.11(d). In addition, as previously discussed, section 20119(b) authorizes FRA to issue a rule governing the discovery and use of risk analysis information in litigation. In sum, FRA has analyzed this rule under the principles and criteria in Executive Order 13132. As explained above, FRA has determined this rule has minimal federalism implications. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this rule is not required. D. International Trade Impact Assessment The Trade Agreements Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The act requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. This rule is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States. E. Paperwork Reduction Act FRA is submitting the information collection requirements in this 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 information collection requirements are duly designated and the estimated time to fulfill each requirement is as follows: CFR section/subject 33 Respondent universe Total annual responses Average time per response 271.13—Determination of inadequate safety performance (ISP)—Notice to employees of possible ISP identification by FRA. —Employee confidential comments to FRA regarding RR possible ISP identification. —RR Documentation to FRA refuting possible ISP identification. 15 railroads ................. 5 notices ..................... 3 hours .............. 15 $1,018 125 employees ........... 5 comments ................ 30 minutes ......... 2.5 170 15 railroads ................. 5 documents ............... 8 hours .............. 40 2,715 271.101(a)—Risk Reduction Programs (RRPs)—Class I railroads. 271.103—RRP hazard management program (HMPs) .......... 271.105—RRP safety performance evaluation (SPEs): Survey/evaluation. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 PO 00000 Total annual dollar cost equivalent 34 Total annual burden hours This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111. 7 railroads ................... 7 railroads ................... Frm 00051 Fmt 4701 I 2.333 HMPs analyses 2.333 SPEs evaluation Sfmt 4700 I 3,360 hours ....... 147 hours .......... E:\FR\FM\18FER2.SGM 18FER2 I 7,839 343 I 532,111 23,283 9312 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations CFR section/subject 33 Respondent universe Total annual responses Average time per response 271.107—Safety Outreach—communications/reports ............ 7 railroads ................... 7 railroads ................... 2.333 assessments .... 44,333 communications. 28 communications .... 2.333 reports .............. 1,060 hours ....... 1 hour ................ 2,473 44,333 167,867 2,379,352 30 minutes ......... 10 hours ............ 14 23.3 950 1,582 1,400 records of trained employees. 40 communications/ consultations. 3 minutes ........... 70 4,752 2 hours .............. 80 5,430 7 railroads ................... 212 communications/ consultations. 1 hour ................ 212 14,391 7 railroads ................... 1,488 communications/ consultations. 1 hour ................ 1,488 101,005 271.109—Technology analysis and technology implementation plans. 271.111—RRP implementation training—programs/tr. employees/rcds. 271.101(c)—Communication by Class I RRs that host passenger train service with RRs subject to FRA System Safety Program Requirements. —(d)—Identification/communication w/entities performing/utilizing significant safety-related services— Class I RRs. —RR Identification/further communication with contractors performing/utilizing significant safety related services—Class I RRs. 7 railroads ................... 7 railroads ................... 7 railroads ................... 7 railroads ................... 271.101(a)—Risk Reduction Programs (RRPs)—ISP railroads. 271.103—RRP hazard management program (HMPs) .......... 271.105—RRP safety performance evaluation (SPEs): Survey/evaluation. 271.107—Safety Outreach—communications/reports ............ lotter on DSKBCFDHB2PROD with RULES2 271.109—Technology analysis and technology implementation plans. 271.111—RRP implementation training—programs/tr. employees/rcds. 271.101(d)—ISPs—Identification/communication w/entities performing significant safety-related services. 271.201/203—Written risk reduction program plans (RRP plans)—Adoption and implementation of RRP plans— Class I. —Written RRP plans—ISP RRs ...................................... 271.207—RR Good faith consultation w/directly affected employees—Class I RRs. —RR Notification to non-represented employees of consultation meeting—Class I RRs. —RR Good faith consultations/notices: ISP RRs ............ (d)—Submission of detailed consultation statement along w/RRP plan by Class I RRs. —Submission of detailed consultation statement along w/RRP plan by ISPs. —Copy of RRP plan/consultation statement to service list individuals—Class I RRs + ISP RRs. —Statements from directly affected employees—Class I RRs. —Statements from directly affected employees—ISP RRs. 271.301—Filing of RRP plan w/FRA—Class I RRs ............... —Filing of RRP plan w/FRA—ISP RRs ........................... —Class I RR corrected RRP plan ................................... —FRA requested Class I RR consultation with directly affected employees regarding substantive corrections/ changes to RRP plan. —ISP RR corrected RRP plan ......................................... —FRA requested ISP RR further consultation with directly affected employees regarding substantive amendment to RRP plan. 271.303—Amendments consultation w/directly affected employees on substantive amendments to RRP plan—Class I RRs and ISP RRs. —Employee statement to FRA on RR RRP plan substantive amendment where agreement could not be reached. —Filed amended RRP plan—Class I RRs ...................... —Filed amended RRP plan—ISP RRs ........................... 271.307—Retention of RRP plans—Copies of RRP Plan/ Amendments by RR at system/division headquarters— Class I and ISP RRs. 217.401/403—Annual internal assessment/improvement plans—Class I RRs. —Annual internal assessment/improvement plans—ISP RRs. 271.405—Internal assessment report copy to FRA—Class I RRs. —Internal assessment report copy to FRA—ISP RRs .... VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 PO 00000 Total annual burden hours Total annual dollar cost equivalent 34 This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111. 15 railroads ................. 15 railroads ................. 5 HMPs ....................... 5 surveys .................... 240 hours .......... 14.73 hours ....... 1,200 74 81,456 5,023 15 15 15 15 5 5 5 5 SPEs ....................... communications ...... reports ..................... plans ........................ 51.1 hours ......... 1 hour ................ 3 hours .............. 5 hours .............. 256 5 15 25 17,377 268 1,018 1,697 3 minutes ........... 2.5 170 2 hours .............. 10 679 7 railroads ................... 50 records of trained employees. 5 communications/consultations. 2.333 RRP plans ........ 461 hours .......... 1,075 72,971 15 railroads ................. 7 railroads ................... 5 RRP plans ............... 2.333 consults ............ 96 hours ............ 8 hours .............. 480 19 32,582 1,290 7 railroads ................... 1 notification ............... 3 hours .............. 3 204 15 railroads ................. 7 railroads ................... 20 hours ............ 200 hours .......... 100 467 6,788 31,700 40 hours ............ 200 13,576 2 minutes ........... 2 minutes ........... 12.7 12.7 862 862 10 labor organizations 5 consults/notices ....... 2.333 consultation statements. 5 consultation statements. 380 plan copies .......... 380 consultation statements. 3 statements ............... 6 hours .............. 18 1,222 15 railroads ................. 12 statements ............. 1 hour ................ 12 815 7 railroads ................... 15 railroads ................. 7 railroads ................... 7 railroads ................... 2.333 filed plans ......... 5 filed plans ................ 1 RRP plan ................. 1 consult/statement .... 2 2 2 3 .............. .............. .............. .............. 5 10 2 3 339 679 136 204 15 railroads ................. 15 railroads ................. 1 RRP plan ................. 1 consult/statement .... 2 hours .............. 1 hour ................ 2 1 136 68 22 railroads (Class I + ISP). 2 consults ................... 1 hour ................ 2 136 22 railroads (Class I + ISP). 2 employee statements. 30 minutes ......... 1 68 7 railroads ................... 15 railroads ................. 22 railroads (Class I + ISP). 1 plan .......................... 1 plan .......................... 22 plan copies ............ 6 hours .............. 1 hour ................ 10 minutes ......... 6 1 4 407 68 272 7 railroads ................... 120 hours .......... 280 19,006 32 hours ............ 160 10,861 7 railroads ................... 2.333 assessments/improvement plans. 5 assessments/improvement plans. 2.333 reports .............. 8 hours .............. 19 1,290 15 railroads ................. 5 reports ..................... 2 hours .............. 10 679 railroads railroads railroads railroads ................. ................. ................. ................. 15 railroads ................. 15 railroads ................. 15 railroads ................. 22 railroads ................. 22 railroads ................. 15 railroads ................. Frm 00052 Fmt 4701 Sfmt 4700 hours hours hours hours E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations CFR section/subject 33 Respondent universe Total annual responses Average time per response Appendix B—Request by FRA for additional information/documents to determine whether railroad has met good faith and best efforts consultation requirements of section 271.207. —Further railroad consultation w/employees after determination by FRA that railroad did not use good faith/ best efforts. —Meeting to discuss administrative details of consultation process during the time between initial meeting and applicability date—Class I RRs. —Meeting to discuss administrative details of consultation process during the time between initial meeting and applicability date—ISP RRs. —Notification to non-represented employees of good faith consultation process—ISP RRs. —Draft RRP plan proposal to employees—ISP RRs ...... —Employee comments on RRP plan draft proposal ....... 7 railroads ................... 3 documents ............... 40 hours ............ 120 8,146 7 railroads ................... 1 consult ..................... 8 hours .............. 8 543 7 railroads ................... 7 meetings/consults .... 2 hours .............. 14 950 15 railroads ................. 7 meetings/consults .... 1 hour ................ 7 475 15 railroads ................. 600 notices ................. 15 minutes ......... 150 10,182 15 railroads ................. 2,000 employees ........ 20 proposals/copies ... 60 comments .............. 2 hours .............. 1 hour ................ 40 60 2,715 4,073 Totals ........................................................................ 22 railroads ................. 49,148 responses ....... N/A .................... 61,825 3,566,619 All estimates include the time for reviewing instructions, searching existing data sources, gathering or maintaining the needed data, and reviewing the information. For information or a copy of the paperwork package submitted to OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, Office of Railroad Safety, Federal Railroad Administration, at 202–493–0440 or Ms. Kimberly Toone, Information Collection Clearance Officer, Office of Information Technology, Federal Railroad Administration, at 202–493–6132. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Ms. Hodan Wells 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 Ms. Wells at Hodan.Wells@dot.gov or Ms. Toone at Kim.Toone@dot.gov. OMB must make a decision concerning the collection of information requirements contained in this 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 lotter on DSKBCFDHB2PROD with RULES2 9313 33 Information collection requests relating to petitions and audits will occur outside of this information collection request timeframe. Also, because § 271.113 requires a railroad to involve directly affected employees in establishing or implementing an RRP (e.g., when identifying hazards, conducting internal assessments, or otherwise performing activities required under part 271), the burdens associated with § 271.113 are covered under the other burdens associated with subparts B and E of part 271. 34 The dollar equivalent cost is derived from the Surface Transportation Board’s Full Year Wage A&B data series using the appropriate employee group hourly wage rate that includes 75-percent overhead charges. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 of publication. FRA did not receive any OMB or public comments on the information collection requirements contained in the NPRM. 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. The current OMB control number is 2130–0610. F. Environmental Assessment FRA has evaluated this rule under 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 this rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA’s Procedures. 64 FR 28547, 28548. Consistent with section 4(c) and (e) of FRA’s Procedures, FRA also concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds this rule is not a major Federal action significantly affecting the quality of the human environment. Total annual burden hours Total annual dollar cost equivalent 34 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 each agency to prepare a comprehensive written statement for any proposed or final rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.35 This final rule will not result in such an expenditure, and thus preparation of such a statement is not required. G. Unfunded Mandates Reform Act of 1995 H. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 66 FR 28355 (May 22, 2001). FRA evaluated this final 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 final rule will not burden the development or use of domestically produced energy sources. Under 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 35 See U.S. Department of Transportation, ‘‘Guidance—Threshold of Significant Regulatory Actions under the Unfunded Mandates Reform Act of 1995,’’ April 4, 2016, https:// www.transportation.gov/office-policy/ transportation-policy/threshold-significantregulatory-actions-under-unfunded-mandat-0, as accessed July 26, 2018. PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\18FER2.SGM 18FER2 9314 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Under the Executive Order, a ‘‘significant energy action’’ is defined as any action by an agency (normally published in the Federal Register) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, advance notice of proposed rulemaking, and notice of proposed rulemaking) that (1)(i) is a significant regulatory action under E.O. 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this rule under Executive Order 13211 and determined this rule will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a ‘‘significant energy action’’ under the Executive Order 13211. List of Subjects in 49 CFR Part 271 Penalties, Railroad safety, Reporting and recordkeeping requirements, Risk reduction. The Rule In consideration of the foregoing, FRA adds part 271 to chapter II, subtitle B of title 49, Code of Federal Regulations, to read as follows: ■ PART 271—RISK REDUCTION PROGRAM lotter on DSKBCFDHB2PROD with RULES2 Subpart B—Risk Reduction Program Requirements 271.101 Risk reduction programs. 271.103 Risk-based hazard management program. 271.105 Safety performance evaluation. 271.107 Safety outreach. 271.109 Technology analysis and technology implementation plan. 271.111 Implementation and support training. 271.113 Involvement of railroad employees. Subpart C—Risk Reduction Program Plan Requirements 271.201 General. 20:17 Feb 14, 2020 Jkt 250001 (d) This part does not require an RRP to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. Additionally, an RRP required by this part is not intended to address and should not address the safety of employees while performing inspections, tests, and maintenance, except where FRA has already addressed workplace safety issues, such as blue signal protection in part 218 of this chapter. FRA does not intend to approve any specific portion of an RRP plan that relates exclusively to employee working conditions. Subpart D—Review, Approval, and Retention of Risk Reduction Program Plans 271.301 Filing and approval. 271.303 Amendments. 271.305 Reopened review. 271.307 Retention of RRP plans. § 271.3 Subpart E—Internal Assessments 271.401 Annual internal assessments. 271.403 Internal assessment improvement plans. 271.405 Internal assessment reports. Subpart F—External Audits 271.501 External audits. 271.503 External audit improvement plans. Appendix A to Part 271—Federal Railroad Administration Guidance on the Risk Reduction Program Consultation Process Appendix B to Part 271—Procedures for Submission of RRP Plans and Statements From Directly Affected Employees Authority: 49 U.S.C. 20103, 20106–20107, 20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. Subpart A—General Subpart A—General Sec. 271.1 Purpose and scope. 271.3 Application. 271.5 Definitions. 271.7 [Reserved] 271.9 Penalties and responsibility for compliance. 271.11 Discovery and admission as evidence of certain information. 271.13 Determination of inadequate safety performance. 271.15 Voluntary compliance. VerDate Sep<11>2014 271.203 Policy, purpose and scope, and goals. 271.205 System description. 271.207 Consultation requirements. 271.209 Consultation on amendments. 271.211 Risk-based hazard management program process. 271.213 Safety performance evaluation process. 271.215 Safety outreach process. 271.217 Technology implementation plan process. 271.219 Implementation and support training plan. 271.221 Involvement of railroad employees process. 271.223 Internal assessment process. 271.225 RRP implementation plan. § 271.1 Purpose and scope. (a) The purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. Each railroad subject to this part must establish a Risk Reduction Program (RRP) that systematically evaluates railroad safety hazards on its system and manages the risks associated with those hazards to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities. (b) This part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. This part does not restrict railroads from adopting and enforcing additional or more stringent requirements not inconsistent with this part. (c) This part prescribes the protection of information a railroad compiles or collects solely for the purpose of planning, implementing, or evaluating an RRP under this part. PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 Application. (a) Except as provided in paragraph (b) of this section, this part applies to— (1) Class I railroads; (2) Railroads determined to have inadequate safety performance pursuant to § 271.13; and (3) Railroads that voluntarily comply with the requirements of this part pursuant to § 271.15. (b) This part does not apply to: (1) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation; (2) Tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation; (3) Operation of private cars, including business/office cars and circus trains; (4) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (i.e., plant railroads, as defined in § 271.5); and (5) Commuter or intercity passenger railroads that are subject to Federal system safety program requirements contained in part 270 of this chapter. (c) 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 purposes of this part. § 271.5 Definitions. As used in this part only— Accident/incident means an ‘‘accident/incident’’ as defined in § 225.5 of this chapter. Administrator means the Administrator of the Federal Railroad Administration or the Administrator’s delegate. FRA means the Federal Railroad Administration. FRA Associate Administrator means the Associate Administrator for Railroad E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Safety and Chief Safety Officer, Federal Railroad Administration, or the Associate Administrator’s delegate. Fully implemented means that all elements of an RRP as described in the RRP plan are established and applied to the safety management of the railroad. Hazard means any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. Inadequate safety performance means safety performance that FRA has determined to be inadequate based on the criteria described in § 271.13. Mitigation strategy means an action or program intended to reduce or eliminate the risk associated with a hazard. Person means an entity of any type covered under 1 U.S.C. 1, including, but not limited to, the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor or subcontractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor or subcontractor. Pilot project means a limited scope project used to determine whether quantitative evaluation and analysis suggests that a particular system or mitigation strategy has potential to succeed on a full-scale basis. Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility’s own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, is not considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation. Positive train control system means a system designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 through a switch left in the wrong position, as described in subpart I of part 236 of this chapter. Railroad means: (1) Any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including: (i) Commuter or other short-haul rail passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and (ii) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation; and (2) A person or organization that provides railroad transportation, whether directly or by contracting out operation of the railroad to another person. Risk means the combination of the probability (or frequency of occurrence) and the consequence (or severity) of a hazard. Risk-based HMP means a risk-based hazard management program (HMP). Risk reduction means the formal, topdown, organization-wide approach to managing safety risk and assuring the effectiveness of safety risk mitigation strategies. It includes systematic procedures, practices, and policies for the management of safety risk. RRP means a Risk Reduction Program. RRP plan means a Risk Reduction Program plan. Safety culture means the shared values, actions, and behaviors that demonstrate a commitment to safety over competing goals and demands. Safety performance means a realized or actual safety accomplishment relative to stated safety objectives. Safety outreach means the communication of safety information to support the implementation of an RRP throughout a railroad. Senior management means personnel at the highest level of a railroad’s management who are responsible for making major policy decisions and longterm business plans regarding the operation of the railroad. STB means the Surface Transportation Board of the United States. Tourist, scenic, historic, or excursion operations means railroad operations that carry passengers, often using antiquated equipment, with the conveyance of the passengers to a particular destination not being the PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 9315 principal purpose. Train movements of new passenger equipment for demonstration purposes are not tourist, scenic, historic, or excursion operations. § 271.7 [Reserved] § 271.9 Penalties and responsibility for compliance. (a) Any person that violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation, except that: Penalties may be assessed against individuals only for willful violations, and, where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to individuals, or has caused death or injury, a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed. See 49 CFR part 209, appendix A. Each day a violation continues shall constitute a separate offense. Any person that knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. See FRA’s website at www.fra.dot.gov for a statement of agency civil penalty policy. (b) Although the requirements of this part are stated in terms of the duty of a railroad, when any person, including a contractor or subcontractor to a railroad, performs any function covered by this part, that person (whether or not a railroad) shall perform that function in accordance with this part. § 271.11 Discovery and admission as evidence of certain information. (a) Protected information. Any information compiled or collected after February 17, 2021 solely for the purpose of planning, implementing, or evaluating a risk reduction 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 § 271.103(b) and a railroad’s statement of mitigation measures under § 271.103(c); and (2) ‘‘Solely’’ means that a railroad originally compiled or collected the information for the exclusive purpose of planning, implementing, or evaluating a risk reduction program under this part. E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9316 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Information compiled or collected for any other purpose is not protected, even if the railroad also uses that information for a risk reduction program. ‘‘Solely’’ also means a railroad continues to use that information only for its risk reduction program. If a railroad subsequently uses for any other purpose information that was initially compiled or collected for a risk reduction program, this section does not protect that information to the extent that it is used for the non-risk reduction program purpose. The use of that information within the railroad’s risk reduction program, however, remains protected. This section does not protect information that is required to be compiled or collected pursuant to any other provision of law or regulation. (b) Non-protected information. This section does not affect the discovery, admissibility, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage of information compiled or collected for a purpose other than that specifically identified in paragraph (a) of this section. Such information shall continue to be discoverable, admissible, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage if it was discoverable, admissible, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage on or before February 17, 2021. Specifically, the types of information not affected by this section include: (1) Information compiled or collected on or before February 17, 2021; (2) Information compiled or collected on or before February 17, 2021 and that continues to be compiled or collected, even if used to plan, implement, or evaluate a railroad’s risk reduction program; or (3) Information that is compiled or collected after February 17, 2021, and is compiled or collected for a purpose other than that identified in paragraph (a) of this section. (c) Information protected by other law or regulation. Nothing in this section shall affect or abridge in any way any other protection of information provided by another provision of law or regulation. Any such provision of law or regulation applies independently of the protections provided by this section. (d) Preemption. To the extent that State discovery rules and sunshine laws would require disclosure of information protected by this section in a Federal or VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 State court proceeding for damages involving personal injury, wrongful death, or property damage, those rules and laws are preempted. (e) Enforcement. This section does not apply to civil or criminal law enforcement proceedings. § 271.13 Determination of inadequate safety performance. (a) General. (1) This section describes FRA’s methodology for determining which railroads shall establish an RRP because they have inadequate safety performance. FRA’s methodology consists of a two-phase annual analysis, comprised of both a quantitative analysis and qualitative assessment. FRA’s methodology analyzes all railroads except for: (i) Railroads excluded from this part under § 271.3(b); (ii) Railroads already required to comply with this part; (iii) Railroads that are voluntarily complying with this part under § 271.15; and (iv) Except as provided in paragraph (a)(2) of this section, new start-up railroads that have reported accident/ incident data to FRA pursuant to part 225 of this chapter for fewer than three years. (2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads formed through amalgamation of operations (for example, railroads formed through consolidations, mergers, or acquisitions of control) are included in the analysis using the combined data of the pre-amalgamation entities. (b) Quantitative analysis—(1) Methodology. The first phase of FRA’s annual analysis is a statistically-based quantitative analysis of each railroad within the scope of the analysis, using historical safety data maintained by FRA for the three most recent full calendar years. The purpose of the quantitative analysis is to make a threshold identification of railroads that possibly have inadequate safety performance. The quantitative analysis consists of a preliminary selection and a rate-based analysis. Only railroads that the preliminary selection identifies will proceed to the rate-based analysis. (i) The preliminary selection calculates the following values: (A) A railroad’s number of worker on duty fatalities during the 3-year period, calculated using ‘‘Worker on DutyRailroad Employee (Class A),’’ ‘‘Worker on Duty-Contractor (Class F),’’ and ‘‘Worker on Duty-Volunteer (Class H)’’ information reported on FRA Form 6180.55 pursuant to FRA’s accident/ incident reporting regulations in part 225 of this chapter; and PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 (B) The sum total of a railroad’s number of worker on duty injuries/ illnesses during the 3-year period (calculated using ‘‘Worker on DutyRailroad Employee (Class A),’’ ‘‘Worker on Duty-Contractor (Class F),’’ and ‘‘Worker on Duty-Volunteer (Class H)’’ information reported on FRA Form 6180.55 pursuant to FRA’s accident/ incident reporting regulations in part 225 of this chapter) added to the number of rail equipment accidents/ incidents during the 3-year period (calculated using information reported on FRA Forms 6180.54 and 6180.55 pursuant to FRA’s accident/incident reporting regulations in part 225 of this chapter). (ii) For railroads that the preliminary selection identifies, as described in paragraph (b)(2)(i) of this section, the rate-based analysis calculates the following three factors: (A) A railroad’s number of worker on duty fatalities during the 3-year period, calculated using ‘‘Worker on DutyRailroad Employee (Class A),’’ ‘‘Worker on Duty-Contractor (Class F),’’ and ‘‘Worker on Duty-Volunteer (Class H)’’ information reported on FRA Form 6180.55 pursuant to FRA’s accident/ incident reporting regulations in part 225 of this chapter; (B) A railroad’s on duty employee injury/illness rate, calculated using ‘‘Worker on Duty-Railroad Employee (Class A),’’ ‘‘Worker on Duty-Contractor (Class F),’’ and ‘‘Worker on DutyVolunteer (Class H)’’ information reported on FRA Form 6180.55 pursuant to FRA’s accident/incident reporting regulations in part 225 of this chapter. FRA calculates this rate using the following formula, which gives the rate of employee injuries/illnesses per 200,000 employee hours over a 3-year period: Injury/Illness Rate = (Total FRA Reportable Worker On Duty Injuries + Total FRA Reportable On Duty Employee Illnesses over a 3-year Period)/(Total Employee Hours over a 3-year Period/200,000); and (C) A railroad’s rail equipment accident/incident rate, calculated using information reported on FRA Forms 6180.54 and 6180.55 pursuant to FRA’s accident/incident reporting regulations in part 225 of this chapter. FRA calculates this rate using the following formula, which gives the rate of rail equipment accidents/incidents per 1,000,000 train miles operated over a 3year period: Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail Equipment Accidents/Incidents over a 3-year Period/(Total Train E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Miles over a 3-year Period/ 1,000,000) (2) Identification. (i) The preliminary selection phase of the quantitative analysis identifies railroads for further analysis in the rate-based analysis if at least one of the following two conditions exist within the scope and timeframe of the analysis: (A) A railroad has one or more worker on duty fatalities as calculated in paragraph (b)(1)(i)(A) of this section; or (B) A railroad is at or above the 90th percentile for the sum total of worker on duty injuries/illnesses and rail equipment accidents/incidents, as calculated in paragraph (b)(1)(i)(B) of this section. (ii) For railroads identified in the preliminary selection, the rate-based analysis identifies railroads as possibly having inadequate safety performance if at least one of the following two conditions exists within the scope and time frame of the analysis: (A) A railroad has one or more worker on duty fatalities as calculated in paragraph (b)(1)(ii)(A) of this section; or (B) A railroad is at or above the 90th percentile of railroads identified in the preliminary selection in either of the factors described in paragraphs (b)(1)(ii)(B) and (C) of this section. (c) Qualitative assessment. The second phase of FRA’s analysis is a qualitative assessment of railroads identified in the quantitative analysis as possibly having inadequate safety performance. (1) Notification and railroad/ employee comment. FRA will notify a railroad in writing if FRA conducts a qualitative assessment of the railroad because the quantitative analysis identified the railroad as possibly having inadequate safety performance. (i) No later than 15 days after receiving FRA’s written notice, a railroad shall notify its employees of FRA’s written notice. The railroad shall post this employee notification at all locations where the railroad reasonably expects its employees to report and to have an opportunity to observe the notice. The railroad shall post and continuously display the employee notification until 45 days after FRA’s initial written notice. The railroad shall notify employees who do not have a regular on-duty point for reporting to work by other means, under the railroad’s standard practice for communicating with employees. The notification shall inform railroad employees that they may confidentially submit comments to FRA regarding the railroad’s safety performance and that employees shall file any such comments VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590 no later than 45 days following FRA’s initial written notice. (ii) No later than 45 days after receiving FRA’s written notice, a railroad may provide FRA documentation supporting any claims that the railroad does not have inadequate safety performance. (2) Methodology. No later than 90 days after providing the initial notice to a railroad identified by the quantitative analysis, FRA will conduct a qualitative assessment of the identified railroad and make a final determination regarding whether it has inadequate safety performance. The qualitative assessment will consider any documentation provided by the railroad, comments submitted by railroad employees, and any other pertinent information, including information regarding violations FRA has issued against the railroad. (d) Final notification. For each railroad that FRA provides an initial written notice, FRA will provide a final written notice informing the railroad whether or not FRA determines that the railroad has demonstrated inadequate safety performance. (e) Compliance. (1) A railroad with inadequate safety performance shall develop and implement an RRP meeting the requirements of this part and submit an RRP plan meeting the filing and timing requirements in § 271.301. (2) A railroad with inadequate safety performance must comply with the requirements of this part for a minimum of five years from the date FRA approves the railroad’s RRP plan under subpart D of this part. (f) Petition for reconsideration of inadequate safety performance determination. (1) To appeal a final written notice under paragraph (d) of this section, a railroad shall file a petition for reconsideration with the Administrator. To file a petition, the railroad must: (i) File the petition no later than 30 days after the date the railroad receives FRA’s final written notice under paragraph (d) of this section informing the railroad that it has demonstrated inadequate safety performance; and (ii) File the petition in accordance with the procedures in §§ 211.7(b)(1) and 211.57 of this chapter. (2) FRA will process petitions under § 211.59 of this chapter. (g) Petition to discontinue compliance with this part. After the five-year compliance period, the railroad may petition FRA for approval to PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 9317 discontinue compliance with this part. A railroad shall file a petition, and FRA will process the petition, under the procedures contained in § 211.41 of this chapter. When processing a petition, FRA will reevaluate the railroad’s safety performance to determine whether the railroad’s RRP has resulted in significant and sustained safety improvements, and whether these measured improvements are likely sustainable in the long term. FRA’s evaluation will include a quantitative analysis as described in paragraph (b) of this section, although FRA will not automatically grant a petition to discontinue compliance if the quantitative analysis results do not meet the identification thresholds described in paragraph (b)(2) of this section. For all petitions under this section, FRA will also examine qualitative factors and review information from FRA RRP audits and other relevant sources. § 271.15 Voluntary compliance. (a) General. A railroad not otherwise subject to this part may voluntarily comply by establishing and fully implementing an RRP meeting the requirements of this part. A voluntary RRP shall be supported by an RRP plan that has been submitted to FRA for approval pursuant to the requirements of subpart D of this part. After FRA has approved its RRP plan, a voluntarilycompliant railroad that fails to comply with the requirements of this part is subject to civil penalties or other FRA enforcement action. (b) Duration. A voluntarily-compliant railroad will be required to comply with the requirements of this part for a minimum period of five years, running from the date on which FRA approves the railroad’s plan pursuant to subpart D of this part. (c) Notification to discontinue compliance. After this five-year period, a voluntarily-compliant railroad may discontinue compliance with this part by providing written notice to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. (d) Discovery and admission as evidence of certain information. The information protection provisions in § 271.11 apply to information compiled or collected pursuant to a voluntary RRP that is conducted in accordance with the requirements of this part and as provided by § 271.301(b)(4)(ii). E:\FR\FM\18FER2.SGM 18FER2 9318 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations Subpart B—Risk Reduction Program Requirements lotter on DSKBCFDHB2PROD with RULES2 § 271.101 Risk reduction programs. (a) Program required. Each railroad shall establish and fully implement an RRP meeting the requirements of this part. An RRP shall systematically evaluate railroad safety hazards on a railroad’s system and manage the resulting risks to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities. An RRP is an ongoing program that supports continuous safety improvement. A railroad shall design its RRP so that it promotes and supports a positive safety culture at the railroad. An RRP shall include the following: (1) A risk-based hazard management program, as described in § 271.103; (2) A safety performance evaluation component, as described in § 271.105; (3) A safety outreach component, as described in § 271.107; (4) A technology analysis and technology implementation plan, as described in § 271.109; (5) RRP implementation and support training, as described in § 271.111; and (6) Involvement of railroad employees in the establishment and implementation of an RRP, as described in § 271.113. (b) RRP plans. A railroad’s RRP shall be supported by an FRA-approved RRP plan meeting the requirements of subpart C of this part. (c) Host railroads and system safety programs. (1) If a railroad subject to this part (RRP railroad) hosts passenger train service for a railroad subject to the system safety program requirements in part 270 of this title (system safety program (SSP) railroad), the RRP railroad shall communicate with the SSP railroad to coordinate the portions of the system safety program applicable to the RRP railroad hosting the passenger train service. (2) The RRP railroad shall incorporate its communication and coordination with the SSP railroad into its own RRP. (d) Persons that perform or utilize significant safety-related services. Under § 271.205(a)(3), a railroad’s RRP plan shall identify persons that enter into a contractual relationship with the railroad to either perform significant safety-related services on the railroad’s behalf or to utilize significant safetyrelated services provided by the railroad for railroad operations purposes. For example, a railroad’s RRP plan shall identify entities such as host railroads, contract operators, shared track/corridor operators, or other contractors utilizing or performing significant safety-related services. A railroad shall identify such VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 persons even if the persons are not required to comply with this part (e.g., a railroad shall identify a tourist railroad that operates over the railroad’s track even though the tourist railroad is exempt from this rule under § 271.3(b)(2)). A railroad shall ensure persons performing or utilizing significant safety-related services support and participate in its RRP. § 271.103 program. Risk-based hazard management (a) General. (1) An RRP shall include an integrated, system-wide, and ongoing risk-based HMP that proactively identifies hazards and mitigates the risks resulting from those hazards. (2) A risk-based HMP shall be fully implemented (i.e., activities initiated) within 36 months after FRA approves a railroad’s RRP plan pursuant to § 271.301(d). (b) Risk-based hazard analysis. As part of its risk-based HMP, a railroad shall conduct a risk-based hazard analysis that addresses, at a minimum, the following aspects of a railroad’s system: Infrastructure; equipment; employee levels and work schedules; operating rules and practices; management structure; employee training; and other areas impacting railroad safety that are not covered by railroad safety laws or regulations or other Federal laws or regulations. A railroad shall make the results of its risk-based hazard analysis available to FRA upon request. At a minimum, a risk-based hazard analysis shall: (1) Identify hazards by analyzing: (i) Aspects of the railroad’s system, including any operational changes, system extensions, or system modifications; and (ii) Accidents/incidents, injuries, fatalities, and other known indicators of hazards; (2) Calculate risk by determining and analyzing the likelihood and severity of potential events associated with identified risk-based hazards; and (3) Compare and prioritize the identified risks for mitigation purposes. (c) Mitigation strategies. (1) As part of its risk-based HMP, a railroad shall design and implement mitigation strategies that improve safety by: (i) Mitigating or eliminating aspects of a railroad’s system that increase risks identified in the risk-based hazard analysis; and (ii) Enhancing aspects of a railroad’s system that decrease risks identified in the risk-based hazard analysis. (2) A railroad may use pilot projects, including pilot projects conducted by other railroads, to determine whether quantitative data suggests that a PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 particular mitigation strategy has potential to succeed on a full-scale basis. § 271.105 Safety performance evaluation. (a) General. As part of its RRP, a railroad shall develop and maintain ongoing processes and systems for evaluating the safety performance of its system and identifying and analyzing its safety culture. A railroad’s safety performance evaluation shall consist of both a safety monitoring and a safety assessment component. (b) Safety monitoring. A railroad shall monitor the safety performance of its system by, at a minimum, establishing processes and systems to acquire safety data and information from the following sources: (1) Continuous monitoring of operational processes and systems (including any operational changes, system extensions, or system modifications); (2) Periodic monitoring of the operational environment to detect changes that may generate new hazards; (3) Investigations of accidents/ incidents, injuries, fatalities, and other known indicators of hazards; (4) Investigations of reports regarding potential non-compliance with Federal railroad safety laws or regulations, railroad operating rules and practices, or mitigation strategies established by the railroad; and (5) A reporting system through which employees can report safety concerns (including, but not limited to, hazards, issues, occurrences, and incidents) and propose safety solutions and improvements. (c) Safety assessment. To assess the need for changes to a railroad’s mitigation strategies or overall RRP, a railroad shall establish processes to analyze the data and information collected pursuant to paragraph (b) of this section (as well as any other relevant data regarding its operations, products, and services). At a minimum, this assessment shall: (1) Evaluate the overall effectiveness of the railroad’s RRP in reducing the number and rates of railroad accidents/ incidents, injuries, and fatalities; (2) Evaluate the effectiveness of the railroad’s RRP in meeting the goals described by its RRP plan (see § 271.203(c)); (3) Evaluate the effectiveness of risk mitigations in reducing the risk associated with an identified hazard. Any hazards associated with ineffective mitigation strategies shall be reevaluated through the railroad’s riskbased HMP, as described in § 271.103; and E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations (4) Identify new, potential, or previously unknown hazards, which shall then be evaluated by the railroad’s risk-based HMP, as described in § 271.103. § 271.107 Safety outreach. (a) Outreach. An RRP shall include a safety outreach component that communicates RRP safety information to railroad personnel (including contractors) as that information is relevant to their positions. At a minimum, a safety outreach program shall: (1) Convey safety-critical information; (2) Explain why RRP-related safety actions are taken; and (3) Explain why safety procedures are introduced or changed. (b) Reporting to management. The status of risk-based HMP activities shall be reported to railroad senior management on an ongoing basis. lotter on DSKBCFDHB2PROD with RULES2 § 271.109 Technology analysis and technology implementation plan. (a) General. As part of its RRP, a Class I railroad shall conduct a technology analysis and develop and adopt a technology implementation plan no later than February 17, 2023. A railroad with inadequate safety performance shall conduct a technology analysis and develop and adopt a technology implementation plan no later than three years after receiving final written notification from FRA to comply with this part, pursuant to § 271.13(d), or no later than February 17, 2023, whichever is later. A railroad that the STB reclassifies or newly classifies as a Class I railroad shall conduct a technology analysis and develop and adopt a technology implementation plan no later than three years following the effective date of the classification or reclassification or no later than April 18, 2023, whichever is later. A voluntarilycompliant railroad shall conduct a technology analysis and develop and adopt a technology implementation plan no later than three years after FRA approves the railroad’s RRP plan. (b) Technology analysis. A technology analysis shall evaluate current, new, or novel technologies that may mitigate or eliminate hazards and the resulting risks identified through the risk-based HMP. The railroad shall analyze the safety impact, feasibility, and costs and benefits of implementing technologies that will mitigate or eliminate hazards and the resulting risks. At a minimum, the technologies a railroad shall consider as part of its technology analysis are: Processor-based technologies, positive train control systems, electronically-controlled VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 pneumatic brakes, rail integrity inspection systems, rail integrity warning systems, switch position monitors and indicators, trespasser prevention technology, and highwayrail grade crossing warning and protection technology. (c) Technology implementation plan. A railroad shall develop, and periodically update as necessary, a technology implementation plan that contains a prioritized implementation schedule describing the railroad’s plan for development, adoption, implementation, maintenance, and use of current, new, or novel technologies on its system over a 10-year period to reduce safety risks identified in the railroad’s risk-based HMP. (d) Positive train control. Except as required by subpart I of part 236 of this chapter, if a railroad decides to implement positive train control systems as part of its technology analysis and implementation plan, the railroad shall set forth and comply with a schedule for implementation of the positive train control system consistent with the deadlines in the Positive Train Control Enforcement and Implementation Act of 2015, Public Law 114–73, 129 Stat. 576–82 (Oct. 29, 2015), and 49 CFR 236.1005(b)(7). § 271.111 training. Implementation and support (a) A railroad shall provide RRP training to each employee, including an employee of any person identified by the railroad’s RRP plan pursuant to § 271.205(a)(3) as performing significant safety-related services on the railroad’s behalf or utilizing significant safetyrelated services provided by the railroad, who has significant responsibility for implementing and supporting the railroad’s RRP. This training shall help ensure that all personnel with significant responsibility for implementing and supporting the RRP understand the goals of the program, are familiar with the elements of the railroad’s program, and have the requisite knowledge and skills to fulfill their responsibilities under the program. (b) A railroad shall keep a record of training conducted under this section and update that record as necessary. A railroad shall make training records available for inspection and copying upon the request of representatives of FRA or States participating under part 212 of this chapter. (c) Training under this section may include, but is not limited to, interactive computer-based training, video conferencing, or formal classroom training. PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 9319 § 271.113 Involvement of railroad employees. (a) An RRP shall involve a railroad’s directly affected employees in the establishment and implementation of the RRP. (b) For example, a railroad must have a process for involving directly affected employees when identifying hazards, developing and implementing mitigation strategies, conducting internal annual assessments, or otherwise performing actions required by this part. Subpart C—Risk Reduction Program Plan Requirements § 271.201 General. A railroad shall adopt and implement its RRP through a written RRP plan containing the elements described in this subpart. A railroad’s RRP plan shall be approved by FRA according to the requirements contained in subpart D of this part. § 271.203 goals. Policy, purpose and scope, and (a) Policy statement. An RRP plan shall contain a policy statement endorsing the railroad’s RRP. This statement shall be signed by the chief official at the railroad (e.g., chief executive officer). (b) Purpose and scope. An RRP plan shall contain a statement describing the purpose and scope of the railroad’s RRP. This purpose and scope statement shall describe: (1) The railroad’s safety philosophy and safety culture; (2) How the railroad promotes improvements to its safety culture; and (3) The roles and responsibilities of railroad personnel (including management) within the railroad’s RRP. (c) Goals. An RRP plan shall contain a statement that defines the specific goals of the RRP and describes clear strategies for reaching those goals. These goals shall be long-term, meaningful, measurable, and focused on the mitigation of risks arising from identified safety hazards. § 271.205 System description. (a) An RRP plan shall contain a description of the characteristics of the railroad’s system. At a minimum, the system description shall: (1) Support the identification of hazards by establishing a basic understanding of the scope of the railroad’s system; (2) Include components briefly describing the railroad’s history, operations, scope of service, maintenance, physical plant, and system requirements; E:\FR\FM\18FER2.SGM 18FER2 9320 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations (3) Identify all persons that enter into a contractual relationship with the railroad to either perform significant safety-related services on the railroad’s behalf or to utilize significant safetyrelated services provided by the railroad for railroad operations purposes. For example, a railroad’s RRP plan shall identify entities such as host railroads, contract operators, shared track/corridor operators, or other contractors utilizing or performing significant safety-related services. A railroad shall identify such persons even if the persons are not required to comply with this part (e.g., a railroad shall identify a tourist railroad that operates over the railroad’s track even though the tourist railroad is exempt from this part pursuant to § 271.3(b)(2)); and (4) Describe how the railroad will ensure that any persons identified pursuant to paragraph (a)(3) of this section will support and participate in the railroad’s RRP. For example, the system description shall describe the extent to which such persons will, as part of the railroad’s RRP, assist in identifying hazards, developing and implementing mitigation strategies, conducting internal annual assessments, or otherwise performing actions required by this part. (b) [Reserved] lotter on DSKBCFDHB2PROD with RULES2 § 271.207 Consultation requirements. (a) General duty. (1) Each railroad required to establish an RRP under this part shall in good faith consult with, and use its best efforts to reach agreement with, all of its directly affected employees, including any nonprofit labor organization representing a class or craft of directly affected employees, on the contents of the RRP plan. (2) A railroad that consults with a non-profit employee labor organization is considered to have consulted with the directly affected employees represented by that organization. (b) Preliminary meeting. A railroad shall have a preliminary meeting with its directly affected employees to discuss how the consultation process will proceed. A railroad is not required to discuss the substance of an RRP plan during this preliminary meeting. (1) A Class I railroad shall meet no later than October 15, 2020 with its directly affected employees to discuss the consultation process. The Class I railroad shall notify the directly affected employees of this meeting no less than 60 days before it is scheduled. (2) A railroad determined to have inadequate safety performance shall meet no later than 30 days following FRA’s notification with its directly VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 affected employees to discuss the consultation process. The inadequate safety performance railroad shall notify the directly affected employees of this meeting no less than 15 days before it is scheduled. (3) A railroad that the STB reclassifies or newly classifies as a Class I railroad shall meet with its directly affected employees to discuss the consultation process no later than 30 days following the effective date of the classification or reclassification. The reclassified or newly classified Class I railroad shall notify the directly affected employees of this meeting no less than 15 days before it is scheduled. (4) A voluntarily-compliant railroad that files a notification with FRA of its intent to file an RRP plan under § 271.301(b)(4)(i) shall meet with its directly affected employees to discuss the consultation process no later than 30 days following the date that the railroad filed the notification. The voluntarilycompliant railroad shall notify the directly affected employees of this meeting no less than 15 days before it is scheduled. (5) Compliance with the mandatory preliminary meeting requirements of this paragraph (b) does not constitute full compliance with the consultation requirements of this section. (c) Guidance. Appendix A to this part contains guidance on how a railroad could comply with the requirements of this section. (d) Railroad consultation statements. A railroad required to submit an RRP plan under § 271.301 shall also submit, together with that plan, a consultation statement that includes the following information: (1) A detailed description of the process the railroad utilized to consult with its directly affected employees; (2) If the railroad could not reach agreement with its directly affected employees on the contents of its RRP plan, identification of any known areas of non-agreement and an explanation why it believes agreement was not reached; and (3) A service list containing the names 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. The service list must also 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. If an international/national president did not participate in the consultation process, the service list shall also PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 contain the name and contact information for a designated representative who participated on his or her behalf. When a railroad submits its RRP plan and consultation statement to FRA under § 271.301, it shall also simultaneously send a copy of these documents to all individuals identified in the service list. A railroad may send the documents to the identified individuals via electronic means or other service means reasonably calculated to succeed. (e) Statements from directly affected employees. (1) If a railroad and its directly affected employees cannot reach agreement on the proposed contents of an RRP plan, the directly affected employees may file a statement explaining their views on the plan on which agreement was not reached with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. The FRA Associate Administrator shall consider any such views during the plan review and approval process. (2) A railroad’s directly affected employees have 30 days following the railroad’s submission of a proposed RRP plan to submit the statement described in paragraph (e)(1) of this section. § 271.209 Consultation on amendments. A railroad’s RRP plan shall include a description of the process the railroad will use to consult with its directly affected employees on any subsequent substantive amendments to the railroad’s RRP plan. The requirements of this section do not apply to nonsubstantive amendments (e.g., amendments that update names and addresses of railroad personnel). § 271.211 Risk-based hazard management program process. (a) Risk-based hazard analysis. An RRP plan shall describe the railroad’s method for conducting its risk-based hazard analysis pursuant to § 271.103(b). At a minimum, the description shall specify: (1) The processes the railroad will use to identify hazards and the risks associated with those hazards; (2) The sources the railroad will use to support the ongoing identification of hazards and the risks associated with those hazards; and (3) The processes the railroad will use to compare and prioritize identified risks for mitigation purposes. (b) Mitigation strategies. An RRP plan shall describe the railroad’s processes for designing and implementing mitigation strategies pursuant to § 271.103(c). At a minimum, the E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations description shall specify the railroad’s processes for: (1) Identifying and selecting mitigation strategies; and (2) Monitoring an identified hazard through the mitigation of the risk associated with that hazard. § 271.213 process. Safety performance evaluation An RRP plan shall describe a railroad’s processes for identifying and analyzing its safety culture pursuant to § 271.105(a), monitoring safety performance pursuant to § 271.105(b), and conducting safety assessments pursuant to § 271.105(c). § 271.215 Safety outreach process. An RRP plan shall describe a railroad’s processes for communicating safety information to railroad personnel and management pursuant to § 271.107. § 271.217 process. Technology implementation plan (a) An RRP plan shall contain a description of the railroad’s processes for: (1) Conducting a technology analysis pursuant to § 271.109(b); and (2) Developing a technology implementation plan pursuant to § 271.109(c). (b) [Reserved] § 271.219 Implementation and support training plan. (a) An RRP plan shall contain a training plan describing the railroad’s processes, pursuant to § 271.111, for training employees with significant responsibility for implementing and supporting the RRP (including employees of a person identified pursuant to § 271.205(a)(3) as performing significant safety-related services on the railroad’s behalf or utilizing significant safety-related services provided by the railroad for railroad operations purposes who have significant responsibility for implementing and supporting the railroad’s RRP). (b) The training plan shall describe the content of the RRP training for each position or job function identified pursuant to § 271.225(b)(3) as having significant responsibilities for implementing the RRP. lotter on DSKBCFDHB2PROD with RULES2 § 271.221 Involvement of railroad employees process. An RRP plan shall contain a description of the railroad’s processes for involving railroad employees in the establishment and implementation of an RRP pursuant to § 271.113. If a railroad contracts out significant portions of its operations, the contractor and the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 contractor’s employees performing the railroad’s operations shall be considered employees for the purposes of this section. § 271.223 Internal assessment process. (a) An RRP plan shall describe the railroad’s processes for conducting an internal assessment of its RRP pursuant to subpart E of this part. At a minimum, this description shall contain the railroad’s processes used to: (1) Conduct an internal assessment of its RRP; (2) Internally report the results of its internal assessment to railroad senior management; and (3) Develop improvement plans, including developing and monitoring recommended improvements (including any necessary revisions or updates to the RRP plan) for fully implementing the railroad’s RRP, complying with the implemented elements of the RRP plan, or achieving the goals identified in the railroad’s RRP plan pursuant to § 271.203(c). (b) [Reserved] § 271.225 RRP implementation plan. (a) An RRP plan shall describe how the railroad will implement its RRP. A railroad may implement its RRP in stages, so long as the railroad fully implements the entire RRP within 36 months of FRA’s approval of the plan. (b) At a minimum, a railroad’s implementation plan shall: (1) Cover the entire implementation period; (2) Contain a timeline describing when certain implementation milestones will be achieved. Implementation milestones shall be specific and measurable; (3) Describe the roles and responsibilities of each position or job function that has significant responsibility for implementing the railroad’s RRP or any changes to the railroad’s RRP (including any such positions or job functions held by a person that enters into a contractual relationship with the railroad to either perform significant safety-related services on the railroad’s behalf or to utilize significant safety-related services provided by the railroad for railroad operations purposes); and (4) Describe how significant changes to the RRP may be made. Subpart D—Review, Approval, and Retention of Risk Reduction Program Plans § 271.301 Filing and approval. (a) Filing. A railroad shall submit one copy of its RRP plan to the FRA PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 9321 Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. (b) Filing timeline. (1) A Class I railroad shall submit its RRP plan no later than August 16, 2021. (2) A railroad with inadequate safety performance shall submit its RRP plan no later than 180 days after receiving final written notification from FRA that it shall comply with this part, pursuant to § 271.13(d), or no later than August 16, 2021, whichever is later. (3) A railroad that the STB reclassifies or newly classifies as a Class I railroad shall submit its RRP plan no later than 90 days following the effective date of the classification or reclassification or no later than August 16, 2021, whichever is later. (4)(i) Before submitting an RRP plan for FRA’s review and approval, a voluntarily-compliant railroad shall notify FRA of its intent to submit an RRP plan by providing written notice to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. (ii) The date that FRA receives a voluntarily-compliant railroad’s written notice or February 18, 2021, whichever is later, serves as the date on which the voluntarily-compliant railroad may start compiling or collecting information solely for the purpose of planning, implementing, or evaluating a risk reduction program, as described by § 271.11. (iii) A voluntarily-compliant railroad shall submit its RRP plan no later than 180 days after FRA receives written notice that the voluntarily-compliant railroad intends to submit an RRP plan for review and approval. (c) RRP plan requirements. An RRP plan submitted by a railroad shall include: (1) The signature, name, title, address, and telephone number of the chief official responsible for safety and who bears the primary managerial authority for implementing the submitting railroad’s safety policy. By signing, this chief official is certifying that the contents of the RRP plan are accurate and that the railroad will implement the contents of the program as approved by FRA; (2) The contact information for the primary person responsible for managing the RRP; (3) The contact information for the senior representatives of any person that the railroad has determined has entered into a contractual relationship with the railroad to either perform significant safety-related services on the railroad’s E:\FR\FM\18FER2.SGM 18FER2 lotter on DSKBCFDHB2PROD with RULES2 9322 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations behalf or to utilize significant safetyrelated services provided by the railroad for railroad operations purposes (including host railroads, contract operators, shared track/corridor operators, and other contractors); and (4) As required by § 271.207(d), a statement describing how it consulted with its directly affected employees on the contents of its RRP plan. Directly affected employees have 30 days following the railroad’s submission of its proposed RRP plan to file a statement under § 271.207(e)(2). (d) Approval. (1) Within 90 days of receipt of an RRP plan, or within 90 days of receipt of each RRP plan submitted before the start of railroad operations, FRA will review the proposed RRP plan to determine if it sufficiently addresses the required elements. This review will also consider any statement submitted by directly affected employees pursuant to § 271.207(e). (2) FRA will notify the primary contact person of the submitting railroad in writing whether FRA has approved the proposed plan and, if not approved, the specific points in which the RRP plan is deficient. FRA will also provide this notification to each individual identified in the service list accompanying the consultation statement required under § 271.207(d). (3) If FRA does not approve an RRP plan, the submitting railroad shall amend the proposed plan to correct all identified deficiencies and shall provide FRA a corrected copy no later than 90 days following receipt of FRA’s written notice that the submitted plan was not approved. If FRA determines that the necessary corrections are substantively significant, it will direct the railroad to consult further with its directly affected employees regarding the corrections. If the corrections are substantively significant, a railroad will also be required to include an updated consultation statement, along with its resubmitted plan, pursuant to § 271.207(d). Directly affected employees will also have 30 days following the railroad’s resubmission of its proposed RRP plan to file a statement addressing the substantively significant changes under § 271.207(e). Within 60 days of receipt of a corrected RRP plan, FRA will review the corrected RRP plan to determine if it sufficiently addresses the identified deficiencies. (4) Approval of a railroad’s RRP plan under this part does not constitute approval of the specific actions the railroad will implement under its RRP plan and shall not be construed as establishing a Federal standard regarding those specific actions. VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 (e) Electronic submission. All documents required to be submitted to FRA under this part may be submitted electronically pursuant to the procedures in appendix B to this part. § 271.303 Amendments. (a) Consultation requirements. (1) For substantive amendments, a railroad shall follow the process, described in its RRP plan pursuant to § 271.209, for consulting with its directly affected employees and submitting a consultation statement to FRA. The requirements of this paragraph (a)(1) do not apply to non-substantive amendments (e.g., amendments that update names and addresses of railroad personnel). (2) If a railroad and its directly affected employees cannot reach agreement on the proposed contents of a substantive amendment, the directly affected employees may file a statement with FRA under the procedures in § 271.207(e)(1). A railroad’s directly affected employees have 15 days following the railroad’s submission of a proposed amendment to submit the statement described in this paragraph. (b) Filing. (1) A railroad shall submit any amendment(s) to its approved RRP plan to FRA’s Associate Administrator not less than 60 days before the proposed effective date of the amendment(s). The railroad shall file the amendment(s) with a cover letter outlining the proposed change(s) to the approved RRP plan. (2) If the proposed amendment is limited to adding or changing a name, title, address, or telephone number of a person, FRA approval is not required under the process of this section, although the railroad shall still file the amended RRP plan with FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer. These proposed amendments may be implemented by the railroad upon filing with FRA. All other proposed amendments must comply with the formal approval process described by this section. (c) Review. (1) FRA will review a proposed amendment to an RRP plan within 45 days of receipt. FRA will then notify the primary contact person of the railroad regarding whether FRA has approved the proposed amendment. FRA will also provide this notification to each individual identified in the service list accompanying the consultation statement required under paragraph (a)(1) of this section. If not approved, FRA will inform the railroad and the individuals identified in the service list of the specific points in PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 which the proposed amendment is deficient. (2) If FRA has not notified the railroad and the individuals identified in the service list by the proposed effective date of the amendment whether the amendment has been approved or not, the railroad may implement the amendment, subject to FRA’s decision. (3) If a proposed RRP plan amendment is not approved by FRA, no later than 60 days following the receipt of FRA’s written notice, the railroad shall either provide FRA a corrected copy of the amendment that addresses all deficiencies noted by FRA or notice that the railroad is retracting the amendment. § 271.305 Reopened review. Following approval of an RRP plan or an amendment to such a plan, FRA may reopen review of the plan or amendment, in whole or in part, for cause stated. § 271.307 Retention of RRP plans. (a) Railroads. A railroad shall retain at its system and division headquarters one copy of its RRP plan and each subsequent amendment to that plan. A railroad may comply with this requirement by making an electronic copy available. (b) Inspection and copying. A railroad shall make a copy of the RRP plan and each subsequent amendment available to representatives of FRA or States participating under part 212 of this chapter for inspection and copying during normal business hours. Subpart E—Internal Assessments § 271.401 Annual internal assessments. (a) Beginning with the first calendar year after the calendar year in which FRA approves a railroad’s RRP plan pursuant to § 271.301(d), the railroad shall annually (i.e., once every calendar year) conduct an internal assessment of its RRP. (b) The internal assessment shall determine the extent to which the railroad has: (1) Achieved the implementation milestones described in its RRP plan pursuant to § 271.225(b); (2) Complied with the implemented elements of the approved RRP plan; (3) Achieved the goals described in its RRP plan pursuant to § 271.203(c); (4) Implemented previous internal assessment improvement plans pursuant to § 271.403; and (5) Implemented previous external audit improvement plans pursuant to § 271.503. (c) A railroad shall ensure that the results of its internal assessments are E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations improvement plan and any outstanding recommended improvements from previous internal assessment improvement plans. internally reported to railroad senior management. § 271.403 Internal assessment improvement plans. (a) Within 30 days of completing its internal assessment, a railroad shall develop an improvement plan that addresses the findings of its internal assessment. (b) At a minimum, a railroad’s improvement plan shall: (1) Describe recommended improvements (including any proposed revisions or updates to the RRP plan the railroad expects to make through the amendment process described in § 271.303) that address the findings of the internal assessment for fully implementing the railroad’s RRP, complying with the implemented elements of the RRP plan, achieving the goals identified in the railroad’s RRP plan pursuant to § 271.203(c), and implementing previous internal assessment improvement plans and external audit improvement plans; (2) Identify by position title the individual who is responsible for carrying out the recommended improvements; (3) Contain a timeline describing when specific and measurable milestones for implementing the recommended improvements will be achieved; and (4) Specify processes for monitoring the implementation and evaluating the effectiveness of the recommended improvements. lotter on DSKBCFDHB2PROD with RULES2 § 271.405 Internal assessment reports. (a) Within 60 days of completing its internal assessment, a railroad shall submit a copy of an internal assessment report to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. (b) This report shall be signed by the railroad’s chief official responsible for safety and who bears primary managerial authority for implementing the railroad’s safety policy. The report shall include: (1) A description of the railroad’s internal assessment; (2) The findings of the internal assessment; (3) A specific description of the recommended improvements contained in the railroad’s internal assessment improvement plan, including any proposed amendments the railroad intends to make to the railroad’s RRP plan pursuant to § 271.303; and (4) The status of the recommended improvements contained in the railroad’s internal assessment VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Subpart F—External Audits § 271.501 External audits. FRA will conduct (or cause to be conducted) external audits of a railroad’s RRP. Each audit shall evaluate the railroad’s compliance with the elements of its RRP required by this part. A railroad shall make documentation kept pursuant to its RRP plan available for inspection and copying by representatives of FRA or States participating under part 212 of this chapter upon request. FRA will provide a railroad written notice of the audit results. § 271.503 plans. External audit improvement (a) Submission. Within 60 days of receiving FRA’s written notice of the audit results, if necessary, a railroad shall submit for approval an improvement plan addressing any instances of deficiency or noncompliance found in the audit to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590. (b) Requirements. At a minimum, an improvement plan shall: (1) Describe the improvements the railroad will implement to address the audit findings; (2) Identify by position title the individual(s) responsible for carrying out the improvements necessary to address the audit findings; and (3) Contain a timeline describing when milestones for implementing the recommended improvements will be achieved. These implementation milestones shall be specific and measurable. (c) Approval. If FRA does not approve the railroad’s improvement plan, FRA will notify the railroad of the plan’s specific deficiencies. The railroad shall amend the proposed plan to correct the identified deficiencies and provide FRA a corrected copy no later than 30 days following receipt of FRA’s notice that the proposed plan was not approved. (d) Status reports. Upon the request of the FRA Associate Administrator, a railroad shall provide FRA for review a status report on the implementation of the improvements contained in the improvement plan. PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 9323 Appendix A to Part 271—Federal Railroad Administration Guidance on the Risk Reduction Program Consultation Process A railroad required to develop a risk reduction program (RRP) under this part shall in good faith consult with and use its best efforts to reach agreement with its directly affected employees on the contents of the RRP plan. See § 271.207(a)(1). This appendix discusses the meaning of the terms ‘‘good faith’’ and ‘‘best efforts,’’ and provides non-mandatory guidance on how a railroad may comply with the requirement to consult with directly affected employees on the contents of its RRP plan. Guidance is provided for employees who are represented by a non-profit employee labor organization and employees who are not represented by any such organization. I. The Meaning of ‘‘Good Faith’’ and ‘‘Best Efforts’’ ‘‘Good faith’’ and ‘‘best efforts’’ are not interchangeable terms representing a vague standard for the § 271.207 consultation process. Rather, each term has a specific and distinct meaning. When consulting with directly affected employees, therefore, a railroad shall independently meet the standards for both the good faith and best efforts obligations. A railroad that does not meet the standard for one or the other will not be in compliance with the consultation requirements of § 271.207. The good faith obligation requires a railroad to consult with employees in a manner that is honest, fair, and reasonable, and to genuinely pursue agreement on the contents of an RRP plan. If a railroad consults with its employees merely in a perfunctory manner, without genuinely pursuing agreement, it will not have met the good faith requirement. For example, a lack of good faith may be found if a railroad’s directly affected employees express concerns with certain parts of the railroad’s RRP plan, and the railroad neither addresses those concerns in further consultation nor attempts to address those concerns by making changes to the RRP plan. On the other hand, ‘‘best efforts’’ establishes a higher standard than that imposed by the good faith obligation, and describes the diligent attempts that a railroad shall pursue to reach agreement with its employees on the contents of its RRP plan. While the good faith obligation is concerned with the railroad’s state of mind during the consultation process, the best efforts obligation is concerned with the specific efforts made by the railroad in an attempt to reach agreement. This would include considerations such as whether a railroad had held sufficient meetings with its employees to address or make an attempt to address any concerns raised by the employees, or whether the railroad had made an effort to respond to feedback provided by employees during the consultation process. For example, a railroad would not meet the best efforts obligation if it did not initiate the consultation process in a timely manner, and thereby failed to provide employees sufficient time to engage in the consultation E:\FR\FM\18FER2.SGM 18FER2 9324 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations lotter on DSKBCFDHB2PROD with RULES2 process. A railroad would also likely not meet the best efforts obligation if it presented employees with an RRP plan and only permitted the employees to express agreement or disagreement on the plan (assuming that the employees had not previously indicated that such a consultation would be acceptable). A railroad may, however, wish to hold off substantive consultations regarding the contents of its RRP plan until one year after publication of the rule to ensure that information generated as part of the process is protected from discovery and admissibility into evidence under § 271.11. Generally, best efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take. Therefore, the standard imposed by the best efforts obligation may vary with different railroads, depending on a railroad’s size, resources, and number of employees. When reviewing RRP plans, FRA will determine on a case-by-case basis whether a railroad has met its § 271.207 good faith and best efforts obligations. This determination will be based upon the consultation statement submitted by the railroad pursuant to § 271.207(b) and any statements submitted by employees pursuant to § 271.207(c). If FRA finds that these statements do not provide sufficient information to determine whether a railroad used good faith and best efforts to reach agreement, FRA may investigate further and contact the railroad or its employees to request additional information. (FRA also expects a railroad’s directly affected employees to utilize good faith and best efforts when negotiating on the contents of an RRP plan. If FRA’s review and investigation of the statements submitted by the railroad under § 271.207(b) and the directly affected employees under § 271.207(c) reveal that the directly affected employees did not utilize good faith and best efforts, FRA could consider this as part of its approval process.) If FRA determines that a railroad did not use good faith and best efforts, FRA may disapprove the RRP plan submitted by the railroad and direct the railroad to comply with the consultation requirements of § 271.207. Pursuant to § 271.301(b)(3), if FRA does not approve the RRP plan, the railroad will have 90 days, following receipt of FRA’s written notice that the plan was not approved, to correct any deficiency identified. In such cases, the identified deficiency would be that the railroad did not use good faith and best efforts to consult and reach agreement with its directly affected employees. If a railroad then does not submit to FRA within 90 days an RRP plan meeting the consultation requirements of § 271.207, the railroad could be subject to penalties for failure to comply with § 271.301(b)(3). II. Guidance on How a Railroad May Consult With Directly Affected Employees Because the standard imposed by the best efforts obligation will vary depending upon the railroad, there may be countless ways for various railroads to comply with the consultation requirements of § 271.207. Therefore, it is important to maintain a flexible approach to the § 271.207 VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 consultation requirements, to give a railroad and its directly affected employees the freedom to consult in a manner best suited to their specific circumstances. FRA is nevertheless providing guidance in this appendix as to how a railroad may proceed when consulting (utilizing good faith and best efforts) with employees in an attempt to reach agreement on the contents of an RRP plan. This guidance may be useful as a starting point for railroads that are uncertain about how to comply with the § 271.207 consultation requirements. This guidance distinguishes between employees who are represented by a non-profit employee labor organization and employees who are not, as the processes a railroad may use to consult with represented and nonrepresented employees could differ significantly. This guidance does not establish prescriptive requirements with which a railroad shall comply, but merely outlines a consultation process a railroad may choose to follow. A railroad’s consultation statement could indicate that the railroad followed the guidance in this appendix as evidence that it utilized good faith and best efforts to reach agreement with its employees on the contents of an RRP plan. (a) Employees Represented by a Non-Profit Employee Labor Organization As provided in § 271.207(b)(1), a railroad consulting with the representatives of a nonprofit employee labor organization on the contents of an RRP plan will be considered to have consulted with the directly affected employees represented by that organization. A railroad 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 an RRP plan. (1) Pursuant to § 271.207(b)(1), a railroad must meet with representatives from a nonprofit employee labor organization (representing a class or craft of the railroad’s directly affected employees) within 240 days from February 18, 2020 to begin the process of consulting on the contents of the railroad’s RRP plan. A railroad must provide notice at least 60 days before the scheduled meeting. (2) During the time between the initial meeting and the applicability date of § 271.11, the parties may meet to discuss administrative details of the consultation process as necessary. (3) Within 60 days after February 17, 2021, a railroad should have a meeting with the representatives of the directly affected employees to discuss substantive issues with the RRP plan. (4) Within 180 days after February 17, 2021 or as otherwise provided by § 271.301(b), a railroad would file its RRP plan with FRA. (5) As provided by § 271.207(e), if agreement on the contents of an RRP plan could not be reached, a labor organization (representing a class or craft of the railroad’s directly affected employees) 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. PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 (b) Employees Who Are Not Represented by a Non-Profit Employee Labor Organization FRA recognizes that some (or all) of a railroad’s directly affected employees may not be represented by a non-profit employee labor organization. For such non-represented employees, the consultation process described for represented employees may not be appropriate or sufficient. For example, 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 RRP plan. FRA therefore is providing the following guidance regarding how a railroad may utilize good faith and best efforts when consulting with non-represented employees on the contents of its RRP plan. (1) Within 120 days from February 18, 2020, a railroad may notify non-represented employees that— (A) The railroad is required to consult in good faith with, and use its best efforts to reach agreement with, all directly affected employees on the proposed contents of its RRP plan; (B) Non-represented employees are invited to participate in the consultation process (and include instructions on how to engage in this process); and (C) If a railroad is unable to reach agreement with its directly affected employees on the contents of the proposed RRP plan, an employee may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining his or her views on the plan on which agreement was not reached. (2) This initial notification (and all subsequent communications, as necessary or appropriate) could be provided to nonrepresented employees in the following ways: (A) Electronically, such as by email or an announcement on the railroad’s website; (B) By posting the notification in a location easily accessible and visible to nonrepresented employees; or (C) By providing all non-represented employees a hard copy of the notification. A railroad could use any or all of these methods of communication, so long as the notification complies with the railroad’s obligation to utilize best efforts in the consultation process. (3) Following the initial notification (and before submitting its RRP plan to FRA), a railroad should provide non-represented employees a draft proposal of its RRP plan. This draft proposal should solicit additional input from non-represented employees, and the railroad should provide non-represented employees 60 days to submit comments to the railroad on the draft. (4) Following this 60-day comment period and any changes to the draft RRP plan made as a result, the railroad should submit the proposed RRP plan to FRA, as required by this part. (5) As provided by § 271.207(e), if agreement on the contents of an RRP plan cannot be reached, then a non-represented employee may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining his or her E:\FR\FM\18FER2.SGM 18FER2 Federal Register / Vol. 85, No. 32 / Tuesday, February 18, 2020 / Rules and Regulations views on the plan on which agreement was not reached. Appendix B to Part 271—Procedures for Submission of RRP Plans and Statements From Directly Affected Employees This appendix establishes procedures for the submission of a railroad’s RRP plan and statements by directly affected employees consistent with the requirements of this part. lotter on DSKBCFDHB2PROD with RULES2 Submission by a Railroad and Directly Affected Employees (a) As provided for in § 271.101, each railroad must establish and fully implement an RRP that continually and systematically evaluates railroad safety hazards on its system and manages the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities. The RRP shall be fully implemented and supported by a written RRP plan. Each railroad must submit its RRP plan to FRA for approval as provided for in § 271.201. (b) As provided for in § 271.207(e), if a railroad and its directly affected employees cannot come to agreement on the proposed contents of the railroad’s RRP plan, the directly affected employees have 30 days following the railroad’s submission of its proposed RRP plan to submit a statement to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining the directly affected employees’ views on the plan on which agreement was not reached. (c) The railroad’s and directly affected employees’ submissions shall be sent to the VerDate Sep<11>2014 20:17 Feb 14, 2020 Jkt 250001 Associate Administrator for Railroad Safety and Chief Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey Avenue SE, Washington, DC 20590. When a railroad submits its RRP plan and consultation statement to FRA pursuant to § 271.301, it must also simultaneously send a copy of these documents to all individuals identified in the service list pursuant to § 271.207(d)(3). (d) Each railroad and directly affected employee is authorized to file by electronic means any submissions required under this part. Before any person files a submission electronically, the person shall provide the FRA Associate Administrator for Railroad Safety and Chief Safety Officer with the following information in writing: (1) The name of the railroad or directly affected employee(s); (2) The names of two individuals, including job titles, who will be the railroad’s or directly affected employees’ points of contact and will be the only individuals allowed access to FRA’s secure document submission site; (3) The mailing addresses for the railroad’s or directly affected employees’ points of contact; (4) The railroad’s system or main headquarters address located in the United States; (5) The email addresses for the railroad’s or directly affected employees’ points of contact; and (6) The daytime telephone numbers for the railroad’s or directly affected employees’ points of contact. PO 00000 Frm 00065 Fmt 4701 Sfmt 9990 9325 (e) A request for electronic submission or FRA review of written materials shall be addressed to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, Federal Railroad Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. Upon receipt of a request for electronic submission that contains the information listed above, FRA will then contact the requestor with instructions for electronically submitting its program or statement. A railroad that electronically submits an initial RRP plan or new portions or revisions to an approved program required by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email. FRA may electronically store any materials required by this part regardless of whether the railroad that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically. A railroad that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email or mail. Issued in Washington, DC. Ronald L. Batory, Administrator, Federal Railroad Administration. [FR Doc. 2020–00425 Filed 2–14–20; 8:45 am] BILLING CODE 4910–06–P E:\FR\FM\18FER2.SGM 18FER2

