System Safety Program and Risk Reduction Program, 12826-12852 [2020-04424]

Download as PDF 12826 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Parts 270 and 271 [Docket No. FRA–2011–0060, Notice No. 12 and FRA–2009–0038, Notice No. 8] RIN 2130–AC73 System Safety Program and Risk Reduction Program Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. AGENCY: In this final rule, FRA is amending its regulations requiring commuter and intercity passenger rail (IPR) operations to develop and implement a system safety program (SSP) to improve the safety of their operations. The rule clarifies that each passenger rail operation has responsibility for ensuring compliance with the SSP final rule. FRA also adjusts the SSP rule’s compliance dates to account for FRA’s prior stay of the rule’s effect and amends the rule to apply its information protections to the Confidential Close Call Reporting System (C3RS) program included in a passenger rail operation’s SSP. FRA is making conforming amendments to the Risk Reduction Program (RRP) final rule to ensure that the RRP and SSP rules have essentially identical consultation and information protection provisions. DATES: This final rule is effective May 4, 2020. ADDRESSES: Docket: For access to the docket to read background documents, petitions for reconsideration, or comments received, go to https:// www.regulations.gov and follow the online instructions for accessing the docket or visit the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Room W12–140, Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Larry Day, Passenger Rail Safety Specialist, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Passenger Rail Division; telephone: 909–782–0613; email: Larry.Day@dot.gov; Elizabeth A. Gross, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel; telephone: 202–493–1342; email: Elizabeth.Gross@dot.gov; or Veronica Chittim, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief jbell on DSKJLSW7X2PROD with RULES2 SUMMARY: VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 Counsel; telephone: 202–493–0273; email: Veronica.Chittim@dot.gov. SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Background II. Discussion of Comments Received on the NPRM A. States’ Concerns 1. FRA’s Statutory Authority 2. State Comments Alleged SSP Rule Imposes Burdens Without Improving Safety 3. State Comments Alleged Requirements To Consult With Its IPR Operators’ Employees Would Interfere With StateIPR Operator Contracts 4. Other Comments Related to States’ Concerns B. Other Topics 1. Consultation Comments 2. Information Protections 3. Submission Time 4. RRP Rule III. FRA’s Response to Comments and Amendments to Parts 270 and 271 A. FRA’s Modified Approach 1. IPR Examples 2. Commuter (or Other Short-Haul) Examples 3. Summary of Amendments and Response to States’ Comments B. How FRA’s Approach Responds to the States’ Concerns 1. Statutory Authority Concerns 2. Burden 3. Consultation Concerns C. Other Topics D. Conforming Amendments to the RRP Final Rule IV. Section-by-Section Analysis V. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Paperwork Reduction Act D. Environmental Impact E. Federalism Implications F. Unfunded Mandates Reform Act of 1995 G. Energy Impact I. Background On August 12, 2016, FRA published a final rule requiring each commuter and intercity passenger railroad 1 to develop and implement an SSP. See 81 FR 53850 (Aug. 12, 2016). This final rule was required by section 103 of the Rail Safety Improvement Act of 2008 (RSIA) (Pub. L. 110–432, Div. A, 122 Stat. 4883 (Oct. 16, 2008), codified at 49 U.S.C. 20156). The Secretary of Transportation delegated the authority to conduct this rulemaking and implement the rule to the Federal Railroad Administrator. See 49 CFR 1.89(b). On October 3, 2016, FRA received four petitions for reconsideration 1 Throughout this document, FRA uses the term ‘‘railroad,’’ as it is defined in 49 CFR 270.5. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 (Petitions) of the final rule: (1) Certain labor organizations (Labor Organizations) 2 filed a joint petition (Labor Petition); (2) certain State and local transportation departments and authorities 3 filed a joint petition (Joint Petition); (3) North Carolina Department of Transportation (NCDOT) filed a separate petition; and (4) Vermont Agency of Transportation (VTrans) filed a separate petition. The Joint, NCDOT, and VTrans petitions are hereinafter referred to as the ‘‘State Petitions.’’ Massachusetts Department of Transportation (MassDOT) filed a comment in support of the Joint Petition on November 15, 2016. Three other individual comments were filed, but related to the rule generally, not the petitions. On February 10, 2017, FRA stayed the SSP final rule’s requirements until March 21, 2017, consistent with the new Administration’s guidance issued January 20, 2017, intended to provide the Administration an adequate opportunity to review new and pending regulations. See 82 FR 10443 (Feb. 13, 2017). FRA’s review also included the Petitions. To provide additional time for that review, FRA extended the stay until May 22, 2017; June 5, 2017; December 4, 2017; December 4, 2018; and then September 4, 2019. See 83 FR 63106 (Dec. 7, 2018). On October 30, 2017, FRA met with the Passenger Safety Working Group and the System Safety Task Group of the Railroad Safety Advisory Committee (RSAC) to discuss the Petitions and comments received in response to the Petitions.4 See FRA–2011–0060–0046. 2 The Labor Organizations participating in the Labor Petition are the: American Train Dispatchers Association (ADTA); Brotherhood of Locomotive Engineers and Trainmen (BLET); Brotherhood of Maintenance of Way Employes Division (BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood Railway Carmen Division; and Transport Workers Union of America. 3 The State and local transportation departments and authorities who filed the Joint Petition are the: Capitol Corridor Joint Powers Authority (CCJPA); Indiana Department of Transportation (INDOT); Northern New England Passenger Rail Authority (NNEPRA); and San Joaquin Joint Powers Authority (SJJPA). 4 Attendees at the October 30, 2017, meeting included representatives from the following organizations: ADS System Safety Consulting, LLC; American Association of State Highway and Transportation Officials; American Public Transportation Association (APTA); American Short Line and Regional Railroad Association; ATDA; Association of American Railroads (AAR); BLET; BMWED; BRS; CCJPA; The Fertilizer Institute; Gannett Fleming Transit and Rail Systems; International Brotherhood of Electrical Workers; Metropolitan Transportation Authority; National Railroad Passenger Corporation (Amtrak); National Transportation Safety Board (NTSB); NCDOT; NNEPRA; San Joaquin Regional Rail Commission (SJRRC)/Altamont Corridor Express; Sheet Metal, Air, Rail, and Transportation Workers E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 This meeting allowed FRA to receive input from industry and the public and to discuss potential paths forward to respond to the Petitions. During the meeting, FRA made an introductory presentation and invited discussion on the issues raised by the Labor Petition. FRA also presented for discussion draft rule text that would respond to the State Petitions by amending the SSP final rule to include a delegation provision that would allow a railroad that contracts all activities related to its passenger service to another person to designate that person as responsible for compliance with the SSP final rule. FRA uploaded this proposed draft rule text to the docket for this rulemaking. See FRA– 2011–0060–0045. The draft rule text specified that any such designation did not relieve a railroad of legal responsibility for compliance with the SSP final rule. In response to the draft rule text, the State Petitioners indicated they would need an extended caucus to discuss. On March 16, 2018, the Executive Committee of the States for Passenger Rail Coalition, Inc. (SPRC) 5 provided, and FRA uploaded to the rulemaking docket, proposed revisions to the draft rule text. See FRA–2011– 0060–0050.FRA issued a notice of proposed rulemaking (NPRM) on June 11, 2019, responding to the Petitions and proposing certain amendments to the SSP final rule. See 84 FR 27215. FRA further extended the stay to allow FRA time to review comments received on the NPRM and to issue this final rule. See 84 FR 45683 (Aug. 30, 2019). In addition to the comments received on the NPRM, FRA also reviewed and considered SPRC’s March 16, 2018 suggested revisions in formulating the NPRM and this final rule. Accordingly, this rule revises part 270 in response to the Petitions, as well as the comments received on the June 2019 NPRM, which are discussed below. FRA also adjusts the rule’s compliance dates to account for FRA’s stay of the rule’s effect and amends the rule to specify that its information protections apply to C3RS programs included in a passenger rail operation’s SSP. This rule also amends part 271 to ensure that the RRP and SSP rules have essentially identical consultation and information protection provisions. (SMART–TD); and United States Department of Transportation—Transportation Safety Institute. 5 SPRC’s website indicates it is an ‘‘alliance of State and Regional Transportation Officials,’’ and each State Petitioner appears to be an SPRC member. See https://www.s4prc.org/state-programs (last accessed Aug. 13, 2019). VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 II. Discussion of Comments Received on the NPRM The NPRM solicited written comments from the public under the Administrative Procedure Act (5 U.S.C. 553). By the close of the comment period on August 12, 2019, FRA received fourteen comments, including comments from AAR; Amtrak; APTA; CCJPA jointly with INDOT, Los Angeles-San Diego-San Luis Obispo Rail Corridor Agency, and SJJPA (CCJPA Joint Comment); Connecticut Department of Transportation (CTDOT); Massachusetts Bay Transportation Authority (MBTA); MassDOT; NCDOT; NNEPRA jointly with the State of Maine Department of Transportation (MEDOT); SPRC; VTrans; and Washington State Department of Transportation (WSDOT). FRA also received two general comments from members of the public. FRA grouped these comments into two categories: (A) States’ Concerns and (B) Other Topics (Consultation Comments, Information Protections, Submission Time, and RRP Rule). A. States’ Concerns The CCJPA Joint Comment and SPRC’s submission contained essentially identical comments (hereinafter, State Comments). See FRA–2011–0060–0031 and FRA–2009– 0038–0106. These State Comments reiterated many arguments the States have raised with FRA previously on this topic. Generally, MassDOT, NCDOT, NNEPRA/MEDOT, VTrans, and WSDOT concurred with the State Comments. These individual State comments included context for the particular rail services provided (for example, NNEPRA/MEDOT explained its ‘‘Downeaster’’ service) and emphasized the apparent lack of control and operational role of the State in the IPR service. Specifically, the State Comments argued that: (1) FRA would exceed its statutory authority to impose SSP requirements on States; (2) the SSP rule would impose substantial burdens on States without improving safety; and (3) States should not be required to consult with their IPR operators’ employees. Therefore, the State Comments requested that FRA modify the SSP rule to exclude a State that provides financial support for, but does not operate, IPR service; to exclude a State that owns a railroad or railroad equipment, but does not operate a railroad or railroad equipment; and to remove from the definition in § 270.5, ‘‘Railroad,’’ the words ‘‘whether directly or by contracting out operation of the railroad to another person.’’ See SPRC at PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 12827 15; CCJPA at 17; VTrans at 6. The State Comments also contended that FRA’s proposed delegation provision in § 270.7(c) was insufficient relief because the State would retain the burden of compliance. 1. FRA’s Statutory Authority The State Comments alleged FRA lacks statutory authority to require States that provide funding for IPR service to comply with the SSP rule requirements. See SPRC at 3; CCJPA at 5. Further, the State Comments argued that neither the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) (Pub. L. 110–432, Div. B (Oct. 16, 2008)) nor the RSIA reflected a Congressional ‘‘intent to include States as IPR providers with responsibility for anything more than service funding.’’ See SPRC at 3, 4; CCJPA at 3; VTrans at 11. Instead, the State Comments suggested any safety responsibility belongs only to the IPR operator. See SPRC at 3; CCJPA at 3. Moreover, the State Comments urged FRA to ‘‘remove from State financial sponsors the responsibility for compliance with FRA’s safety regulations unless a State elects to assume that responsibility on its own.’’ SPRC at 5; CCJPA at 5. Specifically, the State Comments contended that a ‘‘State’’ cannot be a ‘‘railroad carrier’’ under 49 U.S.C. 20102(3). See SPRC at 5; CCJPA at 6. The State Comments explained that the definition of ‘‘person’’ in 1 U.S.C. 1, includes ‘‘corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,’’ but does not specifically include the word ‘‘State.’’ See SPRC at 5–6; CCJPA at 6. The State Comments argued that a ‘‘State’’ therefore cannot be a ‘‘person,’’ and by extension, a ‘‘State’’ cannot be a ‘‘person providing railroad transportation’’ under the definition of ‘‘railroad carrier’’ in 49 U.S.C. 20102(3). See SPRC at 5–6; CCJPA at 5–6. To support its argument, the State Comments indicated that Congress in PRIIA did not include ‘‘States’’ in the definition of ‘‘Persons’’ generally, and when Congress wanted to include ‘‘States’’ as ‘‘persons,’’ it explicitly said so, citing to 49 U.S.C. 1139(g)(1), in PRIIA, concerning accident investigations. See SPRC at 6; CCJPA at 6. MassDOT, NNEPRA/MEDOT, and VTrans additionally commented that Surface Transportation Board (STB) precedent allows States to maintain an STB status as a ‘‘non-carrier’’ when a State acquires track, right-of-way, and related physical assets. MassDOT explained that ‘‘ownership of railroad E:\FR\FM\04MRR2.SGM 04MRR2 12828 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations assets does not necessarily confer upon the asset owner rail carrier status.’’ See MassDOT at 2. NNEPRA/MEDOT stated that NNEPRA does not provide railroad transportation, but rather pays Amtrak the difference between service costs and revenues to operate the Downeaster service. See NNEPRA/MEDOT at 4. VTrans noted that it already delegates responsibility to railroad carriers through long-term contractual relationships. See VTrans at 3. VTrans contended State ownership of railroad property leased to a railroad carrier does not make the State a railroad carrier for the Interstate Commerce Act, the Federal Employers Liability Act, and the Railway Labor Act. See VTrans at 7–8. Further, VTrans argued that State financial support for Amtrak services, such as that required by PRIIA section 209, should not trigger the SSP rule’s applicability. VTrans at 11. The State Comments, NCDOT, and NNEPRA/MEDOT commented that some State statutes prohibit States from owning or operating a railroad. See, e.g., SPRC at 9; CCJPA at 9; NCDOT at 2; NNEPRA/MEDOT at 4. As such, the States argued, requiring States to comply with the SSP rule would require States to seek statutory authority to engage in rail operations, or it would prevent them from underwriting the service at all. See SPRC at 9; CCJPA at 9. Finally, the State Comments argued FRA expanded the definition of ‘‘railroad’’ in part 270 without authority to include entities that ‘‘contract [ ] out operation of the railroad to another person.’’ See SPRC at 7; CCJPA at 7. The State Comments asserted that FRA’s regulatory definition is broader than the statutory definition, and there is no clear direction from Congress to extend the definition as FRA proposed. See SPRC at 7; CCJPA at 8. jbell on DSKJLSW7X2PROD with RULES2 2. State Comments Alleged the SSP Rule Imposes Burdens Without Improving Safety The State Comments continued to argue the SSP rule would impose substantial burdens on States. See SPRC at 9; CCJPA at 10. The State Comments explained State sponsors 6 ‘‘do not 6 There is currently no statutory or regulatory definition of the term ‘‘sponsor’’ in relation to IPR service. The Joint Petition appears to understand ‘‘sponsor’’ in this context as being a State that ‘‘provide[s] financial support’’ for IPR routes and ‘‘contract[s] for the operation of IPR.’’ See Joint Pet. at 2, fn. 2. The NCDOT petition defines ‘‘sponsors’’ as ‘‘State or other public entities that own railroads, equipment or that financially sponsor intercity passenger rail service.’’ NCDOT Pet. at 3. In its proposed revisions to the strawman text FRA presented during the October 2017 RSAC meeting, SPRC suggested defining ‘‘State sponsor’’ as ‘‘a VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 employ qualified railroad personnel with the detailed technical knowledge to develop, implement, and oversee compliance with an SSP.’’ See SPRC at 10; CCJPA at 11. They also claimed FRA’s regulatory impact statement ‘‘underestimates the costs to States of compliance with the proposed SSP requirements’’ and ‘‘did not consider’’ the costs of ‘‘developing, implementing, and monitoring compliance with an SSP’’ and the ‘‘negative impacts on the overall insurance market.’’ See SPRC at 11; CCJPA at 13. Further, the State Comments alleged the rule would require States to renegotiate operating agreements which would increase costs. See SPRC at 12; CCJPA at 13. In sum, the State Comments indicated the SSP rule’s financial burdens could cause States to discontinue IPR service entirely, and may therefore necessitate repaying Federal grants or loans for early termination of service. See SPRC at 13; CCJPA at 14. Moreover, the State Comments argued that including State sponsors in the rule could subject sponsors to other statutory obligations, such as railway labor and retirement requirements, and would increase costs and discourage IPR service. See SPRC at 14; CCJPA at 16. The State Comments asserted that ‘‘FRA has not demonstrated that requiring States, as well as IPR operators, to be responsible for full SSP compliance would improve safety.’’ SPRC at 3; CCJPA at 3. The State Comments theorized that requiring both the IPR operator and State sponsor to develop an SSP would be duplicative and could create ‘‘contradictory and possibly conflicting measures.’’ See SPRC at 3, 10, 13; CCJPA at 3; WSDOT at 1. To support this claim, the State Comments pointed to the NTSB’s report in the Dupont, Washington 501 accident to suggest that because the NTSB issued a recommendation to Amtrak to include the various responsible parties in a comprehensive safety management system (SMS), and NTSB did not issue a recommendation to WSDOT to develop such an independent safety program, which implies that requiring States to prepare and implement an SSP plan would not improve safety. See SPRC at 13–14; CCJPA at 15. Finally, the States indicated that State sponsors of IPR service lack control over State, regional or local authority, that contracts with a railroad to provide intercity passenger railroad transportation pursuant to Section 209 of the Passenger Rail Investment and Improvement Act of 2008, as amended.’’ See Comments of the SPRC at 2. For purposes of discussion in this rule, FRA understands ‘‘State sponsor’’ as being a State, regional, or local authority, or other public entity, that provides financial (and potentially other) support for IPR routes. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 the operator (typically, Amtrak), and although they pay Amtrak to keep the service running (as required by PRIIA), the only remedy they have for oversight is to cancel the contract (i.e., terminate the IPR service entirely). See, e.g., NCDOT at 3; CCJPA at 12, 14. WSDOT noted that non-operating State sponsors ‘‘do not control operations nor have access to critical safety reports or other information’’ and lack the required ‘‘appropriate expertise, authority, and ability to receive timely critical information to make decisions or take appropriate actions.’’ WSDOT at 1–2. WSDOT reiterated that contractor operators have the appropriate personnel to meet safety requirements and provide oversight, and having States duplicate that effort would potentially create conflicting, redundant, and deflective measures. See WSDOT at 3. MassDOT agreed that the SSP rule ‘‘imputes to the States a nonexistent degree of State control over Amtrak’s day-to-day operations.’’ See MassDOT at 2. MassDOT distinguished the service and contract provided by MBTA (contracting out commuter rail operations to a third-party operator) from itself, where MassDOT funds (as required by PRIIA) certain IPR multistate (Massachusetts, New Hampshire, Vermont) routes without an operational role for MassDOT. See MassDOT at 2. MassDOT posited that including a State sponsor as a regulated entity ‘‘adds confusion as to responsibility, threatens clear and timely communications between appropriate parties and misdirects regulatory attention.’’ See MassDOT at 4. VTrans, like NNEPRA, MassDOT, and NCDOT, explained that it has no authority to govern or enforce any safety rules, even when it is the owner of the property, and all responsibilities lie with the actual rail operators. See VTrans at 11. 3. State Comments Alleged Requirements To Consult With Its IPR Operators’ Employees Would Interfere With State-IPR Operator Contracts Finally, the State Comments argued States should not be required to consult with their IPR operators’ employees because it ‘‘introduces substantial barriers to efficient procurement practices.’’ See SPRC at 16; CCJPA at 18. WSDOT and MassDOT shared the concern that direct contact with an IPR service operator’s employees could create labor and operator issues. See WSDOT at 3; MassDOT at 4. NCDOT emphasized it is not a party to, nor is it privy to, Amtrak’s agreements with its host railroads and the SSP rule would purportedly insert States into that relationship. See NCDOT at 3. E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations With the above arguments, the State Comments, MassDOT, NCDOT, NNEPRA/MEDOT, VTrans, and WSDOT, urged FRA to amend the SSP rule to exempt State sponsors from part 270. jbell on DSKJLSW7X2PROD with RULES2 4. Other Comments Related to States’ Concerns In contrast to the above arguments, APTA commented that it supports the part 270 definition of ‘‘railroad,’’ supports FRA’s statement that ‘‘each entity involved in providing passenger rail service—including ‘‘State sponsors’’—is responsible for complying with Federal rail safety requirements,’’ and believes ‘‘[S]tates must be solely responsible for [their] employees and contractor’s compliance.’’ See APTA at 2. CTDOT supported FRA’s proposal to allow for designation of another entity to ensure compliance with the SSP, and explained the entities it would so designate for its three passenger services (New Haven Line, Hartford Line, and Shore Line East). See CTDOT at 1.7 Amtrak agreed with FRA’s statement that ‘‘the vast majority of State providers of [IPR] service would fall under Amtrak’s [SSP plan].’’ See Amtrak at 2. Amtrak asserted that ‘‘uniformity in the management of system safety program elements is critical to the successful implementation of risk reduction efforts.’’ See id. Amtrak stated that it supplemented its Amtrak-wide SSP plan with separate agreements with host railroads, tenant railroads, and States, detailing specific aspects of the service and infrastructure, along with the responsibilities of each party, and incorporated these agreements by reference into its SSP plan.8 See id. Amtrak explained these supplemental, collaborative, written agreements can prevent variation in programs that could lead to duplication of efforts or issues where entities think they may be obligated to provide oversight of Amtrak beyond their skills or resources. See id. Amtrak requested that FRA clarify that these agreements align with FRA’s intent to sufficiently detail the requirements and obligations of each party. See id. Finally, a member of the public, Mr. Quinton Simpson stated ‘‘even if the State contracts’’ an IPR service provider, the State has responsibility and ‘‘needs to ensure that the company is operating 7 See FRA–2011–0060–0068 (received Aug. 12, 2019). CTDOT provided clarifying comments dated November 20, 2019, after the comment period closed, which FRA added to the docket. See FRA– 2011–0060–0074. 8 FRA notes that because of the stay of the SSP rule, FRA has neither approved nor disapproved Amtrak’s SSP plan under the rule. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 safely.’’ Similarly, Dr. Edwin ‘‘Chip’’ Kraft commented to FRA that the ‘‘type of communications disconnect resulting in avoidance of responsibility’’ is what the SSP rule is trying to prevent. B. Other Topics 1. Consultation Comments FRA received two comments regarding FRA’s proposed changes to the consultation provision in § 270.107. Amtrak commented that it ‘‘concurs with the [NPRM’s] proposed clarifications’’ to require serving ‘‘notice on the general chairpersons of labor organizations representing directly affected railroad employees.’’ See Amtrak at 1. Further, Amtrak detailed its own experience on the labor consultation process in developing its SSP plan, and indicated that without such ‘‘continuous communication and collaboration between labor organizations and Amtrak management, its [SSP plan] to implement the [Safety Management System] would not be as successful nor sustainable.’’ See id. at 1–2. Additionally, Mr. Simpson commented that he agrees that the contact of the General Chairperson makes sense because ‘‘the local chairperson was the liaison between the worker and the company.’’ 2. Information Protections Amtrak commented that it agrees with the NPRM’s proposal to extend the SSP information protections to a C3RS program included as part of an SSP, even if the railroad joined C3RS on or before August 14, 2017. See Amtrak at 2. Further, Amtrak requested ‘‘that any information resulting from its [SSP plan] processes prior to the effective date of the rule’s protection provisions be afforded like protections from discovery or use in civil litigation.’’ See id. Amtrak also requested the ‘‘protections include information developed in [S]tate sponsored routes, including in circumstances where [S]tate entities may be subject to disclosure requirements.’’ See id. at 3. APTA supported the proposed protection for C3RS outlined in § 270.105(a)(3), but requested it be expanded from Federal or State court proceedings to also protect from other requests to release the data, like requests under the Freedom of Information Act (FOIA) or Freedom of Information Law. See APTA at 1. Further, APTA stated the ‘‘protection should also apply to any Federal program utilized by the railroads, such as [the Rail Information Sharing Environment (RISE)] or Clear Signal for Action [(CSA)].’’ See id. at 2. MBTA supported the C3RS program PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 12829 and, like APTA, commented that FRA ‘‘should expand the privacy protections . . . to FOIA requests, as long as the information being requested supports the SSP.’’ See MBTA at 1. Similarly, AAR supported the proposed inclusion of FRA’s C3RS program in the information protections, but stated the provision should go further to include railroads’ ‘‘in-house close call confidential reporting systems.’’ See AAR at 2. 3. Submission Time FRA requested comments on whether a one-year period after publication of the final rule was appropriate for submission of SSP plans for FRA review. APTA requested that FRA provide two years, to mirror what the Federal Transit Administration (FTA) provided in implementing the SMS program. See APTA at 2. MBTA supported extending compliance dates and providing one year for submission of SSP plans to allow sufficient time for railroads to reengage labor representatives. See MBTA at 1. Amtrak asked FRA to implement the rule as soon as possible. See Amtrak at 3. 4. RRP Rule Finally, AAR commented that the NPRM ‘‘ignores AAR’s supplemental comments to the RRP rule, filed October 31, 2018.’’ AAR’s comment also stated ‘‘[b]y adopting [AAR’s] proposed changes to the RRP regulatory text, FRA can dramatically speed up the enhancement of safety on the nation’s railroads, at no risk.’’ See AAR at 1. III. FRA’s Response to Comments and Amendments to Parts 270 and 271 After thoroughly considering the comments received on the NPRM, FRA is amending part 270 to clarify the application of the rule’s requirements to each ‘‘passenger rail operation,’’ as opposed to each ‘‘railroad.’’ FRA believes that this approach addresses the concerns raised by the States; effectuates FRA’s intent for system safety; provides for a more natural understanding of how system safety works on a practical level; and will ensure each passenger rail operation develops and implements a compliant SSP.9 Specific rule text changes to carry out this approach are discussed further below in the section-by-section analysis. A. FRA’s Modified Approach As FRA has consistently explained, FRA recognizes that there are often 9 FRA’s treatment of passenger rail service in this rule is only intended to affect the application of Federal safety requirements FRA administers and enforces. E:\FR\FM\04MRR2.SGM 04MRR2 12830 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 multiple entities involved in each passenger rail service, with each entity having varying safety responsibilities.10 For purposes of part 270, FRA expects each passenger rail operation to have a single SSP and written SSP plan. FRA agrees with the State Comments that each passenger rail operation should have a single SSP governing the entire service, with each entity that may be involved in the service playing a role in the SSP commensurate with any of its activities affecting railroad safety. FRA similarly agrees that if each entity involved in a passenger rail operation filed its own SSP plan, this could lead to confusion and duplicated actions, contrary to promoting a systemic approach to safety. Therefore, FRA is clarifying the rule to place the central responsibilities of developing, filing, and implementing an SSP plan on the passenger rail operation. For most passenger rail operations, FRA expects the entity conducting the railroad operations will develop, submit, and implement the required SSP plan for that passenger rail operation. The entity submitting the plan for a passenger rail operation will typically be the railroad providing the engineers and crews and physically operating the trains on that passenger rail operation’s routes. Of course, if the entities involved in a passenger rail operation determine that an entity other than the railroad operating the service should develop and file that operation’s SSP plan, that different entity may be designated with such responsibility for the passenger rail operation, provided the required elements of the SSP plan are met with a single plan covering that system. In this manner, FRA is adopting the designation provision proposed in § 270.7(c), but with adjustments to reflect that the responsibility falls on each passenger rail operation and to remove the language that a designator is not relieved of responsibility for compliance. The passenger rail operation for all current State-sponsored IPR services could be considered part of one, multifaceted system that is organized, managed, performed, and operated by a single railroad. As captured in the amendments to the rule text in this rulemaking, the requirements of part 270 may apply to those national and State-supported IPR services operated by Amtrak as a single passenger rail 10 For example, an entity, such as a State agency or rail authority, may organize and finance the rail service; a primary contractor may oversee the dayto-day operation of the rail service; one subcontractor may operate the trains along the route; another subcontractor may maintain the train equipment; and another entity may own the track. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 operation. FRA anticipates Amtrak would develop and implement an SSP that addresses the varying components of its network. Within that rail system, other entities involved (e.g., host railroads) must participate in the SSP process to ensure those entities’ roles are performed safely when they may affect the safe operation of that system’s rail service. With the amendments to the rule, FRA clarifies that it does not require such other entities to develop, submit, and implement an independent SSP plan to FRA. For example, a nonoperating entity must participate in (and be identified in) the SSP process to the extent that entity owns infrastructure or equipment that will be utilized by the passenger rail operation. But that nonoperating entity will not file the SSP plan for the passenger rail operation unless otherwise agreed amongst the entities involved in the passenger rail operation. Indeed, as stated above, Amtrak agreed with FRA’s statement that ‘‘the vast majority of State providers of [IPR] service would fall under Amtrak’s [SSP plan].’’ See Amtrak at 2. Amtrak asserted that ‘‘uniformity in the management of system safety program elements is critical to the successful implementation of risk reduction efforts.’’ See id. Amtrak explained that it supplemented its Amtrak-wide SSP plan with separate agreements with host railroads, tenant railroads, and States, detailing specific aspects of each service and infrastructure, along with the responsibilities of each party. See id. Amtrak stated these supplemental, collaborative written agreements can prevent variation in programs that could lead to duplication of efforts or issues where entities think they may be obligated to provide oversight of Amtrak beyond their skills or resources. See id. FRA finds that these types of agreements will likely align with the rule’s requirements to explain the roles and obligations of each party involved in a passenger rail operation. As stated above, Amtrak’s national IPR network currently includes many Statesupported routes that compose its system. As Amtrak’s comment recognized, if Amtrak files an SSP plan for its passenger rail network incorporating State-sponsored IPR services, Amtrak’s network SSP plan must also include details about each route, including State-supported routes, within the Amtrak network, especially to the extent aspects of those routes vary from those common to Amtrak’s intercity passenger rail network. In this manner, an SSP plan for Amtrak’s system would likely include details from the long-term agreements Amtrak PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 has with individual States regarding funding, equipment, track, and/or other items specific to those State-supported routes. FRA believes this form of centralized SSP plan addressing various components of the system will conform to the statutory mandate and benefit rail safety. 1. IPR Examples By way of example, if an entity (State A) merely provides financial support to Amtrak per its obligations under PRIIA Sec. 209 11 for a State-supported intercity passenger route under 750 miles, part 270 does not require State A to submit an SSP plan for that Statesupported route. Amtrak, as the operator of that State-supported IPR service, likely will file its national Amtrak SSP plan to include that State-supported route for the passenger rail operation’s (Amtrak’s) SSP. (Amtrak, or any other entity involved in the passenger rail operation, will retain the option of submitting a separate SSP plan for each IPR route, but Amtrak will not be required to subdivide its national network into separate plans.) As required by the rule, Amtrak’s SSP plan must describe State A’s role in the SSP (i.e., Amtrak’s SSP must explain that State A funds those specific operations on that route). See, e.g., § 270.103(d), System description, and § 270.103(e), Management and organizational structure. In this manner, passenger rail service stakeholders must be included in the description of the rail system in the SSP plan, but are not otherwise responsible for submitting an independent SSP plan for that passenger rail operation. For purposes of part 270, to the extent an entity (such as a State) does more than just provide financial assistance to a passenger rail operation, the relative responsibilities for that entity in the SSP context will increase. With respect to some operations, States may have a role in making substantive operational and safety-related decisions, including selecting contractors to perform services implementing those decisions. For example, if an entity (State B) is involved in a passenger rail operation 11 Section 209 of PRIIA requires that the Amtrak Board of Directors, in consultation with the Secretary of Transportation, the governors of each relevant State, and the Mayor of the District of Columbia, or entities representing those officials, develop and implement a single, nationwide standardized methodology for establishing and allocating the operating and capital costs of providing IPR service among the States and Amtrak for the trains operated on designated high-speed rail corridors (outside the Northeast Corridor), shortdistance corridors, or routes of not more than 750 miles, and services operated at the request of a State, a regional or local authority, or another person. E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 by funding a State-supported route on Amtrak’s national system pursuant to PRIIA Sec. 209, and by procuring rolling stock for use only on that Statesupported IPR route, State B will not be responsible for submitting an independent SSP plan for that route. Instead, for purposes of part 270, Amtrak will likely incorporate that State-supported route on its national system into an SSP plan. This understanding reflects current practical circumstances and how such services are organized. However, State B will be required by part 270 to participate in the development of the SSP, to the extent that State B’s involvement (here, the procurement of the rail equipment) affects railroad safety. Thus, the entity preparing the SSP plan (here, Amtrak) must coordinate with State B on the equipment’s safety to file a compliant SSP plan to include that Statesupported route. In this way, FRA requires State B to be involved in the SSP plan in more ways than in the example of State A above. Specifically, the SSP plan requirement regarding equipment procurement is an area where State B must be involved. See § 270.103(o), Contract procurement requirements. For example, if State B performs an analysis for determining safety characteristics or features of equipment it is considering purchasing for use in its State-supported route, that role should be described in the passenger rail operation’s SSP plan— even if that plan is submitted by the operator of the system (e.g., Amtrak for all current State-sponsored IPR services).12 Similarly, § 270.103(f)(1)(i) outlines that the passenger rail operation’s SSP plan must detail the roles and responsibilities of each position that has significant responsibility for implementing the SSP, including those held by employees and other persons utilizing or providing significant safety-related services as identified pursuant to § 270.103(d)(2). In this example, aspects of the SSP plan benefit from State participation and the identification of the State’s role in the passenger rail operation. For purposes of part 270, however, only one entity involved in each passenger rail operation need bear the full responsibility for developing, submitting, and implementing an SSP plan for the passenger rail operation. 12 For example, the role of the California Department of Transportation’s (Caltrans’) Rolling Stock Procurement Branch would be described in Amtrak’s SSP covering that operation for equipment Caltrans procures. See https://dot.ca.gov/programs/ rail-and-mass-transportation/rolling-stockprocurement-branch. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 12831 2. Commuter (or Other Short-Haul) Examples In the context of commuter (or other short-haul) passenger rail operations, FRA similarly requires each operation to develop and submit a single SSP plan to FRA for review and approval. FRA’s amendments to part 270 make clear that each commuter (or other short-haul) passenger rail operation must file an SSP plan that covers all components of that commuter (or other short-haul) operation. For example, for a commuter passenger rail operation, FRA expects the SSP plan will detail the operation to include any public authority that sponsors or organizes the service, describe the track ownership on the system, identify the contractor operator(s), and explain dispatching responsibilities. If a commuter operation has more than one contractor operator (for example, the operation has distinct operators on specific routes in the commuter system), FRA expects that passenger rail operation will establish and file a single SSP plan to address its entire rail system. The SSP plan could be prepared, filed, and implemented for the passenger rail operation by the commuter rail system’s owners, a contractor operator, or some other entity involved in the rail system, provided the SSP plan meets the requirements in the rule and the passenger rail operation works with the relevant stakeholders that compose that commuter rail system to ensure the system is viewed holistically. Of course, FRA is available to assist all passenger rail operations regarding the requirements of part 270. the rule: (1) Consistent with the statutory mandate; (2) considering the comments received; and (3) considering the regulatory landscape in which the SSP rule overlays and supplements a body of existing rail safety regulations and requires centralized analyses. To be consistent with this approach, FRA is changing ‘‘railroad’’ to ‘‘passenger rail operation,’’ as appropriate, throughout part 270. Additionally, FRA is finalizing proposed amendments to the rule that clarify that while all persons providing IPR or commuter (or other short-haul) rail passenger transportation share responsibility for ensuring compliance with the SSP final rule, the rule does not restrict a passenger rail operation’s ability to provide for an appropriate designation of responsibility amongst the entities involved in the service. As discussed in the NPRM, any such designation must be described in the SSP plan, although a passenger rail operation may also notify FRA of a designation by submitting a notice of such designation before submitting the SSP plan. The section-by-section analysis discusses these proposed amendments in detail below. FRA believes these amendments clarify the ability to specify which entity will fulfill the responsibilities of this part for each passenger rail operation, so that work and effort is not duplicated. FRA will look to the designated entity when reviewing and approving a submitted SSP plan, auditing the implementation of that plan, and deciding whether to take action to enforce the SSP rule requirements. 3. Summary of Amendments and Response to States’ Comments FRA is adding a definition in § 270.5, for ‘‘passenger rail operation’’ to clarify which entity will need an SSP plan. The definition retains the flexibility that entity has in preparing and implementing the plan. FRA is also amending other sections of part 270 to include the term ‘‘passenger rail operation.’’ FRA is reframing these regulatory sections as a responsibility for each passenger rail operation to develop and submit an SSP plan to FRA. These amendments are intended to clarify that an SSP plan must be submitted for each passenger rail operation, and FRA does not expect each specific entity involved in a passenger rail service, whether a railroad or not, to establish, submit, and implement its own SSP plan. Rather, each passenger rail operation will have one SSP plan. FRA believes that for purposes of part 270, these changes effectively and practically implement B. How FRA’s Approach Responds to the States’ Concerns As discussed above, FRA has modified its approach to address the concerns raised by the State commenters, and to clarify which entity will need an SSP plan. The comments received in response to the NPRM raised varying concerns, as described above, from FRA’s statutory authority over State sponsors, to alleged substantial burdens of the rule, and logistical concerns about labor consultation requirements. FRA believes that the modified, practical approach this rule requires, stressing that there must be a single SSP plan for each passenger rail operation, addresses these concerns. For example, the State Comments argued that State sponsors are not structured to handle the SSP process or they lack sufficient capacity to handle the requirements of the SSP process. Simply stated, FRA’s approach to focus on the passenger rail operation allows for an entity that is equipped to manage PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\04MRR2.SGM 04MRR2 12832 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 and implement such requirements to be responsible for the operation’s SSP. 1. Statutory Authority Concerns The State Comments asserted that FRA lacks authority to apply the SSP rule to State sponsors. As FRA noted in the NPRM, FRA disagrees that applying the SSP rule to State sponsors of IPR service goes beyond FRA’s statutory authority. See 84 FR 27220–21. FRA has a long history of applying its safety regulations to State entities involved in passenger rail operations. See generally 49 CFR parts 213, 238 and 239. However, FRA’s modified approach in this rule recognizes that each passenger rail operation must have a compliant SSP and SSP plan, but does not specifically require State sponsors to develop and implement SSPs or SSP plans. This SSP plan must describe each entity involved in that passenger rail operation, including State sponsors, and that passenger rail operation must ensure all entities involved in the rail service work together as a system. Overall, for purposes of part 270, FRA focuses on the passenger rail operation, and emphasizes that State sponsors of IPR service are only responsible to the extent and degree their roles and responsibilities are described in the operation’s SSP plan. Because this modified approach does not hold a State sponsor responsible for specifically submitting an SSP plan or for being ultimately responsible under the regulation for the passenger rail operation the State sponsors, FRA does not find the States’ statutory authority concerns to be implicated. Although FRA’s modified approach in this rule renders the State’s statutory authority concerns moot, FRA notes that it does not concur with the States’ comments concerning FRA’s jurisdiction over States. The State Comments asserted that States are not ‘‘persons’’ under the definition of ‘‘person’’ in 1 U.S.C. 1. See generally SPRC at 5–6. Specifically, the State Comments argued that the definition of ‘‘person’’ in 1 U.S.C. 1, includes ‘‘corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals,’’ but does not specifically include the word ‘‘State.’’ See id. The State Comments, by extension, contended that a State cannot be a ‘‘railroad carrier’’ under 49 U.S.C. 20102(3) or under the SSP rule, because those definitions refer to a ‘‘person providing railroad transportation.’’ While FRA acknowledges that ‘‘States’’ are not explicitly included in the general 1 U.S.C. 1 definition and the presumption that ‘‘persons’’ does not VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 include sovereigns, that presumption is not a ‘‘hard and fast rule of exclusion.’’ Vermont Agency of Natural Resources v. United States, 529 U.S. 765, 780–82 (2000). FRA’s general jurisdictional statute, 49 U.S.C. 20103, provides the Secretary of Transportation authority to ‘‘prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.’’ This authority is generally delegated to FRA in 49 CFR 1.89.13 Additionally, the statutory scheme provides that the FRA Administrator shall carry out the duties and powers related to railroad safety vested in the Secretary by section 20134(c) and chapters 203 through 211 of this title, and by chapter 213 of this title for carrying out chapters 203 through 211. See 49 U.S.C. 103(g). The penalty provision for general violations relating to railroad safety provides that a ‘‘person may not fail to comply with section 20160 or with a regulation prescribed or order issued by the Secretary of Transportation under chapter 201 of this title.’’ 49 U.S.C. 21301 (emphasis added). Additionally, other sections in the penalty provisions in 49 U.S.C. ch. 213 apply to a person violating other specific railroad safety requirements, such as those relating to violations of 49 U.S.C. ch. 203–209 (Safety Appliances, Signal Systems, Locomotives, Accidents and Incidents), and 211 (Hours of Service). See 49 U.S.C. 21302 and 21303. The statutory mandate in 49 U.S.C. 20156(h) states that FRA (as delegated by the Secretary) ‘‘shall have the authority to assess civil penalties pursuant to chapter 213 for a violation of this section, including the failure to submit, certify, or comply with a safety risk reduction program, risk mitigation plan, technology implementation plan, or fatigue management plan.’’ The use of the term ‘‘person’’ in 49 U.S.C. ch. 213, and 49 U.S.C. 20156(h)’s reference to chapter 213 demonstrates that persons used in Subtitle V-Rail Programs, Part A-Safety, of the U.S. Code should include States or political subdivisions of States. To read the statutory scheme otherwise would seemingly mean FRA would not be permitted even to issue civil penalties against commuter rail authorities (often instrumentalities of a State or locality) for violations of Federal rail safety requirements because they would not be considered ‘‘persons’’ under 49 U.S.C. 21301. This result would be incongruous. Additionally, whether or not a State entity may be considered a railroad carrier under 49 U.S.C. 13 See PO 00000 also 49 U.S.C. 103. Frm 00008 Fmt 4701 Sfmt 4700 20102(3), FRA has authority over a person, including a State entity, whose actions, roles, or functions affect railroad safety. See 49 U.S.C. 20103. Under the modified approach to part 270 explained here, State sponsors of IPR service are not required to establish and implement an SSP as railroad carriers, but they do have responsibility to the extent they affect railroad safety, under FRA’s general jurisdiction. See 49 U.S.C. 20103; 49 CFR part 270. 2. Burden The State Comments echoed their previous arguments that the SSP rule would impose burdens on State sponsors without improving safety. As FRA noted in the NPRM, FRA disagrees and believes that it properly considered the costs and burdens of the rule on States that sponsor IPR service. See 84 FR 27219–20. As explained above, all current Statesponsored IPR services could be considered part of Amtrak’s SSP. This is because all State sponsors currently have agreements with Amtrak to provide IPR service on their Statesupported routes. As such, the typical IPR service is an Amtrak-scheduled service using equipment Amtrak operates and maintains. In fact, for all State-sponsored IPR service FRA is aware of, Amtrak is the operator. FRA continues to attribute the costs of implementing the SSP rule for current State-sponsored IPR operations to Amtrak (consistent with FRA’s past rulemaking practice),14 on the expectation that Amtrak will prepare either one national SSP plan to include State-sponsored routes of IPR service or, if more appropriate, potentially submit separate SSPs on behalf of unique services distinct from those common to Amtrak’s national system. See 81 FR 53892, n. 14; 84 FR 27219. In the analysis for the SSP final rule, FRA captured any costs for future Statesponsored IPR service using operators other than Amtrak by estimating there would be one new startup IPR service or commuter rail operation in Years 2 and 3 of the analysis and one new startup every other year thereafter. See 81 FR 53852; 84 FR 27219. Further, while the State Comments alleged substantial and undetermined burdens, FRA maintains that these burdens were either considered by FRA 14 See Passenger Equipment Safety Standards, final rule, 64 FR 25560, 25654 (May 12, 1999) (‘‘The [regulatory] evaluation . . . takes into consideration that individual States will contract with Amtrak for the provision of rail service on their behalf. In this regard, for example, a State may utilize Amtrak’s inspection forces trained under the rule, and thus not have to train inspection forces on its own.’’). E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations in the regulatory impact analysis or are not mandated by the SSP final rule as revised. The State Comments restated previous arguments contending the rule would impose the following burdens: (1) States do not employ qualified railroad personnel with the detailed technical knowledge to develop, implement, and oversee compliance with an SSP and would have to hire such individuals; (2) States would face considerable challenges in augmenting existing human resources before the responsibilities imposed by the rule could be fulfilled; (3) implementing the rule will likely require State sponsors to renegotiate their existing operating agreements with Amtrak and other contractors to ensure the exchanges of information the rule requires and to implement required consultation procedures; (4) States may have to discontinue IPR service due to the costs imposed by the rule, and if they discontinue service, FRA may require States to repay grants/loans; and (5) the rule’s definition of ‘‘railroad’’ potentially opens the door to attempts to make States that sponsor IPR service responsible for other statutory obligations, including railway labor and retirement requirements. See generally 84 FR 27220; Joint Pet. at 4–9; SPRC at 9–14. The rule does not require States to hire additional technical or human resources personnel. Further, FRA clarifies that the rule does not restrict the ability to designate an entity to fulfill the responsibilities under the rule. FRA discusses designation of SSP responsibility more fully in the sectionby-section analysis below. Overall, FRA believes with the changes in the rule text, these alleged burdens will fall more appropriately on each applicable passenger rail operation, and not specifically on State sponsors who merely provide funding to have Amtrak (or another contractor operator) operate additional routes as part of its network. FRA expects that the costs to such State sponsors of cooperating with Amtrak to allow Amtrak to develop and implement an SSP on these State-supported routes will be nominal. FRA further underscores that State entities involved in providing IPR service have always had to comply with FRA safety regulations to ensure railroad safety, and they have done so successfully.15 Because State entities have been complying with their responsibilities under these and other 15 See 63 FR 24630 (May 4, 1998) and 64 FR 25560 (May 12, 1999). VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 statutorily-based rules,16 and given the clarified responsibility State sponsors have to cooperate with the passenger rail operation as it formulates and implements a compliant SSP, FRA does not believe that the SSP rule will somehow force States to terminate IPR service. Regarding the States’ claim that implementing the final rule will result in costs associated with renegotiating contracts, FRA notes that the rule itself does not require contract renegotiation. Rather, to the extent any such costs will be incurred, they will result from the States’ own decisions on how the IPR service should be provided, and not a requirement of the rule. Finally, FRA disagrees with the States that being subject to the SSP rule will open them up to application of other statutes. To the extent another agency might argue that labor, tax, or other statutes apply to the States based on the application of this rule, the challenge would be to that agency’s statute, not the SSP rule. Further, FRA was mandated by the RSIA to issue an SSP rule that specifically applies to providers of IPR service.17 There is no basis for disregarding a statutory mandate because another agency might use it to apply an unrelated statute. Further, the amendments in this rule addressing the part 270 requirements to each passenger rail operation, rather than to each railroad, as applicable, emphasizes that each operation must have a compliant SSP, and does not tag a State with any specific responsibility. States and, more precisely, the State entities through which they act, are ‘‘persons’’ subject to part 270 to the extent they affect railroad safety, but FRA need not categorize such State entities (e.g., transportation departments, rail authorities) with a term of art (e.g., railroad carrier) in this context. Therefore, the simple obligation to cooperate to ensure a comprehensive SSP is developed and submitted for that passenger rail operation (typically by the operator of that service) does not suggest State entities will become subject to other statutes. 3. Consultation Concerns Finally, FRA recognizes the State Comments alleged the rule’s requirements to consult with IPR 16 FRA’s Passenger Train Emergency Preparedness regulations are generally satisfied by having Amtrak prepare and implement the required emergency preparedness plans for the Statesupported routes. FRA does not require the States to duplicate the efforts of the entities that prepare and implement SSP plans for each passenger rail operation. 17 See 49 U.S.C. 20156(a)(1)(A); 49 CFR 1.89(b). PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 12833 operators’ employees would interfere with State-IPR operator contracts. As discussed above, in formulating this final rule, FRA took a practical approach to address the varying concerns commenters raised. FRA believes this approach is an appropriate way to implement the statutory mandate and is structured to impose the requirements on each passenger rail operation without interfering with the various stakeholders’ current ways of doing business. The rule focuses the responsibility on those that have the capacity to plan and implement an SSP. The rule does not directly impose requirements on State sponsors, unless those sponsors choose to adopt that responsibility. Because State sponsors are not specifically responsible for filing the plan for a passenger rail operation, FRA finds the respective consultation concerns are rendered moot. The rule does not require employees of States sponsoring IPR service to consult with a contractor operator’s employees. FRA’s economic analysis calculated costs and benefits in this way, and, although the requirements are now clarified in the rule text, FRA does not believe there is any meaningful change in cost or benefit calculations from those of the 2016 final rule. C. Other Topics FRA is addressing the comments received on other topics within the section-by-section analysis below. However, as a general matter, FRA received no adverse comments on the consultation notification amendments and, given the supporting comments received, is adopting the changes essentially as proposed. Similarly, FRA is adopting the changes in the information protections section generally as proposed, given the support for including C3RS in the rule’s protections. Several commenters who supported extending this rule’s information protections to the C3RS program also urged FRA to further extend the application of the information protections. For context, the information protections generally apply to certain information a railroad compiles or collects after August 14, 2017, solely for SSP purposes. See 49 CFR 270.105(a). The rule also specifies certain categories of information that are not protected, including information a railroad compiled or collected on or before August 14, 2017, and that the railroad continues to compile and collect, even if the railroad uses that for its SSP. See E:\FR\FM\04MRR2.SGM 04MRR2 12834 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations 49 CFR 270.105(b)(2).18 This final rule amends the protections to clarify that they apply to information a passenger rail operation compiles or collects as part of a C3RS program included in its SSP, even if the information was compiled or collected on or before August 14, 2017, for non-SSP purposes. Two of the comments urging further expansion of the information protections were closely related to FRA’s C3RS proposal. Specifically, APTA suggested FRA expand the information protections to cover any Federal program, such as the RISE pilot program or the former CSA program, and AAR suggested FRA expand the protections to a railroad’s in-house confidential close call reporting program. FRA understands APTA and AAR are asking FRA to extend the information protections to all information a railroad compiles or collects as part of these programs, even if the information was compiled or collected on or before August 14, 2017, for non-SSP purposes. FRA notes that if a railroad compiles or collects information as part of a voluntary Federal data program that has solely system safety purposes, such as RISE, or a railroad reporting program that has solely system safety purposes, the compilation or collection remains solely for SSP purposes, and that information is eligible for protection under § 270.105. The remaining comments urging expansion of the rule’s information protections related not specifically to the C3RS proposal, but to the nature of the information protections generally. Specifically, APTA suggested FRA extend the protections to FOIA/FOIL requests; Amtrak suggested the protections should extend to any information resulting from SSP plan processes before the effective date of the rule’s information protection provisions (i.e., August 14, 2017) and should include information developed relating to State sponsored routes, including circumstances where State entities may be subject to disclosure requirements; and MBTA suggested FRA expand the protections to FOIA requests.19 For the reasons discussed below, FRA declines to adopt any of the above suggestions. jbell on DSKJLSW7X2PROD with RULES2 18 For a more detailed discussion on how the information protections and their exceptions apply, please see the SSP NPRM and final rule. See 77 FR 55373, 55378–79, 55390–92, and 55406 (Sept. 7, 2012); 81 FR 53851, 53855–56, 53858–60, 53878– 82, and 53900 (Aug. 12, 2016). 