Agencies

[Federal Register Volume 85, Number 32 (Tuesday, February 18, 2020)]
[Rules and Regulations]
[Pages 9262-9325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00425]



[[Page 9261]]

Vol. 85

Tuesday,

No. 32

February 18, 2020

Part III





Department of Transportation





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Federal Railroad Administration





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49 CFR Part 271





Risk Reduction Program; Final Rule

Federal Register / Vol. 85 , No. 32 / Tuesday, February 18, 2020 / 
Rules and Regulations

[[Page 9262]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 271

[Docket No. FRA-2009-0038, Notice No. 7]
RIN 2130-AC11


Risk Reduction Program

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

ACTION: Final rule.

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SUMMARY: FRA is issuing this final rule to require each Class I freight 
railroad and each freight railroad with inadequate safety performance 
to develop and implement a Risk Reduction Program (RRP) to improve the 
safety of its operations. RRP is a comprehensive, system-oriented 
approach to safety that determines a railroad operation's level of risk 
by identifying and analyzing applicable hazards, and involves 
developing plans to mitigate, if not eliminate, that risk. Each 
railroad has flexibility to tailor an RRP to its specific railroad 
operations. Each railroad shall implement its RRP under a written RRP 
plan that FRA has reviewed and approved. Each railroad shall conduct an 
annual internal assessment of its RRP, and FRA will audit a railroad's 
RRP processes and procedures.

DATES: This final rule is effective April 20, 2020.

ADDRESSES: Docket: For access to the docket to read background 
documents or comments received, go to https://www.regulations.gov at any 
time or visit U.S. Department of Transportation, Docket Operations, 
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk 
Reduction Program Division, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Safety, 1200 New Jersey 
Avenue SE, Washington, DC 20590 (telephone: 202-493-6224), 
[email protected]; or Elizabeth Gross, Attorney Adviser, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590 
(telephone: 202-493-1342), [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
    A. Statutory Authority for This Rulemaking
    B. Summary of Major Provisions
    C. Summary of Costs and Benefits
II. Abbreviations
III. Background and History
    A. What is a Risk Reduction Program?
    B. Summary of NPRM
    C. Proceedings Since the NPRM
    D. Regulatory Review
    E. Summary of Comments
    F. Update on Other Federal Safety Management System Programs
IV. Statutory Background
    A. Rail Safety Improvement Act of 2008
    B. Related System Safety and Fatigue Management Plans 
Rulemakings
    C. Consultation Process Requirements
    D. Risk Reduction Information Protection
    1. Exemption From Freedom of Information Act Disclosure
    2. Discovery and Other Use of Risk Analysis Information in 
Litigation
    a. The Statutory Mandate
    b. The Final Study Report and Its Conclusions
V. Discussion of General Comments
    A. Information Protection
    1. Comments Supporting the Proposed Information Protections
    2. Comments on Final Study Report
    3. Comments Against Any Information Protections
    a. Comments That the Information Protections Are Unprecedented
    b. Comments That the Information Protections Will Reduce the 
Rights of Litigants
    c. Comments That the Information Protections Will Allow 
Railroads To Hide Safety Hazards
    4. Comments That the RRP Final Rule Does Not Need To Limit the 
Disclosure of Evidence
    5. Comments Requesting Preservation of State Tort Law Based 
Claims
    6. Comments That a Judge Should Determine Information 
Admissibility
    7. Comments Suggesting FRA Should Only Protect a Railroad's 
Hazard Analysis Form
    8. Comments That the Information Protections Are Too Narrow
    B. Other Topics
    1. Transportation of Hazardous Materials
    2. Comments on Performance-Based Rule and Flexibility
    3. Comments on Streamlined Safety Management System (SMS)
    4. Comments on Plan Approval
    5. Comments on Fatigue Management Plans
    6. Comments on the RSAC Process
    7. Comments on the Relationship Between RRP and SSP
    8. Comments on the Short Line Safety Institute
    9. Comments on Other SMS Programs
VI. Section-by-Section Analysis
VII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13771, Congressional Review Act, 
and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact

I. Executive Summary

A. Statutory Authority for This Rulemaking

    FRA's general authority to issue rules on railroad safety is 49 
U.S.C. 20103(a), which establishes the authority of the Secretary of 
Transportation (Secretary) to promulgate regulations for every area of 
railroad safety. The Secretary has delegated such statutory 
responsibilities to the Administrator of FRA. See 49 CFR 1.89. FRA is 
issuing this rule to satisfy the statutory mandate in sections 103 and 
109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-
432, Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156 
and 20118-20119. The Secretary delegated responsibility to carry out 
her responsibilities under RSIA sections 103 and 109, and the general 
responsibility to conduct rail safety rulemakings under 49 U.S.C. 
20103(a), to the Administrator of FRA. See 49 CFR 1.89(a) and (b).

B. Summary of Major Provisions

    FRA is issuing this RRP rule as part of its efforts to continually 
improve rail safety and to satisfy the statutory mandate in RSIA 
sections 103 and 109 requiring each Class I freight railroad and each 
freight railroad with inadequate safety performance to develop and 
implement an RRP.\1\ A railroad not otherwise required to comply with 
the rule may also voluntarily submit an RRP plan for FRA review and 
approval. On August 12, 2016, 81 FR 53850, FRA published a separate 
system safety program (SSP) rule implementing this mandate for commuter 
and intercity passenger railroads.
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    \1\ FRA understands that each railroad subject to this RRP rule 
has a unique operating system, and not all railroads have the same 
amount of resources. Best practices for implementing an RRP will 
therefore differ from railroad to railroad. Accordingly, this rule 
does not establish prescriptive requirements that may be appropriate 
for one railroad but unworkable for another. Instead, the rule 
establishes general, performance-based requirements. This approach 
provides each railroad flexibility to tailor those requirements to 
its specific operations.
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    An RRP is implemented by a written risk reduction program plan (RRP 
plan). The RRP rule sets forth various elements that a railroad's RRP 
plan must contain to properly implement an RRP. As part of its RRP 
plan, a railroad must also

[[Page 9263]]

describe the various procedures and processes for implementing this 
rule's requirements. This includes procedures and processes for, but 
not limited to, the following RRP components: Risk-based hazard 
management program; safety performance evaluation; safety outreach; 
technology implementation plan; RRP employee/contractor training; 
railroad employee involvement; and internal assessment.
    The main components of an RRP are the risk-based hazard management 
program and risk-based hazard analysis. A properly implemented risk-
based hazard management program and risk-based hazard analysis will 
identify the hazards and resulting risks on the railroad's system, 
develop methods to mitigate or eliminate (if practicable) these hazards 
and risks, and set forth a plan to implement these methods. As part of 
its RRP, a railroad will also consider various technologies that may 
mitigate or eliminate the identified hazards and risks.
    An RRP will affect almost all facets of a railroad's operations. To 
ensure all railroad employees an RRP directly affects have an 
opportunity to provide input on the development, implementation, and 
evaluation of a railroad's RRP, the rule requires railroads to consult 
in good faith, and use their best efforts to reach agreement with, such 
employees on the RRP plan contents and any substantive amendments to 
the plan. Appendix A to the rule contains guidance on what constitutes 
good faith and best efforts.
    An RRP can be successful only if a railroad engages in a systematic 
assessment of the hazards and resulting risks on its system. However, a 
railroad may be reluctant to reveal such hazards and risks if there is 
the possibility that such information may be used against it in a court 
proceeding for damages. Congress directed FRA to conduct a study to 
determine if it was in the public interest to withhold certain 
information, including the railroad's assessment of its safety risks 
and its statement of mitigation measures, from discovery and admission 
into evidence in proceedings for damages involving personal injury and 
wrongful death. See 49 U.S.C. 20119. Further, Congress authorized FRA, 
by delegation from the Secretary, to prescribe a rule, subject to 
notice and comment, to address the results of the study. See 49 U.S.C. 
20119(b). FRA contracted to have the study performed, and the RRP 
notice of proposed rulemaking (NPRM) addressed the study's results and 
set forth proposed protections for certain information from discovery, 
admission into evidence, or use for other purposes in a proceeding for 
damages. See 80 FR 10963-10966 (Feb. 27, 2015).
    To minimize the information protected, information a railroad 
compiles or collects solely to plan, implement, or evaluate an RRP is 
protected from discovery, admissibility into evidence, or use for other 
purposes in a proceeding for damages involving personal injury, 
wrongful death, or property damage. The rule also preempts State 
discovery rules and sunshine laws which could be used to require the 
disclosure of protected information in such proceedings. This rule does 
not protect information a railroad compiles or collects for a purpose 
unrelated to the railroad's RRP. Under section 20119(b), the 
information protection provision is not effective until one year after 
its publication. All other provisions of this final rule will become 
effective 60 days after the date of publication.
    Section 20118 also specifies that certain risk reduction records 
the Secretary obtains are exempt from the Freedom of Information Act 
(FOIA) public disclosure requirements. This exemption is subject to two 
exceptions for disclosure (1) necessary to enforce or carry out any 
Federal law and (2) when a record is comprised of facts otherwise 
available to the public and FRA determines disclosure would be 
consistent with the confidentiality needed for RRPs. See 49 U.S.C. 
20118. Unless an RSIA exception applies, FRA would not disclose such 
records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and 49 
CFR 7.23(c)(3). Therefore, FRA concludes railroad risk reduction 
records in FRA's possession would be exempted from mandatory disclosure 
under FOIA unless one of the two exceptions applies.
    The rule requires a Class I railroad to submit its RRP plan to FRA 
for review no later than August 16, 2021. This submission deadline 
accounts for the statutory one-year delay before the information 
protection provision becomes effective. Similarly, the rule does not 
require railroads with inadequate safety performance (ISP railroads) or 
railroads the Surface Transportation Board (STB) either reclassifies or 
newly classifies as Class I railroads after the effective date of the 
final rule to submit RRP plans before the information protection 
provisions go into effect. An ISP railroad must submit an RRP plan 
either 180 days after receiving notice FRA determined the ISP railroad 
had inadequate safety performance or no later than August 16, 2021, 
whichever is later. A railroad the STB reclassifies or newly classifies 
as a Class I railroad must submit its RRP either no later than 90 days 
following the effective date of the classification or reclassification 
or no later than August 16, 2021, whichever is later.
    Within 90 days of receipt of a railroad's RRP plan, FRA will review 
the plan and determine if it meets the requirements of the rule. If FRA 
determines the railroad's RRP plan does not comply with the rule, FRA 
will notify the railroad of how the plan is deficient. The railroad 
will then have 90 days to correct the deficiencies and resubmit the 
plan to FRA. Whenever a railroad amends its RRP plan, it must submit 
the amended plan to FRA for approval and provide a cover letter 
describing the amendments. (FRA approval is not required for amendments 
limited to adding or changing a name, title, address, or telephone 
number of a person, although a railroad must still file the amendment 
with FRA.) A similar approval process and timeline will apply whenever 
a railroad substantively amends its RRP.

C. Summary of Costs and Benefits

    The rule requires each Class I freight railroad and each ISP 
railroad to develop and implement an RRP in accordance with a written 
RRP plan approved by FRA. The rule sets forth required elements that 
must be included in a railroad's RRP. FRA estimates that the rule's 
costs for these elements include: Developing a risk-based hazard 
management program (HMP); documenting an RRP plan and any RRP plan 
amendments; consulting with directly affected employees and preparing 
consultation statements; conducting a safety performance evaluation; 
conducting safety outreach; conducting a technology analysis and 
developing a technology implementation plan; ensuring employee 
involvement; providing RRP training; retaining RRP records; and 
conducting internal assessments. FRA did not estimate the full 
incremental costs of railroads conducting additional and systematic 
hazard and risk analyses or implementing actions to mitigate identified 
hazards and risks. FRA lacks information to reliably estimate such 
costs because FRA cannot predict the level of hazards and risks on 
impacted railroads nor the means these railroads will use to mitigate 
these risks.
    Costs begin in the first year of analysis. The below tables 
summarize the rule's total costs over a ten-year period based on Class 
I railroads having a 43-percent pre-compliance rate and ISP railroads 
having no pre-compliance, with a total cost of $40.2 million, using a 
7-percent discount rate (present value (PV), 7-percent) (Table 1) and 
$51.0

[[Page 9264]]

million, using a 3-percent discount rate (PV, 3-percent) (Table 2). The 
annualized costs are $5.7 million (PV, 7-percent) and $5.9 million (PV, 
3-percent).

 Table 1--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 7-Percent
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                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $7,000          $7,000
Subpart B: RR Programs..........................................      35,725,000       2,216,000      37,941,000
Subpart C: RRP Plans............................................         656,000       1,053,000       1,709,000
Subpart D: Review and Approval of Plans.........................           2,000           7,000           9,000
Subpart E: Internal Assessments.................................         171,000         312,000         483,000
Subpart F: External Audits......................................          28,000          32,000          60,000
                                                                 -----------------------------------------------
    Total Cost, 7% present value................................      36,582,000       3,627,000      40,209,000
                                                                 -----------------------------------------------
Annualized, 7%..................................................       5,210,000         516,000       5,726,000
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 Table 2--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 3-Percent
----------------------------------------------------------------------------------------------------------------
                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $9,000          $9,000
Subpart B: RR Programs..........................................      45,156,000       3,011,000      48,167,000
Subpart C: RRP Plans............................................         771,000       1,329,000       2,100,000
Subpart D: Review and Approval of Plans.........................           2,000           8,000          10,000
Subpart E: Internal Assessments.................................         230,000         413,000         643,000
Subpart F: External Audits......................................          37,000          43,000          80,000
                                                                 -----------------------------------------------
    Total Cost, 3% present value................................      46,197,000       4,813,000      51,000,000
                                                                 -----------------------------------------------
Annualized, 3%..................................................       5,416,000         564,000       5,979,000
----------------------------------------------------------------------------------------------------------------

    Benefits that come from the final rule will vary from railroad to 
railroad. These benefits are based on each railroad's organizational 
structure, the ability for labor and management to collaborate, and the 
steps the railroad takes to implement hazard analysis and mitigation. 
FRA could not reliably predict the specific risks that each freight 
railroad will identify, the actions each freight railroad will take to 
mitigate such risks, or the success rate of such actions. Therefore, 
this analysis qualitatively describes benefits. Details on the 
estimated benefits of this final rule can be found in the rule's 
Regulatory Impact Analysis (RIA), which FRA has prepared and placed in 
the docket (docket no. FRA-2009-0038).\2\
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    \2\ Document inspection and copying facilities are available at 
Room W12-140 on the ground level of the West Building, 1200 New 
Jersey Avenue SE, Washington, DC 20590. The docket for this 
rulemaking is also available online at www.regulations.gov under 
docket no. FRA-2009-0038.
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    FRA expects that the final rule will increase the effectiveness of 
railroad hazard mitigation strategies, which will reduce the frequency 
of accidents and incidents on the general railroad system. FRA also 
expects that the final rule will result in increased employee morale 
and improved working conditions, which will improve railroad 
productivity. These benefits will result because the final rule:
    (1) Ensures that railroads keep their RRPs current and in place;
    (2) Improves safety culture;
    (3) Requires ongoing employee involvement and proactive 
collaboration between labor and management; and
    (4) Provides information protection which allows for a systematic 
risk-based hazard analysis.
    The final rule requires each Class I railroad to have a fully 
implemented RRP within five years of the rule's effective date and 
requires the first set of ISP railroads to implement all portions of 
their RRPs within six years after the final rule's effective date.\3\ 
FRA anticipates that railroads may implement some components of their 
RRP plan before the required implementation dates specified in the 
final rule. Therefore, this analysis estimates that the final rule will 
start generating benefits in the fourth year (year 2022), when Class I 
railroads will have substantially implemented their RRPs. As previously 
discussed, Class I railroads have in place existing activities related 
to the final rule's required components. The existing levels of pre-
rule compliance reduce the size of potential benefits that follow from 
issuing the final rule.
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    \3\ An ISP railroad should begin to realize benefits 
approximately three years after FRA approves its RRP plan, the point 
when the final rule requires the ISP railroad to have fully 
implemented its RRP. The final rule requires each ISP railroad that 
is part of the first group of ISP railroads to implement in full an 
RRP by the sixth year.
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II. Abbreviations

    The following abbreviations are used in this preamble and are 
collected here for the convenience of the reader:

CFR Code of Federal Regulations
DOT United States Department of Transportation
FMP Fatigue Management Plan
FOIA Freedom of Information Act
FR Federal Register
FRA Federal Railroad Administration
HMP Hazard Management Program
NPRM Notice of Proposed Rulemaking
OST Office of the Secretary, United States Department of 
Transportation
PTC Positive Train Control
Pub. L. Public Law
RRP Risk Reduction Program
RSAC Railroad Safety Advisory Committee

[[Page 9265]]

RSIA Railroad Safety Improvement Act of 2008, Public Law 110-432, 
Div. A, 122 Stat. 4848
Secretary Secretary of Transportation
SSP System Safety Program
U.S.C. United States Code

III. Background and History

A. What is a Risk Reduction Program?

    Risk reduction is a comprehensive, system-oriented approach to 
improving safety by which an organization formally identifies and 
analyzes applicable hazards and takes action to mitigate, if not 
eliminate, the risks associated with those hazards. It provides a 
railroad with a set of decision making processes and procedures that 
can help it plan, organize, direct, and control its railroad operations 
in a way that enhances safety and promotes compliance with regulatory 
standards. As such, risk reduction is a form of safety management 
system, which is a term generally referring to a comprehensive, 
process-oriented approach to managing safety throughout an 
organization.
    The principles and processes of risk reduction are based on safety 
management systems (SMS) developed to assure high safety performance in 
various industries, including aviation, passenger railroads, the 
nuclear industry, and other industries with the potential for 
catastrophic accidents. SMS methodologies have evolved through 
experience to include a multitude of equally important elements without 
which the organization's safety performance does not reliably improve. 
These SMS elements are typically grouped into the following larger 
descriptive categories: (1) An organization-wide safety policy; (2) 
formal methods for identifying hazards and prioritizing and mitigating 
risks associated with those hazards; (3) data collection, data 
analysis, and evaluation processes to determine the effectiveness of 
mitigation strategies and to identify emerging hazards; and (4) 
outreach, education, and promotion of an improved safety culture within 
the organization.

B. Summary of NPRM

    On February 27, 2015, FRA published the NPRM proposing to require 
each Class I freight railroad and each freight railroad with inadequate 
safety performance to develop and implement an RRP to improve the 
safety of their railroads operations. See 80 FR 10950. The NPRM 
proposed the following RRP components: (1) A risk-based hazard 
management program; (2) safety performance evaluation; (3) safety 
outreach; (4) technology analysis and technology implementation plan; 
(5) implementation and support training; (6) internal assessments; and 
(7) external audits. The NPRM also proposed requiring a railroad to 
submit its RRP plan to FRA for review and approval and to consult in 
good faith and use its best efforts to reach agreement with all its 
directly affected employees on the contents of the RRP plan. Finally, 
the NPRM proposed to protect certain RRP information from discovery, 
admission into evidence, or use for other purposes in a proceeding for 
damages.
    In addition to these specific proposals, the NPRM contained a 
general background discussion of risk reduction programs and discussed 
FRA's experience with risk reduction programs, such as passenger 
railroads that have implemented system safety programs. The NPRM also 
summarized the rulemaking proceedings that occurred before NPRM 
publication, including publication of an advanced notice of proposed 
rulemaking (ANPRM) and related proceedings of the RSAC RRP Working 
Group. FRA is providing relevant updates to these discussions below.

C. Proceedings Since the NPRM

    The comment period for the NPRM closed on April 28, 2015. As 
several commenters requested, FRA held a public meeting on August 27, 
2015 and invited interested parties to present oral statements and to 
offer information and views on the proposed rulemaking at the hearing. 
FRA placed the transcript for the public hearing in the docket for this 
rulemaking. FRA also reopened the public comment period from July 30, 
2015 through September 10, 2015 and from September 15, 2015 through 
September 18, 2015 to accommodate the public hearing and to allow 
interested parties to submit comments in response to views and 
information provided at the public hearing.
    On September 29, 2015, the RSAC RRP Working Group met to review and 
discuss comments received in response to both the NPRM and the public 
hearing. FRA then reopened the comment period for this rulemaking from 
October 7, 2015 through October 21, 2015 to allow interested parties to 
submit written comments in response to views or information provided at 
the RRP Working Group meeting.

D. Regulatory Review

    DOT has invited the public to provide input on existing rules and 
other agency actions that are good candidates for repeal, replacement, 
suspension, or modification. See 82 FR 45750 (Oct. 2, 2017). As 
appropriate, this final rule responds to comments submitted in response 
to DOT's regulatory review initiative that address railroad safety risk 
reduction programs under the RSIA.

E. Summary of Comments

    FRA received 80 comments in response to the NPRM, the public 
hearing, and the RRP Working Group Meeting. Some interested parties 
submitted multiple comments. FRA received comments from a variety of 
entities, including railroads, trade associations, non-profit employee 
labor organizations, State elected representatives, non-profit advocacy 
organizations, and private citizens.\4\ Various interested labor 
organizations (Labor Organizations I) jointly filed a comment in 
response to the NPRM,\5\ and a different group of labor organizations 
(Labor Organizations II) also filed a comment in response to 
information presented at the RRP Working Group meeting.\6\ Finally, 
some organizations also filed a joint comment (Group Letter).\7\ 
Additionally, in response to DOT's regulatory review initiative, 
American Short Line and

[[Page 9266]]

Regional Railroad Association (ASLRRA) and the Virginia Railway Express 
(VRE) each submitted a comment discussing railroad safety risk 
reduction programs under the RSIA.
---------------------------------------------------------------------------

    \4\ Commenters included: Academy of Railroad Labor Attorneys; 
American Association of Justice; American Public Transportation 
Association; American Short Line and Regional Railroad Association; 
Association of American Railroads; Association of Tourist Railroads 
and Railway Museums; Bureau of Locomotive Engineers and Trainmen 
(BLET); California State Senator (3rd District) Lois Wolk; 
Chesapeake Climate Action Network; City of Portland, Oregon; DNV GL 
Oil & Gas Risk Advisory Services; Friends of the Earth; 
International Association of Sheet Metal, Air, Rail and 
Transportation Workers--Transportation Division (SMART 
Transportation Division); Mountain Watershed Association; National 
Safety Council; New Jersey Work Environment Council; North Platte 
Peer Review Team; Orion's Angels; Public Citizen Texas; Rancho Rail 
Line; State of Washington Representative (46th Legislative District) 
Jessyn Farrell; Toxics Use Reduction Institute; Transport Action 
Canada; Union Pacific Railroad; and 45 individuals.
    \5\ These included: American Train Dispatchers Association 
(ATDA); BLET; Brotherhood of Maintenance of Way Employes Division 
(BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood 
Railway Carmen Division TCU/IAM; SMART Transportation Division; and 
Transport Workers Union of America (TWU).
    \6\ These included: BLET; BMWED; BRS; SMART Transportation 
Division; and Transportation Communication Union (TCU).
    \7\ Group Letter organizations were: Alliance for Justice; Bay 
Area Refinery Corridor Coalition; Blue Ridge Environmental Defense 
League; Center for Effective Government; Center for Justice and 
Democracy; Citizens Acting for Rail Safety; Citizens for a Clean 
Harbor; Crockett-Rodeo United to Defend the Environment; Benicians 
for a Safe and Healthy Community; Delaware Riverkeeper Network; 
Forest Ethics; Friends of Grays Harbor; Friends of the Earth; Idaho 
Conservation League; Milwaukee Riverkeeper; Protect All Children's 
Environment; Public Citizen; United Steelworkers; US PIRG; 
Sciencecorps; Sierra Club; The SunFlower Alliance; Yolo MoveOn; and 
Youghiogheny Riverkeeper, Mountain Watershed Association.
---------------------------------------------------------------------------

    Generally, all commenters were in favor of RRP. While the comments 
contained varying suggestions on the structure and breadth of an RRP, 
most commenters agreed a properly implemented RRP would increase the 
safety of railroad operations. Many commenters, however, expressed 
concern about the FRA proposal to limit the use of some RRP information 
in legal proceedings for damages. FRA discusses this and other specific 
comments in further detail below.

E. Update on Other Federal Safety Management System Programs

    The RRP NPRM discussed other Federal agencies that had established 
or proposed safety management system requirements or guidance for 
regulated entities. Specifically, the NPRM discussed Federal Transit 
Administration regulations, regulations the Federal Aviation 
Administration (FAA) proposed, and guidelines the U.S. Department of 
Defense published. See 80 FR 10953 (Feb. 27, 2015). For a discussion of 
post-NPRM developments with these programs and new Federal safety 
management system initiatives please see the SSP final rule at 81 FR 
53853-53854 (Aug. 12, 2016).

IV. Statutory Background

A. Rail Safety Improvement Act of 2008

    RSIA section 103(a) directs the Secretary to issue a regulation 
requiring Class I railroads, railroad carriers that provide intercity 
rail passenger or commuter rail passenger transportation (passenger 
railroads), and railroads with inadequate safety performance to 
develop, submit to the Secretary for review and approval, and implement 
a railroad safety risk reduction program. RSIA section 103(a)(4) also 
states that railroads not required to comply with this rule may 
voluntarily submit to FRA for approval an RRP plan meeting the 
requirements. Section 20156 codifies these provisions.
    This RRP rule implements section 20156 as it applies to Class I 
freight railroads, freight railroads with inadequate safety 
performance, and voluntarily-compliant railroads. The RRP rule is a 
risk reduction program in that it requires subject railroads to assess 
and manage risk and to develop proactive hazard management methods to 
promote safety improvement. The rule contains provisions that, while 
not explicitly required by the statutory safety risk reduction program 
mandate, are necessary to properly implement the mandate and are 
consistent with the intent behind the mandate.

B. Related System Safety and Fatigue Management Plans Rulemakings

    This RRP final rule addresses the RSIA sections 103 and 109 RRP 
mandate for Class I freight railroads and freight railroads with 
inadequate safety performance. Two separate rulemakings address the 
mandate for passenger railroads and for Fatigue Management Plans. The 
NPRM discussed both these rulemakings and how they related to the RRP 
rulemaking. See 80 FR at 10955. FRA published an SSP final rule for 
passenger railroads on August 12, 2016. See 81 FR 53850.\8\
---------------------------------------------------------------------------

    \8\ On August 30, 2019, FRA issued a final rule extending a stay 
of the SSP rule's requirements to March 4, 2020. See 84 FR 45683 
(2019). FRA issued the stay to develop its response to various 
petitions for reconsideration of the SSP final rule. Id.
---------------------------------------------------------------------------

    Section 20156(d)(2) states an RRP must include a fatigue management 
plan (FMP) that meets the requirements of section 20156(f). However, 
this RRP final rule does not implement this mandate because FRA is 
addressing FMPs in a separate rulemaking. The RSAC Fatigue Management 
Plans Working Group (FMP Working Group), which completed its work in 
September 2013, submitted its recommendations to FRA for further 
consideration. FRA is currently drafting an FMP NPRM.
    Once FRA publishes an FMP rule, FRA will consider any FMP a 
railroad develops and implements under that rule part of a railroad's 
RRP or SSP. Before FRA issues an FMP final rule, FRA will approve RRP 
plans that do not contain an FMP component, if the RRP plan meets all 
other applicable RRP requirements. A railroad may still, however, elect 
to use processes and procedures in its RRP plan to address fatigue-
related railroad safety issues.

C. Consultation Process Requirements

    Section 20156(g)(1) states that a railroad required to establish a 
safety risk reduction program must ``consult with, employ good faith 
and use its best efforts to reach agreement with, all of its directly 
affected employees, including any non-profit employee labor 
organization representing a class or craft of directly affected 
employees of the railroad carrier, on the contents of the safety risk 
reduction program.'' Section 20156(g)(2) further provides that if a 
railroad and its directly affected employees ``cannot reach consensus 
on the proposed contents of the plan, then directly affected employees 
and such organizations may file a statement with the Secretary 
explaining their views on the plan on which consensus was not 
reached.'' Section 20156(g)(2) further provides that FRA must consider 
these views during review and approval of a railroad's RRP plan.
    As proposed in the NPRM, the rule implements this mandate by 
requiring each railroad required to establish an RRP to consult with 
its directly affected employees (using good faith and best efforts) on 
the contents of its RRP plan. A railroad must also include a 
consultation statement in its submitted plan describing how it 
consulted with its employees. If a railroad and its employees cannot 
reach consensus, directly affected employees may file a statement with 
FRA describing their views on the plan.
    Like the information protection provisions discussed below, the RRP 
and SSP rules have essentially identical provisions regarding the 
consultation process requirements because there was significant 
discussion during the SSP and RRP RSAC processes on how to implement 
section 20156(g). FRA worked with the General Passenger Safety Task 
Force's System Safety Task Group to receive input on how to address the 
consultation process, with the understanding that FRA would include the 
same language in both the SSP and RRP NPRMs for review and comment. The 
minor differences between the consultation provisions in the RRP and 
SSP rules are discussed in the section-by-section analysis for Sec.  
271.207.

D. Risk Reduction Information Protection

1. Exemption From Freedom of Information Act Disclosure
    In section 20118, Congress exempted railroad safety analysis 
records from public disclosure in response to FOIA requests. Generally, 
FOIA requires a Federal agency to make most records available upon 
request, unless a record is protected from mandatory disclosure by one 
of nine exemptions. One of those exemptions, Exemption 3, applies to 
records specifically exempted from disclosure by statute if the statute 
requires the matters be withheld from the public in such a manner as to 
leave no discretion on the issue or establishes particular criteria for 
withholding or refers to particular types of matters to be withheld. 
See 5 U.S.C. 552(b)(3). See also 49 CFR 7.23(c)(3). The NPRM explains 
FRA's conclusion that section 20118 is a FOIA Exemption 3 statute and, 
therefore, exempts RRP records in FRA's possession from mandatory 
disclosure under FOIA, unless one of

[[Page 9267]]

the two RSIA exceptions discussed above applies. See 80 FR at 10957-
10958. FRA did not receive any comments questioning its conclusion so 
FRA refers interested readers to the NPRM's analysis of this 
conclusion. Id.
2. Discovery and Other Use of Risk Analysis Information in Litigation
a. The Statutory Mandate
    Section 20119(a) directed FRA to conduct a study to determine 
whether it is in the public interest to withhold from discovery or 
admission into evidence in a Federal or State court proceeding for 
damages involving personal injury or wrongful death against a carrier 
any information (including a railroad's analysis of its safety risks 
and its statement of the mitigation measures with which it will address 
those risks) compiled or collected for the purpose of evaluating, 
planning, or implementing a risk reduction program. Section 20119(a) 
required FRA to solicit input from railroads, railroad non-profit 
employee labor organizations, railroad accident victims and their 
families, and the general public for the study. Section 20119(b) also 
states that upon completion of the study, if in the public interest, 
FRA could prescribe a rule addressing the results of the study. Section 
20119(b) states any such rule is not effective until one year after its 
adoption.
b. The Final Study Report and Its Conclusions
    FRA contracted with a law firm, Baker Botts L.L.P. (Baker Botts), 
to conduct the study for FRA. Various study documents are available for 
review in public docket no. FRA-2011-0025, which interested parties can 
access online at www.regulations.gov. First, Baker Botts prepared an 
initial report identifying and evaluating other Federal safety programs 
that protect safety-related information from use in litigation. See 
Report on Federal Safety Programs and Legal Protections for Safety-
Related Information, FRA, docket no. FRA-2011-0025-0002, April 14, 
2011. Next, as section 20119(a) requires, FRA published a Federal 
Register document seeking public comment on whether it would be in the 
public interest to protect certain railroad risk reduction information 
from use in litigation. See 76 FR 26682 (May 9, 2011). Interested 
parties may view comments received in response to this document in the 
public docket.
    On October 21, 2011, Baker Botts produced a final report on the 
study. See Study of Existing Legal Protections for Safety-Related 
Information and Analysis of Considerations For and Against Protecting 
Railroad Safety Risk Reduction Program Information (Final Study 
Report), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The Final 
Study Report contains analyses of other Federal programs that protect 
similar safety-related information, the public comments submitted to 
the docket, and whether it would be in the public interest, including 
the interests of public safety and the legal rights of persons injured 
in railroad accidents, to protect railroad risk reduction information 
from disclosure during litigation.
    The Final Study Report determines that substantial support exists 
for the conclusion that a rule that protects ``railroad safety risk 
information from use in civil litigation involving claims for personal 
injuries or wrongful death would serve the broader public interest.'' 
Final Study Report at 63. The Final Study Report highlights that, in 
the past, with similar programs, Congress deemed it is in the public's 
interest to place statutory limitations on disclosing or using certain 
information used by the Federal Government. Id. The safety risk 
reduction programs that RSIA mandates, according to the Final Study 
Report, involve public interest considerations similar to the ones 
Congress has protected through statutory limitations, and courts have 
upheld these limitations. The Final Study Report explains that many of 
the public comments submitted to the docket agree that limiting the use 
of information collected for a safety risk reduction program mandated 
by RSIA in discovery or litigation would serve the broad public 
interest by encouraging and facilitating the timely and complete 
disclosure of safety-related information to FRA. Further, the Final 
Study Report underscores FRA's statutory duty to protect the broader 
public interest in ensuring rail safety and concludes that this public 
interest outweighs the individual interests of future litigants who may 
bring damage claims against railroads. Therefore, the Final Study 
Report concludes that

after balancing all of the considerations that bear upon the public 
interest . . . the balance weighs in favor of adopting rules 
prohibiting the admissibility or discovery of information compiled 
or collected for FRA railroad safety risk reduction programs in a 
civil action where a plaintiff seeks damages for personal injury or 
wrongful death.

Id. at 64.
    In response to the Final Study Report, the RRP NPRM proposed in 
Sec.  271.11 to protect any information compiled or collected for the 
sole purpose of developing, implementing, or evaluating an RRP from 
discovery, admission into evidence, or consideration for other purposes 
in a Federal or State court proceeding for damages involving personal 
injury, wrongful death, or property damage. The NPRM clarified that the 
protected information would include a railroad's identification of 
safety hazards, analysis of safety risks, and statement of the 
mitigation measures for addressing those risks. Protected information 
could be in the form of plans, reports, documents, surveys, schedules, 
lists, data, or any other form. FRA received multiple comments in 
response to the information protections that both the SSP and RRP NPRM 
proposed and has modified its approach based on these comments. These 
changes are discussed further in the discussion of comments section and 
the corresponding section-by-section analysis.

V. Discussion of General Comments

    This section discusses general comments FRA received on the RRP 
NPRM relating to the proposed information protections and the overall 
nature of the proposed rule. The section-by-section analysis discusses 
all other comments as they relate to specific sections, including any 
changes to the rule text FRA made in response.