19 FRA assumes that APTA intended ‘‘FOIL’’ (i.e., ‘‘Freedom of Information Law’’) to refer to State freedom of information laws generally. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 As an initial matter, FRA notes that expanding the information protections to FOIA requests, as requested by APTA and MBTA, is unnecessary because 49 U.S.C. 20118 already exempts certain railroad safety risk reduction records the Secretary obtains from mandatory disclosure under FOIA. FRA has discussed this FOIA exemption in both the SSP and RRP final rules. See 81 FR 53855 and 53878 (Aug. 12, 2016); 85 FR 9262–63, 9266–67, 9268, and 9270 (Feb. 18, 2020). FRA declines to apply the information protections to all information a railroad compiles or collects under other FRA programs, as requested by APTA, because no other ongoing program presents the same challenge as C3RS. As the NPRM explained, the information protection date of August 14, 2017, presented several problems in determining how the information protections would apply to C3RS programs. See 84 FR 27222–23 (June 12, 2019). Without the clarification that all C3RS information would be protected when part of an SSP, even if the information was compiled or collected on or before August 14, 2017, for nonSSP purposes, C3RS would have found itself in the unworkable situation where some C3RS information was protected and some not, based solely on when a participating railroad joined C3RS. Id. FRA is unaware of a similar situation with any other FRA program. For example, CSA was an FRA pilot project of limited duration, and RISE is an FRA program currently under development. All CSA participation and information therefore came before August 14, 2017, while all RISE participation and information will come afterwards. As a result, all CSA and RISE participants and information will effectively be treated the same when it comes to the information protections. As for other FRA programs that may engage in risk analysis activities, FRA also participates in Switching Operations Fatality Analysis (SOFA) Working Group and the Fatality Analysis of Maintenance-ofWay Employees and Signalmen (FAMES) Committee.20 Both SOFA and FAMES are programs established well before the date of the rule’s information protections and have reached a point where membership and participation 20 The SOFA Working Group looks for commonalities among fatalities that occur during switching operations and develops findings and recommendations that will aid in preventing railroad employee deaths. See https:// www.fra.dot.gov/SOFA. FAMES focuses on identifying risks, trends, and factors impacting roadway worker safety. See Introduction to the FAMES Committee, May 21, 2012, p. 1, available at https://www.fra.dot.gov/eLib/Details/L01182. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 are stable and fairly representative of the railroad industry at large.21 Although SOFA and FAMES are active programs currently generating data, unlike with C3RS, FRA does not anticipate significant future growth. As such, neither SOFA nor FAMES is likely to present a situation where some participants receive protection because they joined after August 14, 2017, solely as part of an SSP, while participants who joined on or before August 14, 2017, do not. As an examination of these programs illustrates, FRA concludes it does not need to amend the information protections to cover all information a passenger rail operation compiles or collects under any Federal program, even if the information was compiled or collected on or before August 14, 2017, for non-SSP purposes. Regarding railroads’ own confidential close call protection programs, FRA declines to expand the protections to all information generated by such programs because they are not a single Federal program sponsored by FRA. While some railroads may have established their own reporting programs on or before August 14, 2017, for non-SSP purposes, FRA lacks the direct knowledge necessary to determine that the protections should be expanded to cover these programs. If a railroad’s own program was begun after August 14, 2017, and fits entirely within the umbrella of the railroad’s SSP or RRP, the existing data protections would apply. FRA therefore concludes that it would be inappropriate to amend the information protections to cover all information a railroad compiles or collects as part of its own confidential close call reporting program, even if that information was compiled or collected on or before August 14, 2017, for nonSSP purposes. Finally, FRA declines to address the remaining comments from APTA and Amtrak that relate to the nature of the information protections generally, as FRA did not intend for this rulemaking to reopen a substantive discussion of the protections beyond the limited issue of C3RS. FRA presented the information protections for public notice and comment in both the SSP and RRP rulemaking processes and held public hearings on both rulemakings. Numerous parties commented on the proposed protections, and FRA 21 SOFA began in 1998 and FAMES began in 2009. SOFA includes representatives from AAR, ASLRRA, BLET, FRA, and SMART–TD. FAMES includes participants and affiliates from AAR, Amtrak, APTA, ASLRRA, BMWED, BNSF Railway, BRS, CSX Transportation, Farmrail System, Inc., FRA, Norfolk Southern Railway, and Union Pacific Railroad. E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations responded to these comments in the SSP and RRP final rules and in the June 2019 NPRM, proposed extending the information protections to FRAsponsored C3RS programs included in a passenger rail operation’s SSP. As such, there has already been extensive substantive discussion of the information protections. FRA therefore believes that amending the information protections in a manner unrelated to the C3RS program as proposed in this proceeding would not be consistent with the rulemaking process through which the protections have already gone, especially when FRA did not invite public comment on the protections in general. FRA is addressing the comments received on submission time in the section-by-section, as applicable. Finally, the purpose of this rulemaking was to specifically address the petitions for reconsideration on the 2016 SSP final rule and to make other necessary clarifying adjustments. FRA was not required to address AAR’s supplemental comment 22 on the RRP NPRM in either the NPRM or in this final rule. AAR has raised this point directly to FRA in the context of larger discussions on regulatory reform, and any change to the SSP rule arising from those discussions would follow in a separate rulemaking. jbell on DSKJLSW7X2PROD with RULES2 D. Conforming Amendments to the RRP Final Rule The SSP rule implements the RSIA mandate for railroad safety risk reduction programs for passenger railroads. On February 18, 2020, FRA published a separate RRP final rule addressing the mandate for certain freight railroads. See 85 FR 9262 (Feb. 18, 2020). Throughout both the SSP and RRP rulemaking proceedings, FRA has consistently stated both an SSP and RRP final rule would contain consultation and information protection provisions that were essentially identical. See 81 FR 53855 (Aug. 12, 2016); 80 FR 10955 (Feb. 27, 2015); 85 FR 9262, 9266–68, 9274–75, 9279, and 9300–01 (Feb. 18, 2020). The NPRM in this proceeding stated that FRA may use this final rule to make conforming changes to the consultation and information protection provisions of an RRP final rule. As discussed further in the section-bysection analysis, FRA is therefore amending the RRP rule (49 CFR part 271) as needed to make its consultation and information protection provisions 22 AAR filed its supplemental comment on the RRP NPRM on October 31, 2018. The comment period for the RRP NPRM closed on October 21, 2015. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 consistent with the corresponding SSP provisions (as amended by this final rule). IV. Section-by-Section Analysis In response to petitions for reconsideration and comments received on the NPRM, FRA is making various clarifying amendments to part 270— System Safety Program. FRA is also clarifying that the SSP rule’s information protections apply to C3RS programs included in an SSP and extending certain compliance dates to account for the stay of the rule. FRA is also making conforming changes to 49 CFR part 271, Risk Reduction Program. Specific changes are noted for each section below. Part 270—System Safety Program Section 270.1—Purpose and scope This section contains a formal statement of the rule’s purpose and scope. FRA is amending paragraphs (a) and (b) to replace the word ‘‘railroads’’ with ‘‘passenger rail operations’’ to conform with FRA’s approach, discussed above. In this manner, FRA makes clear that each passenger rail operation is required to improve railroad safety through structured, proactive processes and procedures in a system safety program. Section 270.3—Application This section sets forth the applicability of the rule. FRA is amending paragraphs (a)(1) and (2) to replace the word ‘‘railroads’’ with ‘‘passenger rail operations’’ to conform with the approach discussed above. Specifically, paragraph (a)(1) is revised to read that this part applies to ‘‘passenger rail operations that operate intercity or commuter passenger train service on the general railroad system of transportation.’’ Further, to maintain consistency and parallelism with the language in (a)(1), FRA is amending paragraph (a)(2) to refer to ‘‘passenger rail operations that operate commuter or other short-haul rail passenger train service’’ rather than ‘‘railroads that provide’’ such service. Section 270.5—Definitions This section contains a set of definitions that clarify the meaning of important terms as they are used in the rule. As proposed, FRA is amending the definitions section of part 270 to add a definition for ‘‘Confidential Close Call Reporting System (C3RS),’’ which means an FRA-sponsored voluntary program designed to improve the safety of railroad operations by allowing railroad employees to confidentially report PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 12835 unsafe events that are either currently not required to be reported or are underreported. This definition closely parallels the description of C3RS on FRA’s website. See https:// www.fra.dot.gov/c3rs. Additionally, as part of the changes made throughout the rule to phrase the rule’s requirements as those belonging to each passenger rail operation, FRA is adding a definition for ‘‘Passenger rail operation,’’ which means an intercity, commuter, or other short-haul passenger rail service. The term passenger rail operation generally refers to the service itself, and is not limited to the nature of the railroad company that conducts the operation. In other words, the ‘‘passenger rail operation’’ is not referring to just the ‘‘operator’’ or entity that employs the crews operating the train service. See also 64 FR 25576 (May 12, 1999). By ‘‘operation,’’ FRA means the specific physical service. The ‘‘passenger rail operation’’ encapsulates all the pieces of the service (including, but not limited to, the right-of-way, track, equipment, crews, railroad employees), and is not limited to a specific route. In the commuter context, an example of a ‘‘passenger rail operation’’ is the Northeast Illinois Regional Commuter Railroad Corp. (Metra Rail) service, encompassing Metra Rail’s various routes, contractor operators, and host railroads. At the same time, the ‘‘passenger rail operation’’ for all current Statesponsored IPR services could be considered part of Amtrak’s network (including the Northeast Corridor, Amtrak’s Long Distance routes, and State-supported routes). FRA recognizes multiple entities are often involved in a passenger rail operation, including contractors, but FRA believes it is nonetheless clearer to describe responsibilities with respect to the passenger rail operation as a whole, for purposes of implementing the regulation. FRA is amending the definition of ‘‘Person’’ to remove the general reference to ‘‘1 U.S.C. 1,’’ and replace it with a more applicable and FRAspecific statutory provision, ‘‘49 U.S.C. 21301.’’ FRA is making this clarifying change to refer to FRA’s general civil penalty authority in 49 U.S.C. 21301 to better align with FRA’s safety jurisdiction. See also 49 U.S.C. 20103, 20156(h). FRA is making small adjustments to the definitions of ‘‘Fully implemented,’’ ‘‘Hazard,’’ and ‘‘System safety program plan,’’ to conform to the ‘‘passenger rail operation’’ framework edits described above. For example, the word ‘‘railroad’’ in the definition of ‘‘Fully E:\FR\FM\04MRR2.SGM 04MRR2 12836 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 implemented’’ is replaced with ‘‘passenger rail operation.’’ The words ‘‘the railroad’s’’ are replaced with the word ‘‘a’’ in the definition of ‘‘Hazard.’’ Similarly, the definition of ‘‘System safety program plan’’ is amended to mean ‘‘a document developed by the passenger rail operation that implements and supports the system safety program,’’ rather than ‘‘a document developed by the railroad that implements and supports the railroad’s system safety program.’’ These changes are intended to clarify that each passenger rail operation have an SSP under the regulation, without focusing specifically on any one entity involved in the operation. Section 270.7—Penalties and Responsibility for Compliance This section contains provisions relating to compliance with part 270 and penalties for violations of part 270. 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),23 that provides the 2019 inflation adjustment to civil penalty amounts that may be imposed for violations of certain DOT regulations. See 84 FR 37059 (July 31, 2019). To avoid the need to update this section every time the civil penalty amounts are adjusted for inflation, FRA has changed § 270.7(a) 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 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. These updates are also consistent with the RRP final rule. As discussed above, to effectuate the framework change, FRA modified paragraph (b) to add the phrase ‘‘or passenger rail operation’’ after the words ‘‘duty of a railroad’’ and after the words ‘‘whether or not a railroad’’ when describing the duties of this part. Paragraph (b) now reads ‘‘[a]lthough the requirements of this part are stated in terms of the duty of a railroad or passenger rail operation, when any person, including a contractor or subcontractor to a railroad, performs 23 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 84 FR 37059, 37060 (July 31, 2019). VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 any function covered by this part, that person (whether or not a railroad or passenger rail operation) shall perform that function in accordance with this part.’’ § 270.7(b) (emphasis added). For reasons discussed in the NPRM and as discussed above, FRA is adding a new paragraph (c)(1) to this section to clarify that even though all persons providing IPR or commuter (or other short-haul) rail passenger transportation share responsibility for ensuring compliance with this part, the rule does not restrict the ability for a passenger rail operation to designate a person as responsible for compliance with this part. However, FRA is not adopting the sentence in (c)(1) proposed in the NPRM that would have stated that a designator (designating entity) was not relieved of responsibility for compliance with this part. As the State Comments explained, this statement rendered the proposed designation provision of little comfort. As discussed in the NPRM, FRA’s policy is to look to a designated entity as the person with responsibility for compliance with the SSP final rule. In this final rule, FRA emphasizes that it is still FRA’s policy to hold a designated entity responsible for compliance with this part. Of course, FRA’s overall approval of an SSP plan takes into account any designation of responsibility and, as a result, failure to fulfill those compliance responsibilities could lead FRA to reopen consideration of the plan under § 270.201(d). In paragraph (c)(2)(i), a passenger rail operation may designate a person as responsible for compliance with part 270 by including a designation of responsibility in the SSP plan. This designation must be included in the SSP plan’s statement describing the passenger rail operation’s management and organizational structure and include the information specified by § 270.103(e)(6), the details of which are discussed below in the section-bysection analysis for that section. Any rescission or modification of a designation must be made in accordance with the requirements for amending SSP plans in § 270.201(c). FRA notes that the use of ‘‘may’’ in paragraph (c)(2) was intentional, as this section does not require a passenger rail operation to designate a person as responsible for compliance—any person can comply with the SSP requirements on its own behalf. However, if a passenger rail operation intends to designate a person as responsible for compliance, the SSP plan must describe the passenger rail operation’s management and organizational structure, including management PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 responsibilities within the SSP and the distribution of safety responsibilities within the organization, in addition to the requirements of §§ 270.7(c)(2) and 270.103(e)(6). Nonetheless, FRA further notes that in approving SSP plans, FRA will consider how a designation of responsibility for SSP compliance is consistent with the holistic, system-wide nature of safety management systems. FRA believes that the systemic nature of SSP requires a single entity to have overall responsibility for the entire SSP, to ensure that the SSP is properly implemented throughout the passenger rail operation’s entire system by the potentially various entities responsible for separate aspects of the system’s safety. FRA therefore expects that a designation will identify only a single entity with overall responsibility for SSP compliance, as opposed to designating SSP responsibility piecemeal to multiple entities. Including a designation provision in an SSP plan will not, however, relieve the passenger rail operation of responsibility for ensuring that host railroads and other persons that provide or utilize significant safety-related services appropriately support and participate in an SSP, as required under § 270.103(e)(5). Designating a single person as responsible for SSP compliance will not mean that no other entity participates in the SSP. Rather, it means that the designated person has the primary responsibility for ensuring overall SSP compliance, which can include ensuring the participation of other persons as appropriate. FRA acknowledges that some passenger rail operations may wish to make a designation of responsibility for SSP compliance clear before submitting an SSP plan to FRA, particularly if the designation would involve responsibility for consulting with directly affected employees on the contents of an SSP plan. Paragraph (c)(2)(ii) therefore states that a passenger rail operation may notify FRA of a designation of responsibility before submitting an SSP plan by submitting a designation notice to the Associate Administrator for Railroad Safety and Chief Safety Officer. The notice must include all information required under § 270.103(e)(6), although this information must still be included in the SSP plan. If a passenger rail operation does submit a designation notice under this proposed provision, FRA will encourage the passenger rail operation 24 to share the notice with 24 The entity designated by the designation notice (the designee) will be the entity representing the E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations directly affected employees before and during the consultation process. Although FRA specifically requested public comment on whether such a deadline for this notification would be necessary, FRA received no comments on this issue. Accordingly, FRA is finalizing a designation provision as proposed in the NPRM, with the modifications discussed above. This provision explicitly allows each passenger rail operation to determine what entity has responsibility for compliance and submission of the required SSP plan. FRA will not select for each passenger rail operation what entity will submit the SSP plan. As described above, any designation must be detailed in the SSP plan itself. See also § 270.103(e). Section 270.101—System Safety Program; General This section sets forth the general requirements of the rule. Each passenger rail operation subject to this part is required to establish and fully implement an SSP that 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. As discussed above, FRA is amending § 270.101 to be consistent with changes throughout part 270 that phrase the rule’s requirements in terms of a ‘‘passenger rail operation’’ instead of a ‘‘railroad.’’ Specifically, FRA is amending paragraph (a) to state ‘‘each passenger rail operation subject to this part . . .’’ rather than ‘‘each railroad subject to this part.’’ § 270.101(a) (emphasis added). FRA is also reformulating paragraph (b) to state ‘‘a system safety program shall be designed so that it promotes and supports a positive railroad safety culture.’’ These changes are for clarity and are not intended to alter the substantive effect of the rule. jbell on DSKJLSW7X2PROD with RULES2 Section 270.103—System Safety Program Plan This section requires a passenger rail operation to adopt and fully implement an SSP through a written SSP plan containing the information required in this section. As discussed above, FRA is amending § 270.103 to be consistent with changes throughout part 270 by replacing the requirement in certain places for the ‘‘railroad’’ to be for the ‘‘passenger rail operation.’’ For example, in paragraph passenger rail operation and therefore responsible for sharing the notice with its directly affected employees. VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 (a), FRA is modifying the language in paragraphs (a)(1) and (2) from ‘‘each railroad subject to this part. . .’’ to ‘‘each passenger rail operation subject to this part.’’ In paragraph (b), ‘‘each railroad shall set forth in its SSP plan a policy statement that endorses the railroad’s [SSP]. . .’’ becomes ‘‘each SSP plan shall contain a policy statement that endorses the passenger rail operation’s [SSP]. . . .’’ Similar changes are made throughout § 270.103. In some places, such as in paragraph (d), FRA re-framed the regulatory language to be applicable to the ‘‘rail system’’ as opposed to the ‘‘railroad.’’ Additionally, throughout the part, FRA adjusted references to ‘‘a SSP’’ to ‘‘an SSP,’’ to conform with grammar conventions. Paragraph (e) specifically states an SSP plan must include a statement describing the system’s management and organizational structure, and paragraphs (e)(1) through (5) specify information this statement must contain. FRA is amending this section to add a new paragraph (e)(6), which contains the requirements for a designation included in an SSP plan and any designation submitted under § 270.7(c)(2). Under paragraph (e)(6), a designation must include the name and contact information for the designator (designating entity) and the designated entity; a statement signed by an authorized representative of the designated entity acknowledging responsibility for compliance with part 270; a statement affirming a copy of the designation has been provided to the primary contact for each non-profit employee labor organization representing directly affected employees for consultation purposes under § 270.107(a)(2); and a description of how the directly affected employees not represented by a non-profit employee labor organization will be notified of the designation for consultation purposes under § 270.107(a). The central purpose of this amendment is to ensure there is a specific entity identified as the responsible party for submitting an SSP plan for each passenger rail operation. FRA is also making minor formatting amendments to paragraphs (e)(4) and (5) to account for the additional paragraph (e)(6). FRA is also modifying the introductory language in paragraph (h) regarding rules compliance and procedures review from ‘‘the railroad’s’’ rules and procedures to ‘‘applicable’’ rules and procedures. FRA recognized the possibility that a passenger rail operation may have to comply with another railroad’s rules and procedures. Similarly, FRA changed ‘‘the railroad’s’’ PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 12837 to ‘‘applicable’’ operating and safety rules and maintenance procedures in paragraphs (h)(2) and (3). FRA believes the existing language in § 270.103(h) was too specific to account for this scenario. Other clarifying changes to reflect that the rule’s requirements are applicable to each passenger rail operation were made throughout the section. Section 270.105—Discovery and Admission as Evidence of Certain Information This section sets forth the discoverability and admissibility protections for certain SSP information. The SSP final rule preamble discussed these protections in depth. See 81 FR 53878–53882 (Aug. 12, 2016). For reasons discussed in the NPRM and after considering the comments received, FRA is adding paragraph (a)(3) to this section to clarify that for court proceedings initiated after 365 days following publication of this final rule, the protections established by this section apply to C3RS information a passenger rail operation includes in its SSP, even if the passenger rail operation compiled or collected the C3RS information on or before August 14, 2017, for non-SSP purposes. FRA is also adding language to the introductory text of paragraph (a) to indicate the information protections apply except as provided in paragraph (a)(3). FRA is making minor formatting amendments to paragraphs (a)(1) and (2) to account for the additional paragraph (a)(3). FRA is making conforming edits in paragraphs (a) and (b) to refer to the ‘‘passenger rail operation’’ rather than the ‘‘railroad,’’ to be consistent with the framework and clarifying changes to the rule discussed above. Finally, FRA is adding new paragraph (e) to clarify that § 270.105 does not protect information during civil enforcement or criminal law enforcement proceedings. For example, § 270.105 will not apply to a civil enforcement or criminal action brought to enforce Federal railroad safety laws, or proceedings such as a civil enforcement 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 a ‘‘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 enforcement or criminal E:\FR\FM\04MRR2.SGM 04MRR2 12838 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations law enforcement case. Nevertheless, to help ensure no attempt is made to rely on the rule’s information protections in a civil enforcement or criminal law enforcement proceeding, paragraph (e) explicitly states that § 270.105 does not apply to civil enforcement or criminal enforcement actions. This change is consistent with language in the RRP final rule (see 49 CFR 271.11). Section 270.107—Consultation Requirements This section requires a passenger rail operation subject to part 270 to consult with its directly affected employees on the contents of its SSP plan. See 49 U.S.C. 20156(g)(1). The SSP final rule preamble discussed the requirements of this section in depth. See 81 FR 53882– 53887 (Aug. 12, 2016). As discussed in the NPRM, FRA is making several amendments to this section, including incorporating language proposed in the Labor Petitions, as modified and clarified by FRA. To account for the stay of the SSP final rule, FRA is also extending the compliance date for holding the preliminary meeting with directly affected employees. Additionally, as discussed above, FRA is amending this section to be consistent with changes throughout part 270 by replacing certain references to ‘‘railroad’’ with references to ‘‘passenger rail operation.’’ jbell on DSKJLSW7X2PROD with RULES2 Paragraph (a)—General Duty Paragraph (a)(2) of this section states that a passenger rail operation that consults with a non-profit employee labor organization is considered to have consulted with the directly affected employees represented by that organization. If a passenger rail operation contracts out significant portions of its operations, the contractor and the contractor’s employees performing those operations are considered directly affected employees for part 270 purposes.25 For reasons discussed in the NPRM and as discussed above, FRA is amending paragraph (a)(2) to add that 25 As discussed in the section-by-section analysis for the new definition of ‘‘passenger rail operation,’’ FRA recognizes that a single passenger rail operation is often composed of multiple entities, including contractors. FRA believes it is nonetheless clearer, when describing the rule’s requirements, to refer to the responsibilities of the ‘‘passenger rail operation’’ as a whole. In the context of the consultation requirement, this means that FRA does expect the entities involved in the passenger rail operation to be responsible for meeting the consultation requirement applicable to the operation. For example, when an entity enters into a contract on behalf of a passenger rail operation, that entity would be responsible for consulting with contractors or contractor employees to the extent required by paragraph (a)(2). VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 unless agreed otherwise, for consultation purposes, the primary point of contact for directly affected employees represented by a non-profit employee labor organization is the general chairperson for that non-profit employee labor organization. Alternatively, at the beginning of the consultation process, a non-profit employee labor organization and a passenger rail operation may agree upon a different point of contact. While the Labor Petition requested FRA amend paragraph (a)(3) to establish the general chairperson of a non-profit employee labor organization as a passenger rail operation’s primary point of contact, FRA believes such a provision belongs more appropriately in paragraph (a)(2), which contains requirements addressing the consultation process generally. Paragraph (a)(3), in contrast, only addresses the preliminary meeting portion of the consultation process. By amending paragraph (a)(2) instead of paragraph (a)(3), FRA is clarifying that a general chairperson is the primary contact for the entire consultation process, not just the preliminary meeting. FRA specifically requested public comment on whether amending paragraph (a)(2) instead of paragraph (a)(3) would adequately address the Labor Petition’s concerns. FRA received no comments on this issue. Existing paragraph (a)(3) requires a passenger rail operation to have a preliminary meeting with its directly affected employees to discuss how the consultation process will proceed no later than April 10, 2017. To account for the stay of the SSP final rule, as discussed in the NPRM, FRA is amending paragraph (a)(3)(i) to extend the deadline for the preliminary meeting from April 10, 2017, to 120 days after the publication date of this final rule. Paragraph (b)(3)—Consultation Statements Paragraph (b)(3) requires a passenger rail operation consultation statement to include a service list containing the name and contact information for each international/national president of any non-profit employee labor organization representing a class or craft of the passenger rail operation’s directly affected employees.26 When a passenger rail operation submits its SSP plan and consultation statement, it must simultaneously send a copy of both to 26 Paragraph (b)(3) also requires the service list to contain the name and contact information for any directly affected employee who significantly participated in the consultation process independently of a non-profit employee labor organization. PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 all individuals identified in the service list. FRA is amending paragraph (b)(3) to add that the service list must also include the name and contact information for either each general chairperson of any non-profit employee labor organization representing a class or craft of the passenger rail operation’s directly affected employees or the agreed-upon point of contact that the non-profit employee labor organization and the passenger rail operation agreed upon at the beginning of the consultation process. Section 270.201—Filing and Approval This section contains the requirements for filing an SSP plan and FRA’s approval process. As discussed in the NPRM, FRA is amending paragraph (a)(1) to account for the stay of the requirements of the SSP final rule. Because FRA extended the date of the preliminary meeting under § 270.107(a)(3), it is also necessary to extend the time for a passenger rail operation to submit its SSP plan to FRA. FRA proposed providing one year after the publication date of this rule to submit SSP plans to FRA for review and approval. FRA specifically requested public comment on whether an entire year following the publication of a final rule would be necessary for submission of SSP plans to FRA, or whether a shorter deadline, such as six months, would provide sufficient time. As mentioned above, MBTA commented that it supported FRA’s proposal to allow a full year to submit SSP plans to FRA (and indicated a shorter time frame would be insufficient). APTA commented that FRA should instead provide two years from the date of the final rule, to be similar to the time frame FTA provided in implementing the SMS program. Amtrak generally commented that FRA should implement the rule immediately. Given these comments, FRA is providing each passenger rail operation with a one-year period after the publication date of this rule, as proposed, to submit SSP plans to FRA for review and approval. Additionally, as discussed above, FRA is amending § 270.201 be consistent with changes throughout the part by replacing the requirement for the ‘‘railroad’’ to be framed as a responsibility of the ‘‘passenger rail operation.’’ For example, in paragraph (a)(1), each ‘‘passenger rail operation’’ to which this part applies shall submit one copy of its SSP plan, rather than each ‘‘railroad.’’ As noted above, FRA expects that in most instances, the entity conducting the railroad operation will E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations submit the passenger rail operation’s SSP plan. Section 270.203—Retention of System Safety Program Plan This section contains the requirements for retaining an SSP plan. As discussed above, FRA is amending § 270.203 be consistent with changes throughout part 270 by replacing the requirement for ‘‘each railroad’’ to retain a copy of the SSP plan, with a requirement that ‘‘each passenger rail operation’’ retain a copy of the SSP plan. Section 270.301—General This section describes the general requirement for each SSP to be assessed internally and audited externally by FRA. As discussed above, FRA is amending § 270.301 to be consistent with changes throughout the part by clarifying the responsibility for the SSP’s internal assessment lies with ‘‘the passenger rail operation.’’ Section 270.303—Internal System Safety Program Assessment This section describes the requirements for each SSP to be assessed internally. As discussed above, FRA is amending § 270.303 be consistent with changes throughout part 270 by replacing references to ‘‘the railroad’’ with ‘‘the passenger rail operation.’’ Section 270.305—External Safety Audit This section describes the process FRA will use when it conducts audits of a passenger rail operation’s SSP. As discussed above, FRA is amending § 270.305 to be consistent with changes throughout the part by clarifying the responsibility falls on ‘‘the passenger rail operation.’’ Appendix A to Part 270 [Reserved] jbell on DSKJLSW7X2PROD with RULES2 FRA has removed its civil penalty guidelines from the CFR to the FRA website. See 84 FR 23730 (May 23, 2019). FRA intends to change the wording in the guidelines on the website to be consistent with the changes made in this rule. For example, FRA intends to revise the existing reference to the failure to hold the preliminary meeting by April 10, 2017, as that date has passed, and is being adjusted in this final rule. amending appendix B as proposed to reflect the amended compliance dates in §§ 270.107(a)(3)(i) and 270.201(a)(1). FRA also made changes throughout appendix B to clarify, as discussed above, by removing the modifier ‘‘railroad’s’’ from ‘‘railroad’s SSP plan,’’ and, where appropriate, changing references from ‘‘railroad’’ to ‘‘passenger rail operation.’’ Additionally, FRA removed a sentence from the guidance about the passenger rail operation waiting to hold substantive consultations regarding the contents of its SSP to take advantage of the information protection provisions once they go into effect, because for purposes of 49 U.S.C. 20119(b), the information protection provisions were adopted on August 12, 2016. That adoption was unaffected by the subsequent stays, so the rule’s information protections are applicable to information a passenger rail operation compiles or collects after August 14, 2017. Appendix C to Part 270—Procedures for Submission of SSP Plans and Statements From Directly Affected Employees Appendix C provides passenger rail operations and directly affected employees the option to file SSP plans or consultation statements electronically. FRA is amending appendix C to be consistent with the changes throughout the part. For example, FRA is removing references to ‘‘railroad’s’’ from phrases like ‘‘railroad’s SSP plan.’’ Additionally, certain references to ‘‘railroad’’ were changed to ‘‘passenger rail operation,’’ where appropriate, to be consistent with other edits made in this part. Part 271—Risk Reduction Program As discussed in Section III.D of the preamble, FRA is making conforming changes to part 271 to mirror those in part 270. Appendix B to Part 270—Federal Railroad Administration Guidance on the SSP Consultation Process Section 271.5—Definitions For reasons discussed in Section III.D of the preamble and in the section-bysection analysis for § 270.5, FRA is amending § 271.5 by adding a definition for ‘‘Confidential Close Call Reporting System (C3RS).’’ FRA is also revising the definition of ‘‘Person’’ to remove the general reference to ‘‘1 U.S.C. 1’’ and replace it with a more applicable and FRA-specific provision, ‘‘49 U.S.C. 21301.’’ Appendix B contains guidance on how each passenger rail operation could comply with the consultation requirements of § 270.107. FRA is Section 271.11—Information Protections As discussed in Sections III.C and III.D of the preamble, FRA is adding paragraph (a)(3) to § 271.11 to clarify VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 12839 that for court proceedings initiated after 365 days following publication of this final rule, the information protections established by this section apply to C3RS information a railroad includes in its RRP, even if the railroad compiled or collected the C3RS information on or before February 17, 2021, for non-RRP purposes. FRA is also adding language to the introductory text of paragraph (a) to indicate the information protections apply except as provided in paragraph (a)(3). FRA is also making minor formatting amendments to paragraphs (a)(1) and (2) to account for the additional paragraph (a)(3). Section 271.207—Consultation For reasons discussed in Section III.D of the preamble and the section-bysection analysis for § 270.107, FRA is amending paragraph (a)(2) of § 271.207 to add that, unless agreed otherwise, for consultation purposes, the primary point of contact for directly affected employees represented by a non-profit employee labor organization is the general chairperson for that non-profit employee labor organization. Alternatively, at the beginning of the consultation process, a non-profit employee labor organization and a railroad may agree upon a different point of contact. Similarly, FRA is also amending paragraph (d)(3) to add that a service list must also include the name and contact information for either each general chairperson of any non-profit employee labor organization representing a class or craft of a railroad’s directly affected employees or the agreed-upon point of contact that the non-profit employee labor organization and the railroad agreed upon at the beginning of the consultation process. V. Regulatory Impact and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures This final rule is a non-significant rulemaking and evaluated in accordance with existing policies and procedures under Executive Order 12866 and DOT Order 2100.6. See 58 FR 51735, Sep. 30, 1993 and https:// www.transportation.gov/regulations/ 2018-dot-rulemaking-order. The scope of this analysis is limited to the revisions that FRA is making in this rulemaking. FRA concluded that because this final rule generally includes only voluntary actions or alternative action by designated entities that will be voluntary, or clarifying edits, this final rule does not impart E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 12840 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations additional burdens or benefits on regulated entities. Pursuant to petitions for reconsideration FRA received in response to the SSP final rule and comments received on the NPRM, this final rule contains six sets of substantive amendments to part 270. As discussed in Section III.D of the preamble, this rule also amends part 271 to ensure that the RRP and SSP rules have essentially identical consultation and information protection provisions. The following paragraphs describe analysis of the effects of the amendments. First, to address the States’ concerns discussed in Section III of the NPRM and as explained above, the final rule amends part 270 to clarify that a passenger rail operation subject to the part may designate an entity as responsible for SSP compliance under §§ 270.7(c) and 270.103(e)(6). As any such designation will be voluntary, such clarification adds no additional burden nor provides any additional safety benefit. In addition, the revisions to §§ 270.7(c) and 270.103(e)(6) clarify the responsibilities of the designated entity. FRA requested comment from the public on the costs and benefits described in this paragraph. Although the States commented on the purported burdens of part 270 generally, FRA did not receive specific comments on the NPRM’s economic analysis. Second, to address the Labor Petition’s concerns discussed in Section II of the NPRM, FRA is amending both the SSP and RRP rules to add the general chairperson of a non-profit employee labor organization (or a nonprofit employee labor organization primary point of contact agreed on at the beginning of the consultation process) as the point of contact for directly affected employees represented by that non-profit employee labor organization. Third, FRA received a comment from AAR on the 2012 SSP NPRM voicing concern that an inadvertent failure to serve a general chairperson may result in FRA deeming a railroad as not using ‘‘best efforts’’ in the consultation process. In response to such concern, FRA is allowing a passenger rail operation and a non-profit employee labor organization to establish an alternative point of contact within the non-profit employee labor organization. This point of contact could be a person the passenger rail operation and nonprofit employee labor organization agree on at the beginning of the consultation process. FRA anticipates any burden associated with requiring the inclusion of a general chairperson in the service list (see paragraph above) will be VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 significantly alleviated, if not eliminated altogether, by the provision allowing passenger rail operations and non-profit employee labor organizations to agree on an alternative point of contact. Although FRA specifically requested comment from the public on this conclusion, it did not receive adverse comment, and generally finalized the provision as proposed. Fourth, as discussed in Section VI of the NPRM, FRA is amending the information protections in both the SSP and RRP rules to address the C3RS program. Because this amendment merely addresses the scope of the protections provided by the SSP and RRP final rules, there are no burdens associated with it. Fifth, FRA is also adjusting the various compliance dates in part 270 to account for the stay of the SSP final rule’s requirements. Because the adjustments are necessary only to conform the rule’s deadlines with the stay, they have already been accounted for in the regulatory impact analysis that accompanied the final rule extending the stay. See 84 FR 45683 (Aug. 30, 2019). Finally, as discussed above, FRA is amending part 270 throughout to frame the responsibilities of the rule as belonging to each passenger rail operation. This language does not affect FRA’s existing economic analysis of the costs and burdens of the rule. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. 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). B. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and Executive Order 13272, 67 FR 53461 (Aug. 16, 2002), require agency review of proposed and final rules to assess their impact on small entities. An agency must prepare an Initial Regulatory Flexibility Analysis unless it determines and certifies that a rule, if promulgated, would not have a significant impact on a substantial number of small entities. The six sets of revisions within this final rule would not impart any additional burden on regulated entities. Four of the sets of revisions add clarity to the SSP final rule, and the revision requiring submission of the designation notice to FRA is voluntary and would only apply if a designation is made. Another revision allows an alternative PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 non-profit employee labor organization primary point of contact to be agreed on at the beginning of the consultation process, thereby eliminating or significantly mitigating any burden associated with the revision requiring inclusion of a general chairperson in the service list. ‘‘Small entity’’ is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a ‘‘small entity’’ in the railroad industry is a for profit ‘‘linehaul railroad’’ that has fewer than 1,500 employees, a ‘‘short line railroad’’ with fewer than 1,500 employees, or a ‘‘commuter rail system’’ with annual receipts of less than $15.0 million dollars. See ‘‘Size Eligibility Provisions and Standards,’’ 13 CFR part 121, subpart A. Additionally, 5 U.S.C. 601(5) defines as ‘‘small entities’’ governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Federal agencies may adopt their own size standards for small entities, in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final statement of agency policy that formally establishes ‘‘small entities’’ or ‘‘small businesses’’ as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1–1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 2003), codified at appendix C to 49 CFR part 209. The $20-million limit is based on the STB’s revenue threshold for a Class III railroad. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1–1. FRA is using this definition for this rulemaking. For purposes of this analysis, the SSP portions of this rule will impact 33 commuter or other short-haul passenger railroads and two intercity passenger railroads, Amtrak and the ARC.27 Neither of the intercity passenger railroads is considered a small entity. Amtrak serves populations well in excess of 50,000, and the ARC is owned 27 This analysis considers all current Statesponsored IPR services to be part of Amtrak’s SSP, which is a reasonable expectation as discussed in this final rule. E:\FR\FM\04MRR2.SGM 04MRR2 12841 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations jbell on DSKJLSW7X2PROD with RULES2 by the State of Alaska, which has a population well in excess of 50,000. Based on the definition of ‘‘small entity,’’ only one commuter or other short-haul railroad is considered a small entity: the Hawkeye Express (operated by the Iowa Northern Railway Company). For purposes of this analysis, the RRP portions of this rule will affect 7 Class I railroads and a maximum of 50 Class III railroads. See 85 FR 9262, 9307–11 (Feb. 18, 2020). Although the regulation may impact a substantial number of small entities, by virtue of its impact on the only identified small entity that is a commuter or other short-haul railroad subject to the SSP rule, and the maximum of 50 Class III railroads that could be affected by the RRP rule, it would merely provide additional clarifying information without introducing any additional burden. Further, any potential impact on small entities would be positive. The regulation would therefore not have a significant impact on a substantial number of small entities. A substantial number of small entities may be impacted by this regulation; however, any impact would be minimal. Although FRA requested comments as to the impact that the NPRM would have on both small passenger railroads as well as all passenger railroads in general, no comments were received on this issue. C. 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: Respondent universe Total annual responses Average time per response 270.103—System Safety Program Plan (SSP Plan)—Comprehensive written SSP Plan that meets all of this section’s requirements. —Copies of designations to non-profit employee labor organizations (New requirement). —Designation notifications to employees not represented by non-profit employee labor organizations (New requirement). —Records of system safety training for employees/contractors/others. —(q)(1) Performance of risk-based hazard analyses and furnishing of results of risk-based hazard analyses upon request of FRA/participating part 212 States. —(q)(2) Identification and implementation of risk mitigation methods and furnishing of descriptions of specific risk mitigation methods that address hazards upon request of FRA/participating part 212 States. —(r)(1) Performance of technology analysis and furnishing of results of system’s technology analysis upon request of FRA/participating part 212 States. 270.107(a)—Consultation requirements—consultation with directly affected employees on SSP Plan. —(a)(3)(ii) Notification to directly affected employees of preliminary meeting at least 60 days before being held. —(b) Consultation statements that includes service list with name & contact information for labor organization chairpersons & non-union employees who participated in process. —Copies of consultations statements to service list individuals. 270.201(b)—SSP Plan found deficient by FRA and requiring amendment. —Review of amended SSP Plan found deficient and requiring further amendment. —Reopened review of initial SSP Plan approval for cause stated. 270.203—Retention of SSP Plans—Retained copies of SSP Plans. 270.303—Annual internal SSP assessments/reports conducted. —Certification of results of internal assessment by chief safety official. 270.305—External safety audit—Submission of improvement plans in response to results of FRA audit. —Improvement plans found deficient by FRA and requiring amendment. —Status report to FRA of implementation of improvements set forth in the improvement plan. Appendix B—Additional documents provided to FRA upon request. Appendix C—Written requests to file required submissions electronically. 35 passenger rail operations 11.7 plans ............................ 40 hours ............ 467 $42,777 35 passenger rail operations 11.7 copies .......................... 2 minutes ........... .4 30 35 passenger rail operations 11.7 notices ......................... 5 minutes ........... 1 76 35 passenger rail operations 495 records .......................... 15 seconds ........ 2 157 35 passenger rail operations 35 analyses results .............. 20 hours ............ 700 53,200 35 passenger rail operations 35 mitigation methods descriptions. 10 hours ............ 350 26,600 35 passenger rail operations 35 results of technology analysis. 10 hours ............ 350 26,600 35 passenger rail operations 11.7 consults (w/labor union reps.). 1 hour ................ 12 912 35 passenger rail operations 11.7 notices ......................... 30 minutes ......... 6 456 35 passenger rail operations 11.7 statements ................... 1 hour ................ 12 912 35 passenger rail operations 11.7 copies .......................... 1 minute ............ .2 15 35 passenger rail operations 4 amended plans ................. 30 hours ............ 120 9,120 35 passenger rail operations 1 further amended plan ....... 20 hours ............ 20 1,520 35 passenger rail operations 1 amended plans ................. 30 hours ............ 30 2,280 35 passenger rail operations 16 copies ............................. 10 minutes ......... 3 228 35 passenger rail operations 16 evaluations/reports ......... 2 hours .............. 32 2,432 35 passenger rail operations 35 certification statements ... 2 hours .............. 70 8,050 35 passenger rail operations 6 plans ................................. 12 hours ............ 72 8,280 35 passenger rail operations 2 amended plans ................. 10 hours ............ 20 1,520 35 passenger rail operations 2 reports .............................. 4 hours .............. 8 608 35 passenger rail operations 4 documents ........................ 15 minutes ......... 1 76 35 passenger rail operations 7 written requests ................ 15 minutes ......... 2 152 VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\04MRR2.SGM 04MRR2 Total annual burden hours Total annual dollar cost equivalent 28 CFR section/subject 12842 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations Respondent universe Total annual responses Average time per response 35 passenger rail operations 776 responses ..................... N/A .................... CFR section/subject Totals ............................................................. 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 Railroad Safety, Federal Railroad Administration, at 202–493–6132. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to 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 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 for part 270 is 2130– 0599.29 jbell on DSKJLSW7X2PROD with RULES2 D. Environmental Impact FRA has evaluated this rule in accordance with its ‘‘Procedures for Considering Environmental Impacts’’ (FRA’s Procedures) (64 FR 28545 (May 26, 1999)) as required by the National 28 FRA derived the wage rates from the Surface Transportation Board website for 2018 wage data, and it uses the average annual wages for each employee group as follows: For Executives, Officials, and Staff Assistants, this cost amounts to $115 per hour. For Professional and Administrative staff, this cost amounts to $76 per hour. 29 No changes are necessary to the RRP rule’s PRA analysis to account for the conforming amendments to the consultation and information protection provisions in this rule. See 85 FR 9262, 9311–13 (Feb. 18, 2020). VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this rule is not a major Federal action, requiring the preparation of an environmental impact statement or environmental assessment, because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA’s Procedures. See 64 FR 28547 (May 26, 1999). In accordance with section 4(c) and (e) of FRA’s Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this rule that might trigger the need for a more detailed environmental review. As a result, FRA finds that this rule is not a major Federal action significantly affecting the quality of the human environment. E. Federalism Implications Executive Order 13132, ‘‘Federalism’’ (64 FR 43255 (Aug. 10, 1999)), requires FRA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ are defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA has analyzed this rule in accordance with the principles and criteria contained in Executive Order 13132. VTrans commented that the SSP rule had significant federalism PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Total annual burden hours 2,279 Total annual dollar cost equivalent 28 186,001 implications that FRA did not consider regarding the rule’s applicability to VTrans. See VTrans at 12. Specifically, VTrans contended the rule ‘‘would have a chilling effect’’ on States (like Vermont), that, in reliance on existing law, have ‘‘structured their support for . . . intercity passenger rail service to avoid ‘railroad carrier’ status.’’ See id. As discussed above, FRA does not believe the proposal or SSP final rule raised such implications. However, in any event, the revisions to the rule make even clearer that no such implications are intended. This rule generally clarifies or makes technical amendments to the requirements contained in part 270, System Safety Program, and part 271, Risk Reduction Program. FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under 49 U.S.C. 20106. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply, and preparation of a federalism summary impact statement for the rule is not required. F. Unfunded Mandates Reform Act of 1995 Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 2 U.S.C. 1531), each Federal agency shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law). Section 202 of the Act (2 U.S.C. 1532) further requires that before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement detailing the effect on State, local, and tribal governments and the private sector. This rule would not result in such an expenditure, and thus E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations preparation of such a statement is not required. G. Energy Impact Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any ‘‘significant energy action.’’ 66 FR 28355 (May 22, 2001). FRA evaluated this 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 rule would not burden the development or use of domestically produced energy resources. List of Subjects 49 CFR Part 270 Penalties, Railroad safety, Reporting and recordkeeping requirements, System safety. 