A. Information Protection

    FRA received numerous comments regarding the proposed information 
protections and has modified the proposed information protections based 
on both the received comments and the information protection provisions 
in the SSP final rule. As discussed in the NPRM, this RRP final rule 
contains an information protection provision substantively identical to 
the information protection provision in the SSP final rule.\9\ See 81 
FR 53900 (Aug. 12, 2016). FRA believes different RRP and SSP provisions 
governing information protection would be confusing. Further, the SSP 
and RRP RSAC processes significantly discussed how to implement the 
information protections. FRA worked with both the General Passenger 
Safety Task Force's System Safety Task Group and the RRP Working Group 
to receive input on how

[[Page 9268]]

the SSP and RRP rules should address information protection, with the 
understanding that both rules would likely contain the same language.
---------------------------------------------------------------------------

    \9\ The minor differences between the RRP and SSP information 
protections involve the use of ``risk reduction program'' instead of 
``system safety program'' and citations to relevant provisions in 
the RRP rule instead of provisions in the SSP rule. To correct a 
minor typo in the SSP information protection provision, the RRP 
information protection provision also uses the term ``proceeding'' 
instead of ``proceedings.'' No substantive difference is intended by 
this correction.
---------------------------------------------------------------------------

1. Comments Supporting the Proposed Information Protections
    Several commenters agreed with FRA's conclusion that the proposed 
information protections are necessary, including Association of 
American Railroads (AAR), American Public Transportation Association 
(APTA), ASLRRA, Union Pacific Railroad (UP), and Labor Organizations I. 
These commenters support FRA's position that the litigation protections 
are necessary for a railroad to engage in a thorough and candid 
analysis of the hazards and resulting risks on its system. Based on 
those comments, FRA believes both railroad management and railroad 
labor generally agree an RRP final rule must have some form of 
information protections.
2. Comments on Final Study Report
    Several commenters questioned the neutrality and the substance of 
the Baker Botts Final Study Report. Commenters questioning the 
neutrality of Final Study Report included American Association for 
Justice (AAJ), Academy of Railroad Labor Attorneys (ARLA), Labor 
Organizations I, Labor Organizations II, and several individuals. These 
commenters provided several examples of Baker Botts' alleged bias, 
including: (1) Citations to Baker Botts' website; (2) a book by William 
G. Thomas titled Lawyering for the Railroad: Business, Law, and Power 
in the South (Louisiana State University Press, 1999), which describes 
Baker Botts' historical representation of Southern Pacific Railroad 
beginning in the later 1800s until sometime in the 1900s; (3) a Baker 
Botts associate's prior employment with Norfolk Southern Corporation; 
and (4) a website indicating that Baker Botts was involved in 
litigation related to the July 6, 2013 rail accident in Lac-
M[eacute]gantic, Quebec. The commenters did not provide a specific 
example of Baker Botts representing a railroad in litigation involving 
claims for damages at the time of the study.
    After evaluating these comments, FRA concludes that it complied 
with all legal requirements, including the RSIA and the Federal 
Acquisitions Regulations (FAR), in selecting Baker Botts and conducting 
the study. See section 20119 and FAR 48 CFR 9.505 through 9.505-4 and 
9.508. Further, FRA has not found any conflict or representation 
indicating that Baker Botts had a bias in favor of railroad management 
at the time of the study. For example, any involvement of Baker Botts 
in Lac-M[eacute]gantic-related litigation occurred after the firm 
completed the study in October 2011. FRA also reviewed Lawyering for 
the Railroad: Business, Law, and Power in the South. Although the book 
correctly states that Baker Botts represented Southern Pacific railroad 
beginning in the late 1800s until sometime in the 1900s, the book does 
not have an example of Baker Botts representing a railroad at the time 
of the study.
    Baker Botts also conducted its own conflict check when submitting 
its bid in response to FRA's request for proposal (RFP) \10\ and only 
found one matter involving advice it provided to a railroad on 
environmental issues, not rail safety. Further, Baker Botts, as a law 
firm, must comply with the legal ethical standards of the appropriate 
State or risk discipline or disbarment of its attorneys.
---------------------------------------------------------------------------

    \10\ FRA's RFP, Solicitation Number DTFR-53-10-R-00008, is 
available at https://www.fbo.gov/index?s=opportunity&mode=form&id=56e2462fb07daa6e45155c3be66ddf02&tab=core&tabmode=list.
---------------------------------------------------------------------------

    AAJ, ARLA, and Labor Organizations II also submitted comments 
arguing that the Final Study Report did not give adequate consideration 
to the interests of railroad accident victims, their families, and the 
general public. For example, ARLA and Labor Organizations II assert the 
report only focuses on the railroads' alleged interests and why FRA 
should protect risk reduction information. FRA disagrees and believes 
the Final Study Report adequately considered the interests of railroad 
accident victims, their families, and the general public. As section 
20119(a) required, FRA solicited input for the report from railroads, 
railroad nonprofit employee labor organizations, railroad accident 
victims and their families, and the general public, including AAJ. See 
76 FR 26682 (May 9, 2011) and Letters Dated May 12, 2011, to 
Stakeholders Inviting Comments (FRA-2011-0025-0006). In response, FRA 
received 22 comments representing 25 affected entities, including 
railroads, AAJ, Public Citizen (a non-profit public interest 
organization), various railroad non-profit employee labor 
organizations, and individuals. The Final Study Report summarizes 
comments both supporting and opposing a rule that would protect risk 
reduction information. See generally Final Study Report at 37-46. The 
Final Study Report also analyzes the relevant public interest 
considerations, including considerations opposing a rule limiting 
discovery and admissibility. See generally Id. at 53-63. Specifically, 
the Final Study Report considers: (1) Victims' compensation; (2) the 
necessity of a regulation; (3) promoting railroad safety; (4) promoting 
the reporting of railroad accidents; (5) promoting open government and 
freedom of information; (6) what kinds of documents a regulation should 
protect; and (7) administrative procedure. Therefore, FRA concludes the 
Final Study Report adequately considered the public interest and the 
rights of railroad accident victims and their families.
3. Comments Against Any Information Protections
    Several commenters objected to including any information 
protections in the final rule. These included AAJ, ARLA, the non-profit 
organizations represented by the Group Letter, California State Senator 
Wolk, Washington State Representative Farrell, the City of Portland, 
and several individuals and other non-profit organizations.
    Overall, the primary objections of many commenters opposed to any 
information protections are that the protections would (1) ignore the 
importance of transparency in railroad safety and (2) reduce, not 
improve, railroad safety. FRA disagrees. First, in section 20118, 
Congress specifically exempted railroad safety analysis records from 
mandatory disclosure under FOIA, indicating that Congress concluded the 
benefits of improved railroad safety outweighed the benefits of 
complete transparency in railroad safety. Second, the information 
protections will not change the information available to litigants 
today, as information currently discoverable and admissible will remain 
discoverable and admissible. Further, the information protections will 
improve railroad safety by encouraging railroads to engage in a 
systematic and honest assessment of the hazards and resulting risks on 
their systems. A railroad's risk-based Hazard Management Program (HMP) 
will not improve railroad safety if a railroad is reluctant to reveal 
risks and hazards because a litigant could use that information against 
the railroad in a court proceeding for damages.
a. Comments That the Information Protections Are Unprecedented
    AAJ contends the proposed information protections are 
unprecedented. While AAJ recognizes certain existing programs have 
information protections, AAJ argues those programs have two key 
features: (1) Congress directed disclosure of documents be limited, and 
(2) limited

[[Page 9269]]

disclosure applies predominately to documents actually submitted to a 
Federal agency. AAJ believes that the RRP information protections do 
not have either of these key features. ARLA also claims the safety-
related statutes and regulations the Final Study Report cites only 
protect data a governmental agency holds, not a private entity such as 
a railroad. (FRA notes that not all railroads are private entities.)
    While Congress did not set forth specific information protections 
in section 20119, Congress explicitly gave FRA authority to promulgate 
such protections. As discussed previously, section 20119(a) directs FRA 
to conduct a study to determine if certain information protections 
would be in the public interest, and Congress described the specific 
parameters of the information protections the study had to consider. 
Congress then authorized FRA to promulgate a rule, subject to notice 
and comment, which addresses the results of the study. Id. FRA has 
complied with Congress' mandate and has included information 
protections in this rule consistent with the specific parameters 
Congress described. FRA does not believe the information protections 
are invalid simply because Congress didn't promulgate specific 
protections.
    Additionally, nothing in section 20119 limits the information 
protections to documents a railroad submits to FRA. Congress' language 
in section 20119 states that the information protections, depending on 
the results of the study, could apply to information a railroad does 
not submit to FRA. Under section 20119(a), the study must consider 
information protections that would apply to documents a railroad 
compiles and collects for ``the purpose of planning, implementing, or 
evaluating a safety risk reduction program.'' Because Congress did not 
limit the information protections only to documents a railroad submits 
to FRA, FRA has authority to protect documents a railroad possesses.
    Further, nothing in 23 U.S.C. 409 (section 409), the statute FRA 
used as a model for the proposed information protections, or the 
Supreme Court's decision in Pierce County v. Guillen, 537 U.S. 129 
(2003) (which upheld the validity and constitutionality of section 
409),\11\ limits the information protections to documents submitted to 
the Federal Highway Administration (FHWA) as part of the Hazard 
Elimination Program. In that case, the Supreme Court did not base its 
interpretation of section 409 on whether documents were submitted to 
FHWA. Rather, the Supreme Court held the information protections 
extended to information because the Hazard Elimination Program required 
compiling or collection of that information. See Guillen, 537 U.S. at 
146. Like the statute at issue in that case, because the RSIA requires 
railroads to compile and collect information for an RRP, it is 
appropriate to protect any information the railroad compiles or 
collects for that purpose, even if the railroad never submits that 
information to FRA.
---------------------------------------------------------------------------

    \11\ For additional discussion on FRA's decision to base the RRP 
information protection provisions on section 409 and Guillen, FRA 
refers readers to the NPRM. See 80 FR 10963-10964 (Feb. 27, 2015).
---------------------------------------------------------------------------

    AAJ claims that in the limited circumstances where provisions have 
protected data, the provisions have been narrowly tailored and 
construed. AAJ believes the proposed information protections are overly 
broad and inconsistent with any other government program that limits 
some disclosure of evidence.
    FRA agrees with AAJ that the information protections must be 
narrowly tailored and construed. In Guillen, the Supreme Court 
recognized that ``statutes establishing evidentiary privileges must be 
construed narrowly because privileges impede the search for truth.'' 
Guillen at 144-45. Because section 409 established a privilege, the 
Court construed it narrowly to the extent the text of the statute 
permitted. Id. at 145. FRA believes the RRP information protections are 
consistent with the Court's narrow interpretation of section 409. 
Further, FRA has tailored the RRP protections even more narrowly than 
section 409 by limiting them to information a railroad originally 
compiled or collected ``solely'' for the purpose of planning, 
implementing or evaluating an RRP, as the section-by-section analysis 
for Sec.  271.11 discusses.
    Labor Organizations II commented that, with the exception of 
section 409, each safety law or regulation the Final Study Report cites 
allows discovery of information. FRA believes Labor Organizations II's 
characterization of the Final Study Report is inaccurate because the 
final report identifies two additional safety statutes prohibiting both 
the discoverability and the admissibility of information. The first is 
49 U.S.C. 6307(b)(2)(B)(i), which specifies reports submitted to DOT's 
Bureau of Transportation Statistics (BTS) under 49 U.S.C. 6302(b)(3)(B) 
are ``immune from legal process.'' \12\ ``Accordingly, no litigant may 
subpoena the report in discovery or obtain it through any other legal 
proceeding.'' Final Study Report at 20. The second statute is 46 U.S.C. 
6308(a), which protects from discovery marine casualty reports the U.S. 
Coast Guard creates under 46 U.S.C. 6301.\13\
---------------------------------------------------------------------------

    \12\ The Final Study Report discussed a previous version of 
section 6307(b)(2)(B)(i), 49 U.S.C. 111(k)(a)(2)(B)(i), repealed in 
2012. See Pub. L. 112-141, Div. E, Title II, section 52011(c)(1), 
July 6, 2012, 126 Stat. 895. However, substantively, sections 
6307(b)(2)(B)(i) and 111(k)(a)(2)(B)(i) are identical and have the 
same ``immune from legal process'' language. Because section 
6302(b)(3)(B)(vi)(1) requires BTS to collect statistics on 
``transportation safety across all modes and modally,'' FRA believes 
section 6307(b)(2)(B)(i) is a safety law.
    \13\ Because marine casualty investigations identify the cause 
of accidents resulting in fatalities, FRA believes section 6308(a) 
is also a safety law.
---------------------------------------------------------------------------

    Further, Labor Organizations II's argument acknowledges that 
section 409 prohibits discovery. As discussed in the NPRM, FRA believes 
section 409 is the best model for the RRP information protections 
because Congress used similar language in section 409 and section 20119 
authorizing information protection and because Guillen determined 
section 409 was constitutional. See 80 FR at 10963.
    ARLA also commented that virtually every safety law the Final Study 
Report discussed has exceptions to the protection against disclosure 
and admissibility. FRA notes that the information protections in Sec.  
271.11 are narrowly tailored and will not provide blanket protection 
for all railroad RRP information. The rule excepts from protection 
several categories of RRP information, such as (1) information 
discoverable and admissible before publication of the RRP final rule, 
(2) information another provision of law or regulation requires the 
railroad to compile or collect, and (3) information a railroad does not 
use ``solely'' for an RRP purpose. Accordingly, FRA concludes this rule 
contains several exceptions to the information protections and is not 
inconsistent with other safety laws with exceptions to protections 
against discoverability and admission into evidence.
b. Comments That the Information Protections Will Reduce the Rights of 
Litigants
    AAJ argues the RRP information protections will reduce the rights 
of persons injured in railroad accidents. AAJ asserts that evidence a 
railroad knew or should have known of a hazard is key in many cases to 
prove the railroad's liability, particularly for Federal Employers' 
Liability Act cases. AAJ believes the Final Study Report concluded 
without analysis that injured people could continue to pursue legal 
remedies because access to currently discoverable documents would 
remain

[[Page 9270]]

discoverable. AAJ does not believe this conclusion is accurate because 
it contends the information protections may shield the documents/data 
necessary to show the railroad knew or should have known of the hazard. 
AAJ also commented that the information protections are one-sided 
because they shield the railroad from discovery, while permitting the 
railroad to obtain extensive discovery regarding a plaintiff's 
knowledge of a hazard or risk. The Chesapeake Climate Action Network 
(CCAN) expressed similar concerns.
    FRA has drafted the RRP information protections so a plaintiff or 
defendant is no worse off than he or she would have been if the RRP 
rule never existed. This is consistent with section 409 and the Supreme 
Court's interpretation of that section. See Guillen at 146. To ensure a 
plaintiff is no worse off, Sec.  271.11(b) has certain exceptions to 
the information protections. Under Sec.  271.11(b), the information 
protections are not extended to information compiled or collected for a 
purpose other than that specifically identified in Sec.  271.11(a). 
Further, if certain information was discoverable and admissible before 
the enactment of the RRP rule, Sec.  271.11(b) ensures the information 
remains discoverable and admissible. This is true even if the railroad 
(1) continues to compile or collect that information as part of its RRP 
or (2) stops compiling or collecting that information outside the RRP 
and then begins to compile or collect that information again as part of 
its RRP. These exceptions are discussed extensively in the section-by-
section analysis for Sec.  271.11(b). These exceptions strike a 
reasonable balance between ensuring that plaintiffs are no worse than 
they would have been if the RRP rule had not existed and encouraging 
railroads to undertake a systematic and candid assessment of the 
hazards and resulting risks on their system.
c. Comments That the Information Protections Will Allow Railroads To 
Hide Safety Hazards
    AAJ asserts the information protections will allow railroads to 
hide safety hazards. AAJ believes the threat of disclosure of these 
hazards creates an incentive for railroads to correct them immediately. 
AAJ points to multiple cases it believes prove railroads routinely hide 
evidence of hazards. CCAN also argues that the information protections 
would allow railroads to hide knowledge of safety problems and delay 
correcting known or suspected hazards. Labor Organizations II express a 
similar concern that the information protections would prevent 
knowledge of future risks known by railroads. Specifically, Labor 
Organizations II assert the information protections would hide risks 
uncovered by a railroad resulting from future rulemakings.
    FRA disagrees. The purpose of the RRP is for railroads to identify 
hazards and resulting risks and to take the appropriate measures to 
mitigate or eliminate these hazards. Without the information 
protections, an RRP could result in an effort-free tool for plaintiffs 
in litigation against railroads, which would discourage railroads from 
identifying hazards and resulting risks, thus frustrating the intent 
behind section 20156. The RRP rule and information protections will 
encourage railroads to identify and address hazards. Further, if a 
railroad is already required by another law or regulation to collect 
information to show compliance with existing laws or regulations, that 
information will not be protected. Further, the information 
protections' narrow application to information that a railroad compiles 
or collects ``solely'' for an RRP purpose will not allow a railroad to 
claim that the provisions protect all information regarding risks 
relating to future technologies or rulemakings. Once a railroad uses 
such information beyond the scope of its RRP, Sec.  271.11 will not 
protect the non-RRP use of the information outside the railroad's RRP. 
For example, if the railroad gives RRP information to a contractor to 
use while performing maintenance work for the railroad, Sec.  271.11 
will not extend to the contractor's use of the information. Therefore, 
railroads will not be able to use the RRP information protections to 
hide issues of non-compliance or avoid future regulatory requirements.
    Several commenters also expressed concern the information 
protection provisions would allow railroads to hide information related 
to the transportation of crude oil by rail. One individual specifically 
commented that the RRP final rule should require railroads to provide 
detailed crude-by-rail information.
    The information protection provisions in this final rule explicitly 
do not protect any information that a railroad must compile or collect 
``pursuant to any other provision of law or regulation.'' This excludes 
from protection any crude oil information a railroad must collect under 
Federal law, including (but not limited to) the Enhanced Tank Car 
Standards and Operational Controls for High-Hazard Flammable Trains 
(HHFT Final Rule) that FRA and the Pipelines and Hazardous Materials 
Safety Administration (PHMSA) jointly issued. See generally 80 FR 
26644-26750 (May 8, 2015). Further, because the HHFT Final Rule and 
other Federal regulations contain provisions requiring the provision 
and maintenance of certain hazardous material information, FRA does not 
believe that this RRP final rule should impose additional crude-by-rail 
information requirements. See e.g., DOT's Emergency Restriction/
Prohibition Order, DOT-OST-2014-0067, May 7, 2014, available at https://www.transportation.gov/briefing-room/emergency-order.
4. Comments That the RRP Final Rule Does Not Need To Limit the 
Disclosure of Evidence
    AAJ contends that FRA can issue an RRP rule without limiting the 
discovery of evidence, just like FAA did in its Safety Management 
System (SMS) rulemaking.
    FRA disagrees. A significant difference between the FRA and FAA 
programs is the scope of statutory authority Congress gave each agency 
to protect information collected or maintained as part of an SMS. The 
FAA's authority under 49 U.S.C. 44735 limits the protection of SMS 
voluntarily-submitted information (such as reports, data, or other 
information produced or collected for purposes of developing and 
implementing an SMS) to protection from FOIA disclosure by the FAA. 
Congress similarly protects risk reduction information from mandatory 
FOIA disclosure in section 20118. However, Congress gave FRA authority 
to further protect RRP information in section 20119, which directed FRA 
to conduct the study and authorized FRA to issue a regulation 
addressing the results of that study.
    As discussed above, the Final Study Report concludes that it would 
be within FRA's authority and in the public interest for FRA to 
promulgate a regulation protecting certain risk analysis information 
held by the railroads from discovery and use in litigation. The final 
report also makes recommendations for the drafting and structuring of 
such a regulation. See Final Study Report at 63-64. Therefore, FRA 
determined the information protections in this final rule are 
consistent with the authority Congress provided in section 20119 and 
the conclusion of the Final Study Report.
    ARLA also argues that railroads will honestly identify risks and 
mitigations without the information protections because labor unions 
will assure a railroad's compliance by participating

[[Page 9271]]

in the identification of risks and mitigations.
    FRA agrees with ARLA that employee participation in the risk-based 
HMP is essential and will improve a railroad's RRP. FRA does not 
believe, however, that employee participation alone can overcome a 
railroad's reluctance to fully identify hazards and risks. Further, 
employees and labor unions may not represent the interests of the 
public or other accident victims. FRA therefore believes the 
information protections will provide important additional encouragement 
for a railroad to assess its hazards and risks.
5. Comments Requesting Preservation of State Tort Law Based Claims
    AAJ requests that FRA specifically preserve State tort law based 
claims. AAJ believes that because railroads must submit their RRP plans 
to FRA for approval, railroads may claim they are immune from any 
safety hazard claim or that FRA's approval of the RRP plan preempts any 
State law claim. Non-profit employee labor organizations also raised 
this concern in response to the SSP NPRM.
    To address this issue, FRA is including Sec.  271.301(d)(4) in the 
final rule, which provides that approval of a railroad's RRP plan under 
this part does not constitute approval of the specific actions the 
railroad will implement under its RRP plan and shall not be construed 
as establishing a Federal standard regarding those specific actions. 
FRA will not approve the specific mitigation and elimination measures a 
railroad adopts to address identified hazards and risks. FRA also does 
not intend the RRP rule to preempt State standards of care regarding 
the specific risk mitigation actions a railroad will implement under 
its RRP plan. Accordingly, Sec.  271.301(d)(4) clarifies that FRA 
approval of a railroad's RRP plan is not approval of any specific 
actions a railroad implements under that RRP plan, including any 
specific mitigation and elimination measures a railroad chooses.
6. Comments That a Judge Should Determine Information Admissibility
    Labor Organizations II propose a compromise position where ``risk 
reduction facts would be admissible if it is determined by a judge that 
the information would be `in furtherance of the highest degree of 
safety in railroad transportation.' '' As Labor Organizations II 
explain, the phrase ``in furtherance of the highest degree of safety in 
railroad transportation'' comes from 49 U.S.C. 103(c), which is the 
safety standard Congress mandated FRA to follow in its administration 
of railroad safety.
    FRA does not believe this suggestion would improve the proposed 
information protections. Labor Organizations II's proposal only 
addresses the admission of risk reduction information into evidence and 
does not indicate whether discovery protections are necessary. The 
suggestion also does not clarify when a judge should determine whether 
admissibility of information is in furtherance of the highest degree of 
safety in railroad transportation. As such, FRA believes the suggestion 
would lead to the type of litigation avalanche that AAJ and ARLA fear, 
where courts would have to routinely interpret the meaning of ``in 
furtherance of the highest degree of safety in railroad 
transportation.'' Labor Organizations II's suggestion is therefore too 
imprecise to implement and would lead to an increase in costly 
litigation.
7. Comments Suggesting FRA Should Only Protect a Railroad's Hazard 
Analysis Form
    One individual suggested that FRA narrowly draft the regulation to 
only protect a railroad's hazard analysis form from disclosure.
    FRA declines to implement this individual's suggestion. The 
suggested approach would leave too much risk reduction information 
unprotected, resulting in inadequate information protections. For 
example, the suggested approach would not protect information a 
railroad might not include in the hazard analysis form, such as 
supporting data spreadsheets or candid discussions with employees about 
hazards and risks. The suggested approach also would not protect 
information a railroad uses to track the effectiveness of an 
implemented mitigation measure. Further, an effective RRP cannot lock 
important information in a hazard analysis form forever, as a railroad 
must use such information for other mandatory RRP components (such as 
its Safety Performance Evaluation or annual Internal Assessment).
    Moreover, the suggested approach could encourage a railroad to 
claim protection for non-RRP information simply by placing it in a 
hazard analysis form. FRA believes, however, that information should be 
protected based on how the railroad is using the information (e.g., is 
the railroad using the information solely for RRP purposes?), not 
merely on whether or not the railroad included the information in a 
hazard analysis form.
    Finally, protecting information beyond a railroad's hazard analysis 
is consistent with section 20119(a), which directed FRA to study 
protecting RRP information in various forms, including ``any report, 
survey, schedule, list, or data compiled or collected'' for various RRP 
purposes. The final rule also does not require a railroad to use a 
specific hazard analysis form for its RRP, so it would be unclear which 
document would be the ``hazard analysis form.'' Therefore, the 
information protections would be applied inconsistently based on which 
document was considered the ``hazard analysis form.''
    For these reasons, FRA declines to adopt the suggested approach.
8. Comments That the Information Protections Are Too Narrow
    FRA received several comments arguing that the proposed information 
protections are too narrow. ASLRRA commented that FRA is not protecting 
data as Congress intended in the RSIA, asserting FRA improperly relied 
on section 409 and the Supreme Court's decision in Guillen because both 
significantly predate the RSIA. Instead, ASLRRA believes that FRA 
should only rely on the RSIA and protect ``any report, survey, 
schedule, list or data compiled or collected for the purpose of 
evaluating, planning or implementing a railroad safety risk reduction 
program . . . including a railroad carrier's analysis of its safety 
risks and its statement of the mitigation measures with which it will 
address those risks.'' According to ASLRRA, any limitations FRA imposes 
on this language are inappropriate.
    FRA disagrees and believes it has properly limited the scope of the 
information protections. As explained above, FRA believes it correctly 
used section 409 and Guillen as models for the information protections. 
ASLRRA provided no reason, other than age, why FRA should not consider 
Guillen's analysis sound guidance for establishing RRP information 
protections.
    FRA also believes ASLRRA mischaracterized Congress' intent in 
section 20119. Section 20119 does not directly establish parameters for 
protecting risk reduction information. Rather, it requires FRA to 
conduct a study and authorizes FRA to promulgate a rule addressing the 
results of that study. Section 20119(b) also does not mandate the scope 
of any information protections. FRA therefore concludes that the 
proposed information protections are consistent with Congress' intent 
in the RSIA to authorize FRA to decide the scope of the information 
protections.

[[Page 9272]]

    ASLRRA also questions FRA's explanation in the NPRM preamble that 
the information protections would extend to the Short Line Safety 
Institute (Institute) only if FRA finds the Institute is part of a 
complete RRP program. See 80 FR 10964 (Feb. 27, 2015). Specifically, 
ASLRRA asserts there is no evidence small railroads will attempt to 
obtain approval for, or operate under, inadequate programs. FRA 
supports development of the Institute. FRA does not believe, however, 
it has authority under RSIA to extend information protections to 
programs that do not fully meet the requirements of this RRP final 
rule. Section 20119(a) (emphasis added) only mandated FRA (as delegated 
by the Secretary) to study protections for information ``compiled or 
collected for the purpose of evaluating, planning, or implementing a 
railroad safety risk reduction program required under this chapter.'' 
Under the rule, a complete RRP must contain several components, 
including (but not limited to) a railroad's risk-based HMP and safety 
performance evaluation. A railroad must also comply with the rule's 
requirements for RRP internal assessment and external evaluations. If 
the Institute either does not meet all the rule's requirements for a 
railroad, or is otherwise not part of a railroad's broader RRP that 
does meet the requirements, the Institute is neither a complete RRP nor 
part of a complete RRP, and the information protections may not extend 
to Institute information.
    In a joint comment, AAR and ASLRRA (AAR/ASLRRA) commented on the 
NPRM's discussion in the preamble, which states Sec.  271.11 would only 
protect information once FRA approves a railroad's RRP plan. They 
believe that approach does not make sense and would weaken the rule's 
protections. After reviewing the NPRM's discussion, FRA agrees with 
AAR/ASLRRA that the discussion in the preamble to the proposed rule 
does not properly reflect the scope of the information protections. See 
80 FR 10952 (Feb. 27, 2015). In the preamble to the NPRM, FRA explained 
that railroads should not begin implementing an RRP plan before FRA 
approval, erroneously stating the information protections would not 
apply to information a railroad did not compile or collect for an FRA-
approved RRP plan. FRA's intent was to explain that a railroad should 
not begin performing hazard analysis or implementing mitigation 
measures under its RRP plan before FRA approves the plan. However, FRA 
overlooked that once the information protections are in effect, but 
before FRA approves a railroad's RRP plan, a railroad could compile or 
collect information for the purpose of developing its RRP plan that 
should be protected. FRA therefore does not intend to limit the 
information protections only to information a railroad compiles or 
collected for an RRP plan FRA has already approved. Accordingly, Sec.  
271.11 protects information compiled or collected solely for the 
purpose of planning, implementing, or evaluating an RRP.

B. Other Topics

1. Transportation of Hazardous Materials
    Some commenters (including Friends of the Earth, Mountain Watershed 
Association, and approximately four individuals) suggested that an RRP 
final rule should require railroads to address issues related to high-
hazard flammable trains and routing of hazardous materials. One 
individual asserted that the RRP final rule should simply ban the 
transportation of Bakken crude oil, while another individual suggested 
constructing a tank car inspection facility on the Canadian border.
    FRA shares the commenters' concerns regarding the safe 
transportation of large quantities of crude oil and other hazardous 
materials by rail, and DOT has taken numerous actions to reduce the 
risk to public safety and the environment posed by the movement of 
crude oil and other energy products by rail. A summary of those actions 
and more information are available online at: https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview.
    DOT has also addressed the routing of hazardous materials by rail. 
Under 49 CFR 172.820, railroads must perform a routing analysis for 
HHFTs and other trains carrying certain explosives, material poisonous 
by inhalation, and radioactive materials. See Sec.  172.820(a). At a 
minimum, this routing analysis must consider 27 separate safety and 
security factors. See Sec.  172.820(d) and part 172, appendix D. FRA 
enforces these routing requirements under 49 CFR 209.501 and can (in 
consultation with PHMSA, the Transportation Security Administration, 
and the STB) direct a railroad to use an alternative route if the 
railroad's route selection documentation and underlying analysis are 
deficient and fail to establish that the chosen route poses the least 
overall safety and security risk. See Sec.  209.501(a) and (d).
    Because these (and other) DOT actions address hazardous materials 
routing and the safety of transporting crude oil by rail, FRA does not 
believe the RRP final rule needs to impose additional--and potentially 
duplicative--requirements directed at these issues. Nothing in the 
final rule, however, prohibits a railroad from including HHFTs and 
hazardous materials routing in its risk-based HMP, and many railroads 
may choose to do so, particularly if they find that doing so allows 
them to more efficiently comply with both the RRP rule and the other 
DOT requirements addressing hazardous materials. A railroad including 
HHFTs and hazardous materials routing in its risk-based HMP would 
still, of course, remain subject to requirements of Federal hazardous 
materials and rail safety laws and regulations that apply independently 
of this final rule. (FRA notes that the rule's information protection 
provisions will not apply to any hazardous materials routing or safety 
information a railroad must collect under another Federal law or 
regulation.) FRA further notes that the mitigating actions a railroad 
may take to reduce the risk of any accident/incident will often be the 
same actions a railroad would take to reduce the risk of an accident/
incident resulting in a release of hazardous materials (e.g., 
mitigating actions taken to prevent derailments). Finally, FRA's 
approach is consistent with the RSIA, which does not specifically 
require a railroad to include HHFTs and hazardous materials routing in 
its risk analysis. See 49 U.S.C. 20156(c).
2. Comments on Performance-Based Rule and Flexibility
    The NPRM preamble described RRP as a performance-based rule that 
would provide a railroad flexibility to tailor RRP requirements to its 
specific operations. See 80 FR 10950-10951 (Feb. 27, 2015). As the NPRM 
preamble explains, each railroad has a unique operating system and not 
all railroads have the same amount of resources. Id. Accordingly, FRA 
did not propose to establish prescriptive requirements that may be 
appropriate for one railroad but unworkable for another. Id.
    To clarify, the NPRM's description of RRP as a performance-based 
rule refers primarily to how a railroad identifies hazards and chooses 
strategies to mitigate risks associated with those hazards. FRA is 
requiring railroads to specify the performance standard (reduction in 
safety risk as identified in a statement defining specific, measurable 
goals of the RRP and describing clear strategies for reaching those 
goals under Sec.  271.203(c)) but is not specifying the specific 
subject areas,

[[Page 9273]]

processes, or tools to be used by the railroads in complying with the 
rule. The purpose of an RRP is to reduce a railroad's accidents/
incidents, injuries, and fatalities, but the railroad has flexibility 
to identify hazards and mitigate risks in a manner best-suited to its 
unique system. FRA would not, for example, require a railroad to use a 
specific hazard analysis tool or mandate implementation of a certain 
mitigation strategy to address a risk. How a railroad prepares, adopts, 
and implements an RRP, however, is subject to minimum Federal 
standards, in that a railroad must support its RRP with an RRP plan 
that contains certain components, follow the provisions of that RRP 
plan, and ensure that it conducts an internal assessment of its RRP. In 
short, requirements for an RRP's substance are performance-based, but 
an RRP's process must meet certain minimum Federal standards.
    Several commenters supported FRA's decision to propose a 
performance-based, flexible RRP rule. AAR/ASLRRA acknowledged the 
performance-based nature of RRP, while Amtrak commented that the final 
rule ``needs to be performance based and flexible. It should provide 
the opportunity for new creative programs rather than a prescriptive 
checklist of requirements or conditions.'' DNV-GL also noted the NPRM 
was ``to a large extent aligned with good risk management practice in 
potentially hazardous industries[,] particularly those that have 
learned the lessons of previous accidents and implemented performance-
based regimes of safety regulation.''
    Labor Organizations I and several non-profit organizations and 
individuals expressed concern that FRA described RRP as a performance-
based, flexible rule. Public Citizen Texas, for example, commented that 
the proposed flexibility did not comply with the RSIA mandate.
    The nature of SMS demands a performance-based, flexible RRP rule. 
Not every railroad will have the same hazards and risks, and different 
railroads may find different mitigation strategies equally effective 
for certain risks. Additionally, FRA notes that the RRP final rule 
reflects every RSIA requirement (except for the portions of the RSIA 
mandate the SSP final rule addresses and the FMP rulemaking will 
address). FRA therefore believes that establishing an RRP final rule 
that is performance-based and flexible reflects the outcome-oriented 
nature of SMS and meets the RSIA mandate.
    Regarding Labor Organizations I's specific comment, FRA clarifies 
in this preamble that both the RRP and SSP rule provide railroads 
flexibility to tailor an RRP or SSP to a railroad's particular 
operations. Like the SSP rule, the RRP rule depends on a railroad's 
ability to thoroughly and candidly assess its unique hazards and risks, 
not the railroad's ability to meet certain prescriptive requirements. 
Rather, RRP requires a railroad to engage in self-analysis that a 
railroad will conduct in conjunction with the railroad's directly 
affected employees and FRA oversight. Since no two railroads' 
operations are exactly the same, no two RRPs will be exactly the same. 
Further, regardless of the amount of flexibility the RRP rule affords 
railroads, the directly affected employees, including Labor 
Organizations I, will have an opportunity to provide input and work 
with the railroads on the development of the RRP plan. FRA also added 
provisions to the final rule clarifying that a railroad must involve 
its employees in the RRP. The section-by-section analysis will 
specifically discuss these provisions further.
3. Comments on Streamlined Safety Management System (SMS)
    The NPRM preamble also described the proposed RRP rule as a 
streamlined version of an SMS, explaining that FRA had not included a 
number of components common to SMS to closely adhere to the RSIA 
mandate. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble 
specifically identified the following components that FRA did not 
propose: (1) Processes ensuring that safety concerns are addressed 
during the procurement process; (2) development and implementation of 
processes to manage emergencies; (3) processes and procedures for a 
railroad to manage changes that have a significant effect on railroad 
safety; (4) processes and permissions for making configuration changes 
to a railroad; and (5) safety certification prior to the initiation of 
operations or implementation of major projects. See 80 FR 10959 (Feb. 
27, 2015).
    Generally, the non-profit organizations and individuals who 
expressed concern about the flexibility of the proposed RRP rule also 
questioned FRA's description of RRP as streamlined and asserted that 
the proposed RRP rule was less rigorous than the RSIA mandate, which 
requires a ``comprehensive and systematic'' safety management system. 
DNV-GL shared the concerns of these commenters, arguing that every 
element of a safety management system is important and that ``it is 
better to have a basic program in place for every element than to be 
excellent in some and have no program in others.'' Labor Organizations 
I also asked to better understand why FRA was not requiring the 
additional components, arguing that they would expect an RRP to contain 
the ``proven safety systems such as the items FRA identifies.''
    FRA disagrees with the commenters that the proposed rule does not 
comply with the RSIA mandate (except for the portions of the RSIA 
mandate the SSP final rule addresses and the FMP rulemaking will 
address). As the NPRM explained, FRA proposed a streamlined version of 
a safety management system ``to adhere as closely as possible to the 
requirements of the RSIA.'' Id. The RSIA does not mandate a full SMS 
\14\ but requires railroad RRPs to contain certain components, each of 
which the RRP final rule also contains (as supplemented by the SSP and 
FMP rulemakings). The RRP final rule adequately addresses railroad 
safety hazards by following the RSIA mandate, particularly as the core 
of the program is a systematic risk-based hazard management program 
that includes a risk-based hazard analysis.
---------------------------------------------------------------------------

    \14\ The NPRM explained that a full SMS would contain numerous 
components FRA was not proposing to mandate in the RRP rule, such as 
a description of the railroad management and organizational 
structure (including charts or other visual representations) or a 
description of the processes and procedures used for maintenance and 
repair of infrastructure and equipment, rules compliance and 
procedures review, workplace safety, workplace safety assurance, or 
public safety outreach. Id.
---------------------------------------------------------------------------

4. Comments on Plan Approval
    The NPRM preamble stated FRA would only approve the processes and 
procedures in a railroad's RRP plan, not the entire RRP. See 80 FR 
10977 (Feb. 27, 2015). FRA will not, for example, approve specific 
mitigation measures in a railroad's RRP plan. FRA received several 
comments from individuals and non-profit organizations urging FRA to 
approve entire RRPs, not just RRP plans. These commenters were 
concerned FRA's decision to only approve RRP plans represented a 
diminished role for FRA implementation and oversight of RRPs and did 
not comply with the RSIA mandate.
    FRA disagrees and believes its decision to approve only RRP plans 
satisfies the RSIA mandate. Section 20156(a)(3) directs FRA to ``review 
and approve or disapprove railroad safety risk reduction program plans 
within a reasonable period of time.'' (Emphasis added.) Further, an RRP 
is an ongoing program that supports continuous safety improvement. As 
discussed in the NPRM, ``a railroad that conducts a one-time risk-based 
hazard analysis and does nothing further after addressing the

[[Page 9274]]

results of that analysis will not have established a compliant RRP.'' 
80 FR at 10969 (Feb. 27, 2015). An RRP is not a one-time exercise. As 
such, FRA does not believe it is possible to meaningfully approve a 
railroad's entire RRP, because an RRP should be continuously moving 
forward and improving. If FRA approved a railroad's program, it would 
require a railroad to freeze an RRP at the moment of approval. That 
position is not consistent with the dynamic and changing nature of a 
successful RRP. FRA therefore is not changing the final rule to require 
FRA approval of a railroad's RRP.
5. Comments on Fatigue Management Plans
    The RSIA requires an RRP to include an FMP meeting certain 
requirements. The RRP NPRM did not address this mandate because FRA, 
with the assistance of industry stakeholders, is implementing it 
through the separate FMP rulemaking process.
    Labor Organizations I commented that FRA was violating the RSIA 
mandate by failing to require FMPs in the proposed rule text and that 
``the proposal of the FRA to provide an unknown number of years of 
additional delay is the functional equivalent of an open-ended 
waiver.'' Labor Organizations I also commented that RSIA section 108 
required FRA to promulgate a fatigue rulemaking no later than October 
2011.
    FRA notes that RSIA section 108 applies specifically to hours-of-
service reform, not the fatigue management programs that RSIA section 
103 mandates for RRP. See 49 U.S.C. 20156(f). As such, arguments based 
on RSIA section 108 are inapplicable to FMPs. Nevertheless, FRA is 
working to issue a proposed FMP rulemaking. As the NPRM discussed, the 
RSAC voted to establish the FMP Working Group to address the FMP 
mandate in December 2011. The FMP Working Group completed its work in 
September 2013 and submitted its recommendations to FRA. FRA is 
considering these recommendations as it develops an FMP rulemaking. 
Ultimately, any fatigue management plans that FRA requires pursuant to 
section 20156(d)(2) and (f) would be part of a railroad's overall RRP. 
FRA does not believe that it is failing to meet the RSIA mandate by 
addressing the FMP requirements in a separate rulemaking process with 
stakeholder assistance. The SSP final rule takes the same approach and 
does not include FMP requirements. See 81 FR 53856-53857 (Aug. 12, 
2016).
6. Comments on the RSAC Process
    FRA received comments from several individuals arguing that the 
RSAC RRP Working Group process was flawed because it did not include an 
industry risk reduction analysis expert. One commenter specifically 
noted the RSAC process did not include participation from those in 
high-risk industries, including chemical shipping industries, 
universities, and consultants. These commenters suggested that FRA 
should reopen the comment period and reconsider the proposed rule based 
on much more information from the at-risk public and public officials 
and from experts on industrial SMS.
    FRA declines to reopen the comment period again for several 
reasons. First, FRA representatives who have participated in the APTA 
system safety program have significant experience with industry risk 
reduction programs, as explained in the SSP NPRM. See 77 FR 55375 
(Sept. 7, 2012). Railroad representatives who participated in the RSAC 
process also brought to the process experience with risk reduction 
programs. Overall, the RRP Working Group included a number of certified 
safety professionals, certified industrial hygienists, system safety 
managers, and safety directors. FRA therefore concludes that the RSAC 
RRP Working Group included ample expertise in the area of industry risk 
reduction analysis.
    Second, FRA has provided the public--including public officials, 
private individuals, and experts on industrial SMS--ample notice and 
opportunity to participate in the RRP rulemaking process. The RSIA 
mandate first notified the public FRA must require certain railroads to 
implement railroad safety risk reduction programs. The Regulatory Plan 
and Unified Agenda of Regulatory and Deregulatory Actions (published by 
the Regulatory Information Service Center and made available to the 
public at www.Reginfo.gov) have also included the risk reduction 
rulemaking since the fall of 2009. See https://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPubId=200910&showStage=active&agencyCd=2100&Image58.x=35&Image58.y=17.
    The ANPRM also solicited public comment on how FRA could best 
develop and implement a risk reduction regulation based on the RSIA 
requirements. See 75 FR 76345-76351 (Dec. 8, 2010). Interested persons 
could submit comments to the ANPRM. FRA received 12 written comments in 
response to the ANPRM from a variety of entities, including railroads, 
industry organizations, non-profit employee labor organizations, a 
consulting firm, and a private citizen. The RSAC subsequently discussed 
in depth many of the questions and issues these comments raised.
    After it published the ANPRM and the comment period closed, FRA 
also held two public hearings (announced in the Federal Register) 
giving interested persons an additional opportunity to present oral 
statements and to offer information and views on development of a risk 
reduction regulation in response to the ANPRM. See 76 FR 40320 (July 8, 
2011). As with the ANPRM, the hearing testimony focused on topics the 
RSAC RRP Working Group continued to discuss. As noted above, FRA also 
held a public hearing and reopened the comment period on several 
occasions following the publication of the NPRM. The RSAC RRP Working 
Group also met to review and discuss comments received in response to 
the NPRM and the public hearing.
    Overall, FRA concludes reopening the RRP NPRM for further 
consideration and comment is not necessary because the RSAC RRP Working 
Group contained sufficient expertise in risk reduction and because FRA 
provided interested risk reduction experts numerous opportunities to 
participate in the rulemaking process.
7. Comments on the Relationship Between RRP and SSP
    FRA explained in the NPRM preamble that it worked with both the 
RSAC RRP Working Group and the RSAC System Safety Task Group on 
language implementing the RSIA mandate on information protection and 
consultation process requirements, with the understanding the RRP and 
SSP NPRMs would include the same language on both issues for review and 
comment. See 80 FR 10955 (Feb. 27, 2015). As such, the RRP NPRM did not 
respond to comments that FRA received in response to the SSP NPRM, but 
explained that FRA would consider comments responding to both NPRMs 
when developing the RRP final rule. See 80 FR 10958-10959 (Feb. 27, 
2015).
    Labor Organizations I objected to FRA's position, arguing that FRA 
had a duty to address comments on the SSP NPRM in the RRP NPRM. FRA 
disagrees. SSP and RRP are separate rulemakings that apply to different 
entities. FRA concluded, therefore, that it would be fair to allow 
Class I railroads and potential ISP railroads the same opportunity to 
respond to the proposed information protections and

[[Page 9275]]

consultation process requirements that the passenger railroads had in 
responding to the SSP NPRM. Moreover, because this final rule contains 
the same information protection provision as the SSP final rule, it 
incorporates FRA's response to all comments received on the matter in 
both the SSP and RRP rulemakings.
8. Comments on the Short Line Safety Institute
    ASLRRA commented that small railroad participation in the Short 
Line Safety Institute (Institute) should suffice as complete compliance 
with the requirements in the NPRM. According to ASLRRA, the Institute 
assessment process is a comprehensive review of safety practices and 
culture, which it believes is consistent with the intent of an RRP. 
ASLRRA acknowledges that a key component of an effective RRP is 
performance of a risk assessment and claims the Institute has teams of 
assessors specifically trained (using FRA-approved materials) in a 
well-documented safety assessment process. ASLRRA also claims FRA would 
fulfill the Small Business Regulatory Enforcement Fairness Act (SBREFA) 
requirement to grant special considerations to small businesses by 
accepting participation in the Institute as satisfying RRP 
requirements. In response to DOT's request for public comments on its 
regulatory review initiative, ASLRRA similarly commented that FRA 
should utilize the Institute to work with short line railroads as the 
mechanism for risk reduction within the short line industry and not 
place unnecessary and burdensome regulations on short lines. See 82 FR 
45750-45753 (Oct. 2, 2017) and DOT-OST-2017-0069-2666. The following 
discussion is FRA's response to ASLRRA's comments discussing the 
Institute for both the NPRM and DOT's regulatory reform initiative.
    FRA supports the development of the Institute to promote the safety 
of short line and regional railroad operations. However, for Institute 
participation to constitute an RRP, the Institute would have to fully 
comply with each RRP requirement this final rule establishes, which are 
consistent with the RSIA requirements. FRA currently cannot determine 
whether the Institute will fully comply with the RSIA mandate or the 
requirements of this final rule. For example, FRA cannot determine 
whether the Institute will include certain mandated components, such as 
an RRP plan reviewed and approved by FRA, consultation with directly 
affected employees on the contents of an RRP plan, annual internal 
assessments, and a technology implementation plan. Rather, FRA believes 
it is more appropriate to make this determination when reviewing RRP 
plans under Sec.  271.301 of the final rule.
    Further, FRA does not believe it has to accept the Institute as a 
fully-compliant RRP to comply with SBREFA or otherwise avoid placing 
unnecessary and burdensome regulations on short line and regional 
railroads. Because an RRP is scalable by design, a short line or 
regional railroad's full compliance with an RRP final rule is not 
likely to be as complex and comprehensive as it would be for a larger 
railroad. The rule will therefore not unduly burden short line and 
regional railroads. The Final Regulatory Flexibility Analysis in 
Section VII.B further discusses how FRA has considered small business 
concerns in developing the RRP final rule.
9. Comments on Other SMS Programs
    As both the NPRM and this preamble discuss, other Federal agencies 
have established or proposed SMS requirements, and SMS programs have 
developed to assure high safety performance in various industries, 
including aviation, passenger railroads, the nuclear industry, and 
other industries with the potential for catastrophic accidents. FRA 
received several comments urging FRA to consider other such SMS 
programs as both positive and negative models for RRP.
    Transport Action Canada (TAC) commented that the effect of SMS in 
the Canadian railroad industry has not been positive. Specifically, TAC 
expressed concern that SMS-type programs such as RRP are ``incapable of 
assuming . . . the role of government in ensuring public safety.''
    FRA does not believe this RRP rule will result in FRA abdicating 
its role ensuring railroad safety, as any alleged weakness of SMS 
programs in Canada does not mean SMS programs in the United States 
cannot be successful. The United States' railroad safety laws and 
regulations are different than Canada's, and the RRP rule will not 
replace or modify any of FRA's railroad safety regulations, 
responsibilities, or enforcement tools. An RRP will supplement FRA 
oversight of railroad safety, not replace it.
    Various commenters suggested other SMS programs as models for RRP, 
such as the United States Environmental Protection Agency's (EPA) Risk 
Management Program, the Moving Ahead for Progress in the 21st Century 
Act (MAP-21) and the Federal Transit Administration (FTA) approach, and 
the Massachusetts Toxics Use Reduction Act (TURA). FRA notes that some 
of these SMS programs operate very differently from the way FRA 
exercises its railroad safety authority. For example, States have 
primary responsibility for enforcing SMS programs under MAP-21 through 
the State Safety Oversight (SSO) Program. See State Safety Oversight 
(SSO) Program, available at https://www.fta.dot.gov/tso_15863.html 
(``The SSO program is administered by eligible States with rail transit 
systems in their jurisdiction. FTA provides Federal funds through the 
SSO Formula Grant Program for eligible States to develop or carry out 
their SSO programs. Under 49 U.S.C. Section 5329(e), as amended by 
[MAP-21], FTA is required to certify each State's program to ensure 
compliance with MAP-21.''). Further, as FRA has already stressed 
elsewhere, this final rule hews closely to the RSIA mandate. If FRA 
used other SMS programs as a model for RRP, rather than the RSIA 
requirements, this could cause FRA to either fail to meet or exceed the 
limits of RSIA's statutory mandate.

VI. Section-by-Section Analysis

    FRA is adding a new part 271 to chapter 49 of the CFR. This part 
satisfies the RSIA requirements for safety risk reduction programs for 
Class I railroads and railroads with inadequate safety performance. See 
49 U.S.C. 20156(a)(1). This part also protects certain information 
compiled or collected for a safety risk reduction program from 
admission into evidence or discovery during court proceedings for 
damages. See 49 U.S.C. 20119.