49 CFR Part 271 Penalties, Railroad safety, Reporting and recordkeeping requirements, Risk reduction. The Rule For the reasons discussed in the preamble, FRA amends parts 270 and 271 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows: PART 270—SYSTEM SAFETY PROGRAM 1. The authority citation for part 270 continues to read as follows: ■ Authority: 49 U.S.C. 20103, 20106–20107, 20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 2. In § 270.1, revise paragraphs (a) and (b) to read as follows: ■ jbell on DSKJLSW7X2PROD with RULES2 § 270.1 Purpose and scope. (a) The purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by passenger rail operations. This part requires certain passenger rail operations to establish a system safety program that systematically evaluates railroad safety hazards and the resulting risks on their systems and manages those risks to reduce the number and VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 rates of railroad accidents, incidents, injuries, and fatalities. (b) This part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of railroad system safety programs. This part does not restrict passenger rail operations from adopting and enforcing additional or more stringent requirements not inconsistent with this part. * * * * * ■ 3. In § 270.3, revise paragraphs (a)(1) and (2) to read as follows: § 270.3 Application. (a) * * * (1) Passenger rail operations that operate intercity or commuter passenger train service on the general railroad system of transportation; and (2) Passenger rail operations that operate commuter or other short-haul rail passenger train service in a metropolitan or suburban area (as described by 49 U.S.C. 20102(2)), including public authorities operating passenger train service. * * * * * ■ 4. In § 270.5: ■ a. Add a definition in alphabetical order for ‘‘Confidential Close Call Reporting System (C3RS)’’; ■ b. Revise the definitions of ‘‘Fully implemented’’ and ‘‘Hazard’’; ■ c. Add a definition in alphabetical order for ‘‘Passenger rail operation’’; and ■ d. Revise the definitions of ‘‘Person’’ and ‘‘System safety program plan’’. The additions and revisions read as follows: § 270.5 Definitions. * * * * * Confidential Close Call Reporting System (C3RS) means an FRA-sponsored voluntary program designed to improve the safety of railroad operations by allowing railroad employees to confidentially report currently unreported or underreported unsafe events. * * * * * Fully implemented means that all elements of a system safety program as described in the SSP plan are established and applied to the safety management of the passenger rail operation. Hazard means any real or potential condition (as identified in a risk-based hazard analysis) that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. * * * * * Passenger rail operation means an intercity, commuter, or other short-haul passenger rail service. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 12843 Person means an entity of any type covered under 49 U.S.C. 21301, 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; any employee of such owner, manufacturer, lessor, lessee, or independent contractor or subcontractor. * * * * * System safety program plan means a document developed by the passenger rail operation that implements and supports the system safety program. * * * * * ■ 5. Revise § 270.7 to read as follows: § 270.7 Penalties and responsibility for compliance. (a) Any person who 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 persons, 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 who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. FRA’s website at www.fra.dot.gov contains a schedule of civil penalty amounts used in connection with this part. (b) Although the requirements of this part are stated in terms of the duty of a railroad or passenger rail operation, 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 or passenger rail operation) shall perform that function in accordance with this part. (c)(1) All persons providing intercity rail passenger or commuter (or other short-haul) rail passenger service share responsibility for ensuring compliance with this part. Nothing in this paragraph (c), however, shall restrict the ability to provide for an appropriate designation E:\FR\FM\04MRR2.SGM 04MRR2 12844 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations of responsibility for compliance with this part. (2)(i) Any passenger rail operation subject to this part may designate a person as responsible for compliance with this part by including a designation of responsibility in the SSP plan. This designation must be included in the SSP plan’s statement describing the passenger rail operation’s management and organizational structure and include the information specified by § 270.103(e)(6). (ii) A passenger rail operation subject to this part may notify FRA of a designation of responsibility before submitting an SSP plan by first submitting a designation of responsibility notice to the Associate Administrator for Railroad Safety and Chief Safety Officer. The notice must include all information required under § 270.103(e)(6), and this information must also be included in the SSP plan. ■ 6. Revise § 270.101 to read as follows: § 270.101 System safety program; general. (a) Each passenger rail operation subject to this part shall establish and fully implement a system safety program 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. A system safety program shall include a risk-based hazard management program and riskbased hazard analysis designed to proactively identify hazards and mitigate or eliminate the resulting risks. The system safety program shall be fully implemented and supported by a written SSP plan described in § 270.103. (b) A system safety program shall be designed so that it promotes and supports a positive railroad safety culture. ■ 7. Revise § 270.103 to read as follows: jbell on DSKJLSW7X2PROD with RULES2 § 270.103 System safety program plan. (a) General. (1) Each passenger rail operation subject to this part shall adopt and fully implement a system safety program through a written SSP plan that, at a minimum, contains the elements in this section. This SSP plan shall be approved by FRA under the process specified in § 270.201. (2) Each passenger rail operation subject to this part shall communicate with each railroad that hosts passenger train service for that passenger rail operation and coordinate the portions of the SSP plan applicable to the railroad hosting the passenger train service. (b) System safety program policy statement. Each SSP plan shall contain a policy statement that endorses the VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 passenger rail operation’s system safety program. This policy statement shall: (1) Define the passenger rail operation’s authority for the establishment and implementation of the system safety program; (2) Describe the safety philosophy and safety culture of the passenger rail operation; and (3) Be signed by the chief official of the passenger rail operation. (c) System safety program goals. Each SSP plan shall contain a statement defining the goals for the passenger rail operation’s system safety program. This statement shall describe clear strategies on how the goals will be achieved and what management’s responsibilities are to achieve them. At a minimum, the goals shall be: (1) Long-term; (2) Meaningful; (3) Measurable; and (4) Focused on the identification of hazards and the mitigation or elimination of the resulting risks. (d) Rail system description. (1) Each SSP plan shall include a statement describing the rail system. The description shall include: The rail operations, including any host operations; the physical characteristics of the rail system; the scope of rail service; the rail system’s maintenance activities; and any other pertinent aspects of the rail system. (2) Each SSP plan shall identify the persons that enter into a contractual relationship with the passenger rail operation to either perform significant safety-related services on the passenger rail operation’s behalf or to utilize significant safety-related services provided by the passenger rail operation for purposes related to railroad operations. (3) Each SSP plan shall describe the relationships and responsibilities between the passenger rail operation and: Host railroads, contractor operators, shared track/corridor operators, and persons providing or utilizing significant safety-related services as identified pursuant to paragraph (d)(2) of this section. (e) Management and organizational structure. Each SSP plan shall contain a statement that describes the management and organizational structure of the passenger rail operation. This statement shall include the following: (1) A chart or other visual representation of the organizational structure of the passenger rail operation; (2) A description of the passenger rail operation’s management responsibilities within the system safety program; PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 (3) A description of how safety responsibilities are distributed within the rail organization; (4) Clear identification of the lines of authority used by the passenger rail operation to manage safety issues; (5) A description of the roles and responsibilities in the passenger rail operation’s system safety program for each host railroad, contractor operator, shared track/corridor operator, and any persons utilizing or providing significant safety-related services as identified pursuant to (d)(2) of this section. As part of this description, the SSP plan shall describe how each host railroad, contractor operator, shared track/corridor operator, and any persons utilizing or providing significant safetyrelated services as identified pursuant to paragraph (d)(2) of this section supports and participates in the passenger rail operation’s system safety program, as appropriate; and (6) If a passenger rail operation subject to this part designates a person as responsible for compliance with this part under § 270.7(c)(2), the following information must be included in the passenger rail operation’s SSP plan and any notice of designation submitted under § 270.7(c)(2): (i) The name and contact information of the designator; (ii) The name and contact information of the designated entity and a statement signed by an authorized representative of the designated entity acknowledging responsibility for compliance with this part; (iii) A statement affirming that a copy of the designation has been provided to the primary point of contact for each non-profit employee labor organization representing directly affected employees for consultation purposes under § 270.107(a)(2); and (iv) A description of how directly affected employees not represented by a non-profit employee labor organization were notified of the designation for consultation purposes under § 270.107(a). (f) System safety program implementation process. (1) Each SSP plan shall contain a statement that describes the process the passenger rail operation will use to implement its system safety program. As part of the implementation process, the SSP plan shall describe: (i) Roles and responsibilities of each position that has significant responsibility for implementing the system safety program, including those held by employees and other persons utilizing or providing significant safetyrelated services as identified pursuant to (d)(2) of this section; and E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations (ii) Milestones necessary to be reached to fully implement the program. (2) A system safety program shall be fully implemented within 36 months of FRA’s approval of the SSP plan pursuant to subpart C of this part. (g) Maintenance, repair, and inspection program. (1) Each SSP plan shall identify and describe the processes and procedures used for maintenance and repair of infrastructure and equipment directly affecting railroad safety. Examples of infrastructure and equipment that directly affect railroad safety include: Fixed facilities and equipment, rolling stock, signal and train control systems, track and right-ofway, passenger train/station platform interface (gaps), and traction power distribution systems. (2) Each description of the processes and procedures used for maintenance and repair of infrastructure and equipment directly affecting safety shall include the processes and procedures used to conduct testing and inspections of the infrastructure and equipment. (3) If a manual or manuals comply with all applicable Federal regulations and describe the processes and procedures that satisfy this section, the SSP plan may reference those manuals. FRA approval of an SSP plan that contains or references such manuals is not approval of the manuals themselves; each manual must independently comply with applicable regulations and is subject to a civil penalty if not in compliance with applicable regulations. (4) The identification and description required by this section of the processes and procedures used for maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety is not intended to address and should not include procedures to address employee working conditions that arise in the course of conducting such maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety as set forth in the plan. FRA does not intend to approve any specific portion of an SSP plan that relates exclusively to employee working conditions. (h) Rules compliance and procedures review. Each SSP plan shall contain a statement describing the processes and procedures used by the passenger rail operation to develop, maintain, and comply with applicable rules and procedures directly affecting railroad safety and to comply with the applicable railroad safety laws and regulations found in this chapter. The statement shall identify: VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 (1) The operating and safety rules and maintenance procedures that are subject to review under this chapter; (2) Techniques used to assess the compliance of the passenger rail operation’s employees with applicable operating and safety rules and maintenance procedures, and applicable railroad safety laws and regulations; and (3) Techniques used to assess the effectiveness of the passenger rail operation’s supervision relating to the compliance with the applicable operating and safety rules and maintenance procedures, and applicable railroad safety laws and regulations. (i) System safety program employee/ contractor training. (1) Each employee who is responsible for implementing and supporting the system safety program, and any persons utilizing or providing significant safety-related services will be trained on the passenger rail operation’s system safety program. (2) Each passenger rail operation shall establish and describe in its SSP plan a system safety program training plan. A system safety program training plan shall set forth the procedures by which employees that are responsible for implementing and supporting the system safety program, and any persons utilizing or providing significant safetyrelated services, will be trained on the system safety program. A system safety program training plan shall help ensure that all personnel who are responsible for implementing and supporting the system safety program understand the goals of the program, are familiar with the elements of the program, and have the requisite knowledge and skills to fulfill their responsibilities under the program. (3) For each position identified pursuant to paragraph (f)(1)(i) of this section, the training plan shall describe the frequency and content of the system safety program training that the position receives. (4) If a position is not identified under paragraph (f)(1)(i) of this section as having significant responsibility to implement the system safety program but the position is safety-related or has a significant impact on safety, personnel in those positions shall receive training in basic system safety concepts and the system safety implications of their position. (5) Training under this subpart may include, but is not limited to, classroom, computer-based, or correspondence training. (6) The passenger rail operation shall keep a record of all training conducted under this part and update that record as necessary. The system safety program training plan shall set forth the process PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 12845 used to maintain and update the necessary training records required by this part. (7) The system safety program training plan shall set forth the process used by the passenger rail operation to ensure that it is complying with the training requirements set forth in the training plan. (j) Emergency management. Each SSP plan shall contain a statement that describes the processes used to manage emergencies that may arise within the passenger rail operation’s system including, but not limited to, the processes to comply with applicable emergency equipment standards in part 238 of this chapter and the passenger train emergency preparedness requirements in part 239 of this chapter. (k) Workplace safety. Each SSP plan shall contain a statement that describes the programs established to protect the safety of the passenger rail operation’s employees and contractors. The statement shall include a description of: (1) The processes that help ensure the safety of employees and contractors while working on or in close proximity to railroad property as described in paragraph (d) of this section; (2) The processes that help ensure that employees and contractors understand the requirements established by the passenger rail operation pursuant to paragraph (f)(1) of this section; (3) Any fitness-for-duty programs or any medical monitoring programs; and (4) The standards for the control of alcohol and drug use in part 219 of this chapter. (l) Public safety outreach program. Each passenger rail operation shall establish and set forth a statement in its SSP plan that describes its public safety outreach program to provide safety information to railroad passengers and the general public. Each passenger rail operation’s safety outreach program shall provide a means for railroad passengers and the general public to report any observed hazards. (m) Accident/incident reporting and investigation. Each SSP plan shall include a statement that describes the processes that the passenger rail operation uses to receive notification of accidents/incidents, investigate and report those accidents/incidents, and develop, implement, and track any corrective actions found necessary to address an investigation’s finding(s). (n) Safety data acquisition. Each passenger rail operation shall establish and set forth a statement in its SSP plan that describes the processes it uses to collect, maintain, analyze, and E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 12846 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations distribute safety data in support of the system safety program. (o) Contract procurement requirements. Each SSP plan shall set forth a statement that describes the process(es) used to help ensure that safety concerns and hazards are adequately addressed during the safetyrelated contract procurement process. (p) Risk-based hazard management program. Each passenger rail operation shall establish a risk-based hazard management program as part of the system safety program. The risk-based hazard management program shall be fully described in the SSP plan. (1) The risk-based hazard management program shall establish: (i) The processes or procedures used in the risk-based hazard analysis to identify hazards on the rail system; (ii) The processes or procedures used in the risk-based hazard analysis to analyze identified hazards and support the risk-based hazard management program; (iii) The methods used in the riskbased hazard analysis to determine the severity and frequency of hazards and to determine the corresponding risk; (iv) The methods used in the riskbased hazard analysis to identify actions that mitigate or eliminate hazards and corresponding risks; (v) The process for setting goals for the risk-based hazard management program and how performance against the goals will be reported; (vi) The process to make decisions that affect the safety of the rail system relative to the risk-based hazard management program; (vii) The methods used in the riskbased hazard management program to support continuous safety improvement throughout the life of the rail system; and (viii) The methods used to maintain records of identified hazards and risks and the mitigation or elimination of the identified hazards and risks throughout the life of the rail system. (2) The SSP plan’s description of the risk-based hazard management program shall include: (i) The position title of the individual(s) responsible for administering the risk-based hazard management program; (ii) The identities of stakeholders who will participate in the risk-based hazard management program; and (iii) The position title of the participants and structure of any hazard management teams or safety committees that may be established to support the risk-based hazard management program. (q) Risk-based hazard analysis. (1) Once FRA approves a passenger rail VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 operation’s SSP plan pursuant to § 270.201(b), the risk-based hazard analysis methodology identified in paragraphs (p)(1)(i) through (iii) of this section shall be applied to identify and analyze hazards on the rail system and to determine the resulting risks. At a minimum, the aspects of the rail system that shall be analyzed include: Operating rules and practices, infrastructure, equipment, employee levels and schedules, management structure, employee training, and other aspects that have an impact on railroad safety not covered by railroad safety regulations or other Federal regulations. (2) A risk-based hazard analysis shall identify specific actions that shall be implemented using the methods described in paragraph (p)(1)(iv) of this section that will mitigate or eliminate the hazards and resulting risks identified by paragraph (q)(1) of this section. (3) A passenger rail operation shall also conduct a risk-based hazard analysis pursuant to paragraphs (q)(1) and (2) of this section when there are significant operational changes, system extensions, system modifications, or other circumstances that have a direct impact on railroad safety. (r) Technology analysis and implementation plan. (1) A passenger rail operation shall develop, and periodically update as necessary, a technology analysis and implementation plan as described by this paragraph. The passenger rail operation shall include this technology analysis and implementation plan in its SSP plan. (2) A passenger rail operation’s technology analysis and implementation plan shall describe the process used to: (i) Identify and analyze current, new, or novel technologies that will mitigate or eliminate the hazards and resulting risks identified by the risk-based hazard analysis pursuant to paragraph (q)(1) of this section; and (ii) Analyze the safety impact, feasibility, and costs and benefits of implementing the technologies identified by the processes under paragraph (r)(2)(i) of this section that will mitigate or eliminate hazards and the resulting risks. (3) Once FRA approves a passenger rail operation’s SSP plan pursuant to § 270.201(b), including the technology analysis and implementation plan, the passenger rail operation shall apply: (i) The processes described in paragraph (r)(2)(i) of this section to identify and analyze technologies that will mitigate or eliminate the hazards and resulting risks identified by the risk-based hazard analysis pursuant to paragraph (q)(1) of this section. At a PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 minimum, the technologies a passenger rail operation shall consider as part of its technology analysis are: Processorbased technologies, positive train control systems, electronicallycontrolled 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; and (ii) The processes described in paragraph (r)(2)(ii) of this section to the technologies identified by the analysis under paragraph (r)(3)(i) of this section. (4) If a passenger rail operation decides to implement any of the technologies identified in paragraph (r)(3) of this section, in the technology analysis and implementation plan in the SSP plan, the passenger rail operation shall: (i) Describe how it will develop, adopt, implement, maintain, and use the identified technologies; and (ii) Set forth a prioritized implementation schedule for the development, adoption, implementation and maintenance of those technologies over a 10-year period. (5) Except as required by subpart I of part 236 of this chapter, if a passenger rail operation decides to implement a positive train control system as part of its technology analysis and implementation plan, the technology implementation plan 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). (6) The passenger rail operation shall not include in its SSP plan the analysis conducted pursuant to paragraph (r)(3) of this section. A passenger rail operation shall make the results of any analysis conducted pursuant to paragraph (r)(3) of this section available upon request to representatives of FRA and States participating under part 212 of this chapter. (s) Safety Assurance—(1) Change management. Each passenger rail operation shall establish and set forth a statement in its SSP plan describing the processes and procedures used to manage significant operational changes, system extensions, system modifications, or other significant changes that will have a direct impact on railroad safety. (2) Configuration management. Each passenger rail operation shall establish a configuration management program E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations and describe the program in its SSP plan. The configuration management program shall: (i) Identify who has authority to make configuration changes; (ii) Establish processes to make configuration changes to the rail system; and (iii) Establish processes to ensure that all departments of the system affected by the configuration changes are formally notified and approve of the change. (3) Safety certification. Each passenger rail operation shall establish and set forth a statement in its SSP plan that describes the certification process used to help ensure that safety concerns and hazards are adequately addressed before the initiation of operations or major projects to extend, rehabilitate, or modify an existing system or replace vehicles and equipment. (t) Safety culture. Each SSP plan shall contain a statement that describes how the passenger rail operation measures the success of its safety culture identified in paragraph (b)(2) of this section. ■ 8. In § 270.105, revise paragraphs (a) and (b)(2) and add paragraph (e) to read as follows: jbell on DSKJLSW7X2PROD with RULES2 § 270.105 Discovery and admission as evidence of certain information. (a) Protected information. Except as provided in paragraph (a)(3) of this section, any information compiled or collected after August 14, 2017, solely for the purpose of planning, implementing, or evaluating a system safety program under this part shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. For purposes of this section: (1) ‘‘Information’’ includes plans, reports, documents, surveys, schedules, lists, or data, and specifically includes a passenger rail operation’s analysis of its safety risks under § 270.103(q)(1) and a passenger rail operation’s statement of mitigation measures under § 270.103(q)(2); (2) ‘‘Solely’’ means that a passenger rail operation originally compiled or collected the information for the exclusive purpose of planning, implementing, or evaluating a system safety program under this part. Information compiled or collected for any other purpose is not protected, even if the passenger rail operation also uses that information for a system safety program. ‘‘Solely’’ also means that a passenger rail operation continues to VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 use that information only for its system safety program. If a passenger rail operation subsequently uses for any other purpose information that was initially compiled or collected for a system safety program, this section does not protect that information to the extent that it is used for the non-system safety program purpose. The use of that information within the passenger rail operation’s system safety 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 of regulation; and (3) A passenger rail operation may include a Confidential Close Call Reporting System (C3RS) program in a system safety program established under this part. For Federal or State court proceedings described by this paragraph (a) that are initiated after March 4, 2021, the information protected by this paragraph (a) includes C3RS information a passenger rail operation includes in its system safety program, even if the passenger rail operation compiled or collected the C3RS information on or before August 14, 2017, for purposes other than planning, implementing, or evaluating a system safety program under this part. (b) * * * (2) Information compiled or collected on or before August 14, 2017, and that continues to be compiled or collected, even if used to plan, implement, or evaluate a system safety program; or * * * * * (e) Enforcement. This section does not apply to civil enforcement or criminal law enforcement proceedings. ■ 9. Revise § 270.107 to read as follows: § 270.107 Consultation requirements. (a) General duty. (1) Each passenger rail operation required to establish a system safety program 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 SSP plan. (2) A passenger rail operation that consults with a non-profit employee labor organization as required by paragraph (a)(1) of this section is considered to have consulted with the directly affected employees represented by that organization. For directly affected employees represented by a non-profit employee labor organization, the primary point of contact shall be either the general chairperson of that non-profit employee labor organization PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 12847 or a non-profit employee labor organization primary point of contact the passenger rail operation and the non-profit employee labor organization agree on at the beginning of the consultation process. If a passenger rail operation contracts out significant portions of its operations, the contractor and the contractor’s employees performing those operations shall be considered directly affected employees for the purposes of this part. (3) A passenger rail operation shall have a preliminary meeting with its directly affected employees to discuss how the consultation process will proceed. A passenger rail operation is not required to discuss the substance of an SSP plan during this preliminary meeting. A passenger rail operation must: (i) Hold the preliminary meeting no later than July 2, 2020; (ii) Notify the directly affected employees of the preliminary meeting no less than 60 days before it is held. (4) Appendix B to this part contains non-mandatory guidance on how a passenger rail operation may comply with the requirements of this section. (b) Consultation statements. A passenger rail operation required to submit an SSP plan under § 270.201 must also submit, together with the plan, a consultation statement that includes the following information: (1) A detailed description of the process utilized to consult with directly affected employees; (2) If the passenger rail operation could not reach agreement with its directly affected employees on the contents of its SSP plan, identification of any known areas of disagreement and an explanation of why it believes agreement was not reached; and (3) A service list containing the name and contact information for either each international/national president and general chairperson of any non-profit employee labor organization representing a class or craft of the passenger rail operation’s directly affected employees, or each non-profit employee labor organization primary point of contact the passenger rail operation and the non-profit employee labor organization agree on at the beginning of the consultation process. 