Subpart A--General

    Subpart A of the final rule contains general provisions (including 
a formal statement of the rule's purpose and scope) and provisions 
limiting the discovery and admissibility of certain RRP information.
Section 271.1--Purpose and Scope
    Section 271.1 explains the rule's purpose and scope. Paragraph (a) 
states the purpose of this part is to improve railroad safety through 
structured, proactive processes and procedures developed and 
implemented by railroads. Paragraph (a) also states this rule requires 
each affected railroad to establish an RRP that systematically 
evaluates railroad safety hazards on its system and manages the risks 
generated by those hazards to reduce the number and rates of railroad 
accidents/incidents, injuries, and fatalities. Except for replacing the 
phrase ``in order to''

[[Page 9276]]

with ``to'' for the purpose of streamlining the regulatory language, 
FRA has not changed paragraph (a) from the NPRM. As the NPRM explained, 
the rule does not require an RRP to address every safety hazard on a 
railroad's system. For example, rather than identifying every safety 
hazard on its system, a large railroad could take a more focused and 
project-specific view of safety hazard identification. See 80 FR 10959 
(Feb. 27, 2015).
    An individual commenter suggested FRA's RRP rule should use an 
``All-Hazards'' approach. FRA declines to adopt this suggestion because 
the RSIA requires an RRP to address only ``railroad safety risks'' and 
Sec.  271.1(a) of the final rule accurately reflects this mandate by 
requiring RRPs to ``systematically evaluate railroad safety hazards.'' 
The RSIA does not authorize RRPs that address hazards other than 
railroad safety hazards.
    Paragraph (b) states that this part prescribes minimum Federal 
safety standards for the preparation, adoption, and implementation of 
RRPs. A railroad is not restricted from adopting and enforcing 
additional or more stringent requirements that are not inconsistent 
with the rule. FRA did not receive any comments on this paragraph and 
adopts it as proposed.
    Paragraph (c) states that the rule protects information a railroad 
compiles or collects solely for the purpose of planning, implementing, 
or evaluating an RRP. While paragraph (c) in the proposed rule 
specified that the rule would protect information ``generated'' solely 
for developing, implementing, or evaluating an RRP, FRA has replaced 
the term ``generated'' with the phrase ``compiles or collects'' to 
promote consistency with Sec.  271.11. FRA has also replaced the term 
``developing'' with the term ``planning'' from Sec.  271.11. FRA made 
these changes only to improve clarity and consistency between this 
section and Sec.  271.11 and not to make any substantive change in this 
part's information protections.
    Paragraph (d) explains the final rule does not require an RRP to 
address hazards completely unrelated to railroad safety and that fall 
under the exclusive jurisdiction of another Federal agency. For 
example, an RRP is not required to address environmental hazards that 
would fall under the exclusive jurisdiction of the United States 
Environmental Protection Agency (EPA) or workplace safety hazards that 
would fall under the exclusive jurisdiction of the United States 
Department of Labor's Occupational Safety and Health Administration 
(OSHA). Paragraph (d) also explains an RRP should not address the 
safety of employees while performing inspections, tests, and 
maintenance. The only exception is where FRA has exercised its 
jurisdiction over the safety issue, as in 49 CFR part 218, subpart B, 
which establishes blue signal protection for workers. FRA will not 
approve any specific portion of an RRP plan that addresses hazards 
related to a safety issue that falls under the exclusive jurisdiction 
of another Federal agency unless FRA has exercised its jurisdiction 
over the safety issue.
    Paragraph (d) of the NPRM proposed the same language regarding 
working conditions, but did not include the first sentence discussing 
hazards completely unrelated to railroad safety and that fall under the 
exclusive jurisdiction of another Federal agency. See 80 FR 10959 (Feb. 
27, 2015). The NPRM preamble explained that while FRA is always 
concerned with the safety of railroad employees performing their 
duties, employee safety in maintenance and servicing areas generally 
falls under OSHA's jurisdiction. Id. The NPRM similarly explained that 
FRA did not intend RRPs to address environmental hazards and risks 
unrelated to railroad safety that fall under EPA's jurisdiction. Id. 
For example, the NPRM stated FRA would not expect a railroad's RRP to 
address environmental hazards regarding particulate emissions from 
locomotives that otherwise comply with FRA's safety regulations. Id.
    AAR/ASLRRA commented the language in proposed paragraph (d) did not 
achieve clarification and specifically suggested FRA clarify its intent 
by precisely stating that the scope of an RRP does not include matters 
within OSHA's jurisdiction. AAR/ASLRRA also stated paragraph (d) did 
not address environmental issues under EPA jurisdiction.
    To address AAR/ASLRRA's concern regarding EPA's jurisdiction, FRA 
changed paragraph (d) in the final rule to add the first sentence 
plainly stating that an RRP is not required to address hazards 
completely unrelated to railroad safety and that fall under the 
exclusive jurisdiction of another Federal agency. The purpose of this 
language is to incorporate the NPRM's explanation that an RRP should 
not address hazards that fall exclusively under the jurisdiction of 
another Federal agency, such as EPA.
    FRA has otherwise not changed the proposed text of paragraph (d) 
that relates to working conditions, as similar language appears in the 
SSP final rule and FRA's regulations on passenger equipment safety 
standards.\15\ See Sec. Sec.  270.103(g)(4) and 238.107(c). The purpose 
of the language is to make clear that FRA neither intends to displace 
OSHA jurisdiction with respect to employee working conditions generally 
nor specifically with respect to the maintenance, repair, and 
inspection of infrastructure and equipment directly affecting railroad 
safety. FRA does not intend to approve any specific portion of an RRP 
plan that relates exclusively to employee working conditions covered by 
OSHA. The term ``approve'' is used to make clear that any part of an 
RRP plan that relates to employee working conditions exclusively 
covered by OSHA will not be approved even if the overall plan is 
approved. Additionally, the term ``specific'' reinforces that the 
particular portion of the plan that relates to employee working 
conditions exclusively covered by OSHA will not be approved; however, 
the rest of the plan may still be approved. If there is any confusion 
whether an RRP plan covers an OSHA-regulated area, FRA is available to 
provide assistance. The preamble to the SSP final rule contains this 
same explanation regarding SSP plans and working conditions exclusively 
covered by OSHA. See 81 FR 53871 (Aug. 12, 2016).
---------------------------------------------------------------------------

    \15\ While Sec. Sec.  270.103(g)(4) and 238.107(c) contain 
reference to working conditions ``as set forth in the plan,'' the 
RRP final rule does not contain this language because an RRP plan is 
not required to specifically address working conditions that arise 
in the course of conducting maintenance, repair, and inspection of 
infrastructure and equipment directly affecting railroad safety. FRA 
is also leaving the reference to FRA regulations on blue signal 
protection, which does not appear in the corresponding SSP language, 
to improve clarity. FRA does not intend this difference to indicate 
any substantive difference between the SSP and RRP language, as the 
preamble to the SSP final rule contains the same example regarding 
blue signal protection. See 81 FR 53870 (Aug. 12, 2016).
---------------------------------------------------------------------------

    Overall, FRA's intent behind paragraph (d) in the NPRM and this 
final rule has not changed, and FRA has changed the language solely to 
address AAR/ASLRRA's concerns regarding clarity. The NPRM discussion of 
paragraph (d) therefore remains applicable to paragraph (d) in this 
final rule. See 80 FR 10959 (Feb. 27, 2015).
Section 271.3--Application
    This section sets forth application of the rule. Except for 
additional language in paragraph (c), this section is the same as in 
the NPRM. Thus, FRA is not repeating the NPRM section-by-section 
analysis for paragraphs (a) and (b) in this final rule, but refers 
interested readers to the NPRM. See 80 FR 10959-10960 (Feb. 27, 2017). 
FRA is, however, discussing comments it received

[[Page 9277]]

regarding tourist railroads and Class II and Class III railroads in 
response to the NPRM.
    Paragraph (b)(2) of the NPRM proposed that the rule would not apply 
to tourist, scenic, historic, or excursion operations, whether on or 
off the general railroad system of transportation. See 80 FR 10989 
(Feb. 27, 2015). The NPRM specifically requested public comment on how 
an RRP final rule should address tourist operations that may create 
hazards for freight operations. In response, Labor Organizations I 
responded that FRA should require all railroads to account for tourist 
operations on their lines in performing the self-critical analysis and 
include such operations in the railroad's RRP. FRA agrees with Labor 
Organizations I that a railroad required to comply with this rule must 
account for tourist operations on its system. FRA has made changes 
responding to this comment in Sec.  271.101(d), which requires 
railroads to identify tourist operations that operate over the 
railroad's track (even if the tourist railroad is exempt from this 
rule) and to ensure the tourist railroad supports and participates in 
the railroad's RRP. The section-by-section analysis for Sec.  
271.101(d) discusses these changes further.
    In this final rule, FRA added a paragraph (c) that includes 
language from the SSP final rule. See Sec.  270.107(a)(2). This 
language clarifies that 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 this rule's purposes, including the consultation 
process and employee involvement requirements in Sec. Sec.  271.113 and 
271.207, discussed below. This language is necessary to address how 
directly affected employee consultation and involvement will be handled 
when a railroad contracts out significant portions of its operations to 
other entities. Contractors and contractor employees will only be 
considered directly affected employees when the contracts are ongoing 
and involve significant aspects of the railroad's operations. For 
example, if a railroad contracts out maintenance of its locomotive and 
rail cars to another entity, it is vital for the employees who are 
performing this maintenance to be involved in that railroad's RRP and 
have the opportunity to provide their valuable input on the RRP plan. 
Another example would be if a railroad contracts out the actual 
operations of its railroad to another entity. In such cases, the 
contracted entity and its employees operating trains on behalf of the 
railroad would certainly need to be part of the consultation process 
and otherwise involved in the railroad's RRP. If a railroad is unsure 
whether a contracted entity and its employees are directly affected 
employees for purposes of this part, FRA encourages the railroad and 
other interested stakeholders to contact FRA for guidance.
    The Association of Tourist Railroads and Railway Museums (ATRRM) 
commented it supported FRA's proposed approach for tourist railroads. 
ATRRM commented an RRP was poorly suited to a small tourist railroad, 
but agreed with FRA's approach to tourist railroads that conduct their 
own freight operations, or which operate on RRP host railroads. ATRRM 
correctly understood FRA's position, and the changes made in Sec.  
271.101(d) are consistent with this position.
    FRA received approximately four comments from individuals arguing 
that FRA should expand the scope of the RRP final rule to Class II and 
Class III railroads. FRA declines to incorporate this recommendation 
for two principle reasons. First, applying the RRP final rule to Class 
II and Class III railroads would go beyond the RSIA mandate and 
increase the number of RRP plans submitted for FRA review. FRA would 
therefore need more time to review all submitted plans, as well as more 
time to conduct external reviews of RRPs. This would divert FRA 
resources away from Class I railroads, which have more complex 
operations than Class II and Class III railroads, and ISP railroads, 
which FRA will have determined demonstrate inadequate safety. Adhering 
to the RSIA mandate, which only directs FRA to require compliance from 
Class I railroads, passenger railroads, and railroads with inadequate 
safety performance, therefore represents the best and most efficient 
use of FRA resources. Second, the methodology for identifying railroads 
with inadequate safety performance will require certain Class II and 
Class III railroads to comply with the RRP rule. FRA also notes that 
Class II and III freight railroads may voluntarily comply with the 
final rule.
Section 271.5--Definitions
    This section contains definitions clarifying the meaning of 
important terms used in the rule. FRA worded the definitions carefully 
to minimize potential misinterpretation of the rule. Commenters on the 
NPRM did not have significant issues with the proposed definitions, 
except for a few comments FRA received on the proposed definitions of 
``hazard'' and ``safety culture,'' discussed below. FRA also made 
changes discussed below to the definitions of ``accident/incident'' and 
``pilot project.'' For definitions that did not receive any comment and 
have not been changed, FRA is not repeating the NPRM's section-by-
section analysis in this final rule but refers interested readers to 
the NPRM's discussion. See 80 FR 10960-10962 (Feb. 27, 2015).
    The NPRM preamble stated FRA was proposing an ``accident/incident'' 
definition identical to the definition contained in FRA's accident/
incident reporting regulations at 49 CFR part 225. See 80 FR 10960 
(Feb. 27, 2015). However, the proposed definition did not match the 
part 225 definition exactly, because it did not include occupational 
illnesses. See 49 CFR 225.5. This inconsistency was merely an 
oversight. To correct this inconsistency and to ensure future 
conformity with the part 225 definition and any amendments thereto, FRA 
has changed the final rule's definition to simply cross-reference the 
part 225 definition.
    The NPRM proposed to define ``hazard'' as any real or potential 
condition that can cause injury, illness, or death; damage to or loss 
of a system, equipment, or property; or damage to the environment. See 
80 FR 10989 (Feb. 27, 2015). In response, AAR/ASLRRA commented the 
definition of hazard did not help clarify the proposed jurisdiction 
statement in Sec.  271.1(d). AAR/ASLRRA also claimed the definition 
places conditions that do not impact human safety or property damage 
squarely within the definition of hazard. As discussed above, FRA has 
made changes to Sec.  271.1(d) to clarify an RRP does not have to 
address safety issues that are completely unrelated to railroad safety 
and that fall under the exclusive jurisdiction of another Federal 
agency, such as EPA. This does not mean, however, an RRP should not 
address railroad safety hazards that could result in damage to the 
environment, such as a derailment that could result in a hazardous 
materials release. See also 80 FR 10959 (Feb. 27, 2015). As Sec.  
271.1(a) provides, an RRP is required to address ``railroad safety 
hazards.'' The final rule adopts the NPRM's definition for ``hazard'' 
unchanged.
    The NPRM proposed to define ``pilot project'' as a limited scope 
project used to determine whether quantitative proof suggests that a 
particular system or mitigation strategy has potential to succeed on a 
full-scale basis. See 80 FR 10989-10990 (Feb. 27, 2015). FRA modified 
this definition to replace the word ``proof'' with the phrase 
``evaluation and analysis.'' FRA made this change to avoid implying 
that a

[[Page 9278]]

railroad had to meet an established quantitative threshold as proof 
that a pilot project has potential to succeed. FRA did not intend to 
establish a quantitative proof threshold, and believes ``evaluation and 
analysis'' more accurately describes the purpose of a pilot project. 
FRA also modified this definition slightly by changing ``potential to 
succeed on a full-scale basis'' to ``potential for full-scale 
success.'' The purpose of this change is only to streamline the 
language, and FRA does not intend any substantive change.
    The NPRM proposed defining ``safety culture'' as the shared values, 
actions, and behaviors that demonstrate a commitment to safety over 
competing goals and demands. This definition is the same in the final 
rule and was also included in the SSP rule. See Sec.  270.5 and 81 FR 
53863-53864 (Aug. 12, 2016). As the NPRM explained, FRA based the 
definition on a research paper published by the DOT Safety Council. See 
80 FR 10962 (Feb. 27, 2015). The DOT Safety Council developed this 
definition after extensive review of definitions used in a wide range 
of industries and organizations over the past two decades. Id. See also 
U.S. Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety 
Culture: A Significant Influence on Safety in Transportation,'' 2-3 
(2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. The NPRM also acknowledged the 
proposed definition was different than the definition that the RRP 
Working Group recommended. Specifically, FRA noted that some 
participants during RRP Working Group discussion expressed concern that 
the language ``over competing goals and demands'' would require a 
railroad to make safety the ultimate priority to the exclusion of all 
other concerns, without providing flexibility for a railroad to balance 
the concerns of profit and efficiency. The NPRM explained FRA selected 
the proposed definition because it was important to use a definition 
the DOT Safety Council formulated. See 80 FR 10962 (Feb. 27, 2015). The 
definition also would not require a railroad to prioritize absolute 
safety over competing goals and demands (i.e., it would not require a 
railroad to have a perfect safety culture). Rather, FRA explained that 
the proposed definition merely expressed how a railroad should evaluate 
safety culture by measuring the extent to which a railroad emphasizes 
safety over competing goals and demands. Id.
    AAR/ASLRRA responded to this discussion by commenting there was no 
doubt that the proposed definition requires ``a commitment to safety 
over competing goals and demands,'' because that is what the definition 
says. AAR/ASLRRA further suggested that if FRA's intent was to measure 
the extent to which a railroad emphasizes safety over competing goals 
and demands, that language should be included. FRA declines to change 
the proposed ``safety culture'' definition as suggested because doing 
so would eliminate the benefits of having a general definition the DOT 
Safety Council developed and approved. There is value in establishing a 
shared understanding of safety culture that can be applied across many 
contexts, and developing a common understanding of the elements that 
comprise a strong safety culture can help DOT agencies have a better 
basis for improving safety programs, policies, and strategies. See U.S. 
Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety 
Culture: A Significant Influence on Safety in Transportation,'' 2 
(2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. As explained in the NPRM, FRA also 
disagrees with AAR/ASLRRA and believes the definition does not require 
railroads to ``absolutely and necessarily'' demonstrate a commitment to 
safety over competing goals and demands but only describe how certain 
shared values, actions, and behaviors demonstrate such a commitment. 
Rather, the rule requires that a railroad design its RRP to promote and 
support a positive safety culture (Sec.  271.101(a)), develop processes 
for identifying and analyzing its safety culture (Sec.  271.105(a)), 
and include in its RRP plan a statement describing the railroad's 
safety culture and how it promotes improvements to its safety culture 
(Sec.  271.203(b)(1) and (2)).\16\ FRA believes these provisions 
generally require a railroad to define its own safety culture and 
develop processes for analyzing and improving it. Nowhere does the RRP 
final rule require a railroad to establish a safety culture that 
absolutely prioritizes safety. For these reasons, FRA believes the 
definition for safety culture is appropriate.
---------------------------------------------------------------------------

    \16\ The SSP rule contains similar requirements related to 
safety culture. See Sec.  271.101(b) (``A railroad's system safety 
program shall be designed so that it promotes and supports a 
positive safety culture at the railroad.''), Sec.  271.103(b) 
(``This policy statement shall . . . [d]escribe the . . . safety 
culture of the railroad''), and Sec.  271.103(t) (``A railroad shall 
set forth a statement in its SSP plan that describes how it measures 
the success of its safety culture. . . .'').
---------------------------------------------------------------------------

Section 271.7--Reserved
    The NPRM proposed to include a provision on waivers in Sec.  271.7, 
explaining that 49 CFR part 211 generally contains rules governing the 
FRA waiver process. See 80 FR 10990 (Feb. 27, 2015). ASLRRA commented 
suggesting that ``it is best to have a single waiver rule to reduce 
confusion and increase familiarity with proper waiver procedures.'' FRA 
agrees with ASLRRA on this issue and finds that the NPRM's proposed 
provision on waivers is unnecessary because part 211 already contains 
the rules governing the FRA waiver process. The provision would have 
therefore served only as a cross-reference to part 211 and not have had 
any independent legal effect. The SSP final rule also does not contain 
its own provision on waivers. See 81 FR 53864 (Aug. 12, 2016). FRA has 
therefore not included a provision on waivers in this RRP final rule 
although FRA is reserving this section in case FRA decides to add such 
a provision in the future.
Section 271.9--Penalties and Responsibility for Compliance
    This section contains provisions regarding penalties and the 
responsibility for compliance. Except for the change discussed below, 
FRA adopts this section from the NPRM unchanged. Therefore, FRA refers 
interested readers to the NPRM discussion. See 80 FR 10962 (Feb. 27, 
2015).
    This section in the NPRM proposed a civil penalty of at least $650 
and not more than $25,000 per violation, except for a penalty not to 
exceed $105,000 that may be assessed for a grossly negligent violation 
or a pattern of repeated violations has created an imminent hazard of 
death or injury to individuals, or has caused death or injury. Id. 
Since the NPRM was published in 2015, DOT has issued a final rule, in 
accordance with the Federal Civil Penalties Inflation Adjustment Act of 
1990 (FCPIAA), as amended by the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (2015 Act),\17\ that provides 
the 2018 inflation adjustment to civil penalty amounts that may be 
imposed for violations of certain DOT regulations. See 83 FR 60732 
(Nov. 27, 2018). To avoid the need to update this section every time 
the civil penalty amounts are adjusted for inflation, FRA has changed 
this section by replacing references to specific penalty amounts with 
general references to the minimum civil monetary penalty, ordinary 
maximum civil monetary penalty, and aggravated maximum civil monetary 
penalty. FRA has also added language to

[[Page 9279]]

this section referring readers to 49 CFR part 209, appendix A, where 
FRA will continue to specify statutorily provided civil penalty amounts 
updated for inflation.
---------------------------------------------------------------------------

    \17\ The FCPIAA and the 2015 Act require federal agencies to 
adjust minimum and maximum civil penalty amounts for inflation to 
preserve their deterrent impact. See 83 FR 60732 (Nov. 27, 2018).
---------------------------------------------------------------------------

    While this section in the NPRM noted the final rule would include a 
schedule of civil penalties, FRA has decided to provide such a schedule 
on its website instead of as an appendix to the final rule. FRA 
therefore changed the final sentence of paragraph (a) in this section 
to direct readers to the FRA's website for a schedule of civil 
penalties.
    This penalty schedule will reflect the requirements of the final 
rule. Because such penalty schedules are statements of agency policy, 
notice and comment are not required before their issuance, and FRA did 
not propose a penalty schedule in the NPRM. See 5 U.S.C. 553(b)(3)(A). 
Nevertheless, FRA invited comment on what a final penalty schedule 
should contain. See 80 FR 10978 (Feb. 27, 2015). However, FRA did not 
receive any comments other than Labor Organizations I's comment the 
NPRM did not include a proposed penalty for violation of the Sec.  
271.207 requirements to consult with directly affected railroad 
employees using good faith and best efforts. The penalty schedule on 
FRA's website will include guideline penalty amounts for violations of 
various requirements in Sec.  271.207.
Section 271.11--Discovery and Admission as Evidence of Certain 
Information
    As discussed in the Statutory Background (Section IV.D), the Final 
Study Report concluded that it is in the public interest to protect 
certain information generated by railroads from discovery or admission 
into evidence in litigation. Section 20119(b) provides FRA the 
authority to promulgate a regulation if FRA determines that it is in 
the public interest, including public safety and the legal rights of 
persons injured in railroad accidents, to prescribe a rule addressing 
the results of the Study.
    This section establishes protections based on the Final Study 
Report for information a railroad compiles or collects solely for RRP 
purposes in Federal or State court proceedings for damages involving 
personal injury, wrongful death, or property damage. These protections 
are narrow and apply only to information generated solely for a 
railroad's RRP, aiming to ensure that a litigant will not be better or 
worse off than if the protections had never existed. FRA intends these 
protections to be strictly construed.
    In Sections IV.D and V.A of this preamble's discussion, FRA 
explains the statutory background of this section, general comments on 
the NPRM's proposed information protections, and FRA's response to 
those comments. This section-by-section analysis will not revisit the 
general issues and comments FRA discussed above, but will focus on 
responding to specific comments on the proposed rule text and 
explaining the final rule. The language of this section is also 
substantively identical to the language promulgated by the SSP final 
rule in Sec.  270.105. See 81 FR 53900 (Aug. 12, 2016). The preamble to 
the SSP final rule contains a significant discussion on the 
protections' background. Id. at 53878-53879.
    Under Sec.  271.11(a) there are certain circumstances in which 
information will 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. This information may not be used in such litigation when it is 
compiled or collected solely for the purpose of planning, implementing, 
or evaluating an RRP. Section 271.11(a) applies to information whether 
or not it is also in the Federal Government's possession.
    FRA reformatted paragraph (a) for clarity from the NPRM. Paragraph 
(a) is divided into paragraphs (a)(1) and (2) after new introductory 
text. The formatting change does not, however, result in any 
substantive change to the paragraphs (a)(1) and (2). The new 
introductory text of paragraph (a) contains language implementing the 
section 20119(b) provision preventing the protections from becoming 
effective until one year after the adoption of the RRP rule.
    Paragraph (a)(1) describes what may be considered ``information'' 
for the purposes of this section. Section 20119(a) identifies reports, 
surveys, schedules, lists, and data as the forms of information that 
FRA must consider in its study. However, FRA does not view the RSIA's 
list as limiting the forms of information that a rule may protect based 
on the study. In the statute, Congress directed FRA to consider the 
need for protecting information that includes a railroad's analysis of 
its safety risks and its statement of the mitigation measures to 
address those risks. Id. While the railroad is not required to provide 
in the RRP plan that it submits to FRA the results of the risk-based 
hazard analysis and the specific elimination or mitigation measures it 
will implement, the railroad may have a specific plan within its RRP 
that does contain this information. Therefore, to adequately protect 
this type of information, the term ``plan'' is included in the 
definition of ``information'' to cover a railroad's submitted RRP plan 
and any elimination or mitigation plans the railroad otherwise develops 
within its RRP. FRA also deems it necessary to include ``documents'' in 
this provision to maintain consistency and properly effectuate 
Congress' directive in section 20119.
    This paragraph does not protect all information that is part of an 
RRP; these protections will extend only to information that is compiled 
or collected after February 17, 2021 solely for purpose of planning, 
implementing, or evaluating a risk reduction program. The term 
``compiled or collected'' comes directly from section 20119(a). The 
term ``compiled'' refers to information that was generated by the 
railroad for the purposes of an RRP; whereas the term ``collected'' 
refers to information that was not necessarily generated for the 
purposes of the RRP, but was assembled in a collection for use by the 
RRP. It is important to note for collections, only the collection 
assembled for RRP purposes is protected; however, each separate piece 
of information that was not originally generated for use by the RRP 
remains subject to discovery and admission into evidence subject to any 
other applicable provision of law or regulation. For example, if a 
railroad originally collected or generated information for a non-RRP 
use, the rule does not protect that original non-RRP information, even 
if the railroad afterwards collects the information for protected RRP 
purposes. The rule would protect, however, the assembled collection of 
that information for RRP purposes.
    In response to the SSP NPRM, APTA commented the rule text does not 
adequately explain the use of the term ``solely'' in the text of the 
regulation. See 81 FR 53879 (Aug. 12, 2016). APTA proposed that FRA 
either use a more appropriate term such as ``primarily'' or 
``initially'' or that FRA define ``solely'' in the rule text, not just 
in the preamble. Id. FRA agrees. The use of the term ``solely'' is 
deliberate, and it is important that the term is understood as used 
within the four corners of the regulation. Therefore, FRA has included 
paragraph (a)(2), which defines the term ``solely,'' in both this rule 
and the Sec.  270.105 of SSP final rule. See 81 FR 53900 (Aug. 12, 
2016).
    The term ``solely'' is intended to narrow circumstances in which 
the information will be protected. The use of the term ``solely'' means 
that the original purpose of compiling or collecting the information 
was

[[Page 9280]]

exclusively for the railroad's RRP. A railroad cannot compile or 
collect information for one purpose and then try to use paragraph (a) 
to protect that information because it uses that information for its 
RRP as well. The railroad's original and singular purpose for compiling 
or collecting the information must be for planning, implementing, or 
evaluating its RRP in order for the protections to be extended to that 
information. The term ``solely'' also means that a railroad must 
continue to use the information only for its RRP. If a railroad 
subsequently uses, for any other purpose, information the railroad 
initially compiled or collected for its RRP, paragraph (a) does not 
protect that information to the extent the railroad uses it for the 
non-RRP purpose. The use of that information within the railroad's RRP, 
however, will remain protected. If another provision of law or 
regulation requires the railroad to collect the information, the 
protections of paragraph (a) do not extend to that information because 
the railroad is not compiling or collecting the information solely for 
the purpose of planning, implementing, or evaluating an RRP. For 
example, 49 CFR 234.313 requires railroads to retain records regarding 
emergency notification system (ENS) reports of unsafe conditions at 
highway-rail grade crossings. Those individual records are not 
protected by Sec.  271.11. However, if as part of its risk-based hazard 
analysis a railroad collects several of its Sec.  234.313 reports from 
a specific time period for the sole purpose of determining if there are 
any hazards at highway-rail grade crossings, this collection will be 
protected as used in the RRP. If the railroad decides to use the 
collection for another purpose other than in its RRP, such as 
submitting it to an ENS maintenance contractor for routine maintenance, 
the protections do not extend to that non-RRP use.
    APTA commented that the term ``sole purpose,'' because it is ill-
defined and railroads use safety data to make many decisions, would 
effectively nullify this section's protections. APTA specifically 
recommended that FRA remove the phrase ``sole purpose,'' arguing that 
``if a railroad is creating and using data for safety, it should be 
protected.'' APTA claims that it will ``not be difficult for 
plaintiffs' counsel to find any other use safety data has been used 
for,'' as railroads use safety data to make procurement, personnel, and 
other decisions on a routine basis. FRA is declining to implement this 
suggestion for several reasons. First, as discussed above, FRA has 
concluded this section should not protect information a railroad takes 
from its RRP to use for other purposes, and APTA's suggestion would 
allow a railroad to obtain protection for all safety information simply 
by incorporating it into a railroad's RRP. Second, FRA's changes to the 
information protections in Sec.  271.11(a)(2) clarify that even if a 
railroad uses RRP information for other purposes, such as procurement 
or personnel decisions, the use of that information within the 
railroad's RRP remains protected. Finally, APTA's suggestion would 
create a discrepancy between the RRP and SSP final rules, and FRA's 
intent has always been to ensure the information protection provisions 
of both rules are consistent.
    A railroad must compile or collect the information solely for the 
purpose of planning, implementing, or evaluating an RRP. The three 
terms--planning, implementing, or evaluating--come directly from 
section 20119(a). These terms cover the necessary uses of the 
information compiled or collected solely for the RRP. To properly plan 
and develop an RRP, a railroad will need to determine the proper 
processes and procedures to identify hazards, the resulting risks, and 
elimination or mitigation measures to address those hazards and risks. 
This planning will involve gathering information about the various 
analysis tools and processes best suited for that particular railroad's 
operations. This type of information is essential to the risk-based 
hazard analysis and is information that a railroad does not necessarily 
already have. In order for the railroad to plan its RRP, the 
protections are extended to the RRP planning stage. The NPRM used the 
term ``developing'' instead of ``planning''; however, to remain 
consistent with section 20119(a), FRA has determined that the term 
``planning'' is more appropriate.
    Based on the information generated by the risk-based hazard 
analysis, the railroad will implement measures to eliminate or mitigate 
the hazards and risks identified. To properly implement these measures, 
the railroad will need the information regarding the hazards and risks 
on the railroad's system identified during the development stage. 
Therefore, the protection of this information extends to the 
implementation stage.
    The protections do not apply to information regarding mitigations 
that the railroad implements. Rather, Sec.  271.11 protects the 
railroad's statement of mitigation measures, which could include 
various proposed and alternate mitigations for a specific hazard, that 
address the hazards identified by the risk-based hazard analysis. 
Additionally, Sec.  271.11 protects the underlying risk analysis 
information that the implemented mitigation measure addresses. For 
example, if a railroad builds a structure to address a risk identified 
by the risk-based hazard analysis, this section does not protect the 
information regarding that structure (e.g., blueprints, contracts, 
permits, etc.). This section does protect, however, the underlying 
risk-based hazard analysis that identified the hazard and any statement 
of mitigations that included the structure.
    The protections also do not apply to any hazards, risks, or 
mitigations that fall under the exclusive jurisdiction of another 
Federal agency. If FRA does not have jurisdiction over a hazard, risk, 
or mitigation, then the protections under this paragraph cannot cover 
that hazard, risk, or mitigation.
    The railroad must also evaluate whether the measures it implements 
to mitigate or eliminate the hazards and risks identified by the risk-
based hazard analysis are effective. To do so, it will need to review 
the information developed by the risk-based hazard analysis and the 
methods used to implement the elimination/mitigation measures. This 
section protects the use of this information in the evaluation of the 
railroad's RRP.
    The information covered by this section shall not be subject to 
discovery, admitted into evidence, or considered for other purposes in 
a Federal or State court proceeding that involves a claim for damages 
involving personal injury, wrongful death, or property damage. The 
first two situations come from section 20119(a); however, FRA 
determined that for the protections to be effective they must also 
apply to any other situation where a litigant might try to use the 
information in a Federal or State court proceeding that involves a 
claim for damages involving personal injury, wrongful death, or 
property damage. For example, this section prohibits a litigant from 
admitting into evidence a railroad's risk-based hazard analysis. 
Nonetheless, without the additional language: ``or considered for other 
purposes,'' a litigant could use the railroad's risk-based hazard 
analysis for the purpose of refreshing the recollection of a witness or 
an expert witness could use the analysis to support an opinion. The 
additional language ensures that the protected information remains out 
of such a proceeding completely. The protections would be ineffective 
if a litigant were able to use the information in the proceeding for 
another purpose. To encourage railroads to perform the necessary 
vigorous risk analysis and to

[[Page 9281]]

implement truly effective elimination or mitigation measures, the 
protections must extend to any use in a proceeding.
    This section applies to Federal or State court proceedings that 
involve a claim for damages involving personal injury, wrongful death, 
or property damage. This means, for example, if a proceeding has a 
claim for personal injury and a claim for property damage, the 
protections extend to that entire proceeding; therefore, a litigant 
cannot use any of the information protected by this section as it 
applies to either the personal injury or property damage claim. Section 
20119(a) required the study to consider proceedings that involve a 
claim for damages involving personal injury or wrongful death; however, 
to effectuate Congress' intent behind section 20156, that railroads 
engage in a systematic and candid hazard analysis and develop 
meaningful mitigation measures, FRA has determined that it is necessary 
for the protections to extend to proceedings that involve a claim 
solely for property damage. The typical railroad accident resulting in 
injury or death also involves some form of property damage. Without 
extending the protection to proceedings that involve a claim for 
property damage, a litigant could bring two separate claims arising 
from the same incident in two separate proceedings, the first for 
property damages and the second one for personal injury or wrongful 
death, and be able to conduct discovery regarding the railroad's risk 
analysis and to introduce this analysis in the property damage 
proceeding but not in the personal injury or wrongful death proceeding. 
This would mean that a railroad's risk analysis could be used against 
the railroad in a proceeding for damages. If this were the case, a 
railroad would be hesitant to engage in a systematic and candid hazard 
analysis and develop meaningful elimination or mitigation measures. 
Such an approach would be nonsensical and would completely frustrate 
Congress' intent in providing FRA the ability to protect that 
information which is necessary to ensure that railroads perform open 
and complete risk assessments and select and implement appropriate 
mitigation measures. Therefore, to be consistent with Congressional 
intent behind section 20156, FRA is extending the protections in 
paragraph (a) to proceedings that involve a claim for property damage. 
Further, RSAC recommended in the context of the SSP rulemaking that FRA 
extend the protections in this way to proceedings that involve a claim 
for property damage. See 81 FR 53881 (Aug. 12, 2016).
    Paragraph (b) ensures the protections in paragraph (a) do not 
extend to information compiled or collected for a purpose other than 
specifically identified in paragraph (a). This type of information 
shall continue to be discoverable, admissible into evidence, or 
considered for other purposes if it was before the date the protections 
take effect. The types of information that will not receive the 
protections paragraph (a) provides include: (1) Information compiled or 
collected on or before February 17, 2021; (2) information compiled or 
collected on or before February 17, 2021 and continues to be compiled 
or collected, even if used to plan, implement, or evaluate a railroad's 
SSP; or (3) information compiled or collected after February 17, 2021 
for a purpose other than specifically identified in paragraph (a) of 
this section. Paragraph (b) affirms FRA's meaning for the term 
``solely'' in paragraph (a)--that a railroad may not compile or collect 
information for a different purpose and then expect to use paragraph 
(a) to protect that information just because the information is also 
used in its RRP. In such cases the information is unprotected and will 
continue to be unprotected.
    Examples of the types of information that paragraph (b) applies to 
may be records related to prior accidents/incidents and reports 
prepared in the normal course of railroad business (such as inspection 
reports). Generally, this type of information is often discoverable, 
may be admissible in Federal and State proceedings, and should remain 
discoverable and admissible where it is relevant and not unduly 
prejudicial to a party after the implementation of this part. However, 
FRA recognizes that evidentiary decisions are based on the facts of 
each particular case; therefore, FRA does not intend this to be a 
definitive and authoritative list. Rather, FRA merely provides these as 
examples of the types of information that paragraph (a) is not intended 
to protect after the implementation of this part.
    Under paragraph (b)(2), if a railroad compiled or collected certain 
information that was subject to discovery, admissibility, or 
consideration for other purposes before the protections take effect and 
the railroad continues to collect the same type of information pursuant 
to its RRP required by this part, that information will not be 
protected by paragraph (a) of this section. For example, before this 
section takes effect and all else being equal, a litigant that would 
have been able to have admitted into evidence certain information the 
railroad compiled will still be able to have that type of information 
admitted after this section takes effect even if the railroad compiles 
the information pursuant to this rule. The protections are designed to 
apply only when the original purpose for the generation of the 
information was for an RRP required by this part. The original purpose 
of the generation of the information for the RRP-like programs that 
existed before the RRP rule would be for an RRP required by this part; 
therefore, such information is not protected by paragraph (a).
    While objecting to any information protections whatsoever, AAJ also 
commented that any protections FRA does promulgate ``should be clear 
and not result in satellite litigation.'' AAJ is particularly concerned 
that the information protections would increase litigation and 
litigation costs by generating litigation over which information the 
rule protects or does not protect. AAJ therefore recommends that FRA 
should ``require all applicable railroads [to] report all classes of 
documents that would remain discoverable.'' ARLA, Labor Organizations 
I, and Labor Organizations II similarly urged FRA to reduce litigation 
costs by including a list of documents currently available for use in 
litigation in the final rule. Labor Organizations I and Labor 
Organizations II also asked FRA to include a list of examples of 
information currently discoverable and admissible. AAJ, ARLA, Labor 
Organizations I, and Labor Organizations II all provided FRA examples 
of such a list either in comments or during the RRP Working Group 
process.
    As discussed, FRA changed the proposed information protection to 
include a definition of ``solely'' that further clarifies what 
information Sec.  271.11 protects and does not protect. FRA does not, 
however, believe that AAJ's proposal to require all railroads to report 
documents that remain discoverable or include lists of discoverable 
information as other commenters suggested would be effective. First, 
the suggested approach does not account for future information 
railroads will compile or collect the information for non-RRP purposes, 
which Sec.  271.11 will not protect. Railroads also cannot predict what 
future statutes or regulations will require them to collect 
information. Such reports or lists, therefore, would fail to include 
vast swathes of future information that should be discoverable. 
Further, courts are responsible for determining which documents are

[[Page 9282]]

discoverable under the applicable rules of discovery and evidence, not 
railroads. In addition, the commenters have not suggested how FRA would 
ensure a railroad accurately reported which documents would remain 
discoverable or how FRA would update lists. FRA therefore declines to 
require railroads to report documents that will remain discoverable and 
declines to publish lists of discoverable documents.
    This section is not intended to replace any other protections 
provided by law or regulation. Accordingly, paragraph (c) states the 
protections in this section will not affect or abridge in any way any 
other protection of information provided by another provision of law or 
regulation. Any such provision of law or regulation shall apply 
independently of the protections provided by this section. While the 
NPRM did not propose this provision, FRA believes this language should 
be non-controversial. The SSP final rule also contains the same 
language. See 81 FR 53882 (Aug. 12, 2016).
    Paragraph (d) clarifies that a litigant cannot rely on State 
discovery rules, evidentiary rules, or sunshine laws to require the 
disclosure of information protected by paragraph (a) in a Federal or 
State court proceeding for damages involving personal injury, wrongful 
death, or property damage. This is the same language that proposed 
paragraph (c) in the NPRM contained. Because FRA did not receive any 
comments on this proposal, FRA refers readers to the NPRM's discussion. 
See 80 FR 10966 (Feb. 27, 2015).
    Paragraph (e) contains new language clarifying that Sec.  271.11 
does not protect information during civil or criminal law enforcement 
proceedings. For example, Sec.  271.11 would not apply to a civil or 
criminal action brought to enforce Federal railroad safety laws, or 
proceedings such as a civil action brought by the Department of Justice 
under the Clean Water Act to address a discharge of pollutants into 
waters of the United States following a rail accident. Because 
paragraph (a) of this section plainly states that the information 
protections apply to ``Federal or State court proceeding for damages 
involving personal injury, wrongful death, or property damage,'' FRA 
believes a court would not find that the protections apply to a civil 
or criminal enforcement case. Nevertheless, to help ensure no attempt 
is made to rely on the rule's information protections in a civil or 
criminal enforcement proceeding, paragraph (e) explicitly states that 
Sec.  271.11 does not apply to civil or criminal enforcement actions. 
FRA plans to similarly clarify the information protection provision in 
Sec.  270.105 of the SSP rule, which also apply only to Federal or 
State court proceedings for damages involving personal injury, wrongful 
death, or property damage.
    The NPRM proposed that FRA might extend the information protections 
in an SSP final rule to the RRP final rule. The effect of this approval 
would have been that the protections for the RRP final rule would be 
applicable one year after publication of the SSP final rule. FRA sought 
comment on this proposal, and AAR/ASLRRA commented in support. AAJ, 
however, objected to FRA's proposal to use the information protection 
provisions in the SSP final rule to protect RRP information. AAJ stated 
FRA's proposal would ``prematurely curtail the rights of rail accident 
victims'' and ``cut short the full regulatory process on the Risk 
Reduction Rule.'' Instead, AAJ suggests FRA should stay the effective 
date for the SSP final rule until the RRP final rule goes into effect.
    Upon further consideration, FRA determined this final rule should 
implement the information protections for RRPs, not the SSP final rule. 
Section 20119(b) (emphasis added) states ``Any such rule prescribed 
pursuant to this subsection shall not become effective until 1 year 
after its adoption.'' Thus, FRA concluded the RSIA requires each rule 
implementing information protections to have its own independent 
implementation timeline. FRA believes this approach is a better and 
more reasonable interpretation of Congressional intent in section 
20119(b). Further, the modified approach ensures FRA has complied with 
notice and comment procedures of the Administrative Procedure Act for 
both the RRP and SSP rulemakings.
Section 271.13--Determination of Inadequate Safety Performance
    This section describes how FRA will determine which railroads must 
comply with this rule because they have inadequate safety performance. 
This section explains that FRA's analysis has two phases: A 
statistically-based quantitative analysis phase and then a qualitative 
assessment phase. Only railroads identified as possibly having 
inadequate safety performance in the quantitative analysis will 
continue to the qualitative assessment, as discussed further below.
    The RSIA directs FRA to require railroads with inadequate safety 
performance (as determined by FRA) to develop and implement an RRP. See 
49 U.S.C. 20156(a)(1). Before publishing the NPRM, FRA discussed 
potential definitions of inadequate safety performance during RSAC 
Working Group meetings and conference calls. Based on these 
discussions, which explored various ASLRRA concerns, FRA developed a 
methodology to determine inadequate safety performance. FRA received 
tentative agreement from the RRP Working Group on this methodology, but 
did not seek consensus.
    The RRP NPRM proposed a two-phase annual process FRA would use to 
determine if a railroad's safety performance was inadequate. The 
proposed process would evaluate only railroads not already complying 
with an SSP or RRP rule, including voluntarily-compliant railroads.
    For the first phase of the process, FRA proposed conducting a 
statistical quantitative analysis to determine a railroad's safety 
performance index. This quantitative analysis would use railroad data 
maintained by FRA from the three full calendar years before the 
analysis. As proposed, the quantitative analysis would utilize the 
following four factors: (1) On-duty employee fatalities; (2) FRA 
reportable on duty employee injury/illness rate; (3) FRA reportable 
accident/incident rate; and (4) FRA violation rate. The proposed 
quantitative analysis would specifically identify railroads that either 
had a fatality or were at or above the 95th percentile in at least two 
of the three other factors.
    For the second phase of the process, FRA proposed performing a 
qualitative assessment of railroads that the quantitative analysis 
identified as warranting further review. FRA proposed notifying a 
railroad identified for the qualitative assessment and providing it an 
opportunity to comment and submit documentation supporting any claim 
that it has adequate safety performance. FRA also proposed requiring an 
identified railroad to inform its employees of the FRA notification so 
that the employees could submit confidential comments on the matter 
directly to FRA. FRA's qualitative analysis would then consider 
comments from the railroad and the railroad's employees, as well as any 
other pertinent evidence, in determining the railroad's safety 
performance. Following the qualitative assessment, FRA would inform an 
identified railroad whether or not it must comply with the RRP rule.
    As an initial matter, FRA notes the language in this section in the 
final rule uses the present tense, while the proposed rule used future 
tense. This change does not affect the substance of this section.

[[Page 9283]]

    The National Safety Council (NSC) commented that programs like RRP 
are ``essential safety tools for all companies, irrespective of past 
safety performance.'' NSC claims that railroads that wait to implement 
an RRP until identified with inadequate safety performance are ``weak 
links in the system'' and that creating an inadequate safety 
performance threshold for smaller railroads will make RRP compliance 
punitive, rather than a ``safety best practice that benefits all 
railroads and is part of normal planning and operations.'' NSC suggests 
that all railroads should be encouraged to implement RRPs, and that FRA 
should determine which railroads' safety performance warrants 
additional regulatory oversight.
    FRA agrees with NSC that encouraging all railroads to implement 
risk reduction programs is important. As mandated by section 
20156(a)(4), and as proposed in the NPRM, this final rule allows 
railroads to voluntarily comply. This final rule's information 
protection provisions will also encourage voluntary RRP compliance by 
ensuring that information a railroad compiles or collects solely for 
RRP purposes is not discoverable or admissible in certain litigation 
proceedings. While this final rule encourages voluntary compliance, FRA 
must fulfill the clear RSIA mandate to require RRP compliance for 
railroads with inadequate safety performance, as determined by FRA. FRA 
therefore concludes that this final rule encourages voluntary 
compliance while also meeting the RSIA mandate to require compliance 
for railroads demonstrating inadequate safety performance.
    In response to both the NPRM and DOT's regulatory review 
initiative, ASLRRA expressed concern that the methodology proposed in 
the NPRM for identifying railroads with inadequate safety performance 
would result in a disproportionate number of the smallest railroads 
being selected simply because they have a lower number of employees. To 
assess this concern, FRA conducted several analyses of data from FRA's 
Rail Accident/Incident Reporting System (RAIRS), the system that would 
provide the data for determining which railroads demonstrate inadequate 
safety performance. To approximate the NPRM's proposed methodology, FRA 
conducted the analyses for the 3-year period from 2016 through 2018, 
the latest years for which a full 12 months' data were available at the 
time of the analysis.
    As part of the first analysis, FRA identified all Class II and 
Class III railroads the NPRM's methodology would analyze for inadequate 
safety performance (all Class II and III railroads that would be 
subject to the rule; a total of 745 railroads). For these railroads, 
FRA used data from 2016 through 2018 to calculate: (1) The average 
total train miles operated, and (2) average total employee hours. FRA 
then calculated the same averages for the 11 railroads within the group 
of 745 that reported an employee fatality and the other 734 railroads 
that did not report an employee fatality during that same time period. 
As Table 3 shows, between 2016 and 2018, the entire pool of 745 Class 
II and Class III railroads reported an average of 213,466 total train 
miles operated and 168,476 employee labor hours. The 11 railroads 
reporting an employee fatality had substantially higher averages, with 
3,147,087 train miles operated and 2,081,274 employee hours, while the 
734 railroads without an employee fatality reported an average of 
169,501 total train miles operated, and 139,810 employee labor hours, 
which is substantially below the overall averages for the entire 
population of 745 railroads.

           Table 3--Operational Data of Class II and Class III Freight Railroads Between 2016 and 2018
----------------------------------------------------------------------------------------------------------------
                                                                                                      Average
                                                                     Number of    Average  train     employee
                                                                     railroads         miles           hours
----------------------------------------------------------------------------------------------------------------
Railroads on which employee fatalities occurred.................              11       3,147,087       2,081,274
Railroads without employee fatalities...........................             734         169,501         139,810
All.............................................................             745         213,466         168,476
----------------------------------------------------------------------------------------------------------------

    Figure 1 contains a histogram showing the distribution of Class II 
and Class III railroads by reported employee labor hours between 2016 
and 2018. Each tick mark along the x-axis represents a range of 
employee hours. The bar heights along the y-axis illustrate the number 
of railroads that reported employee labor hours within a given range of 
employee hours. Figure 1 demonstrates that the vast majority of Class 
II and III railroads report approximately 100,000 annual employee labor 
hours.

[[Page 9284]]

[GRAPHIC] [TIFF OMITTED] TR18FE20.047

    Figures 2 and 3 show the distribution of Class II and Class III 
railroads by train miles reported between 2016 and 2018. (FRA has 
broken this data into 2 separate charts to ensure legibility). The 
number of train miles reported during this period ranged from zero to 
about 15 million. As with Figure 1, the bar heights along the y-axis in 
Figures 2 and 3 indicate how many railroads reported train miles in the 
ranges along the x-axis. Figures 2 and 3 demonstrate that the vast 
majority of Class II and Class III railroads reported 100,000 train 
miles or less between 2016 and 2018.
BILLING CODE 4910-06-P

[[Page 9285]]

[GRAPHIC] [TIFF OMITTED] TR18FE20.048

BILLING CODE 4910-06-C
    The data presented in Table 1, as well as the illustrations in 
Figures 1, 2, and 3, strongly suggest that the overall averages for 
Class II and Class III railroads are influenced by a small number of 
larger Class II or Class III railroads.
    As a second analysis, FRA used the NPRM's quantitative analysis 
methodology to evaluate the 734 Class II and III railroads that did not 
report an employee fatality. FRA excluded the 11 railroads that 
reported an employee fatality from this analysis because the NPRM's 
quantitative analysis would automatically advance them to the 
qualitative assessment. See 80 FR 10967 (Feb 27, 2015). Using the 
NPRM's quantitative analysis methodology, FRA identified railroads for 
further analysis (i.e., identified railroads for qualitative 
assessment) and found that these railroads reported an average 24,645

[[Page 9286]]

total train miles and 43,040 employee hours between 2016 and 2018. See 
Table 4. These averages are substantially lower than averages for both 
the entire pool of Class II and Class III railroads (see Table 3) and 
the pool of railroads not reporting an employee fatality. FRA believes 
that the population of railroads selected for further analysis should, 
with respect to size, resemble the overall population from which they 
were drawn. The fact that the railroads selected by the NPRM's 
methodology are so different from the overall population of Class II 
and Class III railroads indicates that the NPRM's quantitative analysis 
potentially over-identified smaller railroads for the qualitative 
assessment.
    Despite the numbers above, FRA considered the possibility that the 
NPRM's quantitative analysis fairly identified smaller Class II and 
Class III railroads as possibly demonstrating inadequate safety 
performance. Accordingly, FRA conducted a third analysis to test this 
possibility. In this analysis, FRA compared the number of railroads 
selected under the NPRM's proposed quantitative analyses methodology 
with the number of railroads reporting accidents but no fatalities (the 
majority of railroads selected using the NPRM methodology were included 
in part because of their accident rates). As Table 4 shows, the 
population of all railroads on which a nonfatal train equipment 
accident/incident occurred reported an average of 390,091 total train 
miles and an average of 348,824 employee labor hours between 2016 and 
2018. This suggests that the railroads with inadequate safety 
performance should not only be the smaller railroads. For example, 
assuming a full-time employee works 2080 hours per year, the railroads 
selected for qualitative assessment using the NPRM's methodology 
averaged 7 employees each, while the railroads experiencing a nonfatal 
train equipment accident/incident between 2016 and 2018 had an 
estimated 56 employees on average. Based on this result, FRA shares 
ASLRRA's concern that the proposed methodology would over-select the 
smallest railroads.