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. When a passenger rail operation submits its SSP plan and consultation statement to FRA pursuant to § 270.201, it must also simultaneously send a copy of E:\FR\FM\04MRR2.SGM 04MRR2 12848 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations these documents to all individuals identified in the service list. (c) Statements from directly affected employees. (1) If a passenger rail operation and its directly affected employees cannot reach agreement on the proposed contents of an SSP plan, the directly affected employees may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining their views on the plan on which agreement was not reached with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer at Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590. The FRA Associate Administrator for Railroad Safety and Chief Safety Officer shall consider any such views during the plan review and approval process. (2) A passenger rail operation’s directly affected employees have 30 days following the date of the submission of a proposed SSP plan to submit the statement described in paragraph (c)(1) of this section. (d) Consultation requirements for system safety program plan amendments. A passenger rail operation’s SSP plan must include a description of the process the passenger rail operation will use to consult with its directly affected employees on any subsequent substantive amendments to the system safety program. The requirements of this paragraph do not apply to non-substantive amendments (e.g., amendments that update names and addresses of railroad personnel). ■ 10. Revise § 270.201 to read as follows: jbell on DSKJLSW7X2PROD with RULES2 § 270.201 Filing and approval. (a) Filing. (1) Each passenger rail operation to which this part applies shall submit one copy of its SSP plan to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590, no later than March 4, 2021, or not less than 90 days before commencing passenger operations, whichever is later. (2) The passenger rail operation shall not include in its SSP plan the riskbased hazard analysis conducted pursuant to § 270.103(q). A passenger rail operation shall make the results of any risk-based hazard analysis available upon request to representatives of FRA and States participating under part 212 of this chapter. (3) The SSP plan shall include: (i) The signature, name, title, address, and telephone number of the chief safety officer who bears primary managerial authority for implementing the program for the submitting VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 passenger rail operation. By signing, this chief official is certifying that the contents of the SSP plan are accurate and that the passenger rail operation will implement the contents of the program as approved by FRA; (ii) The contact information for the primary person responsible for managing the system safety program; and (iii) The contact information for the senior representatives of any host railroad, contractor operator, shared track/corridor operator, or persons utilizing or providing significant safetyrelated services. (4) As required by § 270.107(b), each passenger rail operation must submit with its SSP plan a consultation statement describing how it consulted with its directly affected employees on the contents of its SSP plan. Directly affected employees may also file a statement in accordance with § 270.107(c). (b) Approval. (1) Within 90 days of receipt of an SSP plan, FRA will review the SSP plan to determine if the elements prescribed in this part are sufficiently addressed. This review will also consider any statement submitted by directly affected employees pursuant to § 270.107(c). (2) FRA will notify each person identified in the SSP plan under § 270.201(a)(3) in writing whether the proposed plan has been approved by FRA, and, if not approved, the specific points in which the SSP plan is deficient. FRA will also provide this notification to each individual identified in the service list accompanying the consultation statement required under § 270.107(b). (3) If FRA does not approve an SSP plan, the affected passenger rail operation shall amend the proposed plan to correct all deficiencies identified by FRA and provide FRA with a corrected copy of the SSP plan not later than 90 days following receipt of FRA’s written notice that the proposed SSP plan was not approved. (4) Approval of an SSP plan under this part does not constitute approval of the specific actions a passenger rail operation will implement under an SSP plan pursuant to § 270.103(q)(2) and shall not be construed as establishing a Federal standard regarding those specific actions. (c) Review of amendments. (1)(i) A passenger rail operation shall submit any amendment(s) to the SSP plan to FRA not less than 60 days before the proposed effective date of the amendment(s). The passenger rail operation shall file the amended SSP plan with a cover letter outlining the PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 changes made to the original approved SSP plan by the proposed amendment(s). The cover letter shall also describe the process the passenger rail operation used pursuant to § 270.107(d) to consult with its directly affected employees on the amendment(s). (ii) If an amendment is safety-critical and the passenger rail operation is unable to submit the amended SSP plan to FRA 60 days before the proposed effective date of the amendment, the passenger rail operation shall submit the amended SSP plan with a cover letter outlining the changes made to the original approved SSP plan by the proposed amendment(s) and why the amendment is safety-critical to FRA as near as possible to 60 days before the proposed effective date of the amendment(s). (iii) 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 in paragraphs (c)(1)(i) and (ii) of this section, although the passenger rail operation shall still file the proposed amendment with FRA’s Associate Administrator for Railroad Safety and Chief Safety Officer. These proposed amendments may be implemented upon filing with FRA. All other proposed amendments must comply with the formal approval process in paragraph (c) of this section. (2)(i) Except as provided in paragraph (c)(1)(iii) of this section, FRA will review the proposed amended SSP plan within 45 days of receipt. FRA will then notify the primary contact person of each affected passenger rail operation whether the proposed amended plan has been approved by FRA, and if not approved, the specific points in which each proposed amendment to the SSP plan is deficient. (ii) If FRA has not notified the passenger rail operation by the proposed effective date of the amendment(s) whether the proposed amended plan has been approved or not, the passenger rail operation may implement the amendment(s) pending FRA’s decision. (iii) If a proposed SSP plan amendment is not approved by FRA, no later than 60 days following the receipt of FRA’s written notice, the passenger rail operation shall provide FRA either a corrected copy of the amendment that addresses all deficiencies noted by FRA or written notice that the passenger rail operation is retracting the amendment. (d) Reopened review. Following initial approval of a plan, or amendment, FRA may reopen consideration of the plan or amendment for cause stated. E:\FR\FM\04MRR2.SGM 04MRR2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations (e) Electronic submission. All documents required to be submitted to FRA under this part may be submitted electronically. Appendix C to this part provides instructions on electronic submission of documents. ■ 11. Revise § 270.203 to read as follows: § 270.203 Retention of system safety program plan. Each passenger rail operation to which this part applies shall retain at its system headquarters, and at any division headquarters, one copy of the SSP plan required by this part and one copy of each subsequent amendment to that plan. These records shall be made available to representatives of FRA and States participating under part 212 of this chapter for inspection and copying during normal business hours. ■ 12. Revise § 270.301 to read as follows: § 270.301 General. The system safety program and its implementation shall be assessed internally by the passenger rail operation and audited externally by FRA or FRA’s designee. ■ 13. Revise § 270.303 to read as follows: jbell on DSKJLSW7X2PROD with RULES2 § 270.303 Internal system safety program assessment. (a) Following FRA’s initial approval of the passenger rail operation’s SSP plan pursuant to § 270.201, the passenger rail operation shall annually conduct an assessment of the extent to which: (1) The system safety program is fully implemented; (2) The passenger rail operation is in compliance with the implemented elements of the approved system safety program; and (3) The passenger rail operation has achieved the goals set forth in § 270.103(c). (b) As part of its SSP plan, the passenger rail operation shall set forth a statement describing the processes used to: (1) Conduct internal system safety program assessments; (2) Internally report the findings of the internal system safety program assessments; (3) Develop, track, and review recommendations as a result of the internal system safety program assessments; (4) Develop improvement plans based on the internal system safety program assessments. Improvement plans shall, at a minimum, identify who is responsible for carrying out the VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 necessary tasks to address assessment findings and specify a schedule of target dates with milestones to implement the improvements that address the assessment findings; and (5) Manage revisions and updates to the SSP plan based on the internal system safety program assessments. (c)(1) Within 60 days of completing its internal SSP plan assessment pursuant to paragraph (a) of this section, the passenger rail operation shall: (i) Submit to FRA a copy of the passenger rail operation’s internal assessment report that includes a system safety program assessment and the status of internal assessment findings and improvement plans to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590; and (ii) Outline the specific improvement plans for achieving full implementation of the SSP plan, as well as achieving the goals of the plan. (2) The passenger rail operation’s chief official responsible for safety shall certify the results of the internal SSP plan assessment. ■ 14. Revise § 270.305 to read as follows: § 270.305 External safety audit. (a) FRA may conduct, or cause to be conducted, external audits of a system safety program. Each audit will evaluate compliance with the elements required by this part in an approved SSP plan. FRA shall provide the passenger rail operation written notification of the results of any audit. (b)(1) Within 60 days of FRA’s written notification of the results of the audit, the passenger rail operation shall submit to FRA for approval an improvement plan to address the audit findings that require corrective action. At a minimum, the improvement plan shall identify who is responsible for carrying out the necessary tasks to address audit findings and specify target dates and milestones to implement the improvements that address the audit findings. (2) If FRA does not approve the passenger rail operation’s improvement plan, FRA will notify the passenger rail operation of the specific deficiencies in the improvement plan. The affected passenger rail operation shall amend the proposed plan to correct the deficiencies identified by FRA and provide FRA with a corrected copy of the improvement plan no later than 30 days following its receipt of FRA’s written notice that the proposed plan was not approved. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 12849 (3) Upon request, the passenger rail operation shall provide to FRA and States participating under part 212 of this chapter for review a report upon request regarding the status of the implementation of the improvements set forth in the improvement plan established pursuant to paragraph (b)(1) of this section. ■ 15. Revise appendix B to part 270 to read as follows: Appendix B to Part 270—Federal Railroad Administration Guidance on the System Safety Program Consultation Process A passenger rail operation required to develop a system safety program under this part must in good faith consult with and use its best efforts to reach agreement with its directly affected employees on the contents of the SSP plan. See § 270.107(a). This appendix discusses the meaning of the terms ‘‘good faith’’ and ‘‘best efforts,’’ and provides non-mandatory guidance on how to comply with the requirement to consult with directly affected employees on the contents of the SSP plan. The 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. The guidance is not legally binding in its own right and will not be relied upon by the U.S. Department of Transportation as a separate basis for affirmative enforcement action or other administrative penalty. Conformity with this guidance (as distinct from existing statutes and regulations) is voluntary only, and nonconformity will not affect rights and obligations under existing statutes and regulations. The Meaning of ‘‘Good Faith’’ and ‘‘Best Efforts’’ ‘‘Good faith’’ and ‘‘best efforts’’ are not interchangeable terms representing a vague standard for the § 270.107 consultation process. Rather, each term has a specific and distinct meaning. When consulting with directly affected employees, therefore, a passenger rail operation must independently meet the standards for both the good faith and best efforts obligations. A passenger rail operation that does not meet the standard for one or the other will not be in compliance with the consultation requirements of § 270.107. The good faith obligation requires a passenger rail operation to consult with employees in a manner that is honest, fair, and reasonable, and to genuinely pursue agreement on the contents of an SSP plan. If a passenger rail operation consults with its employees merely in a E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 12850 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations 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 passenger rail operation’s directly affected employees express concerns with certain parts of the SSP plan, and the passenger rail operation neither addresses those concerns in further consultation nor attempts to address those concerns by making changes to the SSP 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 passenger rail operation must pursue to reach agreement with its employees on the contents of its system safety program. While the good faith obligation is concerned with the passenger rail operation’s state of mind during the consultation process, the best efforts obligation is concerned with the specific efforts made by the passenger rail operation in an attempt to reach agreement. This would include considerations such as whether a passenger rail operation had held sufficient meetings with its employees to address or make an attempt to address any concerns raised by the employees, or whether the passenger rail operation had made an effort to respond to feedback provided by employees during the consultation process. For example, a passenger rail operation would not meet the best efforts obligation if it did not initiate the consultation process in a timely manner, and thereby failed to provide employees sufficient time to engage in the consultation process. 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 SSP plans, FRA will determine on a case-by-case basis whether a passenger rail operation has met its § 270.107 good faith and best efforts obligations. This determination will be based upon the consultation statement submitted by the passenger rail operation pursuant to § 270.107(b) and any statements submitted by employees pursuant to § 270.107(c). If FRA finds that these statements do not provide sufficient information to determine whether a passenger rail operation used good faith and best efforts to reach agreement, FRA may investigate further and contact the passenger rail operation or its employees to request additional VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 information. If FRA determines that a passenger rail operation did not use good faith and best efforts, FRA may disapprove the SSP plan submitted by the passenger rail operation and direct the passenger rail operation to comply with the consultation requirements of § 270.107. Pursuant to § 270.201(b)(3), if FRA does not approve the SSP plan, the passenger rail operation 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 passenger rail operation did not use good faith and best efforts to consult and reach agreement with its directly affected employees. If a passenger rail operation then does not submit to FRA within 90 days an SSP plan meeting the consultation requirements of § 270.107, FRA could impose penalties for failure to comply with § 270.201(b)(3). Guidance on How a Passenger Rail Operation May Consult With Directly Affected Employees Because the standard imposed by the best efforts obligation will vary depending upon the passenger rail operation, there may be countless ways to comply with the consultation requirements of § 270.107. Therefore, FRA believes it is important to maintain a flexible approach to the § 270.107 consultation requirements, to give a passenger rail operation 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 passenger rail operation may proceed when consulting (utilizing good faith and best efforts) with employees in an attempt to reach agreement on the contents of an SSP plan. FRA believes this guidance may be useful as a starting point for those that are uncertain about how to comply with the § 270.107 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 passenger rail operation may use to consult with represented and non-represented employees could differ significantly. This guidance does not establish prescriptive requirements but merely outlines a consultation process a passenger rail operation may choose to follow. A passenger rail operation’s consultation statement could indicate that it followed the guidance in this appendix as evidence that it utilized good faith and best efforts to reach PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 agreement with its employees on the contents of an SSP plan. Employees Represented by a Non-Profit Employee Labor Organization As provided in § 270.107(a)(2), a passenger rail operation consulting with the representatives of a non-profit employee labor organization on the contents of an SSP plan will be considered to have consulted with the directly affected employees represented by that organization. A passenger rail operation 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 SSP plan. • Pursuant to § 270.107(a)(3)(i), a passenger rail operation must meet with representatives from a non-profit employee labor organization (representing a class or craft of the passenger rail operation’s directly affected employees) no later than July 2, 2020, to begin the process of consulting on the contents of the SSP plan. A passenger rail operation must provide notice at least 60 days before the scheduled meeting. • During the time between the initial meeting and the applicability date of § 270.105 the parties may meet to discuss administrative details of the consultation process as necessary. • Within 60 days after the applicability date of § 270.105 a passenger rail operation should have a meeting with the directed affected railroad employees to discuss substantive issues with the SSP. • Pursuant to § 270.201(a)(1), a passenger rail operation would file its SSP plan with FRA no later than March 4, 2021, or not less than 90 days before commencement of new passenger service, whichever is later. • As provided by § 270.107(c), if agreement on the contents of an SSP plan could not be reached, a labor organization (representing a class or craft of the passenger rail operation’s directly affected employees) may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining its views on the plan on which agreement was not reached. Employees Who Are Not Represented by a Non-Profit Employee Labor Organization FRA recognizes that some (or all) of a passenger rail operation’s directly affected employees may not be represented by a non-profit employee labor organization. For such nonrepresented employees, the consultation E:\FR\FM\04MRR2.SGM 04MRR2 jbell on DSKJLSW7X2PROD with RULES2 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations process described for represented employees may not be appropriate or sufficient. For example, FRA believes that a passenger rail operation with nonrepresented employees should make a concerted effort to ensure that its nonrepresented employees are aware that they are able to participate in the development of the SSP plan. FRA therefore is providing the following guidance regarding how a passenger rail operation may utilize good faith and best efforts when consulting with nonrepresented employees on the contents of its SSP plan. • By April 20, 2020, a passenger rail operation should notify non-represented employees that— (1) The passenger rail operation is required to consult in good faith with, and use its best efforts to reach agreement with, all directly affected employees on the proposed contents of its SSP plan; (2) The passenger rail operation is required to meet with its directly affected employees by July 2, 2020, to address the consultation process; (3) Non-represented employees are invited to participate in the consultation process (and include instructions on how to engage in this process); and (4) If a passenger rail operation is unable to reach agreement with its directly affected employees on the contents of the proposed SSP plan, an employee may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining the employee’s views on the plan on which agreement was not reached. • This initial notification (and all subsequent communications, as necessary or appropriate) could be provided to non-represented employees in the following ways: (1) Electronically, such as by email or an announcement on the passenger rail operation’s website; (2) By posting the notification in a location easily accessible and visible to non-represented employees; or (3) By providing all non-represented employees a hard copy of the notification. A passenger rail operation could use any or all of these methods of communication, so long as the notification complies with the passenger rail operation’s obligation to utilize best efforts in the consultation process. • Following the initial notification and initial meeting to discuss the consultation process (and before the passenger rail operation submits its SSP plan to FRA), a passenger rail operation should provide non-represented employees a draft proposal of its SSP plan. This draft proposal should solicit VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 additional input from non-represented employees, and the passenger rail operation should provide nonrepresented employees 60 days to submit comments to the passenger rail operation on the draft. • Following this 60-day comment period and any changes to the draft SSP plan made as a result, the passenger rail operation should submit the proposed SSP plan to FRA, as required by this part. • As provided by § 270.107(c), if agreement on the contents of an SSP plan cannot be reached, then a nonrepresented employee may file a statement with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining employee’s views on the plan on which agreement was not reached. ■ 16. Revise appendix C to part 270 to read as follows: Appendix C to Part 270—Procedures for Submission of SSP Plans and Statements From Directly Affected Employees This appendix summarizes procedures for the submission of an SSP plan and statements by directly affected employees consistent with the requirements of this part. Submission by a Passenger Rail Operation and Directly Affected Employees As provided for in § 270.101, a system safety program shall be fully implemented and supported by a written SSP plan. Each passenger rail operation must submit its SSP plan to FRA for approval as provided for in § 270.201. As provided for in § 270.107(c), if a passenger rail operation and its directly affected employees cannot come to agreement on the proposed contents of the SSP plan, the directly affected employees have 30 days following the submission of the proposed SSP 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. The passenger rail operation’s and directly affected employees’ submissions shall be sent to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590. When a passenger rail operation submits its SSP plan and consultation statement to FRA pursuant to § 270.201, it must also simultaneously send a copy of these documents to all individuals identified PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 12851 in the service list pursuant to § 270.107(b)(3). Each passenger rail operation and directly affected employee is authorized to file by electronic means any submissions required under this part. Before any person submits anything 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 passenger rail operation or directly affected employee(s); (2) The names of two individuals, including job titles, who will be the passenger rail operation’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 passenger rail operation’s or directly affected employees’ points of contact; (4) The system or main headquarters address located in the United States; (5) The email addresses for the passenger rail operation’s or directly affected employees’ points of contact; and (6) The daytime telephone numbers for the passenger rail operation’s or directly affected employees’ points of contact. 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, Mail Stop 25, 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 passenger rail operation that electronically submits an initial SSP 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 passenger rail operation that submits the materials does so by delivering the written materials to the Associate Administrator and opts not to submit the materials electronically. A passenger rail operation 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. E:\FR\FM\04MRR2.SGM 04MRR2 12852 Federal Register / Vol. 85, No. 43 / Wednesday, March 4, 2020 / Rules and Regulations PART 271—RISK REDUCTION PROGRAM 17. The authority citation for part 271 continues to read as follows: ■ Authority: 49 U.S.C. 20103, 20106–20107, 20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89. 18. In § 271.5, add a definition in alphabetical order for ‘‘Confidential Close Call Reporting System (C3RS)’’ and revise the definition of ‘‘Person’’ to read as follows: ■ § 271.5 Definitions. * * * * * Confidential Close Call Reporting System (C3RS) means an FRA-sponsored voluntary program designed to improve the safety of railroad operations by allowing railroad employees to confidentially report currently unreported or underreported unsafe events. * * * * * Person means an entity of any type covered under 49 U.S.C. 21301, 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; any employee of such owner, manufacturer, lessor, lessee, or independent contractor or subcontractor. * * * * * ■ 19. In § 271.11, revise paragraphs (a) introductory text and (a)(1), the final sentence of paragraph (a)(2), and add paragraph (a)(3) to read as follows: § 271.11 Discovery and admission as evidence of certain information. jbell on DSKJLSW7X2PROD with RULES2 (a) Protected information. Except as provided in paragraph (a)(3) of this VerDate Sep<11>2014 17:45 Mar 03, 2020 Jkt 250001 section, 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); (2) * * * This section does not protect information that is required to be compiled or collected pursuant to any other provision of law or regulation; and (3) A railroad may include a Confidential Close Call Reporting System (C3RS) program in a risk reduction program established under this part. For Federal or State court proceedings described by this paragraph (a) that are initiated after March 4, 2021, the information protected by this paragraph (a) includes C3RS information a railroad includes in its risk reduction program, even if the railroad compiled or collected the C3RS information on or before February 17, 2021, for purposes other than planning, implementing, or evaluating a risk reduction program under this part. * * * * * ■ 20. In § 271.207, add a second sentence to paragraph (a)(2) and revise paragraph (d)(3) to read as follows: § 271.207 Consultation requirements. (a) * * * (2) * * * For directly affected employees represented by a non-profit PO 00000 Frm 00028 Fmt 4701 Sfmt 9990 employee labor organization, the primary point of contact shall be either the general chairperson of the non-profit employee labor organization or a nonprofit employee labor organization primary point of contact the railroad and the non-profit employee labor organization agree on at the beginning of the consultation process. * * * * * (d) * * * (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, or each non-profit employee labor organization primary point of contact the railroad and the non-profit employee labor organization agree on at the beginning of the process. 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. 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. * * * * * Issued in Washington, DC, on February 28, 2020. Ronald L. Batory, Administrator, Federal Railroad Administration. [FR Doc. 2020–04424 Filed 3–2–20; 8:45 am] BILLING CODE 4910–06–P E:\FR\FM\04MRR2.SGM 04MRR2