 Table 4--Comparison of Data for Railroads Identified by the NPRM's Quantitative Analysis (Excluding Those With
   at Least One Fatal Accident Between 2016-2018) and Data for All Class II and Class III Freight Railroads on
                                Which Nonfatal Train Accidents/Incidents Occurred
----------------------------------------------------------------------------------------------------------------
                                                                                                      Average
           Class II and Class III railroads, 2016-2018               Number of    Average  train     employee
                                                                     railroads         miles           hours
----------------------------------------------------------------------------------------------------------------
Railroads selected under the NPRM-proposed method...............              12          24,645          43,040
Railroads with nonfatal train accidents/incidents...............             204         390,091         348,824
----------------------------------------------------------------------------------------------------------------

    Therefore, as explained below, FRA has changed the quantitative 
analysis methodology to avoid over-selecting the smallest railroads for 
the qualitative assessment. Applying the changed methodology to RAIRS 
data, railroads identified for quantitative assessment on average 
reported 106,520 train miles operated and 258,881 employee hours from 
2016 through 2018. These averages are much closer to the averages for 
the entire pool of Class II and III freight railroads that the 
quantitative analysis will initially evaluate. As Figures 4 and 5 show, 
10 out of 12 railroads identified for qualitative assessment using the 
NPRM's quantitative analysis reported under 50,000 total train miles, 
but only 4 out of 15 railroads identified using the final rule's 
quantitative analysis methodology reported under 50,000 total train 
miles operated.
BILLING CODE 4910-06-P

[[Page 9287]]

[GRAPHIC] [TIFF OMITTED] TR18FE20.049

[GRAPHIC] [TIFF OMITTED] TR18FE20.050

BILLING CODE 4910-06-C
    These numbers suggest that the changed quantitative analysis method 
is less likely to identify railroads for qualitative analysis that are 
statistical outliers or aberrations due solely to their small size. FRA 
discusses the specific changes it has made to the rule text to reflect 
the new methodology (and other changes) in the section-by-section 
analysis below. For clarity, FRA is discussing each provision of this 
important section, even where FRA did not change certain provisions 
from the NPRM.
    Paragraph (a) describes FRA's methodology as a two-phase annual 
analysis, comprised of both a quantitative analysis and a qualitative 
assessment. This analysis will not include railroads excluded under 
Sec.  271.3(b) (e.g., commuter or intercity passenger railroads that 
are subject to FRA SSP requirements), railroads otherwise required to 
comply with this rule (i.e., Class I railroads and railroads previously 
determined to have inadequate safety performance under this section), 
railroads that voluntarily comply with this rule under proposed

[[Page 9288]]

Sec.  271.15, and new railroads that have reported accident/incident 
data to FRA for fewer than three years. However, paragraph (a)(2) 
states FRA will include new railroads formed through an amalgamation of 
operations (for example, railroads formed through consolidations, 
mergers, or acquisitions of control) in the analysis using the combined 
accident/incident data of the pre-amalgamation entities.
    Paragraph (b) describes the quantitative analysis, which makes a 
threshold identification of railroads that might have inadequate safety 
performance. This paragraph includes a preliminary selection FRA has 
added to the quantitative analysis to both address ASLRRA's concern 
that the NPRM's proposed methodology would over-select the smallest 
railroads and to filter out railroads with small enough operations that 
the rate-based analysis would lack statistical stability. This 
preliminary selection will help avoid over-selecting the smallest 
railroads by utilizing the absolute number (rather than rates) of two 
factors regarding a railroad's safety performance; FRA selected the 
specific factors in response to comments from the ASLRRA during RSAC 
discussions. Addition of the preliminary selection resulted in FRA 
reorganizing several paragraph (b) NPRM provisions. Paragraph (b)(1) 
specifies the quantitative analysis will be statistically-based and 
include each railroad within the scope of the analysis using historical 
safety data FRA maintains for the three most recent full calendar 
years. The quantitative analysis will include both the added 
preliminary selection and a rate-based analysis, and only railroads the 
preliminary selection identifies will proceed to the rate-based 
analysis.
    Paragraph (b)(1)(i) describes the preliminary selection FRA has 
added to the quantitative analysis. The first factor for the 
preliminary selection, in paragraph (b)(1)(i)(A), is a railroad's 
number of worker on duty fatalities during the 3-year period, 
determined using Worker on Duty--Railroad Employee (Class A), Worker on 
Duty--Contractor (Class F), and Worker on Duty--Volunteer (Class H) 
information reported on FRA Form 6180.55 under FRA's accident/incident 
reporting regulations in part 225.
    The second factor for the preliminary selection, in paragraph 
(b)(1)(i)(B), is a railroad's number of FRA reportable worker on duty 
injuries/illnesses during the 3-year period, calculated using ``Worker 
on Duty--Railroad Employee'', Worker on Duty--Contractor (Class F), and 
Worker on Duty--Volunteer (Class H) information reported on FRA Form 
6180.55 under FRA's accident/incident reporting regulations in part 
225, added to a railroad's number of FRA reportable rail equipment 
accidents/incidents during the 3-year period, using information 
reported on FRA Form 6180.54.
    For railroads with operations large enough for rates to be 
statistically stable, FRA believes that using rates enables a fair 
comparison between operations that might otherwise be very different in 
size. As paragraph (b)(1) explains, FRA will perform the next rate-
based analysis only on railroads the preliminary selection identifies. 
The rate-based analysis will incorporate three factors regarding a 
railroad's safety performance. The first factor, described in paragraph 
(b)(1)(ii)(A) (proposed paragraph (b)(1)(i) in the NPRM), is a 
railroad's number of on-duty employee fatalities during the 3-year 
period, using Worker on Duty--Railroad Employee (Class A) Worker on 
Duty--Contractor (Class F), and Worker on Duty--Volunteer (Class H) 
information reported on FRA Form 6180.55 under FRA's accident/incident 
reporting regulations in part 225.
    The second factor, described in paragraph (b)(1)(ii)(B) (proposed 
paragraph (b)(1)(ii) in the NPRM), is a railroad's FRA Worker on Duty 
injury/illness rate, calculated using Worker on Duty--Railroad Employee 
(Class A) Worker on Duty--Contractor (Class F), and Worker on Duty--
Volunteer (Class H) information reported on Form 6180.55 under FRA's 
accident/incident reporting regulations in part 225. FRA will calculate 
this rate using the following formula:

Injury/Illness Rate = (Total FRA Reportable Worker on Duty Injuries + 
Total FRA Reportable Worker on Duty Illnesses over a 3-year Period) / 
(Total Employee Hours over a 3-year Period/200,000)

This calculation gives the rate of employee injuries and illnesses per 
200,000 employee hours calculated over a 3-year period.
    In the NPRM, the calculation for this factor specified ``Total FRA 
Reportable On Duty Employee Occupational Illnesses over a 3-year 
period'' (emphasis added). FRA is removing the term ``occupational'' 
from the calculation in the final rule because part 225 does not always 
use the term ``occupational illness.'' For example, Form 6180.55 is 
titled ``Railroad Injury and Illness Summary.'' For clarity, FRA is 
phrasing the requirement in terms of illnesses a railroad must report 
using Form 6180.55. This change does not affect the substance of this 
provision.
    Additionally, while the NPRM proposed also using information 
reported on Form 6180.55a (which a railroad must file for each 
reportable injury or illness) for both the first and second factors of 
the quantitative analysis, FRA decided the summary information reported 
on Form 6180.55 is sufficient for these calculations. This change also 
does not affect the substance of this provision.
    AAR/ASLRRA (jointly) and ASLRRA (independently) commented that 
fatalities and injuries should only count if they relate to the 
operation of a railroad (i.e., not natural causes, suicides, etc.). 
AAR/ASLRRA also commented that few Class III railroads approach the 
200,000-person-hour denominator in the employee injuries and 
occupational illnesses calculation, which can skew results. While FRA 
generally agrees fatalities that do not relate to railroad operations 
are not necessarily indicative of inadequate safety performance, the 
quantitative analysis in paragraph (b) is merely a threshold 
determination and cannot account for every mitigating circumstance. As 
such, the qualitative assessment paragraph (c) establishes (discussed 
below) gives a railroad (and railroad employees) the opportunity to 
provide any such mitigating information regarding the railroad's number 
of fatalities, and FRA will consider that information when making its 
final determination. Regarding AAR/ASLRRA's concern that the 200,000-
person-hour denominator would skew results for small railroads, 
although FRA does not agree that a scaling factor alone induces 
sampling bias, FRA does agree that the results of the quantitative 
analysis presented in the NPRM did over-select the smallest railroads. 
FRA therefore added the preliminary selection to the quantitative 
analysis to avoid over-selecting the smallest railroads, as discussed 
above.
    The third factor, described in paragraph (b)(1)(ii)(C) (proposed 
paragraph (b)(1)(iii) in the NPRM), is a railroad's FRA reportable rail 
equipment accident/incident rate, calculated using information reported 
on FRA Form 6180.54 and Form 6180.55. FRA will calculate this rate 
using the following formula:

Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail 
Equipment Accidents/Incidents over a 3-year Period / (Total Train Miles 
over a 3-year Period/1,000,000)

    This calculation gives the rate of rail equipment accidents/
incidents per

[[Page 9289]]

1,000,000 train miles calculated over a 3-year period.
    Paragraph (b)(1)(iv) of the NPRM proposed a fourth factor for the 
rate-based analysis: A railroad's FRA violation rate, calculated using 
FRA's field inspector data system. AAR/ASLRRA and ASLRRA commented that 
the proposed violation rate factor was meaningless because many 
violations relate to records or are dropped by FRA due to mitigating 
circumstances or failure to adequately document the violation. In 
response to DOT's regulatory review initiative, ASLRRA also commented 
that including violations, which are at an inspector's discretion, 
could be utilized to ensure a short line's inclusion. FRA's analysis 
suggests that a very small number of railroads were selected for 
qualitative assessment because of violation rates, and that removing 
this factor would likely not materially affect the number of railroads 
that are determined to have inadequate safety performance. Given the 
commenters' concerns and the negligible effect of removing this factor, 
in this final rule, FRA is not including a railroad's FRA violation 
rate as a factor in the rate-based analysis. To the extent a railroad's 
FRA violations may indicate inadequate safety performance, FRA will 
consider them as ``other pertinent information'' during the qualitative 
assessment, as discussed below in the section-by-section analysis for 
paragraph (c)(2) of this section.
    Paragraph (b)(2)(i) states the preliminary selection will identify 
a railroad for rate-based analysis if the railroad meets at least one 
of two conditions. The first condition is when a railroad has one or 
more fatalities. FRA considers an on duty employee fatality a strong 
indication of inadequate safety performance. If a railroad has at least 
one fatality within the 3-year period of the quantitative analysis, FRA 
will examine that railroad further in the rate-based analysis.
    The second condition is when a railroad was at or above the 90th 
percentile in the factor described in paragraph (b)(1)(i)(B) of this 
section (e.g., the sum of a railroad's FRA injury/illness count and its 
FRA accident/incident count). For example, if the scope of data 
includes a set of 100 railroads, FRA would identify the railroads with 
the ten highest total injury/illness and accident/incident count.
    For railroads that advance to the rate-based analysis from the 
preliminary selection, the rate-based analysis will identify railroads 
as possibly having inadequate safety performance based on the factors 
described in paragraph (b)(2)(ii). Paragraph (b)(2)(ii) (proposed 
paragraph (b)(2) in the NPRM) states the rate-based analysis will 
identify a railroad as possibly having inadequate safety performance if 
at least one of two conditions is met. The first condition, described 
in paragraph (b)(2)(ii)(A), is when a railroad has one or more 
fatalities. As stated above regarding the preliminary selection, FRA 
considers an on-duty employee fatality a strong indication of 
inadequate safety performance. If a railroad has at least one fatality 
within the 3-year period of the quantitative analysis, FRA will examine 
that railroad further in the qualitative assessment.
    AAR/ASLRRA commented paragraph (b)(2)(i) in the NPRM stated the 
quantitative analysis would identify a railroad if the ``railroad has 
one or more fatalities,'' without reference to the 3-year period. 
Corresponding paragraph (b)(2)(ii)(A) in the final rule clarifies that 
the rate-based analysis will identify a railroad if it has one or more 
fatalities ``as calculated in paragraph (b)(1)(ii)(A).'' Because 
paragraph (b)(1)(ii)(A) specifically references the 3-year period, the 
final rule clarifies the 3-year period applies when identifying 
railroads with one or more fatalities.
    The second condition, described in paragraph (b)(2)(ii)(B), is when 
a railroad is at or above the 90th percentile in either of the factors 
described in paragraphs (b)(1)(ii)(B) and (C) of this section (e.g., a 
railroad's injury/illness rate, or FRA accident/incident rate). FRA 
will examine further those railroads identified in one or more of these 
factors in the qualitative assessment. Paragraph (b)(2)(ii) in the NPRM 
proposed that the quantitative analysis would identify for further 
analysis railroads at the 95th percentile in at least two of three 
factors. (The third factor was a railroad's FRA violation rate, which 
FRA has removed from the rate-based analysis as discussed above.) The 
NPRM explained that this percentile would identify approximately 42 
railroads over a five-year period, and that FRA considered this a 
reasonable pool of railroads to examine further in the qualitative 
assessment. See 80 FR 10967 (Feb. 2015). While FRA still believes this 
is a reasonable number of railroads to examine in the qualitative 
analysis, the addition of the preliminary selection to the ISP 
determination process will reduce the number of railroads considered in 
the rated-based analysis. The removal of a railroad's FRA violation 
rate from consideration will also reduce the number of factors 
considered when identifying railroads for the qualitative assessment. 
To obtain a similar pool of railroads for the qualitative analysis 
under the final rule, FRA has therefore changed the second condition of 
the rate-based analysis to the 90th percentile of railroads in either 
of the two remaining factors. Preliminary analyses estimate FRA's 
approach will identify approximately 40-45 railroads over a five-year 
period,\18\ which is consistent with FRA's position in the NPRM that 43 
potential railroads are a reasonable pool to examine further in the 
qualitative analysis.
---------------------------------------------------------------------------

    \18\ FRA's analysis estimated that approximately eight to nine 
railroads would be identified each year.
---------------------------------------------------------------------------

    AAR/ASLRRA commented that when FRA determines whether it should 
subject a railroad to a qualitative analysis, the two conditions should 
be causally-related, and not two completely unrelated measurements. 
Specifically, AAR/ASLRRA commented that the conditions related to 
employee casualties and reportable accident/incident data should be 
related to railroad operations. Issues regarding causation, however, 
will be part of the qualitative analysis. FRA has therefore not made 
any changes in response to this comment.
    An individual commented supporting a previous individual comment 
submitted in response to the ANPRM, asserting a ``key metric for 
deciding if a non-Class I railroad has an `inadequate safety record' . 
. . should be whether it transports the most dangerous hazmat cargoes 
through urban areas or sensitive environmental areas.'' The New Jersey 
Work Environment Council's comment shared this concern.
    FRA does not believe that simply transporting dangerous hazardous 
materials through urban or sensitive environmental areas is a valid 
metric for determining whether a railroad has inadequate safety 
performance. Such operations only indicate a railroad's specific 
hazards and risks, and do not indicate whether a railroad is safely 
performing such operations. FRA's quantitative analysis will identify 
such railroads, however, if they have a worker on-duty fatality or a 
high number and rate of FRA reportable accidents/incidents, FRA 
reportable illnesses/injuries, and FRA violations (as calculated by the 
rule's methodology). Once the quantitative analysis identifies such a 
railroad, FRA can review factors such as the shipment of dangerous 
hazardous materials through urban or sensitive environmental areas as 
part of the qualitative analysis. For example, FRA has data regarding 
shippers of

[[Page 9290]]

hazardous materials, commodity flows, and other GIS-related data that 
can be considered in the qualitative analysis. Additionally, the HHFT 
Final Rule establishes requirements regarding the routing of certain 
hazardous materials. FRA therefore concludes this final rule should not 
consider imposing an additional regulatory requirement upon railroads 
simply based on whether a railroad transports dangerous hazardous 
materials through urban or sensitive environmental areas.
    To summarize, the below flow chart illustrates how the quantitative 
analysis will identify railroads for the qualitative assessment.
[GRAPHIC] [TIFF OMITTED] TR18FE20.051

    Paragraph (c) describes FRA's qualitative assessment of railroads 
the quantitative analysis identifies as possibly having inadequate 
safety performance. FRA made several non-substantive changes in this 
paragraph to replace passive voice with active voice. During the 
qualitative assessment, FRA will consider documentation from the 
railroad, comments from the railroad's employees, and any other 
pertinent information. This input will help FRA determine whether the 
quantitative analysis accurately identified a problem with the 
railroad's safety performance. Essentially, the qualitative assessment 
serves as a safety valve that helps FRA avoid determining a railroad 
demonstrates ISP merely because of one or more statistical outliers in 
FRA's data.
    Paragraph (c)(1) states FRA will provide initial written 
notification to railroads identified in the threshold quantitative 
analysis as possibly having inadequate safety performance. Paragraph 
(c)(1)(i) further specifies that a notified railroad must inform its 
employees of FRA's notice within 15 days of receiving notification. A 
railroad must post this employee notification at all locations where a 
railroad reasonably expects its employees to report for work and have 
an opportunity to observe the notice. The railroad must continuously 
display the notice until 45 days following FRA's initial notice. A 
railroad must use other means to notify employees who do not have a 
regular on duty point to report for work, consistent with the 
railroad's standard practice for communicating with employees. Such a 
notification could take place by email, for example. The notification 
must inform employees that they may submit confidential comments to FRA 
regarding the railroad's safety performance, and must contain 
instructions for doing so. Any such employee comments must be submitted 
within 45 days of FRA's initial notice. FRA changed this

[[Page 9291]]

paragraph from the NPRM to add additional language specifying the 
railroad must also inform employees they must file any comments with 
the FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
    Likewise, paragraph (c)(1)(ii) provides railroads 45 days from 
FRA's initial notice to provide FRA documentation supporting any claim 
the railroad does not have inadequate safety performance. For example, 
if a fatality on railroad property was determined to be due to natural 
causes (such as cardiac arrest), or if an accident/incident was due to 
an act of God, the railroad's chief safety officer could provide a 
signed letter attesting to the facts and explaining why FRA should not 
find the railroad has inadequate safety performance. A railroad could 
also submit information regarding any extenuating circumstances of an 
incident or the severity of an injury (for example, a bee sting may not 
be as serious a safety concern as a broken bone, depending on the 
circumstances), or evidence that the railroad has already taken steps 
that effectively address a problem that led to the railroad being 
identified as possibly demonstrating inadequate safety performance. 
Further, although FRA has removed a railroad's FRA violation rate from 
the rated-based analysis, FRA may consider violations during the 
qualitative assessment (see below discussion of paragraph (c)(2)). FRA 
therefore still encourages a railroad to submit information regarding 
its FRA violations for consideration during the qualitative assessment. 
For example, FRA will consider explanations regarding FRA-issued 
violations and any mitigating action the railroad has taken to remedy 
the violations. FRA adopts this provision unchanged from the NPRM.
    Paragraph (c)(2) describes the qualitative assessment of railroads 
the quantitative analysis identified. During the qualitative 
assessment, FRA will consider information a railroad or its employees 
provide under paragraph (c)(1) of this section and any other pertinent 
information. Even though FRA is removing a railroad's FRA violation 
rate from consideration in the quantitative analysis in response to 
concerns from AAR and ASLRRA (as discussed above), FRA does not agree 
with AAR and ASLRRA's contention that violations are ``meaningless'' 
when determining whether a railroad has inadequate safety performance. 
For example, frequent or severe violations of safety regulations can be 
an important indicator of a railroad's overall safety culture. This 
could be especially true in situations where FRA has issued the 
violations only after other attempts to correct the railroad's repeated 
non-compliance (e.g., by issuing notices of defects or other written or 
verbal notices of non-compliance) have failed. Similarly, FRA also 
issues violations for one-time instances of non-compliance that are 
particularly egregious from a railroad safety perspective (e.g., 
interference with a grade crossing system that results in an activation 
failure). In determining whether a railroad demonstrates inadequate 
safety performance, FRA considers it essential to consider violations 
to the extent they indicate either a poor safety culture or a one-time 
instance of non-compliance that is egregious or critical to safety. FRA 
is therefore adding language to paragraph (c)(2) clarifying that FRA 
may consider violations during the qualitative assessment.
    FRA may communicate with the railroad during the qualitative 
assessment to clarify its understanding of any information the railroad 
submitted. Based upon the qualitative assessment, FRA will make a final 
determination regarding whether a railroad has inadequate safety 
performance no later than 90 days following FRA's initial notice to the 
railroad. Except for the added language regarding violations, FRA 
adopts this provision unchanged from the NPRM.
    Paragraph (d) states FRA will provide a final notification to each 
railroad given an initial notification under paragraph (c) of this 
section, informing the railroad whether FRA has found it has inadequate 
safety performance. FRA has made a minor, non-substantive change to the 
NPRM's language to make the first sentence of this paragraph easier to 
read. Additionally, proposed paragraph (d) contained language 
addressing ISP railroad compliance, which FRA has moved to paragraph 
(e) of this section for organizational purposes. Consequently, there 
are non-substantive organizational changes to paragraph (e).
    Paragraph (e)(1) contains language from proposed paragraph (d) of 
the NPRM, stating that an ISP railroad must develop and implement an 
RRP meeting the requirements of this rule and must submit an RRP plan 
meeting the filing and timing requirements of Sec.  271.301. FRA has 
made minor changes to this language to streamline its content and avoid 
needlessly repeating the requirements of Sec.  271.301. These changes 
do not affect the substance of the requirement.
    Paragraph (e)(2) contains language from proposed paragraph (e) and 
states a railroad with inadequate safety performance must comply with 
the requirements of this rule for at least five years from the date FRA 
approves the railroad's RRP plan. FRA has made minor, non-substantive 
changes to streamline this language. As the NPRM explained, a five-year 
compliance period provides the minimum time necessary for an RRP to 
improve a railroad's safety performance. See 80 FR 10968 (Feb. 27, 
2015). FRA expects a railroad with inadequate safety performance will 
take 36 months (3 years) following FRA plan approval to fully implement 
its RRP under Sec.  271.225(a).\19\ FRA does not expect an RRP, in 
itself, to improve a railroad's safety performance during this three-
year implementation period, as a railroad will need this time to 
conduct a risk-based hazard analysis, prioritize risks, and develop 
mitigation strategies. A railroad will then begin applying mitigation 
strategies when it fully implements its RRP after three years. Once a 
railroad fully implements its RRP and begins applying mitigation 
strategies, the RRP will have at least two years to improve the 
railroad's safety performance by implementing mitigation measures and 
tracking their success. FRA bases this belief on an evaluation of an 
FRA Confidential Close Call Reporting System (C\3\RS) demonstration 
site showing that C\3\RS generated safety improvements two-and-a-half 
years after the railroad implemented the program.\20\ See Ranney, J. 
and Raslear, T., ``Derailments decrease at a C\3\RS site at midterm,'' 
FRA Research Results: RR12-04, April 2012, available at https://www.fra.dot.gov/eLib/details/L03582. The five-year compliance period 
therefore gives a railroad three years to fully implement its RRP and 
two years for a fully-implemented RRP to generate safety improvements. 
The two-year period after full implementation also provides FRA at 
least one opportunity

[[Page 9292]]

to conduct an external audit of the railroad's fully-implemented RRP 
and to provide the railroad written results. FRA concludes, therefore, 
that the five-year compliance period is necessary to determine whether 
a railroad's fully-implemented RRP is generating safety improvements 
that are sustainable. FRA adopts this paragraph unchanged from the 
NPRM.
---------------------------------------------------------------------------

    \19\ FRA considered requiring a railroad with inadequate safety 
performance to comply with this rule for two years after submitting 
a notice to FRA demonstrating it had fully implemented its RRP. FRA 
concludes, however, that such a notice would impose an additional 
paperwork and cost burden on both the railroad and FRA. Rather, FRA 
believes most railroads will take three years to fully implement an 
RRP as Sec.  271.225(a) allows.
    \20\ Specifically, the evaluation found the following safety 
improvements at the C\3\RS demonstration site: (1) A 31-percent 
increase in the number of cars moved between incidents; (2) improved 
labor-management relations and employee engagement (i.e., an 
improved safety culture); and (3) a reduction in discipline cases. 
See Ranney, J. and Raslear, T., ``Derailments decrease at a C3RS 
site at midterm,'' FRA Research Results: RR12-04, April 2012, 
available at https://www.fra.dot.gov/eLib/details/L03582.
---------------------------------------------------------------------------

    FRA is adding language in paragraph (f) establishing an appeals 
process for railroads that FRA determines demonstrate inadequate safety 
performance. AAR/ASLRRA commented urging FRA to establish an appeals 
process for railroads that the proposed methodology identifies as 
having inadequate safety performance. AAR/ASLRRA noted that other FRA 
regulations include such a process (e.g., part 240--Qualification and 
Certification of Locomotive Engineers and part 242--Qualification and 
Certification of Conductors), and FRA has acknowledged such processes 
are fair and successful. AAR/ASLRRA specifically suggested that the 
process should ``allow neutral persons to review and provide a 
determination, which would enhance objectivity.'' AAR/ASLRRA did not 
provide a specific suggestion indicating who should be the ``neutral 
persons.''
    FRA agrees including an appeals process for railroads determined to 
have inadequate safety performance would be fair. FRA therefore changed 
Sec.  271.13 to add a process allowing railroads to petition the FRA 
Administrator for reconsideration of inadequate safety performance 
determinations under 49 CFR 211.7(b)(1), 211.56, and 211.59, which are 
procedures to appeal various FRA actions to the Administrator (e.g., 
Railroad Safety Board decisions regarding petitions for waiver of 
safety rules under 49 CFR part 211, subpart C). These procedures are 
well-established and should be familiar to the railroad industry.
    Providing a direct appeal to the Administrator is appropriate 
because FRA will have already created a record of the inadequate safety 
performance determination as part of the quantitative and qualitative 
analysis. This record will also include comments and documentation 
railroads and railroad employees have submitted to FRA as part of the 
qualitative assessment.\21\ After reviewing the record, the 
Administrator may either affirm, modify, or revoke the determination. 
Using existing procedures for appealing inadequate safety performance 
determinations reduces both uncertainty and unnecessary duplication.
---------------------------------------------------------------------------

    \21\ Because AAR/ASLRRA's comment specifically referenced the 
appeals processes of parts 240 and 242 (which govern locomotive 
engineer and conductor certification), FRA notes that the record 
created during the inadequate safety performance analysis parallels 
the record created during an administrative hearing under Sec. Sec.  
240.409 and 242.509. FRA does not believe it is necessary to 
establish a board similar to the Operating Crew Review Board (OCRB) 
to review these determinations before an appeal to the 
Administrator, as the OCRB only reviews railroad certification 
decisions under parts 240 and 242 and does not act in a fact-finding 
capacity. Unlike with locomotive engineer and conductor 
certification proceedings, there will be no railroad determination 
in the RRP context for such a board to review. FRA also believes 
incorporating too many layers of appeal would unduly slow down the 
inadequate safety performance determination process.
---------------------------------------------------------------------------

    Paragraph (f)(1) states that a railroad wishing to appeal a final 
written ISP determination must file a petition for reconsideration with 
the Administrator. Paragraph (f)(1)(A) states a railroad must file the 
petition no later than 30 days after the date the railroad receives 
FRA's final written notice under paragraph (d) of this section, and 
paragraph (f)(1)(B) states a railroad must comply with the procedures 
in Sec. Sec.  211.7(b)(1) and 211.57. Paragraph (f)(2) states FRA will 
process petitions under Sec.  211.59.
    Because FRA is including an appeals process in paragraph (f) of the 
final rule, FRA has moved proposed paragraph (f) from the NPRM to 
paragraph (g) in this final rule. At the end of the five-year period, 
paragraph (g) provides that the railroad may petition FRA for approval 
to discontinue compliance with this rule, and FRA will process the 
petition using the procedures for waivers in 49 CFR 211.41. While the 
NPRM merely referenced the waiver provisions of part 211 in general, 
FRA is specifying Sec.  211.41 in the final rule to clarify that the 
railroad must follow the procedures for waivers of safety rules (and 
not other petition processes in part 211, such as petitioning for a 
rulemaking in Sec.  211.11). Further, while the NPRM did not specify 
how FRA would process the petition, FRA also changed this language to 
clarify that FRA will process the petition under Sec.  211.41. As a 
result, FRA also removed language in the NPRM stating that FRA will 
notify a railroad in writing whether or not the railroad must continue 
compliance with the rule. This language is unnecessary because Sec.  
211.41 contains provisions regarding what notification FRA must provide 
a railroad. Upon receiving a petition, FRA will evaluate the railroad's 
safety performance to determine whether the railroad's RRP has resulted 
in significant safety improvements, and whether these measured 
improvements are likely to be sustainable in the long term. FRA's 
evaluation will include a quantitative analysis as described in 
paragraph (b). FRA has added language to this paragraph clarifying that 
FRA will not automatically grant a petition to discontinue compliance 
if the quantitative analysis results do not meet the identification 
thresholds described for moving on to the qualitative analysis 
(although FRA would certainly consider such results). For all 
petitions, FRA will also examine qualitative factors and review 
information from FRA RRP audits and other relevant sources. This 
approach ensures that a railroad is not granted permission to 
discontinue compliance when its safety record has not substantively 
improved, but, rather, the rest of the railroad industry has become 
statistically less safe, thereby making the ISP railroad appear only 
comparatively safer. In such a scenario, FRA believes it will be 
appropriate to effectively increase the pool of ISP railroads by 
requiring continued compliance for ISP railroads that have not 
substantively improved their safety performance. While ASLRRA commented 
in response to DOT's regulatory review initiative that there was no 
performance benchmark for removal from mandatory ISP compliance, FRA 
believes that this approach--combining a new ISP analysis with an 
evaluation of whether the ISP railroad's RRP has generated long-term, 
sustainable safety benefits--provides a sufficient benchmark for 
judging whether an ISP railroad must continue RRP compliance.
    Analysis of the railroad's safety performance to decide whether FRA 
should grant its petition will depend on the unique characteristics of 
the railroad and its RRP. Therefore, it is not possible to enumerate 
the types of data FRA will examine to evaluate a petition to 
discontinue compliance. In general, FRA will look at information it 
needs to determine whether there are real and lasting changes to the 
operational safety and organizational safety culture. The Safety Board 
will use staff recommendations and other information it deems necessary 
to make a final determination about whether granting a petition is in 
the interest of public safety. After completing the evaluation, FRA 
will notify the railroad in writing whether it will be required to 
continue compliance with this part. FRA will encourage a railroad to 
continue its RRP voluntarily even if FRA grants its petition to 
discontinue compliance with this part. If a railroad decides to 
continue its RRP after FRA grants its petition to discontinue 
compliance, FRA will consider the railroad a

[[Page 9293]]

voluntarily-compliant railroad under Sec.  271.15. This will continue 
application of Sec.  271.11 to protect information the railroad 
continues to compile or collect under its voluntary RRP from discovery 
and admission as evidence in litigation. If a railroad decides not to 
continue with a voluntarily-compliant RRP meeting the requirements of 
this part, information it compiled or collected under the RRP will 
remain protected under Sec.  271.11. However, Sec.  271.11 will not 
protect any new information compiled or collected after the railroad 
discontinues its RRP.
Section 271.15--Voluntary Compliance
    The RSIA provides that railroads not required to establish a 
railroad safety risk reduction program may nevertheless voluntarily 
submit for FRA approval a plan meeting the requirements of the statute. 
See 49 U.S.C. 20156(a)(4). Section 271.15(a) implements this language 
by permitting a railroad not otherwise subject to the rule to 
voluntarily comply by establishing and fully implementing an RRP that 
meets the requirements of the rule. While this paragraph in the NPRM 
said a voluntarily-compliant railroad ``could be subject to civil 
penalties for failing to comply with the requirements of this part,'' 
FRA is rephrasing this sentence and changing ``could'' to ``is'' in the 
final rule to make this language consistent with other provisions in 
FRA regulations discussing civil penalties (See e.g., Sec.  271.9 of 
this final rule). This change does not affect the substance of this 
paragraph. Because FRA otherwise adopts paragraph (a) unchanged from 
the NPRM, FRA is not repeating the NPRM's section-by-section analysis 
here but refers interested readers to the NPRM's discussion. See 80 FR 
10969 (Feb. 27, 2015).
    Paragraph (b) specifies that a voluntarily-compliant railroad must 
comply with this rule's requirements for a minimum period of five 
years, running from the date on which FRA approves the railroad's RRP 
plan. As with ISP railroads, the rule therefore provides a voluntarily-
compliant railroad three years to fully implement an RRP under Sec.  
271.225(a) and two years following full implementation to realize RRP-
related safety improvements. Further, as the NPRM and the above 
section-by-section analysis for Sec.  271.13(e)(2) explain, a five-year 
period provides the minimum amount of time necessary for an RRP to have 
a substantive effect on a railroad's safety performance. See 80 FR 
10969 (Feb. 27, 2015).
    AAR/ASLRRA and ASLRRA both commented that a five-year compliance 
period was unnecessary and that FRA should require railroads to 
voluntarily comply only for two years, asserting small railroads can 
make changes quickly and efficiently. As explained above, a minimum 
five-year compliance period appropriately provides a voluntarily-
compliant railroad three years to fully implement its RRP and two years 
following full implementation to realize safety improvements. Further, 
because there is a wide range of size among Class II and Class III 
railroads, FRA does not believe all voluntarily compliant railroads 
will be able to establish an RRP and achieve safety improvements in two 
years.\22\
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    \22\ FRA also notes that the STB classifies railroads based on 
revenue, not system size or complexity. See 49 CFR 1201.1-1. 
Further, revenue alone may not be an adequate indicator of how 
quickly a railroad could implement an RRP.
---------------------------------------------------------------------------

    An RRP is also an ongoing commitment to safety, not a program a 
railroad temporarily implements to address a specific problem and then 
abandons once the problem is fixed. Such an approach would make RRP 
another reactive program, instead of a proactive approach to improving 
railroad safety. Moreover, a railroad that volunteers to comply with 
the RRP rule, knowing such compliance must last five years, is making 
an important demonstration of that safety commitment. If a voluntarily-
compliant railroad concludes that an RRP has either achieved the 
railroad's safety goals or is not producing safety benefits before the 
end of the five-year compliance period, the railroad could petition FRA 
for a waiver from this rule's requirements under part 211, subpart C's 
procedures for requesting waivers of safety rules.
    The five-year compliance period also helps prevent situations in 
which a railroad will voluntarily comply for a few months or years only 
to selectively take advantage of this rule's information protections, 
abandoning the program once the railroad has achieved its information 
protection goals. If a railroad wishes to have this rule's information 
protection benefits, the railroad should earnestly commit to complying 
for a minimum of five years, which gives the railroad three years to 
fully implement its RRP and two years to realize safety improvements 
following full implementation.
    Finally, FRA will expend agency time and resources in approving a 
voluntarily-compliant railroad's RRP plan and auditing the railroad's 
RRP. In return, FRA expects a voluntarily-compliant railroad to commit 
to complying with this rule for five years. Otherwise, FRA could expend 
agency resources for limited or even non-existent safety benefits.
    Conversely, Labor Organizations I argued that FRA should require 
voluntarily-compliant railroads to comply with the rule permanently. A 
permanent compliance approach, however, could disincentivize voluntary 
compliance to the extent that no (or very few) railroads would ever 
volunteer. FRA therefore declines to require permanent, voluntary 
compliance.
    The NPRM also requested public comment on whether FRA should allow 
railroads to voluntarily comply with an SSP final rule instead of an 
RRP final rule. No commenters responded to FRA's questions, and FRA is 
not including a voluntary SSP compliance provision in this final rule. 
FRA concludes that any such provision would properly belong in the SSP 
rule, not the RRP rule.
    Paragraph (c) in the NPRM proposed that a voluntarily-compliant 
railroad could petition FRA to discontinue compliance with the rule 
after the minimum five-year compliance period. ASLRRA commented that 
the requirement to comply should terminate automatically, unless FRA 
determines otherwise. After reassessing proposed paragraph (c), FRA is 
concerned that the proposed approach would disincentivize voluntary 
compliance by making it more difficult for a voluntarily-compliant 
railroad to leave the program once it joins. Paragraph (c) of the final 
rule therefore provides that a voluntarily-compliant railroad may 
discontinue mandatory compliance with this rule after the five-year 
period by providing written notice to the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer. This approach will not 
negatively impact safety, because FRA will add the former voluntarily-
compliant railroad to the pool of railroads FRA annually analyzes for 
inadequate safety performance. Some inefficiencies may occur if a 
former voluntarily-compliant railroad dismantles its RRP, but then must 
recreate the program if FRA determines that the railroad demonstrates 
inadequate safety performance. However, this scenario is unlikely for 
several reasons. First, the rule's information protections will be an 
incentive for a railroad to continue compliance, as the protections 
will not apply to information that a railroad compiles or collects for 
non-RRP purposes. This incentive will lower the number of voluntarily-
compliant railroads that decide to discontinue mandatory compliance. 
Second, a voluntarily-compliant railroad will not discontinue 
compliance if it reasonably

[[Page 9294]]

believes FRA will thereafter determine that the railroad demonstrates 
inadequate safety performance because, if FRA then found the railroad 
had inadequate safety performance, the railroad could discontinue 
compliance only if FRA granted its petition to discontinue under Sec.  
271.13(g). Finally, FRA believes many voluntarily-compliant railroads 
will comply indefinitely with the RRP rule because they will realize 
the safety benefits an RRP generates. Once a voluntarily-compliant 
railroad implements an RRP and begins to realize its safety benefits, 
it is unlikely the railroad would dismantle its program.
    Paragraph (d) provides that the information protection provisions 
of Sec.  271.11 apply to information a voluntarily-compliant railroad 
compiles or collects under a voluntarily-compliant RRP meeting the 
requirements of this rule. As discussed in the section-by-section 
analysis for Sec.  271.11, voluntary risk reduction programs (for 
example, programs generated as part of a Short Line Safety Institute) 
must fully comply with this rule for the information generated to be 
protected from discovery and use as evidence in litigation. FRA changed 
this provision from the NPRM to include a reference to Sec.  
271.301(b)(4)(ii), discussed further below, which provides that the 
Sec.  271.11 information protections will apply to a voluntarily-
compliant railroad starting on the day the railroad notifies FRA it 
intends to file an RRP plan for review and approval. FRA also modified 
this provision by removing the word ``only,'' which could have implied 
that Sec.  271.11 applied only to voluntarily-compliant railroads.
    ASLRRA generally commented that ``FRA has proposed requirements 
designed to limit the number of railroads that comply voluntarily. The 
ASLRRA submits that any requirement to limit the number of small 
railroads that comply voluntarily is antithetical to the letter and 
spirit of the RSIA.'' ASLRRA's comment is unclear to FRA, as FRA does 
not believe Sec.  271.15 establishes requirements to limit the number 
of railroads that comply voluntarily. To the extent ASLRRA's comment 
means the five-year compliance period would disincentivize voluntary 
participation, FRA refers to the above discussion of why FRA believes 
this compliance period is necessary. FRA also believes that this rule's 
information protections provide a reasonable incentive for voluntarily-
compliant railroads, even with the five-year compliance period.

Subpart B--Risk Reduction Program Requirements

    Subpart B contains the basic RRP elements the rule requires. The 
rule provides a railroad significant flexibility in developing and 
implementing an RRP.
Section 271.101--Risk Reduction Programs
    Section 271.101 contains general RRP requirements. Paragraph (a) 
requires railroads to establish and fully implement an RRP meeting the 
requirements of this rule. Except for the minor changes discussed 
below, FRA adopts paragraph (a) unchanged from the NPRM. FRA therefore 
refers interested readers to the NPRM's discussion. See 80 FR 10969 
(Feb. 27, 2015).
    As proposed in the NPRM, the third sentence of paragraph (a) 
stated, ``An RRP is not a one-time exercise, but an ongoing program 
that supports continuous safety improvement.'' FRA has removed the 
phrase ``not a one-time exercise, but'' in the final rule, so the 
sentence now reads, ``An RRP is an ongoing program that supports 
continuous safety improvement.'' This change does not affect the 
substantive meaning of the sentence (which is to indicate the ongoing 
nature of an RRP) and was made solely to streamline the regulatory 
language.
    FRA also changed paragraph (a) to include a sentence clarifying 
that a railroad must design its RRP to promote and support a positive 
safety culture at the railroad. Although the NPRM did not propose this 
specific language, FRA believes promoting a positive safety culture is 
intrinsic to SMS programs like RRP, and improving a railroad's safety 
culture was extensively discussed in the NPRM. See id. at 10952, 10953, 
10968, 10971, and 10973. A railroad must also identify and analyze its 
safety culture under Sec.  271.105(a), describe its safety philosophy 
and safety culture under Sec.  271.203(b)(1), and describe how it 
promotes improvements to its safety culture under Sec.  271.203(b)(2). 
The added language reflects that an important component of an RRP is an 
improved safety culture. Further, the SSP NPRM proposed identical 
language, which is included in the SSP rule, and FRA is including this 
language in paragraph (a) to promote consistency between the two rules. 
See 77 FR 55403 (Sept. 7, 2012) and 81 FR 53878, 53897 (Aug. 12, 2016). 
FRA inadvertently omitted including this language in the RRP NPRM.
    Paragraphs (a)(1) through (5) list necessary components that an RRP 
must contain, including: (1) A risk-based hazard management program 
(described in Sec.  271.103); (2) a safety performance evaluation 
component (described in Sec.  271.105); (3) a safety outreach component 
(described in Sec.  271.107); (4) a technology analysis and technology 
implementation plan (described in Sec.  271.109); and (5) RRP 
implementation and support training (described in Sec.  271.111). FRA 
adopts these paragraphs unchanged from the NPRM.
    Paragraph (a)(6) references a component the NPRM did not 
specifically include: Involvement of railroad employees in the 
establishment and implementation of an RRP under Sec.  271.113. The 
section-by-section analysis for Sec.  271.113 discusses the substance 
of this additional component in detail.
    Paragraph (b) requires a railroad to support its RRP with an FRA-
approved RRP plan meeting subpart C requirements. FRA adopts paragraph 
(b) unchanged from the NPRM. Proposed paragraph (c) of the NPRM 
addressed railroads subject to the RRP rule that host passenger train 
service for passenger railroads subject to the requirements of the SSP 
rule. Under Sec.  270.103(a)(2) of the SSP rule, a passenger railroad 
must communicate with each host railroad to coordinate the portions of 
its SSP plan applicable to the host railroad. See 81 FR 53897 (Aug. 12, 
2016). Paragraph (c) of the NPRM proposed requiring a host railroad, as 
part of its RRP, to participate in this communication and coordination 
with the passenger railroad.
    APTA commented that proposed paragraph (c) ``aspires to 
communication and cooperation, but provides no framework for 
accomplishing either and no standard by which to measure either.'' FRA 
does not agree that this provision requires additional framework or 
standards. Because no two arrangements between a passenger railroad and 
a host railroad will be the same, a passenger railroad and host 
railroad should have the flexibility to communicate and cooperate in 
the manner best suited to their particular operations. However, FRA 
made minor changes to proposed paragraph (c) for clarity. FRA also 
designated proposed paragraph (c) as paragraph (c)(1). FRA does not 
intend these changes to affect the substance of the provision.
    In response to DOT's regulatory review initiative, VRE commented 
expressing concern that it may be subject to enforcement action if, 
despite attempting in good faith to communicate with its host railroads 
(which include CSX Transportation,

[[Page 9295]]

Norfolk Southern Corporation, and Amtrak) as the SSP rule requires, its 
host railroads did not cooperate in producing data or other information 
necessary for VRE's SSP. See DOT-OST-2017-0069-2405. Paragraph (c) 
addresses VRE's concern, as it specifically requires an RRP railroad to 
communicate and coordinate with a tenant SSP railroad as required by 
the SSP final rule. A host RRP railroad that does not participate in 
this communication and coordination could then be subject to FRA 
enforcement action under the RRP final rule.
    FRA also added a paragraph (c)(2) to the final rule, requiring a 
host railroad to incorporate its communication and coordination with 
the SSP railroad into its own RRP. This language ensures a railroad's 
SSP communication is not completely isolated from the railroad's own 
RRP. Because RRP and SSP are systemic programs intended to promote 
analysis and proactive mitigation measures, communication and 
coordination between a railroad's RRP and SSP activities will improve 
railroad safety.
    In paragraph (d) of the NPRM, FRA proposed requiring a railroad to 
ensure persons utilizing or performing a significant safety-related 
service on its behalf support and participate in the railroad's RRP. 
The NPRM identified such persons as host railroads, contract operators, 
shared track/corridor operators, or other contractors. AAR/ASLRRA 
commented that the term ``utilize'' could mean anyone interested in 
railroad safety, including passengers and the general public. Although 
AAR/ASLRRA indicated they were not concerned with the substance of the 
provision, they recommended that FRA remove the term ``utilize.''
    FRA agrees with AAR/ASLRRA that paragraph (d) should not be 
interpreted to require a railroad to ensure passengers or the general 
public support and participate in the railroad's RRP as persons 
``utilizing'' significant safety-related services. FRA's intent was to 
address persons who utilize a railroad's significant safety-related 
services on a routine or systemic basis to conduct railroad operations, 
such as a passenger railroad that operates over an RRP railroad's track 
and utilizes its dispatching service. FRA has, therefore, changed the 
language of this provision to clarify its requirements and reflect 
FRA's original intent. Paragraph (d) of the final rule first references 
Sec.  271.205(a)(3), which requires a railroad's RRP plan to identify 
persons that enter into a contractual relationship with the railroad to 
either perform significant safety-related services on the railroad's 
behalf or to utilize significant safety-related services the railroad 
provides for railroad operations purposes. The changed language then 
clarifies the term ``utilize'' in two ways.
    First, the relationship between the railroad and the person 
utilizing its significant safety-related services must be contractual. 
This language ensures there is a formalized agreement between the 
railroad and the person regarding the significant safety-related 
service. With the formalized agreement, the duties of the contractor 
will be clear and, therefore, the extent to which they are performing 
or utilizing significant safety-related services of the railroad will 
be clear as well. This language clarifies that this section does not 
require a railroad to ensure the general public (or any other entity 
with only an interest in the safe operation of a railroad as a matter 
of due course (for example, schools or residents located near an RRP 
railroad's track)) supports and participates in the railroad's RRP.
    Second, the final rule's language clarifies that the person must be 
utilizing the railroad's significant safety-related services to conduct 
railroad operations. For example, if a railroad contracts with a 
company to perform bridge maintenance, that company provides a 
significant safety-related service to the railroad on behalf of the 
railroad. If during the bridge maintenance the company uses the 
railroad's roadway worker protection, that company is then also 
utilizing a significant safety-related service (roadway worker 
protection) provided by the railroad. A railroad does not have to 
identify persons providing or utilizing significant safety-related 
services for purposes unrelated to railroad operations, such as 
railroad passengers or motor vehicle drivers who benefit from a 
highway-rail grade crossing warning system. The SSP final rule contains 
similar language in Sec.  270.103(d)(2). See 81 FR 53897 (Aug. 12, 
2016).
    FRA also added language clarifying that a railroad must identify 
such a person even if the person is not otherwise required to comply 
with this rule (for example, a tourist railroad that operates over an 
RRP railroad's track). The final sentence of paragraph (d) is also 
essentially the same as the NPRM, and requires a railroad to ensure the 
identified persons support and participate in the railroad's RRP.
Section 271.103--Risk-Based Hazard Management Program
    Except for changing a reference to Sec.  271.301(b) in the proposed 
rule to Sec.  271.301(d) to account for organizational changes in Sec.  
271.301, FRA adopts this section, which contains the requirements for 
each risk-based hazard management program (HMP), unchanged from the 
NPRM. FRA is therefore not repeating the NPRM's section-by-section 
analysis in this final rule, but refers interested readers to the 
NPRM's discussion. See 80 FR 10970-10971 (Feb. 27, 2015). FRA is, 
however, discussing comments it received in response to the proposed 
requirements of this section, although FRA is not making changes in 
response.
    AAR/ASLRRA commented on proposed paragraph (b). As proposed under 
paragraph (b), a railroad must conduct a risk-based hazard analysis as 
part of its risk-based HMP and specified that, at a minimum, a risk-
based hazard analysis must address the following components of a 
railroad's system: Infrastructure; equipment; employee levels and work 
schedules; operating rules and practices; management structure; 
employee training; and other areas impacting railroad safety that are 
not covered by railroad safety laws or regulations or other Federal 
laws or regulations. AAR/ASLRRA commented that FRA should omit the 
reference to employee levels and work schedules because FRA carved 
fatigue management plans out for treatment in the separate FMP 
rulemaking. Thus, they conclude this language is not appropriate and 
should be removed.
    FRA disagrees with AAR/ASLRRA because the language ``employee 
levels and work schedules'' may encompass issues unrelated to fatigue 
the FMP rulemaking will not address. For example, whether a railroad 
has a sufficient number of track inspectors for a certain territory may 
involve a question of employee levels, but not necessarily fatigue.
    As proposed under paragraph (c) of the NPRM, a railroad must design 
and implement mitigation strategies that improve safety as part of its 
risk-based HMP, although the NPRM also clarified it was not defining a 
level or risk that railroad's risk-based HMP must target. See 80 FR 
10971 (Feb. 27, 2015). FRA observed, however, that FRA's Passenger 
Equipment Safety Standards require passenger railroads, when procuring 
new passenger cars and locomotives, to ensure fire considerations and 
features in the equipment design reduce the risk of personal injury 
caused by fire to an acceptable level using a formal safety methodology 
such as MIL-STD-882. See 80 FR 10971 (Feb. 27, 2015) (citing 49 CFR 
238.103(c)). FRA also noted passenger railroads operating Tier II 
passenger equipment must eliminate or

[[Page 9296]]

reduce risks posed by identified hazards to an acceptable level. See 
Id. (citing 49 CFR 238.603(a)(3)). FRA specifically requested comment 
on whether a final RRP rule should define levels of risks a railroad's 
risk-based HMP must target. Id.
    Only AAR/ASLRRA commented in response, urging FRA not to define 
levels of risk railroads should target.\23\ In support, AAR/ASLRRA 
distinguished the two part 238 provisions FRA cited from the proposed 
RRP rule, observing that the part 238 provisions involve risks 
associated with equipment design or operation, not risks associated 
with an entire railroad system. AAR/ASLRRA therefore observed it is not 
clear how the level of railroad-wide risk could be determined, given 
the number of component hazards and risks involved. AAR/ASLRRA also 
noted the cited part 238 provisions require reduction of risk to an 
acceptable level and refer to the methodology in MIL-STD-882, which 
requires reduction of risk to the lowest acceptable level within the 
constraints of cost, schedule, and performance, arguing these 
provisions themselves do not define acceptable or unacceptable levels 
of risk, but rather exhort actors to reduce risk to the lowest 
acceptable level, all things considered. AAR/ASLRRA assert that any 
additional requirement defining risk levels or resembling MIL-STD-882 
would only add process, not substance. Having considered these 
comments, FRA clarifies that neither Sec.  271.103 nor any other 
section in this final rule defines a level of risk a railroad should 
target.
---------------------------------------------------------------------------

    \23\ AAR/ASLRRA's comment indicated that they were responding to 
proposed Sec.  271.103(e). Because the NPRM did not contain a Sec.  
271.103(e), however, FRA assumes that AAR/ASLRRA's comment was in 
response to proposed paragraph (c) and FRA's solicitation of public 
comment.
---------------------------------------------------------------------------

    An individual also commented generally that an RRP final rule 
should require fitness-for-duty standards and railroads must do more to 
monitor and prevent human performance lapses leading to train 
collisions and derailments. The individual suggested that instead of 
using inward-facing cameras to monitor and enforce rules, railroads 
should utilize inward-facing cameras with facial monitoring software to 
apply train brakes when operating personnel are falling asleep or 
otherwise inattentive. FRA declines to incorporate these suggestions 
because they address specific mitigations measures for specific 
railroad safety risks, and therefore are inappropriate for the process-
oriented, performance-based nature of this final rule.
Section 271.105--Safety Performance Evaluation
    This section contains requirements for safety performance 
evaluations. Safety performance evaluation is a necessary part of a 
railroad's RRP because it determines whether the RRP is effectively 
reducing risk. It also monitors the railroad's system to identify 
emerging or new risks. The following are examples of changes to a 
railroad's system that may constitute a new or emerging risk: (1) A 
change in operating rules; (2) implementation of new technology, or (3) 
a reduction in crew staffing levels. Safety performance evaluation is 
essential for ensuring that a railroad's RRP is an ongoing process, and 
not merely a one-time exercise.
    Except for paragraph (a) and a minor editorial change in paragraph 
(c), discussed below, FRA adopts this section unchanged from the NPRM. 
FRA is therefore not repeating the NPRM's section-by-section analysis 
in this final rule and refers interested readers to the NPRM's 
discussion. See 80 FR 10971 (Feb. 27, 2015). FRA also discusses 
comments it received in response to proposed paragraph (b)(5), but 
makes no changes based on those comments.
    In addition to requiring a railroad to develop and maintain ongoing 
processes and systems for evaluating the safety performance of the 
railroad's system, paragraph (a) in the NPRM proposed requiring a 
railroad to develop and maintain processes and systems for measuring 
its safety culture. AAR/ASLRRA commented in response that section 20156 
does not require a railroad to measure its safety culture as FRA 
proposed in this section and in Sec.  271.213, discussed below. They 
argued the RSIA did not require a railroad to measure safety culture 
because it is hard to do so effectively and reliably, and culture can 
be described and evaluated, but not be meaningfully quantified. 
According to AAR/ASLRRA, each railroad is different, and their cultures 
and the ways those cultures present in the workplace are different. 
Further, as an RRP matures, they argued the approach each railroad 
takes to assessing its safety culture may change. AAR/ASLRRA 
specifically suggested that FRA should leave to each railroad the 
decisions regarding how to evaluate, assess, and support its safety 
culture without prescribing generation of measurement data.
    Contrary to AAR/ASLRRA's comment, FRA did not intend proposed 
paragraph (a) to require a specific data-driven and quantifiable 
measurement of a railroad's safety culture. As the NPRM explained, a 
railroad could measure its safety culture by surveying employees and 
management to establish an initial baseline safety culture, and then 
comparing the initial baseline to subsequent surveys. See 80 FR 10971 
(Feb. 27, 2015). The NPRM further clarified FRA would give a railroad 
substantial flexibility to decide which safety culture measurement best 
fit the organization--for example, a survey or other instrument that 
has been validated and proven to correlate with safety outcomes (i.e., 
the survey or other instrument has been studied to determine whether it 
reliably and repeatedly measures what it intends to measure). FRA's 
primary concern would be to ensure the selected measurement provided a 
way to demonstrate that an improvement in the safety culture would 
reliably lead to a corresponding improvement in safety. Id. This 
approach gives a railroad sufficient flexibility to measure its safety 
culture in a manner that works best for the railroad, as AAR/ASLRRA 
urge.
    In response to AAR/ASLRRA's comment, instead of the term 
``measuring,'' this section of the final rule uses the phrase 
``identifying and analyzing,'' which comes directly from section 
20156(c) of the statutory mandate. A railroad will still have the 
flexibility to decide how to identify and analyze its safety culture if 
the tools the railroad uses provide a way to connect improvements in 
safety culture to corresponding improvement in safety.
    Labor Organizations I also commented on how a railroad could 
measure safety culture. Referencing the FAA and ``Weick and 
Sutcliffe,'' Labor Organizations I noted that traits of a health safety 
culture can be identified within High Reliability Organizations. Labor 
Organizations I urged FRA to establish criteria mandating that railroad 
RRPs adhere to standards proven in other industries where the 
principles of safety are the same despite operational or other 
differences.
    FRA is not adopting specific standards regarding how a railroad 
must identify and analyze its railroad safety culture. Although various 
such standards exist, FRA is unaware of a universal standard for safety 
culture this final rule could adopt. Further, the final rule contains a 
DOT-wide definition of safety culture, discussed in the section-by-
section analysis for Sec.  270.5, which provides substance for the 
meaning of safety culture. Even if there was a universal safety culture 
standard fitting every railroad that FRA could mandate, doing so would 
codify today's safety culture standards into the rule, requiring an 
amendment process every

[[Page 9297]]

time such standards advanced or progressed. FRA anticipates the 
understanding of safety culture will change as time progresses and does 
not want to restrict railroads to using today's standards for 
tomorrow's analysis. FRA is therefore declining to mandate specific 
safety culture standards in the final rule, but is instead implementing 
an approach where a railroad must describe in its RRP plan how it will 
identify and analyze its safety culture, noted above.
    Paragraph (b)(5) in the NPRM proposed that one of the sources a 
railroad must establish to monitor safety performance is a reporting 
system through which employees can report safety concerns (including, 
but not limited to, hazards, issues, occurrences, and incidents) and 
propose safety solutions and improvements. The NPRM explained this 
would not require a railroad to establish an extensive program like 
FRA's C\3\RS, although FRA specifically requested public comment 
elsewhere in the NPRM on the extent to which programs like C\3\RS might 
be useful to develop an RRP or as a component of an RRP. See 80 FR 
10954 and 10971 (Feb. 27, 2015). Labor Organizations I commented in 
response that the confidentiality component of C\3\RS programs may make 
them difficult to contain within the confines of an RRP. Specifically, 
Labor Organizations I urged separation between RRP and C\3\RS because 
they believe C\3\RS confidentiality is incompatible with the level of 
description necessary to conform to this paragraph's requirements. 
Labor Organizations I also specifically commented that C\3\RS programs 
should not simply be re-branded to comply with the RRP requirements.
    FRA both disagrees and agrees with Labor Organization I's comment. 
FRA disagrees with Labor Organization I because a railroad could 
incorporate a C\3\RS program into its RRP. FRA also disagrees with 
Labor Organizations I that the confidentiality associated with C\3\RS 
programs may not be compatible with the description needed for this 
requirement. Even though C\3\RS reports are de-identified to remove 
information that may identify the reporter or other employees involved, 
sufficient information will likely still be included to allow a 
railroad to analyze the general risks and hazards presented by the 
report. Further, if a railroad wanted to obtain more information, it 
could establish a second reporting system to supplement C\3\RS for 
employees who are not concerned about maintaining confidentiality. FRA 
agrees with Labor Organizations I, however, that a railroad cannot 
comply with an RRP final rule simply by re-branding a C\3\RS program as 
an RRP. While C\3\RS can be part of an RRP, a railroad must go further 
to meet the requirements of this final rule.
    An individual also commented generally that FRA should require all 
railroads to implement a C\3\RS program as part of their RRPs. FRA is 
not implementing this suggestion because it is not in the voluntary 
spirit of the C\3\RS program. An effective C\3\RS depends on the trust 
and voluntary participation of all parties--qualities that would lose 
their meaning if FRA mandated C\3\RS for all RRP railroads.
    The final change FRA made to this section is replacing the phrase 
``For the purpose of assessing'' with the phrase ``To assess'' in 
paragraph (c). FRA made this change to streamline paragraph (c) and 
does not intend to affect its meaning.
Section 271.107--Safety Outreach
    FRA adopts this section, with requirements on the safety outreach 
component of an RRP, unchanged from the NPRM. FRA is therefore not 
repeating the NPRM's section-by-section analysis in this final rule, 
but refers interested readers to the NPRM's discussion. See 80 FR 
10971-10972 (Feb. 27, 2015).
Section 271.109--Technology Analysis and Technology Implementation Plan
    This section implements the RSIA requirement that an RRP include a 
technology analysis and a technology implementation plan. See 49 U.S.C. 
20156(e). Except for a PTC deadline revision discussed below and 
changing an incorrect reference in the proposed rule from Sec.  
271.13(e) to Sec.  271.13(d), FRA adopts this section unchanged from 
the NPRM, but is addressing comments received in response to this 
section in the NPRM. FRA is therefore not repeating the NPRM's section-
by-section analysis in this final rule but refers interested readers to 
the NPRM's discussion. See 80 FR 10972 (Feb. 27, 2015).
    Paragraph (b) in the NPRM proposed requiring a railroad to conduct 
a technology analysis evaluating current, new, or novel technologies 
that may mitigate or eliminate hazards and the resulting risks 
identified through the risk-based hazard management program. At a 
minimum, proposed paragraph (b) stated a technology analysis must 
consider processor-based technologies, PTC systems, electronically-
controlled pneumatic (ECP) brakes, rail integrity inspection systems, 
rail integrity warning systems, switch position monitors and 
indicators, trespasser prevention technology, and highway-rail grade 
crossing warning and protection technology.
    AAR/ASLRRA commented in response that FRA should not require a 
railroad to address PTC systems and ECP brakes, asserting that other 
rulemakings performed a cost/benefit analysis for PTC and ECP brakes. 
AAR/ASLRRA argued that requiring railroads to perform the same analyses 
again as part of complying with the rule would be meaningless and 
inappropriate.
    Because the RSIA mandates this requirement, FRA is promulgating 
paragraph (b) unchanged. In addition, this section requires a railroad 
to only evaluate the safety impact, feasibility, and costs and benefits 
of PTC systems and ECP brakes, and does not necessarily require 
implementation. This analysis will differ from railroad to railroad, 
and therefore is not directly comparable to FRA's cost/benefit analysis 
in other rulemakings.
    Paragraph (d) provides that, except as required by 49 CFR part 236, 
subpart I (Positive Train Control Systems), if a railroad decides to 
implement a PTC system as part of its technology implementation plan, 
the railroad shall set forth and comply with a schedule for 
implementation of the PTC system consistent with the deadlines in the 
Positive Train Control Enforcement and Implementation Act of 2015 
(PTCEI Act), Public Law 114-73, 129 Stat. 576-82 (Oct. 29, 2015), and 
49 CFR 236.1005(b)(7). The NPRM proposed that the railroad would have 
to implement the PTC system by December 31, 2018, which was consistent 
with 49 U.S.C. 20156(e)(4)(B). However, Congress subsequently passed 
the PTCEI Act, and FRA has changed paragraph (d) to reflect the changes 
to PTC implementation deadlines set forth in the Act. This paragraph 
does not, in itself, require a railroad to implement a PTC system. In 
the NPRM, FRA sought comment on whether a railroad electing to 
implement a PTC system would find it difficult to meet the December 31, 
2018 implementation deadline. If so, FRA invited comment as to what 
measures could be taken to assist a railroad struggling to meet the 
deadline and achieve the safety purposes of the statute. FRA received 
two comments in response to this request. AAR/ASLRRA commented that the 
2018 deadline is unrealistic even for the Class I railroads. Labor 
Organizations I and an individual commented that FRA should not extend 
the 2018 deadline.\24\
---------------------------------------------------------------------------

    \24\ Labor Organizations I identified a December 31, 2015 PTC 
deadline. As both the NPRM and section 20156(e)(4)(B) state that the 
deadline is December 31, 2018, FRA assumes that Labor Organizations 
I intended to reference the 2018 deadline, and that reference to a 
2015 deadline was an unintended mistake.

---------------------------------------------------------------------------

[[Page 9298]]

    FRA recognizes the challenges associated with implementing a PTC 
system; however, FRA also recognizes that PTC is a technology that a 
railroad may seek to implement to eliminate or mitigate hazards and the 
resulting risks. Therefore, the regulation provides railroads the 
flexibility to decide whether they want to implement a PTC system as 
part of their technology analysis and implementation plan; if they do 
so, they must comply with an implementation schedule consistent with 
the deadlines in the PTCEI Act. The SSP final rule establishes the same 
deadline in Sec.  270.103(r)(5). See 81 FR 53877 (Aug. 12, 2016).
Section 271.111--Implementation and Support Training
    This section requires a railroad to provide RRP training to each 
employee who has significant responsibility for implementing and 
supporting the railroad's RRP. Except for changes made to clarify 
paragraphs (a) and (b) discussed below, FRA adopts this section 
unchanged from the NPRM but is addressing comments received in response 
to this section in the NPRM. FRA is therefore not repeating the NPRM's 
section-by-section analysis in this final rule but refers interested 
readers to the NPRM's discussion. See 80 FR 10972-10973 (Feb. 27, 
2015).
    Proposed paragraph (a) specified the employees a railroad must 
train includes an employee of any person a railroad's RRP plan 
identified under Sec.  271.205(a)(3) when that employee has significant 
responsibility for implementing and supporting the railroad's RRP. See 
80 FR 10972 (Feb. 27, 2015). For reasons explained in the section-by-
section analysis for Sec.  271.101(d) above, FRA changed this provision 
to clarify which employees a railroad must identify under Sec.  
271.205(a)(3). FRA does not intend these changes to affect the 
substance of the proposed rule.
    Proposed paragraph (b) specified a railroad must keep a record of 
training conducted under this section and update that record as 
necessary. FRA has included language in this paragraph of the final 
rule clarifying a railroad must make these records available for 
inspection and copying upon request to FRA or State railroad safety 
inspectors.
    AAR/ASLRRA commented the proposed training requirement is an 
unnecessary and inappropriate overreach that belies the performance-
based approach to rulemaking FRA claims the proposed rule effects. AAR/
ASLRRA agreed with FRA's statement in the NPRM that the training 
requirement would apply to personnel not involved in operational duties 
and not directing or supervising those who do have such duties. 
However, AAR/ASLRRA asserted it would require a railroad to train 
employees including the chief safety officer of the railroad, and his 
or her direct reports and requiring employees at that level to submit 
to training implies they do not know or care how to do their jobs. AAR/
ASLRRA suggest that if railroads determine effective implementation of 
their RRP would be aided by training certain employees, the content and 
timing of such training is a matter appropriately left to the 
railroads.
    Conversely, Labor Organizations I commented the NPRM proposed 
highly limited requirements for railroads to train their employees to 
understand and participate in the RRP process. They argue there needs 
to be continued vigilant attention to risk reduction throughout the 
workforce to ensure there is full understanding of the dynamics of the 
issues in the workplace. Labor Organizations I suggested FRA should 
consider broadening the scope of the proposed training.
    FRA is implementing the proposed training requirement in this final 
rule substantively unchanged, without adding additional requirements. 
FRA disagrees with AAR/ASLRRA that this training is unnecessary, as 
railroad employees, including high-level employees, may not know how to 
implement an RRP that complies with the specific requirements of this 
final rule, even if the employees are otherwise familiar with safety 
risk reduction programs. FRA also disagrees with Labor Organizations I 
that the final rule should expand the scope of the training.
Section 271.113--Involvement of Railroad Employees
    This section requires a railroad's RRP to involve the railroad's 
directly affected employees in the establishment and implementation of 
an RRP.
    Paragraph (b) explains how a railroad should involve its directly 
affected employees, clarifying that a railroad must have a process for 
involving railroad employees when identifying hazards, developing and 
implementing mitigation strategies, conducting internal annual 
assessments, or otherwise performing actions required by this part. A 
railroad could involve its directly affected employees by including 
appropriate labor representatives or other employees on hazard 
management teams and by employee involvement in conducting RRP 
outreach.
    While the NPRM did not specifically propose this component, 
employee involvement is an important component of a successful RRP. As 
the NPRM stated, an RRP encourages a railroad and its employees to work 
together to proactively identify hazards and to jointly determine what 
action to take to mitigate or eliminate the associated risks. See 80 FR 
10950 (Feb. 27, 2015). While the NPRM contained provisions addressing 
railroad-employee consultation on the contents of a railroad's RRP 
plan, it did not specify that a railroad must involve its directly 
affected employees in subsequent implementation of its RRP plan. 
Nonetheless, FRA did not intend that a railroad could comply with the 
RRP plan consultation process requirements in Sec.  271.207 and then 
not involve its directly affected employees in any aspect of its RRP 
once FRA approves the plan. FRA does not believe that is consistent 
either with the collaborative and proactive nature of risk reduction or 
Congress' intent in requiring railroads to consult with directly 
affected employees on the contents of the railroad's RRP plan. FRA is 
therefore expressly including this section in the final rule. FRA is 
characterizing this requirement as employee ``involvement'' instead of 
``consultation'' to avoid confusion between this section and the 
requirements for RRP plan consultation in Sec.  271.207. These are 
distinct concepts because this section's involvement requirement will 
last through the duration of the railroad's RRP, while the Sec.  
271.207 plan consultation process requirement is satisfied when a 
railroad uses good faith and best efforts to consult with its directly 
affect employees on its RRP plan and when FRA approves the railroad's 
submitted plan.
    FRA further believes this involvement requirement will improve 
employee engagement in the railroad's RRP, thereby improving employee 
performance, safety culture, and railroad safety. See generally Wojick, 
Tom, Case: Engagement, Safety & Quality in Chemical Manufacturing, Oct. 
29, 2013, available at https://www.6seconds.org/2013/10/29/case-engagement-safety-quality/. Additionally, this requirement will lead to 
improvements in employee psychology and behavior, which are important 
components of safety culture. See generally Arendt, Don, Federal 
Aviation Administration, A Model of Organizational Culture, Dec. 2008,

[[Page 9299]]

available at https://www.faa.gov/about/initiatives/sms/reference_library/links/media/organizational_culture_model.pdf.

Subpart C--Risk Reduction Program Plan Requirements

    Subpart C contains requirements for RRP plans.
Section 271.201--General
    This section requires a railroad to adopt and implement its RRP 
through a written RRP plan FRA has reviewed and approved under the 
requirements of subpart D. Because FRA adopts this provision unchanged 
from the NPRM, FRA is not repeating the NPRM's section-by-section 
analysis here but refers interested readers to the NPRM's discussion. 
See 80 FR 10973 (Feb. 27, 2015).
Section 271.203--Policy, Purpose and Scope, and Goals
    This section contains requirements for policy, purpose and scope, 
and goals statements for an RRP plan. Except for moving a provision the 
NPRM proposed in paragraph (b)(4) to Sec.  271.205(a)(4), as discussed 
below, this section remains unchanged. FRA is therefore not repeating 
the NPRM's section-by-section analysis here but refers interested 
readers to the NPRM's discussion. See 80 FR 10973-10974 (Feb. 25, 
2017). FRA is otherwise addressing a comment received in response to 
this section in the NPRM, but is making no changes in response.
    Paragraph (a) in the NPRM proposed requiring an RRP plan to include 
a policy statement endorsing the railroad's RRP signed by the chief 
official of the railroad (e.g., Chief Executive Officer). AAR/ASLRRA 
commented FRA should require the railroad's Chief Safety Officer to 
sign the policy statement, as the RRP Working Group had proposed. AAR/
ASLRRA further argued the proposed requirement also departs from 
section 20156(b), which specifies the chief official responsible for 
safety shall certify the contents of the program are accurate and the 
railroad will implement the contents of the plan. AAR/ASLRRA also 
asserted the chief official for safety will be more familiar with the 
details of the RRP than the chief official of the railroad and 
therefore is the more appropriate person to sign the policy statement.
    FRA has not departed from the RSIA requirements because Sec.  
271.301(c)(1) of the final rule requires the railroad's chief official 
for safety to sign the RRP plan and certify the contents of the RRP 
plan are accurate and the railroad will implement the contents of the 
plan. This substantively mirrors the language in section 20156(b). 
Paragraph (a) of this section, however, requires the chief official at 
the railroad to sign the RRP policy statement, not the entire RRP plan. 
Prior experience with effective risk management programs has 
demonstrated to FRA how important the active involvement of the highest 
railroad officials is to improving safety and safety culture. 
Therefore, FRA determined the chief official at the railroad must sign 
the RRP policy statement.
    Paragraph (b)(4) in the NPRM proposed requiring an RRP plan's 
purpose and scope statement to describe how any person that utilizes or 
provides significant safety-related services to a railroad (including 
host railroads, contract operators, shared track/corridor operators, or 
their contractors) will support and participate in the railroad's RRP. 
Upon review of the NPRM, FRA believes this provision belongs more 
appropriately in the Sec.  271.205 requirements regarding an RRP plan's 
system description. FRA has therefore moved this provision to Sec.  
271.205(a)(4), and the section-by-section analysis for that section 
will discuss this provision further.
Section 271.205--System Description
    This section requires an RRP plan to include a statement describing 
the characteristics of the railroad system. Except for changes made to 
clarify paragraph (a)(3) and language moved from Sec.  271.203(b)(4) to 
paragraph (a)(4) of this section, discussed below, FRA adopts this 
section unchanged from the NPRM. FRA is therefore not repeating the 
NPRM's section-by-section analysis in this final rule but refers 
interested readers to the NPRM's discussion. See 80 FR 10974 (Feb. 27, 
2015). FRA did not receive any comments in response to this section.
    Paragraph (a)(3) in the NPRM proposed requiring an RRP plan's 
system description to identify all persons that utilize or perform 
significant safety-related services on the railroad's behalf (including 
entities such as host railroads, contract operations, shared track/
corridor operators, or other contractors). FRA modified paragraph 
(a)(3) to clarify its requirements and refers readers to the 
explanation of those changes in the section-by-section analysis for 
Sec.  271.101(d). FRA does not intend these changes to affect the 
substance of the rule.
    FRA is also adding a paragraph (a)(4) to this section that contains 
language from Sec.  271.203(b)(4) in the NPRM, which proposed requiring 
an RRP plan to include a purpose and scope statement describing how any 
person that utilizes or provides significant safety-related services to 
a railroad (including host railroads, contract operators, shared track/
corridor operators, or other contractors) will support and participate 
in the railroad's RRP. Because this section requires a railroad's RRP 
plan to identify such persons as part of its system description, FRA 
concluded the requirement to describe how such persons will support and 
participate in the railroad's RRP fits better in this section. FRA's 
changes are for clarity only. Paragraph (a)(4) requires an RRP plan's 
system description to describe how the railroad will ensure any person 
identified under paragraph (a)(3) of this section will support and 
participate in the railroad's RRP. As an example, paragraph (a)(4) 
states the system description must describe the extent to which such 
persons will, as part of the railroad's RRP, help identify hazards, 
develop and implement mitigation strategies, conduct internal annual 
assessments, or otherwise perform actions this part requires.
Section 271.207--Consultation Requirements
    Section 271.207 implements section 20156(g)(1), which states a 
railroad required to establish an RRP must consult with, employ good 
faith, and use its best efforts to reach agreement with, all its 
directly affected employees, including any non-profit employee labor 
organization representing a class or craft of directly affected 
employees of the railroad carrier, on the contents of the RRP plan. 
This section also implements section 20156(g)(2), which further 
provides that if a railroad carrier and its directly affected 
employees, including any nonprofit employee labor organization 
representing a class or craft of directly affected employees of the 
railroad carrier, cannot reach consensus on the proposed contents of 
the RRP plan, then directly affected employees and such organizations 
may file a statement explaining their views on the plan on which 
consensus was not reached. See 49 U.S.C. 20156(g)(2). The RSIA requires 
FRA to consider these views during review and approval of a railroad's 
RRP plan. Id.
    FRA made several changes to this section from the NPRM. These 
changes respond to comments received, conform this rule to the SSP 
final rule, and renumber certain paragraphs for better organization. 
For clarity, FRA is briefly discussing each provision of this section, 
even provisions FRA adopts unchanged from the NPRM. To promote 
consistency with the SSP final rule,

[[Page 9300]]

FRA has changed the title of this section from ``consultation process 
description'' to ``consultation requirements.'' See 49 CFR 270.107. 
This discussion also notes minor differences between the consultation 
provisions in the RRP and SSP rules.
    Paragraph (a)(1) implements section 20156(g)(1) by requiring a 
railroad to consult with its directly affected employees on the 
contents of its RRP plan, including any non-profit employee labor 
organization representing a class or craft of the railroad's directly 
affected employees. As part of that consultation, a railroad must 
utilize good faith and best efforts to reach agreement with its 
directly affected employees on the contents of its plan. FRA has not 
changed this language from the NPRM.
    Paragraph (a)(2) specifies a railroad that consults with a non-
profit employee labor organization is considered to have consulted with 
the directly affected employees that organization represents.
    Paragraph (b) states a railroad must have a preliminary meeting 
with its directly affected employees to discuss how the consultation 
process will proceed. While the NPRM did not include this language, FRA 
added it merely as an introductory clause for the subsequent 
requirements in paragraphs (b)(1) through (4), discussed below, which 
were all included in proposed paragraphs (a)(3) through (6) of the 
NPRM. FRA believes including the preliminary meeting requirements in a 
separate paragraph (b) improves the organization and clarity of this 
section.
    Some commenters to the corresponding consultation provision of the 
SSP NPRM appeared to believe this preliminary meeting must discuss the 
substance of the RRP plan. To rectify this misunderstanding, FRA is 
adding language in paragraph (b) specifying a railroad is not required 
to discuss the substance of an RRP plan during this preliminary 
meeting. Rather, the preliminary meeting may be administrative in 
nature so all parties understand the consultation process and may 
engage in substantive discussions as soon as possible after the Sec.  
271.11 protections become applicable. The preliminary meeting is also 
an opportunity for the railroad to educate directly affected employees 
on risk reduction and how it may affect them. The SSP final rule 
incorporates substantively identical language. See 81 FR 53883 and 
53900 (Aug. 12, 2016).
    Paragraphs (b)(1) through (3) contain the deadlines Class I 
railroads, ISP railroads, and railroads that STB reclassifies or newly 
classifies as Class I railroads must meet to hold the preliminary 
meeting with their directly affected employees. FRA merely renumbered 
these provisions from paragraphs (a)(3) through (5) of the NPRM to 
paragraphs (b)(1) through (3) in this final rule. This reorganization 
does not affect the substance of these paragraphs. FRA refers 
interested readers to the NPRM discussion of paragraphs (a)(3) through 
(5) for additional information. See 80 FR 10975 (Feb. 27, 2015).
    Paragraph (a)(6) of the NPRM, stating a voluntarily-compliant 
railroad must also consult with its directly affected employees using 
good faith and best efforts, is in paragraph (b)(4) of the final rule. 
Paragraph (a)(6) also proposed, however, that because there is no 
deadline for a voluntarily-compliant railroad to file an RRP plan with 
FRA, there would also be no requirement for a voluntarily-compliant 
railroad to meet with its directly affected employees within a certain 
timeframe. Because FRA decided to include a notification and filing 
deadline for voluntarily-compliant railroads in Sec.  271.301(b)(4)(i), 
discussed below, FRA is adding language in paragraph (b)(4) that 
applies to voluntarily-compliant railroads the same consultation 
deadlines for ISP railroads and railroads that STB reclassifies or 
newly classifies as Class I railroads.
    Labor Organizations I commented that this section requires railroad 
management and labor to have only one, non-substantive administrative 
meeting. To correct any implication that this is the only meeting a 
railroad must hold to comply with all the consultation process 
requirements of this section, FRA added language to paragraph (b)(5) 
clarifying the mandatory preliminary meeting does not constitute full 
compliance with the consultation process requirements of this section. 
Although the NPRM did not include this language, it does not impose any 
additional substantive requirement. The SSP rule does not contain this 
provision because a similar comment was not received in response to the 
SSP NPRM. FRA does not intend this to indicate a substantive difference 
between the consultation requirements of the SSP and RRP rules.
    Paragraph (a)(7) of the NPRM, which directed readers to appendix B 
for additional guidance on how a railroad can comply with the 
consultation process requirements of this section, is paragraph (c) of 
the final rule. FRA renumbered this paragraph for better organization 
and clarity and changed it to direct readers to appendix A instead of 
appendix B (for reasons discussed in the section-by-section analysis 
for appendices A and B). FRA discusses appendix A later in this 
preamble.
    Paragraph (d) of the final rule, requiring a railroad to submit, 
together with its RRP plan, a consultation statement, was paragraph (b) 
in the NPRM. The consultation statement must contain specific 
information described in paragraphs (d)(1) through (3) of this final 
rule, which were renumbered from paragraphs (b)(1), (2), and (4) in the 
NPRM. Paragraph (d)(1), which requires a consultation statement to 
describe the process a railroad uses to consult with its directly 
affected employees, is unchanged from paragraph (b)(1) of the NPRM.
    If the railroad cannot reach agreement with its directly affected 
employees on the contents of its RRP plan, paragraph (d)(2) requires 
the consultation statement to identify any areas of non-agreement and 
provide the railroad's explanation for why it believed agreement was 
not reached. FRA made a minor editorial change to paragraph (d)(2) to 
be consistent with the SSP final rule by changing the phrase ``was not 
able to'' to ``could not.'' See 81 FR 53901 (Aug. 12, 2016). This 
change does not affect the substance of this provision. Additionally, 
while the NPRM used the term ``disagreement,'' FRA changed this to 
``non-agreement'' in the final rule to conform more closely with the 
statutory language in section 20156(g)(1). Although the SSP rule uses 
``disagreement'' instead of ``non-agreement,'' FRA does not intend this 
to indicate a substantive difference between the consultation 
requirements of the SSP and RRP rules.
    Paragraph (b)(3) of the NPRM proposed that if the RRP plan would 
affect a provision of a collective bargaining agreement between the 
railroad and a non-profit employee labor organization, the consultation 
statement must identify that provision and explain how the railroad's 
RRP plan would affect it. In response to the NPRM, AAR/ASLRRA commented 
this provision went too far because collective bargaining is a matter 
between railroads and their employees beyond FRA's jurisdiction. FRA 
agrees and is not including this provision in the final rule.
    Under paragraph (d)(3) of the final rule, proposed as paragraph 
(b)(4) of the NPRM, the consultation statement must include a service 
list of the names and contact information for the international/
national president of any non-profit employee labor organization 
representing directly affected employees and any directly affected 
employee not represented by a non-profit employee labor organization 
who significantly

[[Page 9301]]

participated in the consultation process. FRA did not make any 
substantive changes to this provision but FRA made the following 
editorial changes to promote consistency with the SSP final rule and to 
improve clarity. Although the first sentence in the NPRM addressed both 
international/national presidents of any non-profit employee labor 
organization and individual directly affected employees, FRA separated 
this requirement into two separate sentences and made additional 
changes to clarify a railroad must include only a directly affected 
employee who significantly participated in the consultation process on 
the service list if that employee participated independent of a non-
profit employee labor organization. FRA also modified the second to the 
last sentence of paragraph (d)(3) to add a reference to the plan 
submission requirements of Sec.  271.301 and to clarify that a railroad 
must simultaneously provide its RRP plan and consultation statement to 
individuals the service list identifies. These changes do not affect 
the substance of this paragraph.\25\
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    \25\ FRA notes that paragraph (d)(3) in the RRP final rule 
contains two provisions not in the SSP rule. The first provision 
states that if an international/national president did not 
participate in the consultation process, the service list must 
include information for the designated representative who 
participated on his or her behalf, and the second states that a 
railroad may send documents to individuals on the service list via 
electronic means or other service means reasonably calculated to 
succeed. The RRP NPRM proposed these provisions (see 80 FR 10994 
(Feb. 27, 2015)), and their non-inclusion in the SSP final rule was 
an oversight.
---------------------------------------------------------------------------

    Under paragraph (e)(1) of the final rule, proposed as paragraph 
(c)(1) in the NPRM, if a railroad and its directly affected employees 
cannot reach agreement on the proposed contents of an RRP plan, then a 
directly affected employee may file a statement with the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer explaining 
his or her views on the plan on which agreement was not reached. See 49 
U.S.C. 20156(g)(2). Except for correcting a typo in the proposed rule 
(replacing ``then directly affected employees'' with ``the directly 
affected employees'') and specifically identifying the address for the 
FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, FRA has not changed this paragraph from the NPRM. The above 
changes do not affect the substance of this paragraph.
    Paragraph (e)(2) of the final rule, proposed as paragraph (c)(2) in 
the NPRM, specifies that a railroad's directly affected employees have 
30 days following the railroad's submission of its proposed RRP plan to 
submit the statement described in paragraph (e)(1) of this section. 
While the NPRM proposed giving directly affected employees 60 days to 
submit their statement, FRA believes that 30 days is more appropriate. 
This decision takes into account that paragraph (b)(3) ensures directly 
affected employees are provided the RRP plan and the consultation 
statement at the same time the railroad provides these documents to FRA 
for review. Moreover, under Sec.  271.301(d) of the final rule 
(discussed below), FRA will review an RRP plan within 90 days of 
receipt. As a result, if the directly affected employees had 60 days to 
submit a statement when agreement on the RRP plan was not reached, FRA 
would have only 30 days to consider the directly affected employees' 
view while reviewing the RRP plan. Thirty days would not be enough time 
to ensure that FRA sufficiently considered the directly affected 
employees' views during the RRP review process. Finally, the deadline 
is identical to the deadline for directly affected employee statements 
in Sec.  271.107(c)(2), which was also changed from a proposed 60-day 
deadline in the SSP NPRM. See 81 FR 53886 (Aug. 12, 2016). To further 
promote consistency with the SSP final rule, FRA has also removed a 
reference in proposed paragraph (c)(2) to Sec.  271.301(a)(4). See 49 
CFR 271.107(c)(2).
    In the preamble to the NPRM, FRA explained that it would help a 
railroad develop its RRP. The preamble to the SSP NPRM expressed a 
similar intent. Labor Organizations I commented expressing concern that 
this preamble language indicates that FRA will work exclusively with 
the railroads, precluding the involvement of any other interested 
party. Labor Organizations I fear that this would substitute FRA for 
the directly affected employees in the statutorily-mandated 
consultation role.
    This was not FRA's intent in the preamble discussion. Rather, FRA 
meant to communicate that FRA would be available to provide guidance to 
the railroads on the various aspects of the rule, not that there would 
be an exclusive partnership between FRA and the railroads to develop 
RRPs. FRA guidance to railroads will not replace Labor Organizations I 
or any directly affected employee in the consultation role. Under the 
consultation process required by Sec.  271.207, a railroad must use 
good faith and best efforts to reach agreement with directly affected 
employees on the railroad's RRP plan. While the section-by-section 
analysis discusses ``good faith'' and ``best efforts'' further, a 
railroad will not be able to meet these standards merely by submitting 
the required consultation statement. Directly affected railroad 
employees will therefore always have an opportunity to provide input on 
the railroad's RRP plan, regardless of guidance FRA provides the 
railroad on developing an RRP plan.
    Labor Organizations I also argue that FRA improperly classified the 
process under section 20156(g) as one of consultation. Rather, Labor 
Organizations I believe that section 20156(g) requires a railroad to 
negotiate or bargain with directly affected employees in accordance 
with the legal authority of the Railway Labor Act, as amended.
    FRA disagrees. Nothing in section 20156(g) requires a railroad to 
negotiate or bargain with directly affected employees on the contents 
of an RRP plan. Rather, section 20156(g) requires a railroad to 
``consult with, employ good faith and use [its] best efforts to reach 
agreement with'' directly affected employees (including Labor 
Organizations I). Throughout SSP and RRP RSAC meetings, FRA referred to 
this process as one of consultation, not negotiation or bargaining. The 
NPRM proposed text contained language identical to language in section 
20156(g), and FRA does not believe that this language requires a 
process of negotiation or bargaining consistent with the Railway Labor 
Act. Requiring a process of negotiation or bargaining would therefore 
be beyond the scope of FRA's authority in section 20156(g).
    Labor Organizations I also expressed concern that various estimates 
regarding employee involvement and the consultation process in the 
Regulatory Impact Analysis and the Paperwork Reduction Act analysis 
were too low. Labor Organizations I claim the estimated time periods 
were too short and would result in an inconsequential amount of time 
for consultation on the contents of the plan. FRA notes that the time 
periods in the analyses were only estimates and that the analyses 
requested comment on these estimates. See 80 FR 10988 and Regulatory 
Impact Analysis, at ii (Feb. 27, 2015). While Labor Organizations I did 
not provide suggested estimates that they believe are more appropriate, 
FRA has changed the final rule to add Sec.  271.113 (discussed above), 
which requires a railroad to involve its directly affected employees in 
the establishment and implementation of an RRP. FRA has also updated 
its estimates of the time RRP safety outreach is expected to take, 
required under Sec.  271.107 of the final

[[Page 9302]]

rule, from 15 minutes to 60 minutes per employee.\26\
---------------------------------------------------------------------------

    \26\ For additional discussion, see Section 4.1., Consultation: 
Time Needed to Consult (Economic Impact) and Timeline, of the 
Regulatory Impact Analysis accompanying this final rule.
---------------------------------------------------------------------------

    Labor Organizations I also expressed concern that the NPRM did not 
contain a penalty schedule or otherwise propose a mechanism for 
enforcing the consultation process requirements. Labor Organizations I 
specifically suggested that the DOT Secretary and the President of the 
United States ``publish an Executive Order supplementing enforcement of 
[section] 103 by providing for suspension and cancellation of federal 
payments and benefits to contracting railroads similar to Sec. 7 of 
E.O. 13,496, . . . codified at 29 CFR [ ] 471.14.''
    Regarding the lack of a penalty schedule, FRA typically does not 
include penalty schedules in an NPRM. Section 271.9(a) of this final 
rule, however, refers readers to FRA's website for a penalty schedule. 
Because a penalty schedule is a statement of agency policy, FRA was not 
required to provide notice and comment before its issuance. See 5 
U.S.C. 553(b)(3)(A). FRA also notes that none of its enforcement 
authority is supplemented by a Presidential executive order. FRA 
concludes, therefore, that an executive order is not necessary to 
enforce the RRP requirements, even assuming that the President 
concluded that such an executive order would be legal and appropriate.
Section 271.209--Consultation on Amendments
    This section describes the consultation process requirements for 
amendments to a railroad's RRP plan. Except for replacing an incorrect 
reference to ``system safety program'' with the correct ``RRP plan'' 
and replacing the incorrect term ``paragraph'' with ``section,'' FRA 
adopts this section unchanged from the NPRM. FRA is therefore not 
repeating the NPRM's section-by-section analysis in this final rule, 
but refers interested readers to the NPRM's discussion. See 80 FR 10976 
(Feb. 27, 2015). FRA did not receive any comments on this section.
Section 271.211--Risk-Based Hazard Management Program Process
    This section requires an RRP plan to describe the railroad's 
process for conducting a risk-based HMP. Because FRA received no 
comments and adopts this section unchanged from the NPRM (except for 
editorial changes in paragraph (c) to standardize its approach with 
paragraph (b) and to clarify that the section's requirements are 
minimal requirements), FRA is not repeating the NPRM's section-by-
section analysis in this final rule, but refers interested readers to 
the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
Section 271.213--Safety Performance Evaluation Process
    This section requires an RRP plan to describe the railroad's 
processes for identifying and analyzing its safety culture under Sec.  
271.105, monitoring safety performance under Sec.  271.105(b), and 
conducting safety assessments under Sec.  271.105(c). While this 
section proposed requiring an RRP plan to describe a railroad's 
processes for ``measuring'' safety culture in the NPRM, FRA replaced 
the term ``measuring'' with the phrase ``identifying and analyzing'' 
for reasons discussed in the above section-by-section analysis for 
Sec.  271.105. FRA otherwise adopts this section unchanged from the 
NPRM. See 80 FR 10976 (Feb. 27, 2015).
Section 271.215--Safety Outreach Process
    This section requires an RRP plan to describe a railroad's 
processes for communicating safety information to railroad personnel 
and management under Sec.  271.107. FRA received no comments and adopts 
this section unchanged from the NPRM, except for exchanging the word 
``process'' with ``processes.'' FRA is therefore not repeating the 
NPRM's section-by-section analysis in this final rule, but refers 
interested readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27, 
2015).
Section 271.217--Technology Implementation Plan Process
    This section requires an RRP plan to describe a railroad's 
processes for conducting a technology analysis pursuant to Sec.  
271.109(b) and for developing a technology implementation plan pursuant 
to Sec.  271.109(c). FRA received no comments and adopts this section 
unchanged from the NPRM. FRA is therefore not repeating the NPRM's 
section-by-section analysis in this final rule, but refers interested 
readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
Section 271.219--Implementation and Support Training Plan
    This section requires an RRP plan to contain a training plan 
describing the railroad's processes for training, under Sec.  271.111, 
employees with significant responsibility for implementing and 
supporting the RRP. Paragraph (a) in the NPRM specified these employees 
must include persons a railroad identifies under Sec.  271.205(a)(3) as 
utilizing or performing significant safety-related services on the 
railroad's behalf. For reasons explained in the section-by-section 
analysis for Sec.  271.101(d) above, FRA clarified the requirements of 
this provision. The modified language states that the employees must 
include employees that a railroad identifies under Sec.  271.205(a)(3) 
as performing on the railroad's behalf significant safety-related 
services or utilizing safety-related services provided by the railroad 
for railroad operations purposes. FRA has not otherwise changed 
paragraph (a) of this section.
    Paragraph (b) in the NPRM proposed requiring the training plan to 
describe the content and frequency of the RRP training for each 
position or job function a railroad identifies under Sec.  
271.223(b)(3) as having significant responsibilities for implementing 
the RRP. FRA modified the proposed language in two ways. First, FRA 
changed the Sec.  271.223(b)(3) reference to Sec.  271.225(b)(3) due to 
FRA's inclusion of a new Sec.  271.221 in the final rule, discussed 
below, which resulted in the renumbering of subsequent sections in 
subpart C of the final rule. AAR/ASLRRA also commented there was some 
inconsistency in the NPRM because it discusses the training requirement 
as a one-time event, but also mentions training frequency. FRA has 
addressed this inconsistency by not including the term ``frequency'' in 
this section, unlike the proposed language. AAR/ASLRRA are correct that 
the term is not necessary because the training is a one-time event. FRA 
has not otherwise changed paragraph (b) of this section.
Section 271.221--Involvement of Railroad Employees Process
    This section requires an RRP plan to describe the railroad's 
processes for involving railroad employees in the establishment and 
implementation of an RRP under Sec.  271.113. For reasons discussed in 
the section-by-section analysis for Sec.  271.113 above, FRA did not 
specifically propose this requirement in the NPRM, but is including it 
in the final rule to clarify a railroad must involve its employees in 
the RRP.
    This section in the NPRM contained RRP plan requirements for a 
railroad's internal assessment process in the NPRM. To accommodate this 
RRP plan involvement requirement, FRA moved the internal assessment 
process

[[Page 9303]]

requirements to Sec.  271.223 and renumbered the rest of subpart C 
accordingly.
Section 271.223--Internal Assessment Process
    Paragraph (a) of this section, proposed as Sec.  271.221 in the 
NPRM, requires an RRP plan to describe a railroad's processes for 
conducting an internal assessment of its RRP under proposed subpart E. 
Paragraph (b) is reserved. FRA did not receive any comments on this 
section and, except for moving it to this section in the final rule, 
adopts this section unchanged from the NPRM. FRA is therefore not 
repeating the NPRM's section-by-section analysis in this final rule, 
but refers interested readers to the NPRM's discussion. See 80 FR 
10976-10977 (Feb. 27, 2015).
Section 271.225--RRP Implementation Plan
    Paragraph (a) of this section, proposed as Sec.  271.223 in the 
NPRM, requires an RRP plan to describe how the railroad will implement 
its RRP. Except for editorial changes in paragraph (a) and (b)(3), 
discussed below, FRA adopts this section unchanged from the NPRM. These 
changes do not affect the substance of this section and FRA did not 
receive any comments on this section. FRA is therefore not repeating 
the NPRM's entire section-by-section analysis in this final rule, but 
refers interested readers to the NPRM's discussion. See 80 FR 10977 
(Feb. 27, 2015).
    FRA modified paragraph (a) to change language in the second 
sentence from passive to active voice, clarifying that the railroad 
must fully implement the entire RRP within 36 months of FRA's approval 
of the plan.
    For reasons explained in the section-by-section analysis for Sec.  
271.101(d), above, FRA modified the language of paragraph (b)(3) to 
clarify its requirements. Paragraph (b)(3) requires a railroad's 
implementation plan to describe the roles and responsibilities of each 
position or job function with significant responsibility for 
implementing the railroad's RRP. Paragraph (b)(3) that this includes 
positions held by contractors that either perform significant safety-
related services on the railroad's behalf or utilize significant 
safety-related services the railroad provides.

Subpart D--Review, Approval, and Retention of Risk Reduction Program 
Plans

    The RSIA requires a railroad to submit its RRP, including any of 
the required plans, to the FRA Administrator (as delegate of the 
Secretary) for review and approval. See 49 U.S.C. 20156(a)(1)(B). 
Subpart D, Review, Approval, and Retention of System Safety Program 
Plans, contains requirements addressing this mandate.
Section 271.301--Filing and Approval
    This section contains requirements for the filing of an RRP plan 
and FRA's approval process. While FRA did not receive any comments on 
this section, FRA modified this section from the NPRM as discussed 
below. For background discussion on provisions that FRA has not 
changed, FRA refers readers to the NPRM's discussion. See 80 FR 10977-
10978 (Feb. 27, 2015).
    Paragraph (a) generally requires a railroad to submit a copy of its 
RRP plan to the FRA Associate Administrator for Railroad Safety and 
Chief Safety Officer. Paragraph (a) of the NPRM also contained the RRP 
plan submission deadlines for Class I railroads, railroads with 
inadequate safety performance, railroads that the STB classifies or 
newly classifies as a Class I railroad, and voluntarily compliant 
railroads. For organizational clarity, FRA moved these deadlines to 
paragraph (b) and made each deadline separate paragraphs (b)(1) through 
(4). FRA is further modifying the deadline for ISP railroads in 
paragraph (b)(2). While the NPRM proposed requiring an ISP railroad to 
provide FRA an RRP plan no later than 90 days after receiving final 
notification from FRA under Sec.  271.13, FRA is extending this 
timeline to 180 days in the final rule to account for the petition 
process FRA is including in Sec.  271.13(f). Paragraphs (a)(1) through 
(4) of the NPRM also contained certain requirements for the RRP plan, 
which FRA moved to paragraph (c) in the final rule. These 
organizational changes resulted in the renumbering of the other 
paragraphs in this section but do not affect the substance of the rule.
    While the NPRM proposed that a voluntarily-compliant railroad could 
submit an RRP plan to FRA for review and approval at any time, FRA 
concluded the proposed approach is vague. FRA based its conclusion on 
the fact that it leaves uncertainty about when a voluntarily-compliant 
railroad begins to compile and collect information solely for RRP 
purposes such that the rule's information protection provisions would 
apply. Paragraph (b)(4)(i) of the final rule therefore states a 
voluntarily-compliant railroad must provide FRA written notice of its 
intent to submit an RRP plan for FRA's review and approval. Under 
paragraph (b)(4)(ii), the date FRA receives the written notice or 
February 18, 2021, whichever is later, is the date the voluntarily-
compliant railroad may begin to compile or collect information solely 
for the purpose of planning, implementing, or evaluating an RRP under 
the information protection provisions of Sec.  271.11. To ensure a 
voluntarily-compliant railroad does indeed submit an RRP plan for FRA's 
review and approval once the railroad begins compiling or collecting 
information solely for RRP purposes, paragraph (b)(4)(iii) states a 
voluntarily-compliant railroad must submit its RRP plan for review and 
approval no later than 180 days after FRA receives the railroad's 
written notice. This is the same amount of time an ISP railroad has to 
submit its RRP plan under paragraph (b)(2).
    Paragraphs (c)(1) through (4), proposed as paragraphs (a)(1) 
through (4) of the NPRM, require a railroad to provide certain 
additional information as part of its submission. Aside from the 
reorganization, FRA did not make any changes to the language in 
paragraphs (c)(1) and (2). For reasons explained by the section-by-
section analysis for Sec.  271.101(d), above, FRA changed paragraph 
(c)(3) to clarify its requirements. Paragraph (c)(3) requires a 
railroad's RRP plan to include the contact information for the senior 
representatives of any person that has entered into a contractual 
relationship with the railroad to either perform significant safety-
related services on the railroad's behalf or to utilize significant 
safety-related services the railroad provides for railroad operations. 
This includes the senior representatives of host railroads, contract 
operators, shared track/corridor operators, and other contractors. This 
change does not affect the substance of this provision.
    Paragraph (c)(4), proposed as paragraph (a)(4) in the NPRM, 
requires a railroad to submit a statement describing how it consulted 
with its directly affected employees on the contents of its RRP plan 
under Sec.  271.207(d). This paragraph also reminds directly affected 
employees that they have 30 days following the railroad's submission of 
its proposed RRP plan to file a statement under Sec.  271.207(e)(2). 
FRA has made three changes to these requirements from the NPRM. First, 
this paragraph referenced Sec.  271.207(b) and (c) in the NPRM, and FRA 
changed these references to Sec.  271.207(d) and (e)(2) to reflect 
organizational changes to Sec.  271.207. For plain language purposes, 
FRA also changed the phrase ``in accordance with'' to ``under.'' These 
changes do not affect the substance of this requirement. Finally, while 
the NPRM proposed

[[Page 9304]]

providing directly affected employees 60 days to submit a statement 
following a railroad's submission of its RRP plan, FRA believes 30 days 
is more appropriate. The section-by-section analysis for Sec.  
271.207(e)(2) explains why FRA has made this change.
    Paragraph (d), proposed as paragraph (b) in the NPRM, explains how 
FRA will approve a railroad's RRP plan. Except for updating references 
to reflect organizational changes in Sec.  271.207, making a non-
substantive editorial change in paragraph (d)(1), extending a deadline 
in paragraph (d)(3), and adding minor provisions in paragraphs (d)(3) 
and (4), FRA adopts this paragraph unchanged from the NPRM. In 
paragraph (d)(1), FRA changed the language ``prior to the commencement 
of railroad operations'' to ``before the start of railroad operations'' 
for plain language purposes. Under paragraph (d)(3), when a railroad 
receives notification that FRA has not approved its plan and notice of 
the specific points in which the plan is deficient, the railroad has 90 
days to correct all of the deficiencies identified and resubmit the 
plan to FRA. Both the SSP NPRM and the RRP NPRM proposed giving a 
railroad 60 days to correct identified deficiencies, but FRA received 
comments in response to the SSP NPRM expressing concern that 60 days 
was not a sufficient amount of time for a railroad to address the 
deficient points of an SSP plan. See 81 FR 53888 (Aug. 12, 2016) and 80 
FR 10995 (Feb. 27, 2015). The SSP final rule addressed this concern by 
extending the deadline to 90 days, and this final rule does the same to 
keep the rules consistent. See 49 CFR 270.201(b)(3) and 81 FR 53888 
(Aug. 12, 2016). FRA has also modified paragraph (d)(3) to include 
language indicating that FRA will review a corrected RRP plan within 60 
days of receipt.
    FRA has modified paragraph (d)(4) to include language stating FRA's 
approval of a railroad's RRP plan does not constitute approval of the 
specific actions the railroad will implement under its RRP plan and 
shall not be construed as establishing a Federal standard regarding 
those specific actions. Section V.A.5 of the preamble, above, explains 
that FRA has added this language to specifically preserve State claims.
    Paragraph (e), proposed as paragraph (c) in the NPRM, specifies 
that all documents required to be submitted to FRA under this part may 
be submitted electronically under the procedures in appendix B to this 
part. Other than the reorganization and directing readers to appendix B 
instead of appendix C, as proposed in the NPRM (for reasons discussed 
in the section-by-section analysis for appendix B), FRA adopts this 
provision unchanged from the NPRM.
Section 271.303--Amendments
    This section addresses the process a railroad must follow whenever 
it amends its FRA-approved RRP plan, regardless of whether the 
amendments are substantive or non-substantive. Except for additional 
language FRA added to paragraph (a) and clarifying changes in 
paragraphs (b) and (c), discussed below, FRA adopts this section 
unchanged from the NPRM. FRA also did not receive any comments on this 
section. For discussion on provisions FRA has not changed, FRA refers 
interested readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27, 
2015).
    Paragraph (a) in the NPRM stated that for substantive amendments, a 
railroad must follow the process in its RRP plan under Sec.  271.209 
for consulting with its directly affected employees. In the final rule, 
FRA renumbered this provision paragraph (a)(1) and added language 
clarifying that a railroad must also submit a consultation statement to 
FRA. FRA also added language in paragraph (a)(2) specifying that if a 
railroad and its directly affected employees cannot reach agreement on 
the proposed contents of a substantive amendment, the directly affected 
employees may file a statement with FRA under Sec.  271.207(e)(1) 
procedures. Paragraph (a)(2) gives directly affected employees 15 days 
following the railroad's submission of the proposed amendment to submit 
a statement. Fifteen days is sufficient time for the statement because 
issues associated with amending an RRP plan are likely to be less 
complex than issues associated with initially developing a new RRP 
plan. FRA is including this provision because FRA believes a railroad 
substantively amending its RRP plan must follow all the consultation 
process requirements that apply when a railroad is initially developing 
a plan. A railroad cannot either evade consultation process 
requirements or deprive directly affected employees of the opportunity 
to submit a statement to FRA by substantively amending an RRP plan FRA 
already approved. This paragraph does not apply to non-substantive 
amendments (e.g., amendments updating names and addresses of railroad 
personnel). If a railroad is uncertain whether a proposed amendment is 
substantive or non-substantive, it should contact FRA for guidance.
    Paragraph (b) contains requirements for filing an RRP plan 
amendment. The only change FRA made to this paragraph was to replace 
``prior to'' with ``before'' for plain language purposes.
    Paragraph (c) describes how FRA will review and approve a 
railroad's proposed amendment. Paragraph (c)(1) in the NPRM stated that 
FRA will review an amendment within 45 days of receipt and then notify 
the primary contact person of the railroad whether FRA approves the 
proposed amendment. FRA made non-substantive editorial changes to this 
provision to improve clarity and change passive voice to active voice. 
FRA also added language in paragraphs (c)(1) and (2) clarifying that 
FRA will also provide this notification to each individual identified 
in the service list accompanying the consultation statement under Sec.  
271.303(a)(1). Once again, FRA added this language to ensure the 
process for approving substantive amendments is the same as the process 
for initially approving a railroad's RRP plan. FRA adopts paragraph 
(c)(3) unchanged from the NPRM. See 80 FR 10978 (Feb. 27, 2015).
Section 271.305--Reopened Review
    This section provides that, for cause stated, FRA may reopen review 
of an RRP plan or amendment (in whole or in part) after approval of the 
plan or amendment. While this section of the NPRM stated that FRA may 
``reopen consideration'' of an RRP plan or amendment, FRA has replaced 
this phrase with ``reopen review'' because ``review'' is the term used 
in the section title and elsewhere in the final rule to describe FRA's 
role in approving an RRP plan. The determination of whether to reopen 
review is solely within FRA's discretion on a case-by-case basis. As an 
example, the NPRM explained that FRA could reopen review if it 
determines the railroad has not been complying with its plan/amendment 
or if FRA obtains information that was not available when FRA 
originally approved the plan or amendment.
    In response to this section in the NPRM, AAR/ASLRRA commented the 
phrase ``for cause stated'' was unlimited and this section was 
unacceptably vague. FRA does not believe this provision needs 
additional specificity. FRA further notes that reopening an RRP plan 
for review does not necessarily mean the plan does not comply with the 
final rule. FRA will work with a railroad and its directly affected 
employees if it reopens review to ensure the railroad and employees 
understand and can address FRA's cause stated.

[[Page 9305]]

Section 271.307--Retention of RRP Plans
    This section contains requirements for railroads to retain their 
RRP plans. Except for adding language in paragraph (b) clarifying that 
a railroad must also make a copy of any subsequent amendment to an RRP 
plan available for inspection and copying (in addition to the plan 
itself), FRA adopts this section unchanged from the NPRM. FRA also did 
not receive any comments on this section so it is therefore not 
repeating the NPRM's section-by-section analysis, but refers interested 
readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27, 2015).

Subpart E--Internal Assessments

    To help ensure an RRP is properly implemented and effective, a 
railroad must evaluate its program annually. Subpart E contains the 
railroad requirements to conduct an internal assessment of its RRP. FRA 
did not receive any comments on this subpart. Except for updating 
references in the NPRM to reflect organizational changes in the final 
rule \27\ and the minor changes discussed below for Sec. Sec.  271.403 
and 271.405, FRA adopts this subpart unchanged from the NPRM. FRA is 
therefore not repeating the NPRM's section-by-section analysis in this 
final rule, but refers interested readers to the NPRM's discussion. See 
80 FR 10978-10979 (Feb. 27, 2015).
---------------------------------------------------------------------------

    \27\ To reflect organizational changes in the final rule, FRA 
changed a reference in Sec.  271.401(a) from Sec.  271.301(b) to 
Sec.  271.301(d) and a reference in Sec.  271.401(b)(1) from Sec.  
271.223(b) to Sec.  271.225(b).
---------------------------------------------------------------------------

Section 271.403--Internal Assessment Improvement Plans
    Paragraph (b)(2) in this section of the NPRM stated that a 
railroad's improvement plan must describe recommended improvements, 
``including any necessary revisions or updates to the RRP plan which 
would be made through the amendment process. . . .'' FRA believes the 
term ``necessary'' is vague, and therefore changed this language in the 
final rule to read, ``including any proposed revisions or updates to 
the RRP plan the railroad expects to make through the amendment process 
. . . .'' The changed language also clarifies that these are amendments 
the railroad expects to make. FRA does not intend these changes to 
change the substance of this paragraph.
Section 271.405--Internal Assessment Reports
    FRA has made changes to paragraph (b)(3) of this section to conform 
its language with the changes FRA has made to Sec.  271.403(b)(2), 
discussed above.

Subpart F--External Audits

    This subpart explains FRA's process for conducting audits of the 
railroad's RRP and establishes requirements for the actions a railroad 
must take in response to FRA's audits. FRA's audits will focus on 
reviewing the railroad's RRP process and ensuring that the railroad is 
following the processes and procedures described in its FRA-approved 
RRP plan. FRA did not receive any comments on this subpart and except 
for a modification to Sec.  271.501 discussed below, adopts it 
unchanged from the NPRM. FRA is therefore not repeating the NPRM's 
section-by-section analysis in this final rule, but refers interested 
readers to the NPRM's discussion. See 80 FR 10979 (Feb. 27, 2015).
Section 271.501--External Audits
    This section in the NPRM generally stated FRA would cause external 
audits to be conducted. FRA has modified this section to clarify that a 
railroad must make documentation kept pursuant to its RRP plan 
available to FRA or State railroad safety inspectors for copying and 
inspection.

Appendix A to Part 271--Federal Railroad Administration Guidance on the 
Risk Reduction Program Consultation Process

    As proposed in the NPRM, FRA intended appendix A to contain a 
schedule of civil penalties for use in connection with this final rule. 
However, FRA has decided to provide such a schedule on its website 
instead of as an appendix to the final rule. Please see the discussion 
of Sec.  271.9, Penalties and responsibility for compliance, in the 
section-by-section analysis for further details.
    FRA is therefore moving appendix B, as proposed in the NPRM, to 
appendix A in the final rule. Appendix A contains guidance on complying 
with Sec.  271.207, which states that a railroad must in good faith 
consult with, and use its best efforts to reach agreement with, all of 
its directly affected employees on the contents of the RRP plan. The 
appendix begins with a general discussion of the terms ``good faith'' 
and ``best efforts,'' explaining they are separate terms and each has a 
specific and distinct meaning. For example, the good faith obligation 
is concerned with a railroad's state of mind during the consultation 
process, and the best efforts obligation is concerned with the specific 
efforts a railroad makes to try to reach agreement with its directly 
affected employees. The appendix also explains that FRA will determine 
a railroad's compliance with the Sec.  271.207 requirements on a case-
by-case basis and explains that FRA may disapprove a plan if a railroad 
fails to consult with its directly affected employees in good faith and 
use best efforts.
    Further, the appendix contains specific guidance on the process a 
railroad may use to consult with its directly affected employees. This 
guidance does not establish prescriptive requirements a railroad must 
comply with, but provides a road map as an example of how a railroad 
may conduct the consultation process. The guidance also distinguishes 
between employees who are represented by a non-profit employee labor 
organization and employees who are not, as the processes a railroad may 
use to consult with represented and non-represented employees could 
differ significantly. Overall, however, the appendix stresses there are 
many ways a railroad may choose to consult with its directly affected 
employees to comply with the rule. Therefore, it is important to 
maintain a flexible approach to the Sec.  271.207 consultation process 
requirements, so a railroad and its directly affected employees may 
consult in the manner best suited to their specific circumstances.