Agencies

[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Rules and Regulations]
[Pages 12826-12852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04424]



[[Page 12825]]

Vol. 85

Wednesday,

No. 43

March 4, 2020

Part II





 Department of Transportation





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 Federal Railroad Administration





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49 CFR Parts 270 and 271





System Safety Program and Risk Reduction Program; Final Rule

Federal Register / Vol. 85 , No. 43 / Wednesday, March 4, 2020 / 
Rules and Regulations

[[Page 12826]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 270 and 271

[Docket No. FRA-2011-0060, Notice No. 12 and FRA-2009-0038, Notice No. 
8]
RIN 2130-AC73


System Safety Program and Risk Reduction Program

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

ACTION: Final rule.

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SUMMARY: In this final rule, FRA is amending its regulations requiring 
commuter and intercity passenger rail (IPR) operations to develop and 
implement a system safety program (SSP) to improve the safety of their 
operations. The rule clarifies that each passenger rail operation has 
responsibility for ensuring compliance with the SSP final rule. FRA 
also adjusts the SSP rule's compliance dates to account for FRA's prior 
stay of the rule's effect and amends the rule to apply its information 
protections to the Confidential Close Call Reporting System (C\3\RS) 
program included in a passenger rail operation's SSP. FRA is making 
conforming amendments to the Risk Reduction Program (RRP) final rule to 
ensure that the RRP and SSP rules have essentially identical 
consultation and information protection provisions.

DATES: This final rule is effective May 4, 2020.

ADDRESSES: Docket: For access to the docket to read background 
documents, petitions for reconsideration, or comments received, go to 
https://www.regulations.gov and follow the online instructions for 
accessing the docket or visit the Docket Management Facility, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, Room W12-140, 
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Larry Day, Passenger Rail Safety 
Specialist, U.S. Department of Transportation, Federal Railroad 
Administration, Office of Railroad Safety, Passenger Rail Division; 
telephone: 909-782-0613; email: [email protected]; Elizabeth A. Gross, 
Attorney Adviser, U.S. Department of Transportation, Federal Railroad 
Administration, Office of Chief Counsel; telephone: 202-493-1342; 
email: [email protected]; or Veronica Chittim, Attorney Adviser, 
U.S. Department of Transportation, Federal Railroad Administration, 
Office of Chief Counsel; telephone: 202-493-0273; email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Background
II. Discussion of Comments Received on the NPRM
    A. States' Concerns
    1. FRA's Statutory Authority
    2. State Comments Alleged SSP Rule Imposes Burdens Without 
Improving Safety
    3. State Comments Alleged Requirements To Consult With Its IPR 
Operators' Employees Would Interfere With State-IPR Operator 
Contracts
    4. Other Comments Related to States' Concerns
    B. Other Topics
    1. Consultation Comments
    2. Information Protections
    3. Submission Time
    4. RRP Rule
III. FRA's Response to Comments and Amendments to Parts 270 and 271
    A. FRA's Modified Approach
    1. IPR Examples
    2. Commuter (or Other Short-Haul) Examples
    3. Summary of Amendments and Response to States' Comments
    B. How FRA's Approach Responds to the States' Concerns
    1. Statutory Authority Concerns
    2. Burden
    3. Consultation Concerns
    C. Other Topics
    D. Conforming Amendments to the RRP Final Rule
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 and DOT Regulatory Policies and 
Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Environmental Impact
    E. Federalism Implications
    F. Unfunded Mandates Reform Act of 1995
    G. Energy Impact

I. Background

    On August 12, 2016, FRA published a final rule requiring each 
commuter and intercity passenger railroad \1\ to develop and implement 
an SSP. See 81 FR 53850 (Aug. 12, 2016). This final rule was required 
by section 103 of the Rail Safety Improvement Act of 2008 (RSIA) (Pub. 
L. 110-432, Div. A, 122 Stat. 4883 (Oct. 16, 2008), codified at 49 
U.S.C. 20156). The Secretary of Transportation delegated the authority 
to conduct this rulemaking and implement the rule to the Federal 
Railroad Administrator. See 49 CFR 1.89(b).
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    \1\ Throughout this document, FRA uses the term ``railroad,'' as 
it is defined in 49 CFR 270.5.
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    On October 3, 2016, FRA received four petitions for reconsideration 
(Petitions) of the final rule: (1) Certain labor organizations (Labor 
Organizations) \2\ filed a joint petition (Labor Petition); (2) certain 
State and local transportation departments and authorities \3\ filed a 
joint petition (Joint Petition); (3) North Carolina Department of 
Transportation (NCDOT) filed a separate petition; and (4) Vermont 
Agency of Transportation (VTrans) filed a separate petition. The Joint, 
NCDOT, and VTrans petitions are hereinafter referred to as the ``State 
Petitions.''
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    \2\ The Labor Organizations participating in the Labor Petition 
are the: American Train Dispatchers Association (ADTA); Brotherhood 
of Locomotive Engineers and Trainmen (BLET); Brotherhood of 
Maintenance of Way Employes Division (BMWED); Brotherhood of 
Railroad Signalmen (BRS); Brotherhood Railway Carmen Division; and 
Transport Workers Union of America.
    \3\ The State and local transportation departments and 
authorities who filed the Joint Petition are the: Capitol Corridor 
Joint Powers Authority (CCJPA); Indiana Department of Transportation 
(INDOT); Northern New England Passenger Rail Authority (NNEPRA); and 
San Joaquin Joint Powers Authority (SJJPA).
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    Massachusetts Department of Transportation (MassDOT) filed a 
comment in support of the Joint Petition on November 15, 2016. Three 
other individual comments were filed, but related to the rule 
generally, not the petitions.
    On February 10, 2017, FRA stayed the SSP final rule's requirements 
until March 21, 2017, consistent with the new Administration's guidance 
issued January 20, 2017, intended to provide the Administration an 
adequate opportunity to review new and pending regulations. See 82 FR 
10443 (Feb. 13, 2017). FRA's review also included the Petitions. To 
provide additional time for that review, FRA extended the stay until 
May 22, 2017; June 5, 2017; December 4, 2017; December 4, 2018; and 
then September 4, 2019. See 83 FR 63106 (Dec. 7, 2018).
    On October 30, 2017, FRA met with the Passenger Safety Working 
Group and the System Safety Task Group of the Railroad Safety Advisory 
Committee (RSAC) to discuss the Petitions and comments received in 
response to the Petitions.\4\ See FRA-2011-0060-0046.

[[Page 12827]]

This meeting allowed FRA to receive input from industry and the public 
and to discuss potential paths forward to respond to the Petitions. 
During the meeting, FRA made an introductory presentation and invited 
discussion on the issues raised by the Labor Petition. FRA also 
presented for discussion draft rule text that would respond to the 
State Petitions by amending the SSP final rule to include a delegation 
provision that would allow a railroad that contracts all activities 
related to its passenger service to another person to designate that 
person as responsible for compliance with the SSP final rule. FRA 
uploaded this proposed draft rule text to the docket for this 
rulemaking. See FRA-2011-0060-0045. The draft rule text specified that 
any such designation did not relieve a railroad of legal responsibility 
for compliance with the SSP final rule. In response to the draft rule 
text, the State Petitioners indicated they would need an extended 
caucus to discuss. On March 16, 2018, the Executive Committee of the 
States for Passenger Rail Coalition, Inc. (SPRC) \5\ provided, and FRA 
uploaded to the rulemaking docket, proposed revisions to the draft rule 
text. See FRA-2011-0060-0050.FRA issued a notice of proposed rulemaking 
(NPRM) on June 11, 2019, responding to the Petitions and proposing 
certain amendments to the SSP final rule. See 84 FR 27215. FRA further 
extended the stay to allow FRA time to review comments received on the 
NPRM and to issue this final rule. See 84 FR 45683 (Aug. 30, 2019). In 
addition to the comments received on the NPRM, FRA also reviewed and 
considered SPRC's March 16, 2018 suggested revisions in formulating the 
NPRM and this final rule.
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    \4\ Attendees at the October 30, 2017, meeting included 
representatives from the following organizations: ADS System Safety 
Consulting, LLC; American Association of State Highway and 
Transportation Officials; American Public Transportation Association 
(APTA); American Short Line and Regional Railroad Association; ATDA; 
Association of American Railroads (AAR); BLET; BMWED; BRS; CCJPA; 
The Fertilizer Institute; Gannett Fleming Transit and Rail Systems; 
International Brotherhood of Electrical Workers; Metropolitan 
Transportation Authority; National Railroad Passenger Corporation 
(Amtrak); National Transportation Safety Board (NTSB); NCDOT; 
NNEPRA; San Joaquin Regional Rail Commission (SJRRC)/Altamont 
Corridor Express; Sheet Metal, Air, Rail, and Transportation Workers 
(SMART-TD); and United States Department of Transportation--
Transportation Safety Institute.
    \5\ SPRC's website indicates it is an ``alliance of State and 
Regional Transportation Officials,'' and each State Petitioner 
appears to be an SPRC member. See https://www.s4prc.org/state-programs (last accessed Aug. 13, 2019).
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    Accordingly, this rule revises part 270 in response to the 
Petitions, as well as the comments received on the June 2019 NPRM, 
which are discussed below. FRA also adjusts the rule's compliance dates 
to account for FRA's stay of the rule's effect and amends the rule to 
specify that its information protections apply to C\3\RS programs 
included in a passenger rail operation's SSP. This rule also amends 
part 271 to ensure that the RRP and SSP rules have essentially 
identical consultation and information protection provisions.

II. Discussion of Comments Received on the NPRM

    The NPRM solicited written comments from the public under the 
Administrative Procedure Act (5 U.S.C. 553). By the close of the 
comment period on August 12, 2019, FRA received fourteen comments, 
including comments from AAR; Amtrak; APTA; CCJPA jointly with INDOT, 
Los Angeles-San Diego-San Luis Obispo Rail Corridor Agency, and SJJPA 
(CCJPA Joint Comment); Connecticut Department of Transportation 
(CTDOT); Massachusetts Bay Transportation Authority (MBTA); MassDOT; 
NCDOT; NNEPRA jointly with the State of Maine Department of 
Transportation (MEDOT); SPRC; VTrans; and Washington State Department 
of Transportation (WSDOT). FRA also received two general comments from 
members of the public. FRA grouped these comments into two categories: 
(A) States' Concerns and (B) Other Topics (Consultation Comments, 
Information Protections, Submission Time, and RRP Rule).

A. States' Concerns

    The CCJPA Joint Comment and SPRC's submission contained essentially 
identical comments (hereinafter, State Comments). See FRA-2011-0060-
0031 and FRA-2009-0038-0106. These State Comments reiterated many 
arguments the States have raised with FRA previously on this topic. 
Generally, MassDOT, NCDOT, NNEPRA/MEDOT, VTrans, and WSDOT concurred 
with the State Comments. These individual State comments included 
context for the particular rail services provided (for example, NNEPRA/
MEDOT explained its ``Downeaster'' service) and emphasized the apparent 
lack of control and operational role of the State in the IPR service.
    Specifically, the State Comments argued that: (1) FRA would exceed 
its statutory authority to impose SSP requirements on States; (2) the 
SSP rule would impose substantial burdens on States without improving 
safety; and (3) States should not be required to consult with their IPR 
operators' employees. Therefore, the State Comments requested that FRA 
modify the SSP rule to exclude a State that provides financial support 
for, but does not operate, IPR service; to exclude a State that owns a 
railroad or railroad equipment, but does not operate a railroad or 
railroad equipment; and to remove from the definition in Sec.  270.5, 
``Railroad,'' the words ``whether directly or by contracting out 
operation of the railroad to another person.'' See SPRC at 15; CCJPA at 
17; VTrans at 6. The State Comments also contended that FRA's proposed 
delegation provision in Sec.  270.7(c) was insufficient relief because 
the State would retain the burden of compliance.
1. FRA's Statutory Authority
    The State Comments alleged FRA lacks statutory authority to require 
States that provide funding for IPR service to comply with the SSP rule 
requirements. See SPRC at 3; CCJPA at 5. Further, the State Comments 
argued that neither the Passenger Rail Investment and Improvement Act 
of 2008 (PRIIA) (Pub. L. 110-432, Div. B (Oct. 16, 2008)) nor the RSIA 
reflected a Congressional ``intent to include States as IPR providers 
with responsibility for anything more than service funding.'' See SPRC 
at 3, 4; CCJPA at 3; VTrans at 11. Instead, the State Comments 
suggested any safety responsibility belongs only to the IPR operator. 
See SPRC at 3; CCJPA at 3. Moreover, the State Comments urged FRA to 
``remove from State financial sponsors the responsibility for 
compliance with FRA's safety regulations unless a State elects to 
assume that responsibility on its own.'' SPRC at 5; CCJPA at 5.
    Specifically, the State Comments contended that a ``State'' cannot 
be a ``railroad carrier'' under 49 U.S.C. 20102(3). See SPRC at 5; 
CCJPA at 6. The State Comments explained that the definition of 
``person'' in 1 U.S.C. 1, includes ``corporations, companies, 
associations, firms, partnerships, societies, and joint stock 
companies, as well as individuals,'' but does not specifically include 
the word ``State.'' See SPRC at 5-6; CCJPA at 6. The State Comments 
argued that a ``State'' therefore cannot be a ``person,'' and by 
extension, a ``State'' cannot be a ``person providing railroad 
transportation'' under the definition of ``railroad carrier'' in 49 
U.S.C. 20102(3). See SPRC at 5-6; CCJPA at 5-6. To support its 
argument, the State Comments indicated that Congress in PRIIA did not 
include ``States'' in the definition of ``Persons'' generally, and when 
Congress wanted to include ``States'' as ``persons,'' it explicitly 
said so, citing to 49 U.S.C. 1139(g)(1), in PRIIA, concerning accident 
investigations. See SPRC at 6; CCJPA at 6.
    MassDOT, NNEPRA/MEDOT, and VTrans additionally commented that 
Surface Transportation Board (STB) precedent allows States to maintain 
an STB status as a ``non-carrier'' when a State acquires track, right-
of-way, and related physical assets. MassDOT explained that ``ownership 
of railroad