Appendix B to Part 271--Procedures for Submission of RRP Plans and 
Statements From Directly Affected Employees

    Appendix B in the NPRM proposed guidance on complying with the 
consultation process requirements, and has been moved to appendix A in 
the final rule for reasons discussed above. FRA is therefore moving 
appendix C, as proposed in the NPRM, to appendix B in the final rule. 
Appendix B provides railroads and directly affected employees the 
option to file RRP plans or consultation statements electronically. The 
NPRM requested comment regarding whether FRA should allow electronic 
submission of RRP materials. FRA did not receive any comments against 
electronic submission and, therefore, is including this appendix 
unchanged in the final rule.
    FRA will create a secure document submission site and will need 
basic information from railroads or directly affected employees before 
setting up a user's account. To provide secure access, FRA will also 
need information on the railroad's points of contact. FRA anticipates 
it will be able to approve or disapprove all or part of a program and 
generate automated notifications by

[[Page 9306]]

email to a railroad's points of contact. Thus, each point of contact 
must understand that by providing any email addresses, the railroad is 
consenting to receive approval and disapproval notices from FRA by 
email. Railroads that allow notice from FRA by email benefit from 
receiving such notices quickly and efficiently.
    Railroads that choose to submit printed materials to FRA must 
deliver them directly to the specified address. Some railroads may 
choose to deliver a CD, DVD, or other electronic storage format to FRA 
rather than requesting access to upload the documents directly to the 
secure electronic database. Although that is an acceptable method of 
submission, FRA encourages each railroad to utilize the electronic 
submission capabilities of the system. If FRA cannot read the type of 
electronic storage format sent, FRA will reject the submission.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT 
Regulatory Policies and Procedures

    This rule is a significant regulatory action within the meaning of 
Executive Order 12866 (E.O. 12866) and DOT policies and procedures. See 
44 FR 11034 (Feb. 26, 1979). FRA made this determination by finding 
that, although the economic effects of this regulatory action would not 
exceed the $100 million annual threshold defined by E.O. 12866, the 
rule is significant because of the substantial public interest in 
transportation safety. Pursuant to the Congressional Review Act (5 
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not a `major rule', as defined by 5 U.S.C. 
804(2). Additionally, this final rule is considered an E.O. 13771 
regulatory action. Details on the estimated costs of this final rule 
can be found in the rule's RIA, which FRA has prepared and placed in 
the docket (docket no. FRA-2009-0038). The RIA details estimated costs 
the railroads regulated by the rule are likely to incur over a ten-year 
period.
    FRA did not estimate the full incremental costs of railroads 
conducting additional and systematic hazard and risk analyses or 
implementing actions to mitigate identified hazards and risks. FRA 
lacks information to reliably estimate such costs because FRA does not 
know the specific level of hazards and risks on impacted railroads or 
the means railroads will use to mitigate these risks. FRA nevertheless 
expects railroads will implement the most cost-effective mitigations to 
eliminate or mitigate hazards, and the rule does not require railroads 
to implement mitigations that would result in net costs. As such, FRA 
expects that a railroad will only implement mitigation efforts that are 
net beneficial to the railroad.
    The below tables summarize the rule's total costs over a ten-year 
period based on Class I railroads having a 43-percent pre-compliance 
rate and ISP railroads having no pre-compliance, with a total cost of 
$40.2 million, using a 7-percent discount rate (PV), 7-percent) (Table 
5) and $51.0 million, using a 3-percent discount rate (PV, 3-percent) 
(Table 6). The annualized costs are $5.7 million (PV, 7-percent) and 
$5.9 million (PV, 3-percent).

 Table 5--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 7-Percent
----------------------------------------------------------------------------------------------------------------
                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $7,000          $7,000
Subpart B: RR Programs..........................................     $35,725,000       2,216,000      37,941,000
Subpart C: RRP Plans............................................         656,000       1,053,000       1,709,000
Subpart D: Review and Approval of Plans.........................           2,000           7,000           9,000
Subpart E: Internal Assessments.................................         171,000         312,000         483,000
Subpart F: External Audits......................................          28,000          32,000          60,000
                                                                 -----------------------------------------------
    Total Cost..................................................      36,582,000       3,627,000      40,209,000
                                                                 -----------------------------------------------
Annualized......................................................       5,210,000         516,000       5,726,000
----------------------------------------------------------------------------------------------------------------


 Table 6--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 3-Percent
----------------------------------------------------------------------------------------------------------------
                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $9,000          $9,000
Subpart B: RR Programs..........................................     $45,156,000       3,011,000      48,167,000
Subpart C: RRP Plans............................................         771,000       1,329,000       2,100,000
Subpart D: Review and Approval of Plans.........................           2,000           8,000          10,000
Subpart E: Internal Assessments.................................         230,000         413,000         643,000
Subpart F: External Audits......................................          37,000          43,000          80,000
                                                                 -----------------------------------------------
    Total Cost, 3% present value................................      46,197,000       4,813,000      51,000,000
                                                                 -----------------------------------------------
Annualized, 3%..................................................       5,416,000         564,000       5,979,000
----------------------------------------------------------------------------------------------------------------

    The final rule will require each Class I and ISP railroad to create 
and implement an RRP. As part of an ongoing process, the final rule 
will require each railroad and its employees to collaboratively 
identify, rank, and address safety hazards. FRA concludes that the 
final rule will result in each affected railroad creating a systematic

[[Page 9307]]

approach to safety that achieves benefits from inter-department 
coordination similar to the type of benefits observed through the FRA-
sponsored C\3\RS program.\28\ FRA expects that the final rule will 
improve the effectiveness of a railroad's hazard mitigation efforts, 
which will result in the primary benefit of decreasing the frequency of 
accidents/incidents. Other benefits that will come from promulgating 
the rule include reduced railroad and non-railroad property damage, 
railroad and highway travel delays, cleanup costs, employee 
absenteeism, and emergency response costs, among others. Lastly, FRA 
expects that the final rule will increase railroad productivity and 
profitability, due to substantially better employee morale, improved 
working conditions, and a more effective allocation of hazard safety 
mitigation resources.
---------------------------------------------------------------------------

    \28\ See U.S. Department of Transportation, Federal Railroad 
Administration, ``Continued Improvement at One C3RS Site'', June 
2015, available at https://rosap.ntl.bts.gov/view/dot/12204/dot_12204_DS1.pdf (Accessed December 10, 2018).
---------------------------------------------------------------------------

    Benefits that come from the final rule will vary from railroad to 
railroad. These benefits are based on each railroad's organizational 
structure, the ability for labor and management to collaborate, and the 
steps the railroad takes to implement hazard analysis and mitigation. 
FRA could not reliably predict the specific risks that each freight 
railroad will identify, the actions each freight railroad will take to 
mitigate such risks, or the success rate of such actions. Details on 
the estimated benefits of this final rule can be found in the rule's 
RIA, which FRA has prepared and placed in the docket (docket no. FRA-
2009-0038).
    FRA expects that the final rule will increase the effectiveness of 
railroad hazard mitigation strategies, which will reduce the frequency 
of accidents and incidents on the general railroad system. FRA also 
expects that the final rule will result in increased employee morale 
and improved working conditions, which will improve railroad 
productivity. These benefits will result because the final rule:
    1. Ensures that railroads keep their RRP current and in place;
    2. Improves safety culture;
    3. Requires ongoing employee involvement and proactive 
collaboration between labor and management; and
    4. Provides information protection, which allows for a systematic 
risk-based hazard analysis.
    The final rule requires each Class I railroad to have a fully 
implemented RRP within five years of the rule's effective date and 
requires the first set of ISP railroads to implement all portions of 
their RRPs within six years after the final rule's effective date.\29\ 
FRA anticipates that railroads may implement some components of their 
RRP plan before the required implementation dates specified in the 
final rule. Therefore, this analysis estimates that the final rule will 
start generating benefits in the fourth year (year 2022), when Class I 
railroads will have substantially implemented their RRPs. As previously 
discussed, Class I railroads have in place existing activities related 
to the final rule's required components. The existing levels of pre-
rule compliance reduce the size of potential benefits that follow from 
issuing the final rule.
---------------------------------------------------------------------------

    \29\ An ISP railroad should begin to realize benefits 
approximately three years after FRA approves its RRP plan, the point 
when the final rule requires the ISP railroad to have fully 
implemented its RRP. The final rule requires each ISP railroad that 
is part of the first group of ISP railroads to implement in full an 
RRP by the sixth year.
---------------------------------------------------------------------------

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 impacts on small 
entities. An agency must prepare a Final Regulatory Flexibility 
Analysis (FRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. FRA is publishing this FRFA to 
describe the potential impact of the final rule on small businesses.
1. Statement of Need for, and Objectives of, the Rule
    FRA is requiring each Class I freight railroad and ISP freight 
railroad to develop and implement an RRP, a structured program with 
proactive processes and procedures a railroad develops and implements 
to identify and eliminate or mitigate hazards and the resulting risks 
on its system. An RRP works by encouraging a railroad and its employees 
to proactively collaborate to identify hazards and determine what, if 
any, action to take to eliminate or mitigate the resulting risks. The 
rule provides each railroad with a substantial amount of flexibility to 
establish an RRP based on its specific operations. FRA is issuing the 
RRP rule as part of its efforts to continuously improve rail safety and 
to satisfy in part the statutory mandate in sections 103 and 109 of the 
RSIA.
    The rule is intended to focus on increased safety, care, and 
protection of railroad employees, customers, and the general public. 
The rule will also help ensure railroads provide a safer workplace 
environment for their employees. Conformance and compliance with the 
rule, rather than a voluntary system, will better facilitate and ensure 
industry-wide efforts, resulting in measurable improvement in the 
performance and quality of safety management processes.
    Even though FRA has issued safety regulations and guidance that 
address many aspects of railroad operations, there are gaps in safety 
and hazards. Risks may arise from these gaps. RRPs will provide 
railroads with the tools to systematically and continuously evaluate 
their systems to identify the gaps in safety and eliminate or mitigate 
the hazards and risks that result from these gaps.
    The rule responds to the Congressional mandate in section 103 of 
the RSIA, which provides that FRA, by delegation from the Secretary, 
shall require each Class I railroad and ISP railroad to establish a 
railroad safety risk reduction program. See 49 U.S.C. 20156(a)(1).\30\ 
The rule also conforms to section 109 of the RSIA, which directs FRA, 
by delegation from the Secretary, to conduct a study to determine if it 
is in the public interest to withhold certain information, including a 
railroad's assessment of its safety risks and its statement of 
mitigation measures, from discovery and admission into evidence in 
proceedings for damages involving personal injury and wrongful death. 
Section 109 authorizes FRA, by delegation from the Secretary, to 
prescribe a rule, subject to notice and comment, to address the results 
of the study. See 49 U.S.C. 20119.
---------------------------------------------------------------------------

    \30\ While the RSIA also directs FRA to require passenger 
railroads to establish railroad safety risk reduction programs, FRA 
has published a separate SSP rule that addresses the passenger 
railroad mandate. See 81 FR 53850 (Aug. 12, 2016).
---------------------------------------------------------------------------

    The RSIA requirements explain the congressionally mandated need for 
action. Under 49 U.S.C. 20103(a), ``[t]he Secretary of Transportation, 
as necessary, shall prescribe regulations and issue orders for every 
area of railroad safety supplementing laws and regulations in effect on 
October 16, 1970.'' The Secretary's responsibility under this provision 
and the balance of the railroad safety laws has been delegated to the 
FRA Administrator under 49 CFR 1.89.

[[Page 9308]]

2. Summary of Significant Issues Raised by Public Comments, Summary of 
Assessment of Such Issues, and Statement of Any Changes in Rule as 
Result of Such Comments
    There is an extensive section, above, discussing comments. This 
section discusses comments particularly applicable to small railroads.
    ISP Determination: ASLRRA expressed concern that FRA's proposed 
methodology for identifying ISP railroads would select a 
disproportionate number of the smallest railroads. To assess this 
concern, FRA conducted several analyses of data from FRA's RAIRS, the 
system that would provide FRA data for the inadequate safety 
performance methodology. To approximate the proposed methodology, FRA 
conducted the analyses for the three-year period from 2012 through 
2014, the latest years for which a full 12 months' data were available 
at the time of the analysis.
    The first analysis identified and evaluated all railroads the 
proposed methodology would analyze for inadequate safety performance 
(i.e., Class II and III freight railroads that operate on the general 
system). On average, these railroads reported about 231,000 total train 
miles operated and 200,000 employee hours between 2012 and 2014.
    FRA then used the proposed methodology for identifying ISP 
railroads to evaluate Class II and III railroads for inadequate safety 
performance. Railroads determined to have inadequate safety performance 
reported, on average, 32,000 total train miles operated and 35,000 
employee hours between 2012 and 2014. These averages are substantially 
lower than averages for the entire pool of Class II and III railroads 
the proposed methodology would evaluate. Based on this result, FRA 
shares ASLRRA's concern that the proposed methodology would over-select 
the smallest railroads.
    FRA has therefore changed the proposed methodology to include a 
preliminary selection in the quantitative analysis phase. This 
preliminary selection will help avoid over-selecting the smallest 
railroads by utilizing the absolute number (rather than rates) of two 
factors regarding a railroad's safety performance. FRA has applied this 
methodology to RAIRS data. On average, railroads identified as having 
inadequate safety performance reported 146,000 train miles operated and 
165,000 employee hours from 2012 through 2014. These averages are much 
closer to the averages for the entire pool of Class II and III freight 
railroads that the methodology will initially evaluate.
    Appeal of FRA's ISP Determination: AAR/ASLRRA commented urging FRA 
to establish an appeals process for railroads that the methodology 
identifies as having inadequate safety performance. FRA agrees 
including an appeals process for railroads determined to have 
inadequate safety performance is fair. In the final rule, FRA therefore 
added a process for railroads to petition the FRA Administrator for 
reconsideration of inadequate safety performance determinations under 
existing procedures to appeal to the Administrator (e.g., procedures 
regarding petitions for waiver of safety rules under 49 CFR part 211, 
subpart C). These procedures are well-established and should be 
familiar to the railroad industry.
    Information Protection: While small railroad commenters favored 
information protection, FRA received several comments arguing the 
proposed information protections are too narrow. ASLRRA commented FRA 
improperly relied on section 409 and the Supreme Court's decision in 
Guillen, and therefore FRA is not protecting data as Congress intended 
in the RSIA. ASLRRA also questions FRA's explanation in the NPRM 
preamble that the information protections would only extend to the 
Short Line Safety Institute (Institute) if FRA finds the Institute is 
part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). As 
Section V.A.8 explains above, FRA disagrees with these comments and 
believes it has properly limited the scope of the information 
protections, the protections are consistent with Congress' intent in 
the RSIA, and FRA lacks authority under RSIA to extend information 
protections to programs that do not fully meet the requirements of this 
RRP final rule.
    AAR/ASLRRA also commented on the NPRM preamble statement that Sec.  
271.11 would only protect information once FRA approves a railroad's 
RRP plan. They believe that approach does not make sense and weakens 
the rule's proposed protections. As Section V.A.8 explains above, FRA 
agrees with AAR/ASLRRA and does not intend to limit the information 
protections only to information a railroad compiles or collects for an 
RRP plan FRA has already approved.
    Performance-based rule and flexibility: As Section V.B.2 explains 
above, the NPRM described RRP as a performance-based rule that would 
not establish prescriptive requirements that may be appropriate for one 
railroad but unworkable for another. Several commenters supported FRA's 
decision to propose a performance-based, flexible RRP rule, and AAR/
ASLRRA acknowledged the performance-based nature of RRP. The 
performance-based nature of the RRP final rule gives a smaller railroad 
the flexibility to tailor the rule's requirements to its specific 
operations and amount of resources.
    Short Line Safety Institute: As Section V.B.8 explains above, 
ASLRRA commented that small railroad participation in the Institute 
should suffice as complete compliance with the requirements in the 
NPRM. ASLRRA also claims FRA would fulfill the SBREFA requirement to 
grant special considerations to small businesses by accepting 
participation in the Institute as satisfying RRP requirements. FRA 
currently cannot determine, however, whether the Institute will fully 
comply with the RSIA mandate or the requirements of this final rule. 
Rather, FRA believes it is more appropriate to make this determination 
when reviewing RRP plans under Sec.  271.301 of the final rule. FRA 
also notes that the final rule will not unduly burden short line and 
regional railroads because of its scalability and flexibility.
3. The Response of the Agency to Any Comments Filed by the Chief 
Counsel for Advocacy of the Small Business Administration
    FRA did not receive any comments from the Chief Counsel for 
Advocacy of the Small Business Administration.
4. Description and Estimate of Number of Small Entities to Which the 
Final Rule Applies
    ``Small entity'' is defined in 5 U.S.C. 601 as 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 ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 500 
employees, or a ``commuter rail system'' with annual receipts of less 
than 15 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.

[[Page 9309]]

Under that authority, FRA published a final statement of agency policy 
formally establishing ``small entities'' or ``small businesses'' as 
railroads, contractors, and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad under 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 49 CFR part 209, appendix C). The $20 million limit is based on the 
STB's revenue threshold for a Class III railroad carrier. 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 the final rule. For other entities, the same dollar 
limit in revenues governs whether a railroad, contractor, or other 
respondent is a small entity.
Railroads
    In the universe of railroads that potentially have to comply with 
the final rule, there are 7 Class I railroads, 11 Class II railroads (1 
of which is classified as a passenger railroad that will be excepted 
from the final rule), and 735 Class III freight railroads. Out of the 
735 Class III freight railroads, the final rule excepts railroads not 
on the general system and tourist railroads, leaving approximately 600 
Class III railroads as small entities that may be subject to the 
requirements of the final rule.\31\
---------------------------------------------------------------------------

    \31\ Total number of Class III railroads potentially impacted = 
735 Class III railroads-43 Class III railroads not on the general 
system-93 Class III railroads that are tourist railroads = 599 Class 
III railroads.
---------------------------------------------------------------------------

    To identify Class II and Class III railroads that must comply with 
the final rule because they demonstrate inadequate safety performance, 
FRA will annually conduct a two-phase analysis. The first phase is a 
statistically-based quantitative analysis of fatalities, FRA-reportable 
injuries/illnesses, FRA-reportable accidents/incidents, and FRA safety 
violations; and the second phase is a qualitative assessment that 
includes input from affected railroads and their employees. See Sec.  
271.13 of the final rule for a full description of FRA's process for 
determining inadequate safety performance.
    Because FRA's initial inadequate safety performance analysis will 
occur at least one year after the RRP final rule goes into effect, it 
is impossible for FRA to know how many Class III railroads will be 
required to comply. FRA reviewed a 3-year rolling average of safety 
data to test the selection process. This analysis accounted for the 
types of information that railroads and employees could present to FRA 
during the qualitative review process. Such information could serve to 
refute the quantitative analysis' identification of a railroad as 
demonstrating inadequate safety performance. Based on this analysis, 
FRA expects to identify approximately 10 Class II and Class III freight 
railroads that demonstrate inadequate safety performance in year 2 of 
the 10-year period of the analysis. In each subsequent year, FRA 
expects to identify five additional ISP railroads. Therefore, by year 
10, FRA will have identified approximately 50 ISP railroads.
    FRA expects the number of ISP railroads will reach a maximum of 50 
railroads by year 10, at which point the number of ISP railroads should 
flatten out or decline. In estimating the maximum number of ISP 
railroads, FRA considered the following factors: (1) Industry-wide 
safety performance improvement; (2) in year 7 of the analysis, some ISP 
railroads will seek and receive relief from being in the program after 
complying for 5 years; (3) the size of the railroad pool being examined 
for inadequate safety performance would shrink as more railroads are 
required to comply with part 271; and (4) those railroads not 
identified as being an ISP railroad will observe the positive behaviors 
and results of ISP railroads and will embrace the better safety 
practices without having a formal RRP program.
    For purposes of this FRFA, FRA expects that each ISP will be a 
Class III railroad (small railroad).
Contractors
    Some railroads use contractors to perform many different functions 
on their railroads. For some of these railroads, contractors perform 
safety-related functions, such as operating trains. For assessing the 
impact of an RRP, contractors fall into two groups: Larger contractors 
that perform a primary operating or maintenance function for the 
railroads, and smaller contractors that perform ancillary functions to 
the primary operations. Larger contractors are typically employed by 
sizable private companies or part of an international conglomerate. 
Smaller contractors may perform such duties as brush clearing or 
painting facilities.
    Safety-related policies, work rules, guidelines, and regulations 
are imparted to the small contractors today as part of their 
contractual obligations and qualification to work on the Class I 
freight railroads, and potentially to work for ISP railroads. FRA sees 
minimal additional burden to imparting the same type of information 
under each railroad's RRP. A very small administrative burden may 
result.
    Under the final rule, contractors (small or large) that provide 
significant safety-related services are expected to have minimal burden 
under the rule. For example, while the final rule requires the railroad 
to involve the persons that provide significant safety-related services 
in the railroad's RRP, it doesn't require the entity to do any 
training. Thus, any burden imposed on contractors would be indirect or 
considered in the contract with the pertinent railroad or both.
5. Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including Estimate of Small 
Entities Regulated by Rule
    The rule will require an ISP railroad to develop and implement an 
RRP under a written RRP plan FRA has reviewed and approved. There are 
several reporting, recordkeeping, and compliance costs associated with 
the final rule. FRA believes that the added burden of recordkeeping is 
marginal due to the final rule requirements.
    The total 10-year cost of this final rule is $40.2 million (PV, 7%) 
and $51.0 million (PV, 3%), of which FRA estimates $3.6 million (PV, 
7%) and $4.5 million (PV, 3%) or less will be attributable to small 
entities. Based on FRA's RIA, which has been placed in the docket, the 
average Class III ISP railroad will incur an average burden per year. 
If, for example, ISP railroads comply with the final rule for an 
average of eight years, then the total cost will be approximately 
$143,000 (PV, 7%) and $168,000 (PV, 3%) per ISP railroad.
    However, due to the small number of small railroads that are 
estimated to be impacted by this final rule, the cost per railroad 
could be found to be significant. For a thorough presentation of cost 
estimates, please refer to the RIA, which has been placed in the docket 
for this rulemaking.
    The following section outlines the potential additional burden on 
small railroads for each subpart of the final rule.
 Subpart A--General
    The policy, purpose, and definitions outlined in subpart A, alone, 
will not impose a significant burden on small railroads. However, there 
is the small requirement for notifying employees of

[[Page 9310]]

the railroad that FRA's quantitative analysis has found that the 
railroad may demonstrate inadequate safety performance. This subpart of 
the final rule will impose less than 1 percent of the total burden for 
small entities.
 Subpart B--Risk Reduction Program Requirements
    Subpart B of the final rule will have a proportional effect 
directly related to the size and complexity of a railroad and will 
impose approximately 60 percent of the total burden for small entities. 
Generally, this subpart describes what a railroad must develop and 
include in its RRP. For example, it requires the development of a risk-
based HMP (which includes a risk-based hazard analysis and the design 
and implementation of mitigation strategies), safety performance 
evaluation, and technology implementation plans.
    Because of the scalable nature of the final rule, the requirements 
of an RRP will be much less complex for a small railroad than they will 
be for a Class I railroad. Additionally, several characteristics of 
small railroads should also limit the number and types of hazards for 
the RRP to address. These characteristics include the concentrated 
geography of operation in a small area, the short distance of 
operation, and a non-fragmented and non-diffused work force (in other 
words, most employees of a small railroad are in one place). RRP 
requirements such as technology implementation plans should also not be 
burdensome. This is because small railroads are very limited in the 
resources they can allocate for new technologies. FRA expects that 
small railroads will rely on tried-and-true technologies that have been 
thoroughly tested elsewhere.
 Subpart C--Risk Reduction Program Plan Requirements
    Subpart C of the final rule will have a proportional effect 
directly related to the size and complexity of a railroad. This subpart 
of the final rule contains the requirements for RRP plans and will 
impose approximately 29 percent of the total burden for small entities. 
For example, it requires a plan statement on each RRP element mandated 
in subpart B and plan statements related to safety policy and goals, a 
system description, the consultation process, and an RRP implementation 
plan. This subpart of the final rule is primarily the paperwork or 
written plan that supports the processes and programs in the RRP.
 Subpart D--Review, Approval, and Retention of Risk Reduction 
Program Plans
    Subpart D of the final rule will impose less than 1 percent of the 
total burden for small entities. The final requirements of this subpart 
are for the submission to FRA for review and approval of the initial 
RRP plan and any amendments thereto. Since only 10 small railroads are 
expected to submit RRP plans for approval in year two, and 
approximately 5 small railroads are expected to submit RRP plans each 
year thereafter, this subpart should have a very small economic impact.
 Subpart E--Internal Assessments
    Subpart E of the final rule will impose approximately 9 percent of 
the total burden for small entities. This burden is for the ongoing 
cost of small railroads to perform an internal assessment and report on 
internal audits on an annual basis. As noted above, initially very few 
small railroads will be performing these internal assessments, which 
will serve to minimize the economic impact on small railroads.
 Subpart F--External Audits
    Subpart F of the final rule will impose approximately 1 percent of 
the total burden for small entities. This burden is for the ongoing 
cost of small railroads to host an external audit by FRA or its 
designees on a periodic basis. This includes the burden to produce an 
improvement plan addressing any instances of deficiencies or 
noncompliance FRA identified during the audit. FRA does not expect more 
than five of these small railroads to receive an external audit in any 
given year.
Market and Competition Considerations
    The railroad industry has several significant barriers to entry, 
such as the need to own or otherwise obtain access to rights-of-way and 
the high capital expenditure needed to purchase a fleet, as well as 
track and equipment. Furthermore, the small railroads under 
consideration will potentially be competing only with the trucking 
industry and typically deal with the transport of commodities or goods 
that are not truck-friendly. Thus, while this final rule will have an 
economic impact on Class I freight railroads and ISP railroads, it 
should not have an impact on the competitive position of small 
railroads.
    For the entire railroad industry over a 10-year period, FRA 
estimates the total cost for the rule will be $40.2 million (PV, 7-
percent), or $51.0 million (PV, 3-percent).\32\ Based on information 
currently available, FRA estimates that Class II and Class III 
railroads will bear 9 percent of the total railroad costs associated 
with implementing the rule.
---------------------------------------------------------------------------

    \32\ FRA's estimates follow Office of Management and Budget 
(OMB) guidance in OMB Circular A-94 to use real discount rates of 7- 
and 3-percent for regulatory analysis.
---------------------------------------------------------------------------

6. Description of Steps Taken To Minimize Significant Adverse Economic 
Impact on Small Entities
    As discussed above, FRA estimates ISP railroads will incur 
approximately 9 percent of the total cost of this final rule. Based on 
FRA's RIA, the average ISP railroad will incur an average burden of 
approximately $18,000 (PV, 7-percent) and $21,000 (PV, 3-percent) per 
year. If ISP railroads complied with the RRP final rule for an average 
of eight years, then the average total cost will be approximately 
$144,000 (PV, 7-percent) and $168,000 (PV, 3-percent) per ISP railroad.
    FRA has taken several steps to minimize the final rule's burden on 
small entities. For example, several provisions in the final rule 
respond directly to comments on the NPRM raising small entity concerns. 
Specifically, FRA modified the methodology for identifying ISP 
railroads to avoid over-selecting the smallest railroads and included a 
process in the final rule allowing railroads to appeal an ISP 
determination to the FRA Administrator. Additional steps FRA has taken 
include developing and promulgating a performance-based final rule, 
helping to create the Institute (which will help any small railroad 
comply with this rule), and providing information protections.
    FRA also intends to aid railroads, including small entities, in the 
development of the RRPs, starting at the planning phase and continuing 
through the implementation phase. The final rule is also scalable by 
design. Therefore, a short line or regional railroad can likely 
maintain full compliance with the final rule with an RRP that is not 
likely to have the complexity and comprehensiveness of an RRP for a 
larger railroad. FRA will aid railroads so that the scope and content 
of their RRPs are proportionate to their size and the nature of their 
operation. All these actions benefit small railroads and will help them 
comply with the final rule. Lastly, as a result of addressing the 
safety issues that led FRA to determine the railroad demonstrated 
inadequate safety performance, FRA believes an RRP will help an ISP 
railroad more effectively

[[Page 9311]]

allocate resources, while also reducing the frequency of accidents. For 
small entities, FRA estimates the monetized value of gains will be 
equal to or greater than the final rule's burden.
    In the Initial Regulatory Flexibility Analysis, FRA stated it had 
not determined whether the proposed rule would have a significant 
economic impact on a substantial number of small entities. See 80 FR 
10982 (Feb. 27, 2015). FRA remains uncertain whether the rule may have 
a significant impact on affected entities, or whether the number of 
small entities FRA expects to be impacted, a maximum of 50 out of 
approximately 600, is a substantial number of small entities. 
Therefore, FRA is not certifying that the rule will not have a 
significant impact on a substantial number of small entities.
    In compliance with SBREFA, FRA is developing a compliance guide to 
assist small entities in complying with the rule. FRA is placing this 
guide in the public docket for this rulemaking.
    Overall, FRA has taken reasonable measures to ensure the rule's 
impact is commensurate with business size, and FRA will aid small 
railroad compliance.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal Government provides the funds necessary to 
pay the direct compliance costs incurred by State and local governments 
or the agency consults with State and local government officials early 
in the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    FRA analyzed this final rule under the principles and criteria in 
Executive Order 13132. FRA has determined this rule does not have 
substantial direct effects on the States, on the relationship between 
the National Government and the States, or on the distribution of power 
and responsibilities among the various levels of government. In 
addition, FRA has determined this rule does not impose substantial 
direct compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    This rule adds part 271, Risk Reduction Program. FRA notes that 
this part could have preemptive effect by the operation of law under a 
provision of the former Federal Railroad Safety Act of 1970, repealed 
and re-codified at 49 U.S.C. 20106 (section 20106). Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106. FRA has determined that certain State laws 
may be preempted by this part. Section 271.11(d) in the final rule 
specifically addresses the preemption of State discovery rules and 
sunshine laws to the extent those laws would require disclosure of 
information protected by Sec.  271.11 in a Federal or State court 
proceeding for damages involving personal injury, wrongful death, or 
property damage. The preemption of State discovery rules and sunshine 
laws is discussed further in the section-by-section analysis of Sec.  
271.11(d). In addition, as previously discussed, section 20119(b) 
authorizes FRA to issue a rule governing the discovery and use of risk 
analysis information in litigation.
    In sum, FRA has analyzed this rule under the principles and 
criteria in Executive Order 13132. As explained above, FRA has 
determined this rule has minimal federalism implications. Accordingly, 
FRA has determined that preparation of a federalism summary impact 
statement for this rule is not required.

D. International Trade Impact Assessment

    The Trade Agreements Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The act requires consideration of international standards 
and, where appropriate, that they be the basis for U.S. standards. This 
rule is purely domestic in nature and is not expected to affect trade 
opportunities for U.S. firms doing business overseas or for foreign 
firms doing business in the United States.

E. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
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 information collection requirements are duly 
designated and the estimated time to fulfill each requirement is as 
follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                           Total annual
                                                                                                    Average  time per      Total annual     dollar cost
     CFR section/subject \33\           Respondent universe          Total annual  responses             response          burden hours     equivalent
                                                                                                                                               \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
271.13--Determination of           15 railroads.................  5 notices....................  3 hours................              15          $1,018
 inadequate safety performance
 (ISP)--Notice to employees of
 possible ISP identification by
 FRA.
    --Employee confidential        125 employees................  5 comments...................  30 minutes.............             2.5             170
     comments to FRA regarding RR
     possible ISP identification.
    --RR Documentation to FRA      15 railroads.................  5 documents..................  8 hours................              40           2,715
     refuting possible ISP
     identification.
                                  ----------------------------------------------------------------------------------------------------------------------
271.101(a)--Risk Reduction                         This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
 Programs (RRPs)--Class I
 railroads.
                                  ----------------------------------------------------------------------------------------------------------------------
271.103--RRP hazard management     7 railroads..................  2.333 HMPs analyses..........  3,360 hours............           7,839         532,111
 program (HMPs).
271.105--RRP safety performance    7 railroads..................  2.333 SPEs evaluation........  147 hours..............             343          23,283
 evaluation (SPEs): Survey/
 evaluation.

[[Page 9312]]

 
                                   7 railroads..................  2.333 assessments............  1,060 hours............           2,473         167,867
271.107--Safety Outreach--         7 railroads..................  44,333 communications........  1 hour.................          44,333       2,379,352
 communications/reports.
                                   7 railroads..................  28 communications............  30 minutes.............              14             950
271.109--Technology analysis and   7 railroads..................  2.333 reports................  10 hours...............            23.3           1,582
 technology implementation plans.
271.111--RRP implementation        7 railroads..................  1,400 records of trained       3 minutes..............              70           4,752
 training--programs/tr. employees/                                 employees.
 rcds.
271.101(c)--Communication by       7 railroads..................  40 communications/             2 hours................              80           5,430
 Class I RRs that host passenger                                   consultations.
 train service with RRs subject
 to FRA System Safety Program
 Requirements.
    --(d)--Identification/         7 railroads..................  212 communications/            1 hour.................             212          14,391
     communication w/entities                                      consultations.
     performing/utilizing
     significant safety-related
     services--Class I RRs.
    --RR Identification/further    7 railroads..................  1,488 communications/          1 hour.................           1,488         101,005
     communication with                                            consultations.
     contractors performing/
     utilizing significant safety
     related services--Class I
     RRs.
                                  ----------------------------------------------------------------------------------------------------------------------
271.101(a)--Risk Reduction                         This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
 Programs (RRPs)--ISP railroads.
                                  ----------------------------------------------------------------------------------------------------------------------
271.103--RRP hazard management     15 railroads.................  5 HMPs.......................  240 hours..............           1,200          81,456
 program (HMPs).
271.105--RRP safety performance    15 railroads.................  5 surveys....................  14.73 hours............              74           5,023
 evaluation (SPEs): Survey/
 evaluation.
                                   15 railroads.................  5 SPEs.......................  51.1 hours.............             256          17,377
271.107--Safety Outreach--         15 railroads.................  5 communications.............  1 hour.................               5             268
 communications/reports.
                                   15 railroads.................  5 reports....................  3 hours................              15           1,018
271.109--Technology analysis and   15 railroads.................  5 plans......................  5 hours................              25           1,697
 technology implementation plans.
271.111--RRP implementation        15 railroads.................  50 records of trained          3 minutes..............             2.5             170
 training--programs/tr. employees/                                 employees.
 rcds.
271.101(d)--ISPs--Identification/  15 railroads.................  5 communications/              2 hours................              10             679
 communication w/entities                                          consultations.
 performing significant safety-
 related services.
271.201/203--Written risk          7 railroads..................  2.333 RRP plans..............  461 hours..............           1,075          72,971
 reduction program plans (RRP
 plans)--Adoption and
 implementation of RRP plans--
 Class I.
    --Written RRP plans--ISP RRs.  15 railroads.................  5 RRP plans..................  96 hours...............             480          32,582
271.207--RR Good faith             7 railroads..................  2.333 consults...............  8 hours................              19           1,290
 consultation w/directly affected
 employees--Class I RRs.
    --RR Notification to non-      7 railroads..................  1 notification...............  3 hours................               3             204
     represented employees of
     consultation meeting--Class
     I RRs.
    --RR Good faith consultations/ 15 railroads.................  5 consults/notices...........  20 hours...............             100           6,788
     notices: ISP RRs.
    (d)--Submission of detailed    7 railroads..................  2.333 consultation statements  200 hours..............             467          31,700
     consultation statement along
     w/RRP plan by Class I RRs.
    --Submission of detailed       15 railroads.................  5 consultation statements....  40 hours...............             200          13,576
     consultation statement along
     w/RRP plan by ISPs.
    --Copy of RRP plan/            22 railroads.................  380 plan copies..............  2 minutes..............            12.7             862
     consultation statement to     22 railroads.................  380 consultation statements..  2 minutes..............            12.7             862
     service list individuals--
     Class I RRs + ISP RRs.
    --Statements from directly     10 labor organizations.......  3 statements.................  6 hours................              18           1,222
     affected employees--Class I
     RRs.
    --Statements from directly     15 railroads.................  12 statements................  1 hour.................              12             815
     affected employees--ISP RRs.
271.301--Filing of RRP plan w/     7 railroads..................  2.333 filed plans............  2 hours................               5             339
 FRA--Class I RRs.
    --Filing of RRP plan w/FRA--   15 railroads.................  5 filed plans................  2 hours................              10             679
     ISP RRs.
    --Class I RR corrected RRP     7 railroads..................  1 RRP plan...................  2 hours................               2             136
     plan.
    --FRA requested Class I RR     7 railroads..................  1 consult/statement..........  3 hours................               3             204
     consultation with directly
     affected employees regarding
     substantive corrections/
     changes to RRP plan.
    --ISP RR corrected RRP plan..  15 railroads.................  1 RRP plan...................  2 hours................               2             136
    --FRA requested ISP RR         15 railroads.................  1 consult/statement..........  1 hour.................               1              68
     further consultation with
     directly affected employees
     regarding substantive
     amendment to RRP plan.
271.303--Amendments consultation   22 railroads (Class I + ISP).  2 consults...................  1 hour.................               2             136
 w/directly affected employees on
 substantive amendments to RRP
 plan--Class I RRs and ISP RRs.
    --Employee statement to FRA    22 railroads (Class I + ISP).  2 employee statements........  30 minutes.............               1              68
     on RR RRP plan substantive
     amendment where agreement
     could not be reached.
    --Filed amended RRP plan--     7 railroads..................  1 plan.......................  6 hours................               6             407
     Class I RRs.
    --Filed amended RRP plan--ISP  15 railroads.................  1 plan.......................  1 hour.................               1              68
     RRs.
271.307--Retention of RRP plans--  22 railroads (Class I + ISP).  22 plan copies...............  10 minutes.............               4             272
 Copies of RRP Plan/Amendments by
 RR at system/division
 headquarters--Class I and ISP
 RRs.
217.401/403--Annual internal       7 railroads..................  2.333 assessments/improvement  120 hours..............             280          19,006
 assessment/improvement plans--                                    plans.
 Class I RRs.
    --Annual internal assessment/  15 railroads.................  5 assessments/improvement      32 hours...............             160          10,861
     improvement plans--ISP RRs.                                   plans.
271.405--Internal assessment       7 railroads..................  2.333 reports................  8 hours................              19           1,290
 report copy to FRA--Class I RRs.
    --Internal assessment report   15 railroads.................  5 reports....................  2 hours................              10             679
     copy to FRA--ISP RRs.

[[Page 9313]]

 
Appendix B--Request by FRA for     7 railroads..................  3 documents..................  40 hours...............             120           8,146
 additional information/documents
 to determine whether railroad
 has met good faith and best
 efforts consultation
 requirements of section 271.207.
    --Further railroad             7 railroads..................  1 consult....................  8 hours................               8             543
     consultation w/employees
     after determination by FRA
     that railroad did not use
     good faith/best efforts.
    --Meeting to discuss           7 railroads..................  7 meetings/consults..........  2 hours................              14             950
     administrative details of
     consultation process during
     the time between initial
     meeting and applicability
     date--Class I RRs.
    --Meeting to discuss           15 railroads.................  7 meetings/consults..........  1 hour.................               7             475
     administrative details of
     consultation process during
     the time between initial
     meeting and applicability
     date--ISP RRs.
    --Notification to non-         15 railroads.................  600 notices..................  15 minutes.............             150          10,182
     represented employees of
     good faith consultation
     process--ISP RRs.
    --Draft RRP plan proposal to   15 railroads.................  20 proposals/copies..........  2 hours................              40           2,715
     employees--ISP RRs.
    --Employee comments on RRP     2,000 employees..............  60 comments..................  1 hour.................              60           4,073
     plan draft proposal.
                                  ----------------------------------------------------------------------------------------------------------------------
        Totals...................  22 railroads.................  49,148 responses.............  N/A....................          61,825       3,566,619
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions, 
searching existing data sources, gathering or maintaining the needed 
data, and reviewing the information.
---------------------------------------------------------------------------

    \33\ Information collection requests relating to petitions and 
audits will occur outside of this information collection request 
timeframe. Also, because Sec.  271.113 requires a railroad to 
involve directly affected employees in establishing or implementing 
an RRP (e.g., when identifying hazards, conducting internal 
assessments, or otherwise performing activities required under part 
271), the burdens associated with Sec.  271.113 are covered under 
the other burdens associated with subparts B and E of part 271.
    \34\ The dollar equivalent cost is derived from the Surface 
Transportation Board's Full Year Wage A&B data series using the 
appropriate employee group hourly wage rate that includes 75-percent 
overhead charges.
---------------------------------------------------------------------------

    For information or a copy of the paperwork package submitted to 
OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer, 
Office of Railroad Safety, Federal Railroad Administration, at 202-493-
0440 or Ms. Kimberly Toone, Information Collection Clearance Officer, 
Office of Information Technology, Federal Railroad Administration, at 
202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Ms. Hodan 
Wells 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 Ms. Wells at [email protected] or Ms. Toone at 
[email protected].
    OMB must make a decision concerning the collection of information 
requirements contained in this 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. FRA did not receive any OMB 
or public comments on the information collection requirements contained 
in the NPRM.
    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. The current OMB control number is 2130-
0610.

F. Environmental Assessment

    FRA has evaluated this rule under 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 this rule is not a major 
FRA action (requiring the preparation of an environmental impact 
statement or environmental assessment) because it is categorically 
excluded from detailed environmental review pursuant to section 
4(c)(20) of FRA's Procedures. 64 FR 28547, 28548.
    Consistent with section 4(c) and (e) of FRA's Procedures, FRA also 
concluded that no extraordinary circumstances exist with respect to 
this regulation that might trigger the need for a more detailed 
environmental review. As a result, FRA finds this rule is not a major 
Federal action significantly affecting the quality of the human 
environment.

G. Unfunded Mandates Reform Act of 1995

    Under 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 each agency to prepare a comprehensive written 
statement for any proposed or final rule that includes a Federal 
mandate that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more (adjusted annually for inflation) in any 1 
year.\35\
---------------------------------------------------------------------------

    \35\ See U.S. Department of Transportation, ``Guidance--
Threshold of Significant Regulatory Actions under the Unfunded 
Mandates Reform Act of 1995,'' April 4, 2016, https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0, as 
accessed July 26, 2018.
---------------------------------------------------------------------------

    This final rule will not result in such an expenditure, and thus 
preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355 (May 22, 2001). FRA evaluated this final 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 final rule will not burden the development 
or use of domestically produced energy sources.

[[Page 9314]]

Under the Executive Order, a ``significant energy action'' is defined 
as any action by an agency (normally published in the Federal Register) 
that promulgates, or is expected to lead to the promulgation of, a 
final rule or regulation (including a notice of inquiry, advance notice 
of proposed rulemaking, and notice of proposed rulemaking) that (1)(i) 
is a significant regulatory action under E.O. 12866 or any successor 
order and (ii) is likely to have a significant adverse effect on the 
supply, distribution, or use of energy; or (2) is designated by the 
Administrator of the Office of Information and Regulatory Affairs as a 
significant energy action. FRA has evaluated this rule under Executive 
Order 13211 and determined this rule will not have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' under the Executive Order 13211.

List of Subjects in 49 CFR Part 271

    Penalties, Railroad safety, Reporting and recordkeeping 
requirements, Risk reduction.

The Rule

0
In consideration of the foregoing, FRA adds part 271 to chapter II, 
subtitle B of title 49, Code of Federal Regulations, to read as 
follows:

PART 271--RISK REDUCTION PROGRAM

Subpart A--General
Sec.
271.1 Purpose and scope.
271.3 Application.
271.5 Definitions.
271.7 [Reserved]
271.9 Penalties and responsibility for compliance.
271.11 Discovery and admission as evidence of certain information.
271.13 Determination of inadequate safety performance.
271.15 Voluntary compliance.
Subpart B--Risk Reduction Program Requirements
271.101 Risk reduction programs.
271.103 Risk-based hazard management program.
271.105 Safety performance evaluation.
271.107 Safety outreach.
271.109 Technology analysis and technology implementation plan.
271.111 Implementation and support training.
271.113 Involvement of railroad employees.
Subpart C--Risk Reduction Program Plan Requirements
271.201 General.
271.203 Policy, purpose and scope, and goals.
271.205 System description.
271.207 Consultation requirements.
271.209 Consultation on amendments.
271.211 Risk-based hazard management program process.
271.213 Safety performance evaluation process.
271.215 Safety outreach process.
271.217 Technology implementation plan process.
271.219 Implementation and support training plan.
271.221 Involvement of railroad employees process.
271.223 Internal assessment process.
271.225 RRP implementation plan.
Subpart D--Review, Approval, and Retention of Risk Reduction Program 
Plans
271.301 Filing and approval.
271.303 Amendments.
271.305 Reopened review.
271.307 Retention of RRP plans.
Subpart E--Internal Assessments
271.401 Annual internal assessments.
271.403 Internal assessment improvement plans.
271.405 Internal assessment reports.
Subpart F--External Audits
271.501 External audits.
271.503 External audit improvement plans.
Appendix A to Part 271--Federal Railroad Administration Guidance on 
the Risk Reduction Program Consultation Process
Appendix B to Part 271--Procedures for Submission of RRP Plans and 
Statements From Directly Affected Employees

    Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

Subpart A--General


Sec.  271.1  Purpose and scope.

    (a) The purpose of this part is to improve railroad safety through 
structured, proactive processes and procedures developed and 
implemented by railroads. Each railroad subject to this part must 
establish a Risk Reduction Program (RRP) that systematically evaluates 
railroad safety hazards on its system and manages the risks associated 
with those hazards to reduce the number and rates of railroad 
accidents/incidents, injuries, and fatalities.
    (b) This part prescribes minimum Federal safety standards for the 
preparation, adoption, and implementation of RRPs. This part does not 
restrict railroads from adopting and enforcing additional or more 
stringent requirements not inconsistent with this part.
    (c) This part prescribes the protection of information a railroad 
compiles or collects solely for the purpose of planning, implementing, 
or evaluating an RRP under this part.
    (d) This part does not require an RRP to address hazards completely 
unrelated to railroad safety and that fall under the exclusive 
jurisdiction of another Federal agency. Additionally, an RRP required 
by this part is not intended to address and should not address the 
safety of employees while performing inspections, tests, and 
maintenance, except where FRA has already addressed workplace safety 
issues, such as blue signal protection in part 218 of this chapter. FRA 
does not intend to approve any specific portion of an RRP plan that 
relates exclusively to employee working conditions.


Sec.  271.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to--
    (1) Class I railroads;
    (2) Railroads determined to have inadequate safety performance 
pursuant to Sec.  271.13; and
    (3) Railroads that voluntarily comply with the requirements of this 
part pursuant to Sec.  271.15.
    (b) This part does not apply to:
    (1) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation;
    (2) Tourist, scenic, historic, or excursion operations, whether on 
or off the general railroad system of transportation;
    (3) Operation of private cars, including business/office cars and 
circus trains;
    (4) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  271.5); and
    (5) Commuter or intercity passenger railroads that are subject to 
Federal system safety program requirements contained in part 270 of 
this chapter.
    (c) 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 purposes of this part.


Sec.  271.5  Definitions.

    As used in this part only--
    Accident/incident means an ``accident/incident'' as defined in 
Sec.  225.5 of this chapter.
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    FRA means the Federal Railroad Administration.
    FRA Associate Administrator means the Associate Administrator for 
Railroad

[[Page 9315]]

Safety and Chief Safety Officer, Federal Railroad Administration, or 
the Associate Administrator's delegate.
    Fully implemented means that all elements of an RRP as described in 
the RRP plan are established and applied to the safety management of 
the railroad.
    Hazard means any real or potential condition that can cause injury, 
illness, or death; damage to or loss of a system, equipment, or 
property; or damage to the environment.
    Inadequate safety performance means safety performance that FRA has 
determined to be inadequate based on the criteria described in Sec.  
271.13.
    Mitigation strategy means an action or program intended to reduce 
or eliminate the risk associated with a hazard.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including, but not limited to, the following: A railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor or subcontractor providing goods 
or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor or 
subcontractor.
    Pilot project means a limited scope project used to determine 
whether quantitative evaluation and analysis suggests that a particular 
system or mitigation strategy has potential to succeed on a full-scale 
basis.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
is not considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    Positive train control system means a system designed to prevent 
train-to-train collisions, overspeed derailments, incursions into 
established work zone limits, and the movement of a train through a 
switch left in the wrong position, as described in subpart I of part 
236 of this chapter.
    Railroad means:
    (1) Any form of non-highway ground transportation that runs on 
rails or electromagnetic guideways, including:
    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads, but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation; and
    (2) A person or organization that provides railroad transportation, 
whether directly or by contracting out operation of the railroad to 
another person.
    Risk means the combination of the probability (or frequency of 
occurrence) and the consequence (or severity) of a hazard.
    Risk-based HMP means a risk-based hazard management program (HMP).
    Risk reduction means the formal, top-down, organization-wide 
approach to managing safety risk and assuring the effectiveness of 
safety risk mitigation strategies. It includes systematic procedures, 
practices, and policies for the management of safety risk.
    RRP means a Risk Reduction Program.
    RRP plan means a Risk Reduction Program plan.
    Safety culture means the shared values, actions, and behaviors that 
demonstrate a commitment to safety over competing goals and demands.
    Safety performance means a realized or actual safety accomplishment 
relative to stated safety objectives.
    Safety outreach means the communication of safety information to 
support the implementation of an RRP throughout a railroad.
    Senior management means personnel at the highest level of a 
railroad's management who are responsible for making major policy 
decisions and long-term business plans regarding the operation of the 
railroad.
    STB means the Surface Transportation Board of the United States.
    Tourist, scenic, historic, or excursion operations means railroad 
operations that carry passengers, often using antiquated equipment, 
with the conveyance of the passengers to a particular destination not 
being the principal purpose. Train movements of new passenger equipment 
for demonstration purposes are not tourist, scenic, historic, or 
excursion operations.


Sec.  271.7  [Reserved]


Sec.  271.9  Penalties and responsibility for compliance.

    (a) Any person that violates any requirement of this part or causes 
the violation of any such requirement is subject to a civil penalty of 
at least the minimum civil monetary penalty and not more than the 
ordinary maximum civil monetary penalty per violation, except that: 
Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury 
to individuals, or has caused death or injury, a penalty not to exceed 
the aggravated maximum civil monetary penalty per violation may be 
assessed. See 49 CFR part 209, appendix A. Each day a violation 
continues shall constitute a separate offense. Any person that 
knowingly and willfully falsifies a record or report required by this 
part may be subject to criminal penalties under 49 U.S.C. 21311. See 
FRA's website at www.fra.dot.gov for a statement of agency civil 
penalty policy.
    (b) Although the requirements of this part are stated in terms of 
the duty of a railroad, when any person, including a contractor or 
subcontractor to a railroad, performs any function covered by this 
part, that person (whether or not a railroad) shall perform that 
function in accordance with this part.


Sec.  271.11  Discovery and admission as evidence of certain 
information.

    (a) Protected information. Any information compiled or collected 
after February 17, 2021 solely for the purpose of planning, 
implementing, or evaluating a risk reduction 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.  271.103(b) and a railroad's 
statement of mitigation measures under Sec.  271.103(c); and
    (2) ``Solely'' means that a railroad originally compiled or 
collected the information for the exclusive purpose of planning, 
implementing, or evaluating a risk reduction program under this part.

[[Page 9316]]

Information compiled or collected for any other purpose is not 
protected, even if the railroad also uses that information for a risk 
reduction program. ``Solely'' also means a railroad continues to use 
that information only for its risk reduction program. If a railroad 
subsequently uses for any other purpose information that was initially 
compiled or collected for a risk reduction program, this section does 
not protect that information to the extent that it is used for the non-
risk reduction program purpose. The use of that information within the 
railroad's risk reduction program, however, remains protected. This 
section does not protect information that is required to be compiled or 
collected pursuant to any other provision of law or regulation.
    (b) Non-protected information. This section does not affect the 
discovery, admissibility, or consideration for other purposes in a 
Federal or State court proceeding for damages involving personal 
injury, wrongful death, or property damage of information compiled or 
collected for a purpose other than that specifically identified in 
paragraph (a) of this section. Such information shall continue to be 
discoverable, admissible, or considered for other purposes in a Federal 
or State court proceeding for damages involving personal injury, 
wrongful death, or property damage if it was discoverable, admissible, 
or considered for other purposes in a Federal or State court proceeding 
for damages involving personal injury, wrongful death, or property 
damage on or before February 17, 2021. Specifically, the types of 
information not affected by this section include:
    (1) Information compiled or collected on or before February 17, 
2021;
    (2) Information compiled or collected on or before February 17, 
2021 and that continues to be compiled or collected, even if used to 
plan, implement, or evaluate a railroad's risk reduction program; or
    (3) Information that is compiled or collected after February 17, 
2021, and is compiled or collected for a purpose other than that 
identified in paragraph (a) of this section.
    (c) Information protected by other law or regulation. Nothing in 
this section shall affect or abridge in any way any other protection of 
information provided by another provision of law or regulation. Any 
such provision of law or regulation applies independently of the 
protections provided by this section.
    (d) Preemption. To the extent that State discovery rules and 
sunshine laws would require disclosure of information protected by this 
section in a Federal or State court proceeding for damages involving 
personal injury, wrongful death, or property damage, those rules and 
laws are preempted.
    (e) Enforcement. This section does not apply to civil or criminal 
law enforcement proceedings.


Sec.  271.13  Determination of inadequate safety performance.

    (a) General. (1) This section describes FRA's methodology for 
determining which railroads shall establish an RRP because they have 
inadequate safety performance. FRA's methodology consists of a two-
phase annual analysis, comprised of both a quantitative analysis and 
qualitative assessment. FRA's methodology analyzes all railroads except 
for:
    (i) Railroads excluded from this part under Sec.  271.3(b);
    (ii) Railroads already required to comply with this part;
    (iii) Railroads that are voluntarily complying with this part under 
Sec.  271.15; and
    (iv) Except as provided in paragraph (a)(2) of this section, new 
start-up railroads that have reported accident/incident data to FRA 
pursuant to part 225 of this chapter for fewer than three years.
    (2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads 
formed through amalgamation of operations (for example, railroads 
formed through consolidations, mergers, or acquisitions of control) are 
included in the analysis using the combined data of the pre-
amalgamation entities.
    (b) Quantitative analysis--(1) Methodology. The first phase of 
FRA's annual analysis is a statistically-based quantitative analysis of 
each railroad within the scope of the analysis, using historical safety 
data maintained by FRA for the three most recent full calendar years. 
The purpose of the quantitative analysis is to make a threshold 
identification of railroads that possibly have inadequate safety 
performance. The quantitative analysis consists of a preliminary 
selection and a rate-based analysis. Only railroads that the 
preliminary selection identifies will proceed to the rate-based 
analysis.
    (i) The preliminary selection calculates the following values:
    (A) A railroad's number of worker on duty fatalities during the 3-
year period, calculated using ``Worker on Duty-Railroad Employee (Class 
A),'' ``Worker on Duty-Contractor (Class F),'' and ``Worker on Duty-
Volunteer (Class H)'' information reported on FRA Form 6180.55 pursuant 
to FRA's accident/incident reporting regulations in part 225 of this 
chapter; and
    (B) The sum total of a railroad's number of worker on duty 
injuries/illnesses during the 3-year period (calculated using ``Worker 
on Duty-Railroad Employee (Class A),'' ``Worker on Duty-Contractor 
(Class F),'' and ``Worker on Duty-Volunteer (Class H)'' information 
reported on FRA Form 6180.55 pursuant to FRA's accident/incident 
reporting regulations in part 225 of this chapter) added to the number 
of rail equipment accidents/incidents during the 3-year period 
(calculated using information reported on FRA Forms 6180.54 and 6180.55 
pursuant to FRA's accident/incident reporting regulations in part 225 
of this chapter).
    (ii) For railroads that the preliminary selection identifies, as 
described in paragraph (b)(2)(i) of this section, the rate-based 
analysis calculates the following three factors:
    (A) A railroad's number of worker on duty fatalities during the 3-
year period, calculated using ``Worker on Duty-Railroad Employee (Class 
A),'' ``Worker on Duty-Contractor (Class F),'' and ``Worker on Duty-
Volunteer (Class H)'' information reported on FRA Form 6180.55 pursuant 
to FRA's accident/incident reporting regulations in part 225 of this 
chapter;
    (B) A railroad's on duty employee injury/illness rate, calculated 
using ``Worker on Duty-Railroad Employee (Class A),'' ``Worker on Duty-
Contractor (Class F),'' and ``Worker on Duty-Volunteer (Class H)'' 
information reported on FRA Form 6180.55 pursuant to FRA's accident/
incident reporting regulations in part 225 of this chapter. FRA 
calculates this rate using the following formula, which gives the rate 
of employee injuries/illnesses per 200,000 employee hours over a 3-year 
period:

Injury/Illness Rate = (Total FRA Reportable Worker On Duty Injuries + 
Total FRA Reportable On Duty Employee Illnesses over a 3-year Period)/
(Total Employee Hours over a 3-year Period/200,000); and

    (C) A railroad's rail equipment accident/incident rate, calculated 
using information reported on FRA Forms 6180.54 and 6180.55 pursuant to 
FRA's accident/incident reporting regulations in part 225 of this 
chapter. FRA calculates this rate using the following formula, which 
gives the rate of rail equipment accidents/incidents per 1,000,000 
train miles operated over a 3-year period:

Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail 
Equipment Accidents/Incidents over a 3-year Period/(Total Train

[[Page 9317]]

Miles over a 3-year Period/1,000,000)

    (2) Identification. (i) The preliminary selection phase of the 
quantitative analysis identifies railroads for further analysis in the 
rate-based analysis if at least one of the following two conditions 
exist within the scope and timeframe of the analysis:
    (A) A railroad has one or more worker on duty fatalities as 
calculated in paragraph (b)(1)(i)(A) of this section; or
    (B) A railroad is at or above the 90th percentile for the sum total 
of worker on duty injuries/illnesses and rail equipment accidents/
incidents, as calculated in paragraph (b)(1)(i)(B) of this section.
    (ii) For railroads identified in the preliminary selection, the 
rate-based analysis identifies railroads as possibly having inadequate 
safety performance if at least one of the following two conditions 
exists within the scope and time frame of the analysis:
    (A) A railroad has one or more worker on duty fatalities as 
calculated in paragraph (b)(1)(ii)(A) of this section; or
    (B) A railroad is at or above the 90th percentile of railroads 
identified in the preliminary selection in either of the factors 
described in paragraphs (b)(1)(ii)(B) and (C) of this section.
    (c) Qualitative assessment. The second phase of FRA's analysis is a 
qualitative assessment of railroads identified in the quantitative 
analysis as possibly having inadequate safety performance.
    (1) Notification and railroad/employee comment. FRA will notify a 
railroad in writing if FRA conducts a qualitative assessment of the 
railroad because the quantitative analysis identified the railroad as 
possibly having inadequate safety performance.
    (i) No later than 15 days after receiving FRA's written notice, a 
railroad shall notify its employees of FRA's written notice. The 
railroad shall post this employee notification at all locations where 
the railroad reasonably expects its employees to report and to have an 
opportunity to observe the notice. The railroad shall post and 
continuously display the employee notification until 45 days after 
FRA's initial written notice. The railroad shall notify employees who 
do not have a regular on-duty point for reporting to work by other 
means, under the railroad's standard practice for communicating with 
employees. The notification shall inform railroad employees that they 
may confidentially submit comments to FRA regarding the railroad's 
safety performance and that employees shall file any such comments with 
the FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, 1200 New Jersey Avenue SE, Washington, DC 20590 no later than 
45 days following FRA's initial written notice.
    (ii) No later than 45 days after receiving FRA's written notice, a 
railroad may provide FRA documentation supporting any claims that the 
railroad does not have inadequate safety performance.
    (2) Methodology. No later than 90 days after providing the initial 
notice to a railroad identified by the quantitative analysis, FRA will 
conduct a qualitative assessment of the identified railroad and make a 
final determination regarding whether it has inadequate safety 
performance. The qualitative assessment will consider any documentation 
provided by the railroad, comments submitted by railroad employees, and 
any other pertinent information, including information regarding 
violations FRA has issued against the railroad.
    (d) Final notification. For each railroad that FRA provides an 
initial written notice, FRA will provide a final written notice 
informing the railroad whether or not FRA determines that the railroad 
has demonstrated inadequate safety performance.
    (e) Compliance. (1) A railroad with inadequate safety performance 
shall develop and implement an RRP meeting the requirements of this 
part and submit an RRP plan meeting the filing and timing requirements 
in Sec.  271.301.
    (2) A railroad with inadequate safety performance must comply with 
the requirements of this part for a minimum of five years from the date 
FRA approves the railroad's RRP plan under subpart D of this part.
    (f) Petition for reconsideration of inadequate safety performance 
determination. (1) To appeal a final written notice under paragraph (d) 
of this section, a railroad shall file a petition for reconsideration 
with the Administrator. To file a petition, the railroad must:
    (i) File the petition no later than 30 days after the date the 
railroad receives FRA's final written notice under paragraph (d) of 
this section informing the railroad that it has demonstrated inadequate 
safety performance; and
    (ii) File the petition in accordance with the procedures in 
Sec. Sec.  211.7(b)(1) and 211.57 of this chapter.
    (2) FRA will process petitions under Sec.  211.59 of this chapter.
    (g) Petition to discontinue compliance with this part. After the 
five-year compliance period, the railroad may petition FRA for approval 
to discontinue compliance with this part. A railroad shall file a 
petition, and FRA will process the petition, under the procedures 
contained in Sec.  211.41 of this chapter. When processing a petition, 
FRA will reevaluate the railroad's safety performance to determine 
whether the railroad's RRP has resulted in significant and sustained 
safety improvements, and whether these measured improvements are likely 
sustainable in the long term. FRA's evaluation will include a 
quantitative analysis as described in paragraph (b) of this section, 
although FRA will not automatically grant a petition to discontinue 
compliance if the quantitative analysis results do not meet the 
identification thresholds described in paragraph (b)(2) of this 
section. For all petitions under this section, FRA will also examine 
qualitative factors and review information from FRA RRP audits and 
other relevant sources.


Sec.  271.15  Voluntary compliance.

    (a) General. A railroad not otherwise subject to this part may 
voluntarily comply by establishing and fully implementing an RRP 
meeting the requirements of this part. A voluntary RRP shall be 
supported by an RRP plan that has been submitted to FRA for approval 
pursuant to the requirements of subpart D of this part. After FRA has 
approved its RRP plan, a voluntarily-compliant railroad that fails to 
comply with the requirements of this part is subject to civil penalties 
or other FRA enforcement action.
    (b) Duration. A voluntarily-compliant railroad will be required to 
comply with the requirements of this part for a minimum period of five 
years, running from the date on which FRA approves the railroad's plan 
pursuant to subpart D of this part.
    (c) Notification to discontinue compliance. After this five-year 
period, a voluntarily-compliant railroad may discontinue compliance 
with this part by providing written notice to the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer, 1200 New 
Jersey Avenue SE, Washington, DC 20590.
    (d) Discovery and admission as evidence of certain information. The 
information protection provisions in Sec.  271.11 apply to information 
compiled or collected pursuant to a voluntary RRP that is conducted in 
accordance with the requirements of this part and as provided by Sec.  
271.301(b)(4)(ii).

[[Page 9318]]

Subpart B--Risk Reduction Program Requirements


Sec.  271.101  Risk reduction programs.

    (a) Program required. Each railroad shall establish and fully 
implement an RRP meeting the requirements of this part. An RRP shall 
systematically evaluate railroad safety hazards on a railroad's system 
and manage the resulting risks to reduce the number and rates of 
railroad accidents/incidents, injuries, and fatalities. An RRP is an 
ongoing program that supports continuous safety improvement. A railroad 
shall design its RRP so that it promotes and supports a positive safety 
culture at the railroad. An RRP shall include the following:
    (1) A risk-based hazard management program, as described in Sec.  
271.103;
    (2) A safety performance evaluation component, as described in 
Sec.  271.105;
    (3) A safety outreach component, as described in Sec.  271.107;
    (4) A technology analysis and technology implementation plan, as 
described in Sec.  271.109;
    (5) RRP implementation and support training, as described in Sec.  
271.111; and
    (6) Involvement of railroad employees in the establishment and 
implementation of an RRP, as described in Sec.  271.113.
    (b) RRP plans. A railroad's RRP shall be supported by an FRA-
approved RRP plan meeting the requirements of subpart C of this part.
    (c) Host railroads and system safety programs. (1) If a railroad 
subject to this part (RRP railroad) hosts passenger train service for a 
railroad subject to the system safety program requirements in part 270 
of this title (system safety program (SSP) railroad), the RRP railroad 
shall communicate with the SSP railroad to coordinate the portions of 
the system safety program applicable to the RRP railroad hosting the 
passenger train service.
    (2) The RRP railroad shall incorporate its communication and 
coordination with the SSP railroad into its own RRP.
    (d) Persons that perform or utilize significant safety-related 
services. Under Sec.  271.205(a)(3), a railroad's RRP plan shall 
identify persons that enter into a contractual relationship with the 
railroad to either perform significant safety-related services on the 
railroad's behalf or to utilize significant safety-related services 
provided by the railroad for railroad operations purposes. For example, 
a railroad's RRP plan shall identify entities such as host railroads, 
contract operators, shared track/corridor operators, or other 
contractors utilizing or performing significant safety-related 
services. A railroad shall identify such persons even if the persons 
are not required to comply with this part (e.g., a railroad shall 
identify a tourist railroad that operates over the railroad's track 
even though the tourist railroad is exempt from this rule under Sec.  
271.3(b)(2)). A railroad shall ensure persons performing or utilizing 
significant safety-related services support and participate in its RRP.


Sec.  271.103  Risk-based hazard management program.

    (a) General. (1) An RRP shall include an integrated, system-wide, 
and ongoing risk-based HMP that proactively identifies hazards and 
mitigates the risks resulting from those hazards.
    (2) A risk-based HMP shall be fully implemented (i.e., activities 
initiated) within 36 months after FRA approves a railroad's RRP plan 
pursuant to Sec.  271.301(d).
    (b) Risk-based hazard analysis. As part of its risk-based HMP, a 
railroad shall conduct a risk-based hazard analysis that addresses, at 
a minimum, the following aspects of a railroad's system: 
Infrastructure; equipment; employee levels and work schedules; 
operating rules and practices; management structure; employee training; 
and other areas impacting railroad safety that are not covered by 
railroad safety laws or regulations or other Federal laws or 
regulations. A railroad shall make the results of its risk-based hazard 
analysis available to FRA upon request. At a minimum, a risk-based 
hazard analysis shall:
    (1) Identify hazards by analyzing:
    (i) Aspects of the railroad's system, including any operational 
changes, system extensions, or system modifications; and
    (ii) Accidents/incidents, injuries, fatalities, and other known 
indicators of hazards;
    (2) Calculate risk by determining and analyzing the likelihood and 
severity of potential events associated with identified risk-based 
hazards; and
    (3) Compare and prioritize the identified risks for mitigation 
purposes.
    (c) Mitigation strategies. (1) As part of its risk-based HMP, a 
railroad shall design and implement mitigation strategies that improve 
safety by:
    (i) Mitigating or eliminating aspects of a railroad's system that 
increase risks identified in the risk-based hazard analysis; and
    (ii) Enhancing aspects of a railroad's system that decrease risks 
identified in the risk-based hazard analysis.
    (2) A railroad may use pilot projects, including pilot projects 
conducted by other railroads, to determine whether quantitative data 
suggests that a particular mitigation strategy has potential to succeed 
on a full-scale basis.


Sec.  271.105  Safety performance evaluation.

    (a) General. As part of its RRP, a railroad shall develop and 
maintain ongoing processes and systems for evaluating the safety 
performance of its system and identifying and analyzing its safety 
culture. A railroad's safety performance evaluation shall consist of 
both a safety monitoring and a safety assessment component.
    (b) Safety monitoring. A railroad shall monitor the safety 
performance of its system by, at a minimum, establishing processes and 
systems to acquire safety data and information from the following 
sources:
    (1) Continuous monitoring of operational processes and systems 
(including any operational changes, system extensions, or system 
modifications);
    (2) Periodic monitoring of the operational environment to detect 
changes that may generate new hazards;
    (3) Investigations of accidents/incidents, injuries, fatalities, 
and other known indicators of hazards;
    (4) Investigations of reports regarding potential non-compliance 
with Federal railroad safety laws or regulations, railroad operating 
rules and practices, or mitigation strategies established by the 
railroad; and
    (5) A reporting system through which employees can report safety 
concerns (including, but not limited to, hazards, issues, occurrences, 
and incidents) and propose safety solutions and improvements.
    (c) Safety assessment. To assess the need for changes to a 
railroad's mitigation strategies or overall RRP, a railroad shall 
establish processes to analyze the data and information collected 
pursuant to paragraph (b) of this section (as well as any other 
relevant data regarding its operations, products, and services). At a 
minimum, this assessment shall:
    (1) Evaluate the overall effectiveness of the railroad's RRP in 
reducing the number and rates of railroad accidents/incidents, 
injuries, and fatalities;
    (2) Evaluate the effectiveness of the railroad's RRP in meeting the 
goals described by its RRP plan (see Sec.  271.203(c));
    (3) Evaluate the effectiveness of risk mitigations in reducing the 
risk associated with an identified hazard. Any hazards associated with 
ineffective mitigation strategies shall be reevaluated through the 
railroad's risk-based HMP, as described in Sec.  271.103; and

[[Page 9319]]

    (4) Identify new, potential, or previously unknown hazards, which 
shall then be evaluated by the railroad's risk-based HMP, as described 
in Sec.  271.103.


Sec.  271.107  Safety outreach.

    (a) Outreach. An RRP shall include a safety outreach component that 
communicates RRP safety information to railroad personnel (including 
contractors) as that information is relevant to their positions. At a 
minimum, a safety outreach program shall:
    (1) Convey safety-critical information;
    (2) Explain why RRP-related safety actions are taken; and
    (3) Explain why safety procedures are introduced or changed.
    (b) Reporting to management. The status of risk-based HMP 
activities shall be reported to railroad senior management on an 
ongoing basis.


Sec.  271.109  Technology analysis and technology implementation plan.

    (a) General. As part of its RRP, a Class I railroad shall conduct a 
technology analysis and develop and adopt a technology implementation 
plan no later than February 17, 2023. A railroad with inadequate safety 
performance shall conduct a technology analysis and develop and adopt a 
technology implementation plan no later than three years after 
receiving final written notification from FRA to comply with this part, 
pursuant to Sec.  271.13(d), or no later than February 17, 2023, 
whichever is later. A railroad that the STB reclassifies or newly 
classifies as a Class I railroad shall conduct a technology analysis 
and develop and adopt a technology implementation plan no later than 
three years following the effective date of the classification or 
reclassification or no later than April 18, 2023, whichever is later. A 
voluntarily-compliant railroad shall conduct a technology analysis and 
develop and adopt a technology implementation plan no later than three 
years after FRA approves the railroad's RRP plan.
    (b) Technology analysis. A technology analysis shall evaluate 
current, new, or novel technologies that may mitigate or eliminate 
hazards and the resulting risks identified through the risk-based HMP. 
The railroad shall analyze the safety impact, feasibility, and costs 
and benefits of implementing technologies that will mitigate or 
eliminate hazards and the resulting risks. At a minimum, the 
technologies a railroad shall consider as part of its technology 
analysis are: Processor-based technologies, positive train control 
systems, electronically-controlled pneumatic brakes, rail integrity 
inspection systems, rail integrity warning systems, switch position 
monitors and indicators, trespasser prevention technology, and highway-
rail grade crossing warning and protection technology.
    (c) Technology implementation plan. A railroad shall develop, and 
periodically update as necessary, a technology implementation plan that 
contains a prioritized implementation schedule describing the 
railroad's plan for development, adoption, implementation, maintenance, 
and use of current, new, or novel technologies on its system over a 10-
year period to reduce safety risks identified in the railroad's risk-
based HMP.
    (d) Positive train control. Except as required by subpart I of part 
236 of this chapter, if a railroad decides to implement positive train 
control systems as part of its technology analysis and implementation 
plan, the railroad shall set forth and comply with a schedule for 
implementation of the positive train control system consistent with the 
deadlines in the Positive Train Control Enforcement and Implementation 
Act of 2015, Public Law 114-73, 129 Stat. 576-82 (Oct. 29, 2015), and 
49 CFR 236.1005(b)(7).


Sec.  271.111  Implementation and support training.

    (a) A railroad shall provide RRP training to each employee, 
including an employee of any person identified by the railroad's RRP 
plan pursuant to Sec.  271.205(a)(3) as performing significant safety-
related services on the railroad's behalf or utilizing significant 
safety-related services provided by the railroad, who has significant 
responsibility for implementing and supporting the railroad's RRP. This 
training shall help ensure that all personnel with significant 
responsibility for implementing and supporting the RRP understand the 
goals of the program, are familiar with the elements of the railroad's 
program, and have the requisite knowledge and skills to fulfill their 
responsibilities under the program.
    (b) A railroad shall keep a record of training conducted under this 
section and update that record as necessary. A railroad shall make 
training records available for inspection and copying upon the request 
of representatives of FRA or States participating under part 212 of 
this chapter.
    (c) Training under this section may include, but is not limited to, 
interactive computer-based training, video conferencing, or formal 
classroom training.


Sec.  271.113  Involvement of railroad employees.

    (a) An RRP shall involve a railroad's directly affected employees 
in the establishment and implementation of the RRP.
    (b) For example, a railroad must have a process for involving 
directly affected employees when identifying hazards, developing and 
implementing mitigation strategies, conducting internal annual 
assessments, or otherwise performing actions required by this part.

Subpart C--Risk Reduction Program Plan Requirements


Sec.  271.201  General.

    A railroad shall adopt and implement its RRP through a written RRP 
plan containing the elements described in this subpart. A railroad's 
RRP plan shall be approved by FRA according to the requirements 
contained in subpart D of this part.


Sec.  271.203  Policy, purpose and scope, and goals.

    (a) Policy statement. An RRP plan shall contain a policy statement 
endorsing the railroad's RRP. This statement shall be signed by the 
chief official at the railroad (e.g., chief executive officer).
    (b) Purpose and scope. An RRP plan shall contain a statement 
describing the purpose and scope of the railroad's RRP. This purpose 
and scope statement shall describe:
    (1) The railroad's safety philosophy and safety culture;
    (2) How the railroad promotes improvements to its safety culture; 
and
    (3) The roles and responsibilities of railroad personnel (including 
management) within the railroad's RRP.
    (c) Goals. An RRP plan shall contain a statement that defines the 
specific goals of the RRP and describes clear strategies for reaching 
those goals. These goals shall be long-term, meaningful, measurable, 
and focused on the mitigation of risks arising from identified safety 
hazards.


Sec.  271.205  System description.

    (a) An RRP plan shall contain a description of the characteristics 
of the railroad's system. At a minimum, the system description shall:
    (1) Support the identification of hazards by establishing a basic 
understanding of the scope of the railroad's system;
    (2) Include components briefly describing the railroad's history, 
operations, scope of service, maintenance, physical plant, and system 
requirements;

[[Page 9320]]

    (3) Identify all persons that enter into a contractual relationship 
with the railroad to either perform significant safety-related services 
on the railroad's behalf or to utilize significant safety-related 
services provided by the railroad for railroad operations purposes. For 
example, a railroad's RRP plan shall identify entities such as host 
railroads, contract operators, shared track/corridor operators, or 
other contractors utilizing or performing significant safety-related 
services. A railroad shall identify such persons even if the persons 
are not required to comply with this part (e.g., a railroad shall 
identify a tourist railroad that operates over the railroad's track 
even though the tourist railroad is exempt from this part pursuant to 
Sec.  271.3(b)(2)); and
    (4) Describe how the railroad will ensure that any persons 
identified pursuant to paragraph (a)(3) of this section will support 
and participate in the railroad's RRP. For example, the system 
description shall describe the extent to which such persons will, as 
part of the railroad's RRP, assist in identifying hazards, developing 
and implementing mitigation strategies, conducting internal annual 
assessments, or otherwise performing actions required by this part.
    (b) [Reserved]


 Sec.  271.207  Consultation requirements.

    (a) General duty. (1) Each railroad required to establish an RRP 
under this part shall in good faith consult with, and use its best 
efforts to reach agreement with, all of its directly affected 
employees, including any non-profit labor organization representing a 
class or craft of directly affected employees, on the contents of the 
RRP plan.
    (2) A railroad that consults with a non-profit employee labor 
organization is considered to have consulted with the directly affected 
employees represented by that organization.
    (b) Preliminary meeting. A railroad shall have a preliminary 
meeting with its directly affected employees to discuss how the 
consultation process will proceed. A railroad is not required to 
discuss the substance of an RRP plan during this preliminary meeting.
    (1) A Class I railroad shall meet no later than October 15, 2020 
with its directly affected employees to discuss the consultation 
process. The Class I railroad shall notify the directly affected 
employees of this meeting no less than 60 days before it is scheduled.
    (2) A railroad determined to have inadequate safety performance 
shall meet no later than 30 days following FRA's notification with its 
directly affected employees to discuss the consultation process. The 
inadequate safety performance railroad shall notify the directly 
affected employees of this meeting no less than 15 days before it is 
scheduled.
    (3) A railroad that the STB reclassifies or newly classifies as a 
Class I railroad shall meet with its directly affected employees to 
discuss the consultation process no later than 30 days following the 
effective date of the classification or reclassification. The 
reclassified or newly classified Class I railroad shall notify the 
directly affected employees of this meeting no less than 15 days before 
it is scheduled.
    (4) A voluntarily-compliant railroad that files a notification with 
FRA of its intent to file an RRP plan under Sec.  271.301(b)(4)(i) 
shall meet with its directly affected employees to discuss the 
consultation process no later than 30 days following the date that the 
railroad filed the notification. The voluntarily-compliant railroad 
shall notify the directly affected employees of this meeting no less 
than 15 days before it is scheduled.
    (5) Compliance with the mandatory preliminary meeting requirements 
of this paragraph (b) does not constitute full compliance with the 
consultation requirements of this section.
    (c) Guidance. Appendix A to this part contains guidance on how a 
railroad could comply with the requirements of this section.
    (d) Railroad consultation statements. A railroad required to submit 
an RRP plan under Sec.  271.301 shall also submit, together with that 
plan, a consultation statement that includes the following information:
    (1) A detailed description of the process the railroad utilized to 
consult with its directly affected employees;
    (2) If the railroad could not reach agreement with its directly 
affected employees on the contents of its RRP plan, identification of 
any known areas of non-agreement and an explanation why it believes 
agreement was not reached; and
    (3) A service list containing the names 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. The service list must also 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. If an international/national 
president did not participate in the consultation process, the service 
list shall also contain the name and contact information for a 
designated representative who participated on his or her behalf. When a 
railroad submits its RRP plan and consultation statement to FRA under 
Sec.  271.301, it shall also simultaneously send a copy of these 
documents to all individuals identified in the service list. A railroad 
may send the documents to the identified individuals via electronic 
means or other service means reasonably calculated to succeed.
    (e) Statements from directly affected employees. (1) If a railroad 
and its directly affected employees cannot reach agreement on the 
proposed contents of an RRP plan, the directly affected employees may 
file a statement explaining their views on the plan on which agreement 
was not reached with the FRA Associate Administrator for Railroad 
Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, 
DC 20590. The FRA Associate Administrator shall consider any such views 
during the plan review and approval process.
    (2) A railroad's directly affected employees have 30 days following 
the railroad's submission of a proposed RRP plan to submit the 
statement described in paragraph (e)(1) of this section.


Sec.  271.209  Consultation on amendments.

    A railroad's RRP plan shall include a description of the process 
the railroad will use to consult with its directly affected employees 
on any subsequent substantive amendments to the railroad's RRP plan. 
The requirements of this section do not apply to non-substantive 
amendments (e.g., amendments that update names and addresses of 
railroad personnel).


Sec.  271.211  Risk-based hazard management program process.

    (a) Risk-based hazard analysis. An RRP plan shall describe the 
railroad's method for conducting its risk-based hazard analysis 
pursuant to Sec.  271.103(b). At a minimum, the description shall 
specify:
    (1) The processes the railroad will use to identify hazards and the 
risks associated with those hazards;
    (2) The sources the railroad will use to support the ongoing 
identification of hazards and the risks associated with those hazards; 
and
    (3) The processes the railroad will use to compare and prioritize 
identified risks for mitigation purposes.
    (b) Mitigation strategies. An RRP plan shall describe the 
railroad's processes for designing and implementing mitigation 
strategies pursuant to Sec.  271.103(c). At a minimum, the

[[Page 9321]]

description shall specify the railroad's processes for:
    (1) Identifying and selecting mitigation strategies; and
    (2) Monitoring an identified hazard through the mitigation of the 
risk associated with that hazard.


Sec.  271.213  Safety performance evaluation process.

    An RRP plan shall describe a railroad's processes for identifying 
and analyzing its safety culture pursuant to Sec.  271.105(a), 
monitoring safety performance pursuant to Sec.  271.105(b), and 
conducting safety assessments pursuant to Sec.  271.105(c).


Sec.  271.215  Safety outreach process.

    An RRP plan shall describe a railroad's processes for communicating 
safety information to railroad personnel and management pursuant to 
Sec.  271.107.


Sec.  271.217  Technology implementation plan process.

    (a) An RRP plan shall contain a description of the railroad's 
processes for:
    (1) Conducting a technology analysis pursuant to Sec.  271.109(b); 
and
    (2) Developing a technology implementation plan pursuant to Sec.  
271.109(c).
    (b) [Reserved]


Sec.  271.219  Implementation and support training plan.

    (a) An RRP plan shall contain a training plan describing the 
railroad's processes, pursuant to Sec.  271.111, for training employees 
with significant responsibility for implementing and supporting the RRP 
(including employees of a person identified pursuant to Sec.  
271.205(a)(3) as performing significant safety-related services on the 
railroad's behalf or utilizing significant safety-related services 
provided by the railroad for railroad operations purposes who have 
significant responsibility for implementing and supporting the 
railroad's RRP).
    (b) The training plan shall describe the content of the RRP 
training for each position or job function identified pursuant to Sec.  
271.225(b)(3) as having significant responsibilities for implementing 
the RRP.


Sec.  271.221  Involvement of railroad employees process.

    An RRP plan shall contain a description of the railroad's processes 
for involving railroad employees in the establishment and 
implementation of an RRP pursuant to Sec.  271.113. 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 employees for the purposes of this section.


Sec.  271.223  Internal assessment process.

    (a) An RRP plan shall describe the railroad's processes for 
conducting an internal assessment of its RRP pursuant to subpart E of 
this part. At a minimum, this description shall contain the railroad's 
processes used to:
    (1) Conduct an internal assessment of its RRP;
    (2) Internally report the results of its internal assessment to 
railroad senior management; and
    (3) Develop improvement plans, including developing and monitoring 
recommended improvements (including any necessary revisions or updates 
to the RRP plan) for fully implementing the railroad's RRP, complying 
with the implemented elements of the RRP plan, or achieving the goals 
identified in the railroad's RRP plan pursuant to Sec.  271.203(c).
    (b) [Reserved]


Sec.  271.225  RRP implementation plan.

    (a) An RRP plan shall describe how the railroad will implement its 
RRP. A railroad may implement its RRP in stages, so long as the 
railroad fully implements the entire RRP within 36 months of FRA's 
approval of the plan.
    (b) At a minimum, a railroad's implementation plan shall:
    (1) Cover the entire implementation period;
    (2) Contain a timeline describing when certain implementation 
milestones will be achieved. Implementation milestones shall be 
specific and measurable;
    (3) Describe the roles and responsibilities of each position or job 
function that has significant responsibility for implementing the 
railroad's RRP or any changes to the railroad's RRP (including any such 
positions or job functions held by a person that enters into a 
contractual relationship with the railroad to either perform 
significant safety-related services on the railroad's behalf or to 
utilize significant safety-related services provided by the railroad 
for railroad operations purposes); and
    (4) Describe how significant changes to the RRP may be made.

Subpart D--Review, Approval, and Retention of Risk Reduction 
Program Plans


Sec.  271.301  Filing and approval.

    (a) Filing. A railroad shall submit one copy of its RRP plan to the 
FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
    (b) Filing timeline. (1) A Class I railroad shall submit its RRP 
plan no later than August 16, 2021.
    (2) A railroad with inadequate safety performance shall submit its 
RRP plan no later than 180 days after receiving final written 
notification from FRA that it shall comply with this part, pursuant to 
Sec.  271.13(d), or no later than August 16, 2021, whichever is later.
    (3) A railroad that the STB reclassifies or newly classifies as a 
Class I railroad shall submit its RRP plan no later than 90 days 
following the effective date of the classification or reclassification 
or no later than August 16, 2021, whichever is later.
    (4)(i) Before submitting an RRP plan for FRA's review and approval, 
a voluntarily-compliant railroad shall notify FRA of its intent to 
submit an RRP plan by providing written notice to the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer, 1200 New 
Jersey Avenue SE, Washington, DC 20590.
    (ii) The date that FRA receives a voluntarily-compliant railroad's 
written notice or February 18, 2021, whichever is later, serves as the 
date on which the voluntarily-compliant railroad may start compiling or 
collecting information solely for the purpose of planning, 
implementing, or evaluating a risk reduction program, as described by 
Sec.  271.11.
    (iii) A voluntarily-compliant railroad shall submit its RRP plan no 
later than 180 days after FRA receives written notice that the 
voluntarily-compliant railroad intends to submit an RRP plan for review 
and approval.
    (c) RRP plan requirements. An RRP plan submitted by a railroad 
shall include:
    (1) The signature, name, title, address, and telephone number of 
the chief official responsible for safety and who bears the primary 
managerial authority for implementing the submitting railroad's safety 
policy. By signing, this chief official is certifying that the contents 
of the RRP plan are accurate and that the railroad will implement the 
contents of the program as approved by FRA;
    (2) The contact information for the primary person responsible for 
managing the RRP;
    (3) The contact information for the senior representatives of any 
person that the railroad has determined has entered into a contractual 
relationship with the railroad to either perform significant safety-
related services on the railroad's

[[Page 9322]]

behalf or to utilize significant safety-related services provided by 
the railroad for railroad operations purposes (including host 
railroads, contract operators, shared track/corridor operators, and 
other contractors); and
    (4) As required by Sec.  271.207(d), a statement describing how it 
consulted with its directly affected employees on the contents of its 
RRP plan. Directly affected employees have 30 days following the 
railroad's submission of its proposed RRP plan to file a statement 
under Sec.  271.207(e)(2).
    (d) Approval. (1) Within 90 days of receipt of an RRP plan, or 
within 90 days of receipt of each RRP plan submitted before the start 
of railroad operations, FRA will review the proposed RRP plan to 
determine if it sufficiently addresses the required elements. This 
review will also consider any statement submitted by directly affected 
employees pursuant to Sec.  271.207(e).
    (2) FRA will notify the primary contact person of the submitting 
railroad in writing whether FRA has approved the proposed plan and, if 
not approved, the specific points in which the RRP plan is deficient. 
FRA will also provide this notification to each individual identified 
in the service list accompanying the consultation statement required 
under Sec.  271.207(d).
    (3) If FRA does not approve an RRP plan, the submitting railroad 
shall amend the proposed plan to correct all identified deficiencies 
and shall provide FRA a corrected copy no later than 90 days following 
receipt of FRA's written notice that the submitted plan was not 
approved. If FRA determines that the necessary corrections are 
substantively significant, it will direct the railroad to consult 
further with its directly affected employees regarding the corrections. 
If the corrections are substantively significant, a railroad will also 
be required to include an updated consultation statement, along with 
its resubmitted plan, pursuant to Sec.  271.207(d). Directly affected 
employees will also have 30 days following the railroad's resubmission 
of its proposed RRP plan to file a statement addressing the 
substantively significant changes under Sec.  271.207(e). Within 60 
days of receipt of a corrected RRP plan, FRA will review the corrected 
RRP plan to determine if it sufficiently addresses the identified 
deficiencies.
    (4) Approval of a railroad's RRP plan under this part does not 
constitute approval of the specific actions the railroad will implement 
under its RRP plan and shall not be construed as establishing a Federal 
standard regarding those specific actions.
    (e) Electronic submission. All documents required to be submitted 
to FRA under this part may be submitted electronically pursuant to the 
procedures in appendix B to this part.


Sec.  271.303  Amendments.

    (a) Consultation requirements. (1) For substantive amendments, a 
railroad shall follow the process, described in its RRP plan pursuant 
to Sec.  271.209, for consulting with its directly affected employees 
and submitting a consultation statement to FRA. The requirements of 
this paragraph (a)(1) do not apply to non-substantive amendments (e.g., 
amendments that update names and addresses of railroad personnel).
    (2) If a railroad and its directly affected employees cannot reach 
agreement on the proposed contents of a substantive amendment, the 
directly affected employees may file a statement with FRA under the 
procedures in Sec.  271.207(e)(1). A railroad's directly affected 
employees have 15 days following the railroad's submission of a 
proposed amendment to submit the statement described in this paragraph.
    (b) Filing. (1) A railroad shall submit any amendment(s) to its 
approved RRP plan to FRA's Associate Administrator not less than 60 
days before the proposed effective date of the amendment(s). The 
railroad shall file the amendment(s) with a cover letter outlining the 
proposed change(s) to the approved RRP plan.
    (2) If the proposed amendment is limited to adding or changing a 
name, title, address, or telephone number of a person, FRA approval is 
not required under the process of this section, although the railroad 
shall still file the amended RRP plan with FRA's Associate 
Administrator for Railroad Safety and Chief Safety Officer. These 
proposed amendments may be implemented by the railroad upon filing with 
FRA. All other proposed amendments must comply with the formal approval 
process described by this section.
    (c) Review. (1) FRA will review a proposed amendment to an RRP plan 
within 45 days of receipt. FRA will then notify the primary contact 
person of the railroad regarding whether FRA has approved the proposed 
amendment. FRA will also provide this notification to each individual 
identified in the service list accompanying the consultation statement 
required under paragraph (a)(1) of this section. If not approved, FRA 
will inform the railroad and the individuals identified in the service 
list of the specific points in which the proposed amendment is 
deficient.
    (2) If FRA has not notified the railroad and the individuals 
identified in the service list by the proposed effective date of the 
amendment whether the amendment has been approved or not, the railroad 
may implement the amendment, subject to FRA's decision.
    (3) If a proposed RRP plan amendment is not approved by FRA, no 
later than 60 days following the receipt of FRA's written notice, the 
railroad shall either provide FRA a corrected copy of the amendment 
that addresses all deficiencies noted by FRA or notice that the 
railroad is retracting the amendment.


Sec.  271.305  Reopened review.

    Following approval of an RRP plan or an amendment to such a plan, 
FRA may reopen review of the plan or amendment, in whole or in part, 
for cause stated.


Sec.  271.307  Retention of RRP plans.

    (a) Railroads. A railroad shall retain at its system and division 
headquarters one copy of its RRP plan and each subsequent amendment to 
that plan. A railroad may comply with this requirement by making an 
electronic copy available.
    (b) Inspection and copying. A railroad shall make a copy of the RRP 
plan and each subsequent amendment available to representatives of FRA 
or States participating under part 212 of this chapter for inspection 
and copying during normal business hours.

Subpart E--Internal Assessments


Sec.  271.401  Annual internal assessments.

    (a) Beginning with the first calendar year after the calendar year 
in which FRA approves a railroad's RRP plan pursuant to Sec.  
271.301(d), the railroad shall annually (i.e., once every calendar 
year) conduct an internal assessment of its RRP.
    (b) The internal assessment shall determine the extent to which the 
railroad has:
    (1) Achieved the implementation milestones described in its RRP 
plan pursuant to Sec.  271.225(b);
    (2) Complied with the implemented elements of the approved RRP 
plan;
    (3) Achieved the goals described in its RRP plan pursuant to Sec.  
271.203(c);
    (4) Implemented previous internal assessment improvement plans 
pursuant to Sec.  271.403; and
    (5) Implemented previous external audit improvement plans pursuant 
to Sec.  271.503.
    (c) A railroad shall ensure that the results of its internal 
assessments are

[[Page 9323]]

internally reported to railroad senior management.


Sec.  271.403  Internal assessment improvement plans.

    (a) Within 30 days of completing its internal assessment, a 
railroad shall develop an improvement plan that addresses the findings 
of its internal assessment.
    (b) At a minimum, a railroad's improvement plan shall:
    (1) Describe recommended improvements (including any proposed 
revisions or updates to the RRP plan the railroad expects to make 
through the amendment process described in Sec.  271.303) that address 
the findings of the internal assessment for fully implementing the 
railroad's RRP, complying with the implemented elements of the RRP 
plan, achieving the goals identified in the railroad's RRP plan 
pursuant to Sec.  271.203(c), and implementing previous internal 
assessment improvement plans and external audit improvement plans;
    (2) Identify by position title the individual who is responsible 
for carrying out the recommended improvements;
    (3) Contain a timeline describing when specific and measurable 
milestones for implementing the recommended improvements will be 
achieved; and
    (4) Specify processes for monitoring the implementation and 
evaluating the effectiveness of the recommended improvements.


Sec.  271.405  Internal assessment reports.

    (a) Within 60 days of completing its internal assessment, a 
railroad shall submit a copy of an internal assessment report to the 
FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
    (b) This report shall be signed by the railroad's chief official 
responsible for safety and who bears primary managerial authority for 
implementing the railroad's safety policy. The report shall include:
    (1) A description of the railroad's internal assessment;
    (2) The findings of the internal assessment;
    (3) A specific description of the recommended improvements 
contained in the railroad's internal assessment improvement plan, 
including any proposed amendments the railroad intends to make to the 
railroad's RRP plan pursuant to Sec.  271.303; and
    (4) The status of the recommended improvements contained in the 
railroad's internal assessment improvement plan and any outstanding 
recommended improvements from previous internal assessment improvement 
plans.

 Subpart F--External Audits


Sec.  271.501  External audits.

    FRA will conduct (or cause to be conducted) external audits of a 
railroad's RRP. Each audit shall evaluate the railroad's compliance 
with the elements of its RRP required by this part. A railroad shall 
make documentation kept pursuant to its RRP plan available for 
inspection and copying by representatives of FRA or States 
participating under part 212 of this chapter upon request. FRA will 
provide a railroad written notice of the audit results.


Sec.  271.503  External audit improvement plans.

    (a) Submission. Within 60 days of receiving FRA's written notice of 
the audit results, if necessary, a railroad shall submit for approval 
an improvement plan addressing any instances of deficiency or non-
compliance found in the audit to the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, 
Washington, DC 20590.
    (b) Requirements. At a minimum, an improvement plan shall:
    (1) Describe the improvements the railroad will implement to 
address the audit findings;
    (2) Identify by position title the individual(s) responsible for 
carrying out the improvements necessary to address the audit findings; 
and
    (3) Contain a timeline describing when milestones for implementing 
the recommended improvements will be achieved. These implementation 
milestones shall be specific and measurable.
    (c) Approval. If FRA does not approve the railroad's improvement 
plan, FRA will notify the railroad of the plan's specific deficiencies. 
The railroad shall amend the proposed plan to correct the identified 
deficiencies and provide FRA a corrected copy no later than 30 days 
following receipt of FRA's notice that the proposed plan was not 
approved.
    (d) Status reports. Upon the request of the FRA Associate 
Administrator, a railroad shall provide FRA for review a status report 
on the implementation of the improvements contained in the improvement 
plan.

Appendix A to Part 271--Federal Railroad Administration Guidance on the 
Risk Reduction Program Consultation Process

    A railroad required to develop a risk reduction program (RRP) 
under this part shall in good faith consult with and use its best 
efforts to reach agreement with its directly affected employees on 
the contents of the RRP plan. See Sec.  271.207(a)(1). This appendix 
discusses the meaning of the terms ``good faith'' and ``best 
efforts,'' and provides non-mandatory guidance on how a railroad may 
comply with the requirement to consult with directly affected 
employees on the contents of its RRP plan. Guidance is provided for 
employees who are represented by a non-profit employee labor 
organization and employees who are not represented by any such 
organization.

I. The Meaning of ``Good Faith'' and ``Best Efforts''

    ``Good faith'' and ``best efforts'' are not interchangeable 
terms representing a vague standard for the Sec.  271.207 
consultation process. Rather, each term has a specific and distinct 
meaning. When consulting with directly affected employees, 
therefore, a railroad shall independently meet the standards for 
both the good faith and best efforts obligations. A railroad that 
does not meet the standard for one or the other will not be in 
compliance with the consultation requirements of Sec.  271.207.
    The good faith obligation requires a railroad to consult with 
employees in a manner that is honest, fair, and reasonable, and to 
genuinely pursue agreement on the contents of an RRP plan. If a 
railroad consults with its employees merely in a perfunctory manner, 
without genuinely pursuing agreement, it will not have met the good 
faith requirement. For example, a lack of good faith may be found if 
a railroad's directly affected employees express concerns with 
certain parts of the railroad's RRP plan, and the railroad neither 
addresses those concerns in further consultation nor attempts to 
address those concerns by making changes to the RRP plan.
    On the other hand, ``best efforts'' establishes a higher 
standard than that imposed by the good faith obligation, and 
describes the diligent attempts that a railroad shall pursue to 
reach agreement with its employees on the contents of its RRP plan. 
While the good faith obligation is concerned with the railroad's 
state of mind during the consultation process, the best efforts 
obligation is concerned with the specific efforts made by the 
railroad in an attempt to reach agreement. This would include 
considerations such as whether a railroad had held sufficient 
meetings with its employees to address or make an attempt to address 
any concerns raised by the employees, or whether the railroad had 
made an effort to respond to feedback provided by employees during 
the consultation process. For example, a railroad would not meet the 
best efforts obligation if it did not initiate the consultation 
process in a timely manner, and thereby failed to provide employees 
sufficient time to engage in the consultation

[[Page 9324]]

process. A railroad would also likely not meet the best efforts 
obligation if it presented employees with an RRP plan and only 
permitted the employees to express agreement or disagreement on the 
plan (assuming that the employees had not previously indicated that 
such a consultation would be acceptable). A railroad may, however, 
wish to hold off substantive consultations regarding the contents of 
its RRP plan until one year after publication of the rule to ensure 
that information generated as part of the process is protected from 
discovery and admissibility into evidence under Sec.  271.11. 
Generally, best efforts are measured by the measures that a 
reasonable person in the same circumstances and of the same nature 
as the acting party would take. Therefore, the standard imposed by 
the best efforts obligation may vary with different railroads, 
depending on a railroad's size, resources, and number of employees.
    When reviewing RRP plans, FRA will determine on a case-by-case 
basis whether a railroad has met its Sec.  271.207 good faith and 
best efforts obligations. This determination will be based upon the 
consultation statement submitted by the railroad pursuant to Sec.  
271.207(b) and any statements submitted by employees pursuant to 
Sec.  271.207(c). If FRA finds that these statements do not provide 
sufficient information to determine whether a railroad used good 
faith and best efforts to reach agreement, FRA may investigate 
further and contact the railroad or its employees to request 
additional information. (FRA also expects a railroad's directly 
affected employees to utilize good faith and best efforts when 
negotiating on the contents of an RRP plan. If FRA's review and 
investigation of the statements submitted by the railroad under 
Sec.  271.207(b) and the directly affected employees under Sec.  
271.207(c) reveal that the directly affected employees did not 
utilize good faith and best efforts, FRA could consider this as part 
of its approval process.)
    If FRA determines that a railroad did not use good faith and 
best efforts, FRA may disapprove the RRP plan submitted by the 
railroad and direct the railroad to comply with the consultation 
requirements of Sec.  271.207. Pursuant to Sec.  271.301(b)(3), if 
FRA does not approve the RRP plan, the railroad will have 90 days, 
following receipt of FRA's written notice that the plan was not 
approved, to correct any deficiency identified. In such cases, the 
identified deficiency would be that the railroad did not use good 
faith and best efforts to consult and reach agreement with its 
directly affected employees. If a railroad then does not submit to 
FRA within 90 days an RRP plan meeting the consultation requirements 
of Sec.  271.207, the railroad could be subject to penalties for 
failure to comply with Sec.  271.301(b)(3).

 II. Guidance on How a Railroad May Consult With Directly Affected 
Employees

    Because the standard imposed by the best efforts obligation will 
vary depending upon the railroad, there may be countless ways for 
various railroads to comply with the consultation requirements of 
Sec.  271.207. Therefore, it is important to maintain a flexible 
approach to the Sec.  271.207 consultation requirements, to give a 
railroad and its directly affected employees the freedom to consult 
in a manner best suited to their specific circumstances.
    FRA is nevertheless providing guidance in this appendix as to 
how a railroad may proceed when consulting (utilizing good faith and 
best efforts) with employees in an attempt to reach agreement on the 
contents of an RRP plan. This guidance may be useful as a starting 
point for railroads that are uncertain about how to comply with the 
Sec.  271.207 consultation requirements. This guidance distinguishes 
between employees who are represented by a non-profit employee labor 
organization and employees who are not, as the processes a railroad 
may use to consult with represented and non-represented employees 
could differ significantly.
    This guidance does not establish prescriptive requirements with 
which a railroad shall comply, but merely outlines a consultation 
process a railroad may choose to follow. A railroad's consultation 
statement could indicate that the railroad followed the guidance in 
this appendix as evidence that it utilized good faith and best 
efforts to reach agreement with its employees on the contents of an 
RRP plan.

(a) Employees Represented by a Non-Profit Employee Labor 
Organization

    As provided in Sec.  271.207(b)(1), a railroad consulting with 
the representatives of a non-profit employee labor organization on 
the contents of an RRP plan will be considered to have consulted 
with the directly affected employees represented by that 
organization.
    A railroad 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 an RRP 
plan.
    (1) Pursuant to Sec.  271.207(b)(1), 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) within 240 days from February 18, 2020 to begin the 
process of consulting on the contents of the railroad's RRP plan. A 
railroad must provide notice at least 60 days before the scheduled 
meeting.
    (2) During the time between the initial meeting and the 
applicability date of Sec.  271.11, the parties may meet to discuss 
administrative details of the consultation process as necessary.
    (3) Within 60 days after February 17, 2021, a railroad should 
have a meeting with the representatives of the directly affected 
employees to discuss substantive issues with the RRP plan.
    (4) Within 180 days after February 17, 2021 or as otherwise 
provided by Sec.  271.301(b), a railroad would file its RRP plan 
with FRA.
    (5) As provided by Sec.  271.207(e), if agreement on the 
contents of an RRP plan could not be reached, a labor organization 
(representing a class or craft of the railroad's directly affected 
employees) 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.

(b) Employees Who Are Not Represented by a Non-Profit Employee 
Labor Organization

    FRA recognizes that some (or all) of a railroad's directly 
affected employees may not be represented by a non-profit employee 
labor organization. For such non-represented employees, the 
consultation process described for represented employees may not be 
appropriate or sufficient. For example, 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 RRP plan. FRA 
therefore is providing the following guidance regarding how a 
railroad may utilize good faith and best efforts when consulting 
with non-represented employees on the contents of its RRP plan.
    (1) Within 120 days from February 18, 2020, a railroad may 
notify non-represented employees that--
    (A) The railroad is required to consult in good faith with, and 
use its best efforts to reach agreement with, all directly affected 
employees on the proposed contents of its RRP plan;
    (B) Non-represented employees are invited to participate in the 
consultation process (and include instructions on how to engage in 
this process); and
    (C) If a railroad is unable to reach agreement with its directly 
affected employees on the contents of the proposed RRP plan, an 
employee may file a statement with the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer explaining his or her 
views on the plan on which agreement was not reached.
    (2) This initial notification (and all subsequent 
communications, as necessary or appropriate) could be provided to 
non-represented employees in the following ways:
    (A) Electronically, such as by email or an announcement on the 
railroad's website;
    (B) By posting the notification in a location easily accessible 
and visible to non-represented employees; or
    (C) By providing all non-represented employees a hard copy of 
the notification.
    A railroad could use any or all of these methods of 
communication, so long as the notification complies with the 
railroad's obligation to utilize best efforts in the consultation 
process.
    (3) Following the initial notification (and before submitting 
its RRP plan to FRA), a railroad should provide non-represented 
employees a draft proposal of its RRP plan. This draft proposal 
should solicit additional input from non-represented employees, and 
the railroad should provide non-represented employees 60 days to 
submit comments to the railroad on the draft.
    (4) Following this 60-day comment period and any changes to the 
draft RRP plan made as a result, the railroad should submit the 
proposed RRP plan to FRA, as required by this part.
    (5) As provided by Sec.  271.207(e), if agreement on the 
contents of an RRP plan cannot be reached, then a non-represented 
employee may file a statement with the FRA Associate Administrator 
for Railroad Safety and Chief Safety Officer explaining his or her

[[Page 9325]]

views on the plan on which agreement was not reached.

Appendix B to Part 271--Procedures for Submission of RRP Plans and 
Statements From Directly Affected Employees

    This appendix establishes procedures for the submission of a 
railroad's RRP plan and statements by directly affected employees 
consistent with the requirements of this part.

Submission by a Railroad and Directly Affected Employees

    (a) As provided for in Sec.  271.101, each railroad must 
establish and fully implement an RRP that continually and 
systematically evaluates railroad safety hazards on its system and 
manages the resulting risks to reduce the number and rates of 
railroad accidents, incidents, injuries, and fatalities. The RRP 
shall be fully implemented and supported by a written RRP plan. Each 
railroad must submit its RRP plan to FRA for approval as provided 
for in Sec.  271.201.
    (b) As provided for in Sec.  271.207(e), if a railroad and its 
directly affected employees cannot come to agreement on the proposed 
contents of the railroad's RRP plan, the directly affected employees 
have 30 days following the railroad's submission of its proposed RRP 
plan to submit a statement to the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer explaining the directly 
affected employees' views on the plan on which agreement was not 
reached.
    (c) The railroad's and directly affected employees' submissions 
shall be sent to the Associate Administrator for Railroad Safety and 
Chief Safety Officer, FRA. The mailing address for FRA is 1200 New 
Jersey Avenue SE, Washington, DC 20590. When a railroad submits its 
RRP plan and consultation statement to FRA pursuant to Sec.  
271.301, it must also simultaneously send a copy of these documents 
to all individuals identified in the service list pursuant to Sec.  
271.207(d)(3).
    (d) Each railroad and directly affected employee is authorized 
to file by electronic means any submissions required under this 
part. Before any person files a submission electronically, the 
person shall provide the FRA Associate Administrator for Railroad 
Safety and Chief Safety Officer with the following information in 
writing:
    (1) The name of the railroad or directly affected employee(s);
    (2) The names of two individuals, including job titles, who will 
be the railroad's or directly affected employees' points of contact 
and will be the only individuals allowed access to FRA's secure 
document submission site;
    (3) The mailing addresses for the railroad's or directly 
affected employees' points of contact;
    (4) The railroad's system or main headquarters address located 
in the United States;
    (5) The email addresses for the railroad's or directly affected 
employees' points of contact; and
    (6) The daytime telephone numbers for the railroad's or directly 
affected employees' points of contact.
    (e) A request for electronic submission or FRA review of written 
materials shall be addressed to the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer, Federal Railroad 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. 
Upon receipt of a request for electronic submission that contains 
the information listed above, FRA will then contact the requestor 
with instructions for electronically submitting its program or 
statement. A railroad that electronically submits an initial RRP 
plan or new portions or revisions to an approved program required by 
this part shall be considered to have provided its consent to 
receive approval or disapproval notices from FRA by email. FRA may 
electronically store any materials required by this part regardless 
of whether the railroad that submits the materials does so by 
delivering the written materials to the Associate Administrator and 
opts not to submit the materials electronically. A railroad that 
opts not to submit the materials required by this part 
electronically, but provides one or more email addresses in its 
submission, shall be considered to have provided its consent to 
receive approval or disapproval notices from FRA by email or mail.

    Issued in Washington, DC.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2020-00425 Filed 2-14-20; 8:45 am]
BILLING CODE 4910-06-P

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