[[Page 12828]]

assets does not necessarily confer upon the asset owner rail carrier 
status.'' See MassDOT at 2. NNEPRA/MEDOT stated that NNEPRA does not 
provide railroad transportation, but rather pays Amtrak the difference 
between service costs and revenues to operate the Downeaster service. 
See NNEPRA/MEDOT at 4. VTrans noted that it already delegates 
responsibility to railroad carriers through long-term contractual 
relationships. See VTrans at 3. VTrans contended State ownership of 
railroad property leased to a railroad carrier does not make the State 
a railroad carrier for the Interstate Commerce Act, the Federal 
Employers Liability Act, and the Railway Labor Act. See VTrans at 7-8. 
Further, VTrans argued that State financial support for Amtrak 
services, such as that required by PRIIA section 209, should not 
trigger the SSP rule's applicability. VTrans at 11.
    The State Comments, NCDOT, and NNEPRA/MEDOT commented that some 
State statutes prohibit States from owning or operating a railroad. 
See, e.g., SPRC at 9; CCJPA at 9; NCDOT at 2; NNEPRA/MEDOT at 4. As 
such, the States argued, requiring States to comply with the SSP rule 
would require States to seek statutory authority to engage in rail 
operations, or it would prevent them from underwriting the service at 
all. See SPRC at 9; CCJPA at 9.
    Finally, the State Comments argued FRA expanded the definition of 
``railroad'' in part 270 without authority to include entities that 
``contract [ ] out operation of the railroad to another person.'' See 
SPRC at 7; CCJPA at 7. The State Comments asserted that FRA's 
regulatory definition is broader than the statutory definition, and 
there is no clear direction from Congress to extend the definition as 
FRA proposed. See SPRC at 7; CCJPA at 8.
2. State Comments Alleged the SSP Rule Imposes Burdens Without 
Improving Safety
    The State Comments continued to argue the SSP rule would impose 
substantial burdens on States. See SPRC at 9; CCJPA at 10. The State 
Comments explained State sponsors \6\ ``do not employ qualified 
railroad personnel with the detailed technical knowledge to develop, 
implement, and oversee compliance with an SSP.'' See SPRC at 10; CCJPA 
at 11. They also claimed FRA's regulatory impact statement 
``underestimates the costs to States of compliance with the proposed 
SSP requirements'' and ``did not consider'' the costs of ``developing, 
implementing, and monitoring compliance with an SSP'' and the 
``negative impacts on the overall insurance market.'' See SPRC at 11; 
CCJPA at 13. Further, the State Comments alleged the rule would require 
States to renegotiate operating agreements which would increase costs. 
See SPRC at 12; CCJPA at 13. In sum, the State Comments indicated the 
SSP rule's financial burdens could cause States to discontinue IPR 
service entirely, and may therefore necessitate repaying Federal grants 
or loans for early termination of service. See SPRC at 13; CCJPA at 14. 
Moreover, the State Comments argued that including State sponsors in 
the rule could subject sponsors to other statutory obligations, such as 
railway labor and retirement requirements, and would increase costs and 
discourage IPR service. See SPRC at 14; CCJPA at 16.
---------------------------------------------------------------------------

    \6\ There is currently no statutory or regulatory definition of 
the term ``sponsor'' in relation to IPR service. The Joint Petition 
appears to understand ``sponsor'' in this context as being a State 
that ``provide[s] financial support'' for IPR routes and 
``contract[s] for the operation of IPR.'' See Joint Pet. at 2, fn. 
2. The NCDOT petition defines ``sponsors'' as ``State or other 
public entities that own railroads, equipment or that financially 
sponsor intercity passenger rail service.'' NCDOT Pet. at 3. In its 
proposed revisions to the strawman text FRA presented during the 
October 2017 RSAC meeting, SPRC suggested defining ``State sponsor'' 
as ``a State, regional or local authority, that contracts with a 
railroad to provide intercity passenger railroad transportation 
pursuant to Section 209 of the Passenger Rail Investment and 
Improvement Act of 2008, as amended.'' See Comments of the SPRC at 
2. For purposes of discussion in this rule, FRA understands ``State 
sponsor'' as being a State, regional, or local authority, or other 
public entity, that provides financial (and potentially other) 
support for IPR routes.
---------------------------------------------------------------------------

    The State Comments asserted that ``FRA has not demonstrated that 
requiring States, as well as IPR operators, to be responsible for full 
SSP compliance would improve safety.'' SPRC at 3; CCJPA at 3. The State 
Comments theorized that requiring both the IPR operator and State 
sponsor to develop an SSP would be duplicative and could create 
``contradictory and possibly conflicting measures.'' See SPRC at 3, 10, 
13; CCJPA at 3; WSDOT at 1. To support this claim, the State Comments 
pointed to the NTSB's report in the Dupont, Washington 501 accident to 
suggest that because the NTSB issued a recommendation to Amtrak to 
include the various responsible parties in a comprehensive safety 
management system (SMS), and NTSB did not issue a recommendation to 
WSDOT to develop such an independent safety program, which implies that 
requiring States to prepare and implement an SSP plan would not improve 
safety. See SPRC at 13-14; CCJPA at 15.
    Finally, the States indicated that State sponsors of IPR service 
lack control over the operator (typically, Amtrak), and although they 
pay Amtrak to keep the service running (as required by PRIIA), the only 
remedy they have for oversight is to cancel the contract (i.e., 
terminate the IPR service entirely). See, e.g., NCDOT at 3; CCJPA at 
12, 14. WSDOT noted that non-operating State sponsors ``do not control 
operations nor have access to critical safety reports or other 
information'' and lack the required ``appropriate expertise, authority, 
and ability to receive timely critical information to make decisions or 
take appropriate actions.'' WSDOT at 1-2. WSDOT reiterated that 
contractor operators have the appropriate personnel to meet safety 
requirements and provide oversight, and having States duplicate that 
effort would potentially create conflicting, redundant, and deflective 
measures. See WSDOT at 3. MassDOT agreed that the SSP rule ``imputes to 
the States a non-existent degree of State control over Amtrak's day-to-
day operations.'' See MassDOT at 2. MassDOT distinguished the service 
and contract provided by MBTA (contracting out commuter rail operations 
to a third-party operator) from itself, where MassDOT funds (as 
required by PRIIA) certain IPR multi-state (Massachusetts, New 
Hampshire, Vermont) routes without an operational role for MassDOT. See 
MassDOT at 2. MassDOT posited that including a State sponsor as a 
regulated entity ``adds confusion as to responsibility, threatens clear 
and timely communications between appropriate parties and misdirects 
regulatory attention.'' See MassDOT at 4. VTrans, like NNEPRA, MassDOT, 
and NCDOT, explained that it has no authority to govern or enforce any 
safety rules, even when it is the owner of the property, and all 
responsibilities lie with the actual rail operators. See VTrans at 11.
3. State Comments Alleged Requirements To Consult With Its IPR 
Operators' Employees Would Interfere With State-IPR Operator Contracts
    Finally, the State Comments argued States should not be required to 
consult with their IPR operators' employees because it ``introduces 
substantial barriers to efficient procurement practices.'' See SPRC at 
16; CCJPA at 18. WSDOT and MassDOT shared the concern that direct 
contact with an IPR service operator's employees could create labor and 
operator issues. See WSDOT at 3; MassDOT at 4. NCDOT emphasized it is 
not a party to, nor is it privy to, Amtrak's agreements with its host 
railroads and the SSP rule would purportedly insert States into that 
relationship. See NCDOT at 3.

[[Page 12829]]

    With the above arguments, the State Comments, MassDOT, NCDOT, 
NNEPRA/MEDOT, VTrans, and WSDOT, urged FRA to amend the SSP rule to 
exempt State sponsors from part 270.
4. Other Comments Related to States' Concerns
    In contrast to the above arguments, APTA commented that it supports 
the part 270 definition of ``railroad,'' supports FRA's statement that 
``each entity involved in providing passenger rail service--including 
``State sponsors''--is responsible for complying with Federal rail 
safety requirements,'' and believes ``[S]tates must be solely 
responsible for [their] employees and contractor's compliance.'' See 
APTA at 2. CTDOT supported FRA's proposal to allow for designation of 
another entity to ensure compliance with the SSP, and explained the 
entities it would so designate for its three passenger services (New 
Haven Line, Hartford Line, and Shore Line East). See CTDOT at 1.\7\
---------------------------------------------------------------------------

    \7\ See FRA-2011-0060-0068 (received Aug. 12, 2019). CTDOT 
provided clarifying comments dated November 20, 2019, after the 
comment period closed, which FRA added to the docket. See FRA-2011-
0060-0074.
---------------------------------------------------------------------------

    Amtrak agreed with FRA's statement that ``the vast majority of 
State providers of [IPR] service would fall under Amtrak's [SSP 
plan].'' See Amtrak at 2. Amtrak asserted that ``uniformity in the 
management of system safety program elements is critical to the 
successful implementation of risk reduction efforts.'' See id. Amtrak 
stated that it supplemented its Amtrak-wide SSP plan with separate 
agreements with host railroads, tenant railroads, and States, detailing 
specific aspects of the service and infrastructure, along with the 
responsibilities of each party, and incorporated these agreements by 
reference into its SSP plan.\8\ See id. Amtrak explained these 
supplemental, collaborative, written agreements can prevent variation 
in programs that could lead to duplication of efforts or issues where 
entities think they may be obligated to provide oversight of Amtrak 
beyond their skills or resources. See id. Amtrak requested that FRA 
clarify that these agreements align with FRA's intent to sufficiently 
detail the requirements and obligations of each party. See id.
---------------------------------------------------------------------------

    \8\ FRA notes that because of the stay of the SSP rule, FRA has 
neither approved nor disapproved Amtrak's SSP plan under the rule.
---------------------------------------------------------------------------

    Finally, a member of the public, Mr. Quinton Simpson stated ``even 
if the State contracts'' an IPR service provider, the State has 
responsibility and ``needs to ensure that the company is operating 
safely.'' Similarly, Dr. Edwin ``Chip'' Kraft commented to FRA that the 
``type of communications disconnect resulting in avoidance of 
responsibility'' is what the SSP rule is trying to prevent.

B. Other Topics

1. Consultation Comments
    FRA received two comments regarding FRA's proposed changes to the 
consultation provision in Sec.  270.107. Amtrak commented that it 
``concurs with the [NPRM's] proposed clarifications'' to require 
serving ``notice on the general chairpersons of labor organizations 
representing directly affected railroad employees.'' See Amtrak at 1. 
Further, Amtrak detailed its own experience on the labor consultation 
process in developing its SSP plan, and indicated that without such 
``continuous communication and collaboration between labor 
organizations and Amtrak management, its [SSP plan] to implement the 
[Safety Management System] would not be as successful nor 
sustainable.'' See id. at 1-2. Additionally, Mr. Simpson commented that 
he agrees that the contact of the General Chairperson makes sense 
because ``the local chairperson was the liaison between the worker and 
the company.''
2. Information Protections
    Amtrak commented that it agrees with the NPRM's proposal to extend 
the SSP information protections to a C\3\RS program included as part of 
an SSP, even if the railroad joined C\3\RS on or before August 14, 
2017. See Amtrak at 2. Further, Amtrak requested ``that any information 
resulting from its [SSP plan] processes prior to the effective date of 
the rule's protection provisions be afforded like protections from 
discovery or use in civil litigation.'' See id. Amtrak also requested 
the ``protections include information developed in [S]tate sponsored 
routes, including in circumstances where [S]tate entities may be 
subject to disclosure requirements.'' See id. at 3.
    APTA supported the proposed protection for C\3\RS outlined in Sec.  
270.105(a)(3), but requested it be expanded from Federal or State court 
proceedings to also protect from other requests to release the data, 
like requests under the Freedom of Information Act (FOIA) or Freedom of 
Information Law. See APTA at 1. Further, APTA stated the ``protection 
should also apply to any Federal program utilized by the railroads, 
such as [the Rail Information Sharing Environment (RISE)] or Clear 
Signal for Action [(CSA)].'' See id. at 2. MBTA supported the C\3\RS 
program and, like APTA, commented that FRA ``should expand the privacy 
protections . . . to FOIA requests, as long as the information being 
requested supports the SSP.'' See MBTA at 1. Similarly, AAR supported 
the proposed inclusion of FRA's C\3\RS program in the information 
protections, but stated the provision should go further to include 
railroads' ``in-house close call confidential reporting systems.'' See 
AAR at 2.
3. Submission Time
    FRA requested comments on whether a one-year period after 
publication of the final rule was appropriate for submission of SSP 
plans for FRA review. APTA requested that FRA provide two years, to 
mirror what the Federal Transit Administration (FTA) provided in 
implementing the SMS program. See APTA at 2. MBTA supported extending 
compliance dates and providing one year for submission of SSP plans to 
allow sufficient time for railroads to reengage labor representatives. 
See MBTA at 1. Amtrak asked FRA to implement the rule as soon as 
possible. See Amtrak at 3.
4. RRP Rule
    Finally, AAR commented that the NPRM ``ignores AAR's supplemental 
comments to the RRP rule, filed October 31, 2018.'' AAR's comment also 
stated ``[b]y adopting [AAR's] proposed changes to the RRP regulatory 
text, FRA can dramatically speed up the enhancement of safety on the 
nation's railroads, at no risk.'' See AAR at 1.

III. FRA's Response to Comments and Amendments to Parts 270 and 271

    After thoroughly considering the comments received on the NPRM, FRA 
is amending part 270 to clarify the application of the rule's 
requirements to each ``passenger rail operation,'' as opposed to each 
``railroad.'' FRA believes that this approach addresses the concerns 
raised by the States; effectuates FRA's intent for system safety; 
provides for a more natural understanding of how system safety works on 
a practical level; and will ensure each passenger rail operation 
develops and implements a compliant SSP.\9\ Specific rule text changes 
to carry out this approach are discussed further below in the section-
by-section analysis.
---------------------------------------------------------------------------

    \9\ FRA's treatment of passenger rail service in this rule is 
only intended to affect the application of Federal safety 
requirements FRA administers and enforces.
---------------------------------------------------------------------------

A. FRA's Modified Approach

    As FRA has consistently explained, FRA recognizes that there are 
often

[[Page 12830]]

multiple entities involved in each passenger rail service, with each 
entity having varying safety responsibilities.\10\ For purposes of part 
270, FRA expects each passenger rail operation to have a single SSP and 
written SSP plan. FRA agrees with the State Comments that each 
passenger rail operation should have a single SSP governing the entire 
service, with each entity that may be involved in the service playing a 
role in the SSP commensurate with any of its activities affecting 
railroad safety. FRA similarly agrees that if each entity involved in a 
passenger rail operation filed its own SSP plan, this could lead to 
confusion and duplicated actions, contrary to promoting a systemic 
approach to safety. Therefore, FRA is clarifying the rule to place the 
central responsibilities of developing, filing, and implementing an SSP 
plan on the passenger rail operation. For most passenger rail 
operations, FRA expects the entity conducting the railroad operations 
will develop, submit, and implement the required SSP plan for that 
passenger rail operation. The entity submitting the plan for a 
passenger rail operation will typically be the railroad providing the 
engineers and crews and physically operating the trains on that 
passenger rail operation's routes. Of course, if the entities involved 
in a passenger rail operation determine that an entity other than the 
railroad operating the service should develop and file that operation's 
SSP plan, that different entity may be designated with such 
responsibility for the passenger rail operation, provided the required 
elements of the SSP plan are met with a single plan covering that 
system. In this manner, FRA is adopting the designation provision 
proposed in Sec.  270.7(c), but with adjustments to reflect that the 
responsibility falls on each passenger rail operation and to remove the 
language that a designator is not relieved of responsibility for 
compliance.
---------------------------------------------------------------------------

    \10\ For example, an entity, such as a State agency or rail 
authority, may organize and finance the rail service; a primary 
contractor may oversee the day-to-day operation of the rail service; 
one subcontractor may operate the trains along the route; another 
subcontractor may maintain the train equipment; and another entity 
may own the track.
---------------------------------------------------------------------------

    The passenger rail operation for all current State-sponsored IPR 
services could be considered part of one, multifaceted system that is 
organized, managed, performed, and operated by a single railroad. As 
captured in the amendments to the rule text in this rulemaking, the 
requirements of part 270 may apply to those national and State-
supported IPR services operated by Amtrak as a single passenger rail 
operation. FRA anticipates Amtrak would develop and implement an SSP 
that addresses the varying components of its network. Within that rail 
system, other entities involved (e.g., host railroads) must participate 
in the SSP process to ensure those entities' roles are performed safely 
when they may affect the safe operation of that system's rail service. 
With the amendments to the rule, FRA clarifies that it does not require 
such other entities to develop, submit, and implement an independent 
SSP plan to FRA. For example, a non-operating entity must participate 
in (and be identified in) the SSP process to the extent that entity 
owns infrastructure or equipment that will be utilized by the passenger 
rail operation. But that non-operating entity will not file the SSP 
plan for the passenger rail operation unless otherwise agreed amongst 
the entities involved in the passenger rail operation.
    Indeed, as stated above, Amtrak agreed with FRA's statement that 
``the vast majority of State providers of [IPR] service would fall 
under Amtrak's [SSP plan].'' See Amtrak at 2. Amtrak asserted that 
``uniformity in the management of system safety program elements is 
critical to the successful implementation of risk reduction efforts.'' 
See id. Amtrak explained that it supplemented its Amtrak-wide SSP plan 
with separate agreements with host railroads, tenant railroads, and 
States, detailing specific aspects of each service and infrastructure, 
along with the responsibilities of each party. See id. Amtrak stated 
these supplemental, collaborative written agreements can prevent 
variation in programs that could lead to duplication of efforts or 
issues where entities think they may be obligated to provide oversight 
of Amtrak beyond their skills or resources. See id.
    FRA finds that these types of agreements will likely align with the 
rule's requirements to explain the roles and obligations of each party 
involved in a passenger rail operation. As stated above, Amtrak's 
national IPR network currently includes many State-supported routes 
that compose its system. As Amtrak's comment recognized, if Amtrak 
files an SSP plan for its passenger rail network incorporating State-
sponsored IPR services, Amtrak's network SSP plan must also include 
details about each route, including State-supported routes, within the 
Amtrak network, especially to the extent aspects of those routes vary 
from those common to Amtrak's intercity passenger rail network. In this 
manner, an SSP plan for Amtrak's system would likely include details 
from the long-term agreements Amtrak has with individual States 
regarding funding, equipment, track, and/or other items specific to 
those State-supported routes. FRA believes this form of centralized SSP 
plan addressing various components of the system will conform to the 
statutory mandate and benefit rail safety.
1. IPR Examples
    By way of example, if an entity (State A) merely provides financial 
support to Amtrak per its obligations under PRIIA Sec. 209 \11\ for a 
State-supported intercity passenger route under 750 miles, part 270 
does not require State A to submit an SSP plan for that State-supported 
route. Amtrak, as the operator of that State-supported IPR service, 
likely will file its national Amtrak SSP plan to include that State-
supported route for the passenger rail operation's (Amtrak's) SSP. 
(Amtrak, or any other entity involved in the passenger rail operation, 
will retain the option of submitting a separate SSP plan for each IPR 
route, but Amtrak will not be required to subdivide its national 
network into separate plans.) As required by the rule, Amtrak's SSP 
plan must describe State A's role in the SSP (i.e., Amtrak's SSP must 
explain that State A funds those specific operations on that route). 
See, e.g., Sec.  270.103(d), System description, and Sec.  270.103(e), 
Management and organizational structure. In this manner, passenger rail 
service stakeholders must be included in the description of the rail 
system in the SSP plan, but are not otherwise responsible for 
submitting an independent SSP plan for that passenger rail operation.
---------------------------------------------------------------------------

    \11\ Section 209 of PRIIA requires that the Amtrak Board of 
Directors, in consultation with the Secretary of Transportation, the 
governors of each relevant State, and the Mayor of the District of 
Columbia, or entities representing those officials, develop and 
implement a single, nationwide standardized methodology for 
establishing and allocating the operating and capital costs of 
providing IPR service among the States and Amtrak for the trains 
operated on designated high-speed rail corridors (outside the 
Northeast Corridor), short-distance corridors, or routes of not more 
than 750 miles, and services operated at the request of a State, a 
regional or local authority, or another person.
---------------------------------------------------------------------------

    For purposes of part 270, to the extent an entity (such as a State) 
does more than just provide financial assistance to a passenger rail 
operation, the relative responsibilities for that entity in the SSP 
context will increase. With respect to some operations, States may have 
a role in making substantive operational and safety-related decisions, 
including selecting contractors to perform services implementing those 
decisions. For example, if an entity (State B) is involved in a 
passenger rail operation

[[Page 12831]]

by funding a State-supported route on Amtrak's national system pursuant 
to PRIIA Sec. 209, and by procuring rolling stock for use only on that 
State-supported IPR route, State B will not be responsible for 
submitting an independent SSP plan for that route. Instead, for 
purposes of part 270, Amtrak will likely incorporate that State-
supported route on its national system into an SSP plan. This 
understanding reflects current practical circumstances and how such 
services are organized. However, State B will be required by part 270 
to participate in the development of the SSP, to the extent that State 
B's involvement (here, the procurement of the rail equipment) affects 
railroad safety. Thus, the entity preparing the SSP plan (here, Amtrak) 
must coordinate with State B on the equipment's safety to file a 
compliant SSP plan to include that State-supported route. In this way, 
FRA requires State B to be involved in the SSP plan in more ways than 
in the example of State A above. Specifically, the SSP plan requirement 
regarding equipment procurement is an area where State B must be 
involved. See Sec.  270.103(o), Contract procurement requirements. For 
example, if State B performs an analysis for determining safety 
characteristics or features of equipment it is considering purchasing 
for use in its State-supported route, that role should be described in 
the passenger rail operation's SSP plan--even if that plan is submitted 
by the operator of the system (e.g., Amtrak for all current State-
sponsored IPR services).\12\ Similarly, Sec.  270.103(f)(1)(i) outlines 
that the passenger rail operation's SSP plan must detail the roles and 
responsibilities of each position that has significant responsibility 
for implementing the SSP, including those held by employees and other 
persons utilizing or providing significant safety-related services as 
identified pursuant to Sec.  270.103(d)(2). In this example, aspects of 
the SSP plan benefit from State participation and the identification of 
the State's role in the passenger rail operation. For purposes of part 
270, however, only one entity involved in each passenger rail operation 
need bear the full responsibility for developing, submitting, and 
implementing an SSP plan for the passenger rail operation.
---------------------------------------------------------------------------

    \12\ For example, the role of the California Department of 
Transportation's (Caltrans') Rolling Stock Procurement Branch would 
be described in Amtrak's SSP covering that operation for equipment 
Caltrans procures. See https://dot.ca.gov/programs/rail-and-mass-transportation/rolling-stock-procurement-branch.
---------------------------------------------------------------------------

2. Commuter (or Other Short-Haul) Examples
    In the context of commuter (or other short-haul) passenger rail 
operations, FRA similarly requires each operation to develop and submit 
a single SSP plan to FRA for review and approval. FRA's amendments to 
part 270 make clear that each commuter (or other short-haul) passenger 
rail operation must file an SSP plan that covers all components of that 
commuter (or other short-haul) operation. For example, for a commuter 
passenger rail operation, FRA expects the SSP plan will detail the 
operation to include any public authority that sponsors or organizes 
the service, describe the track ownership on the system, identify the 
contractor operator(s), and explain dispatching responsibilities. If a 
commuter operation has more than one contractor operator (for example, 
the operation has distinct operators on specific routes in the commuter 
system), FRA expects that passenger rail operation will establish and 
file a single SSP plan to address its entire rail system. The SSP plan 
could be prepared, filed, and implemented for the passenger rail 
operation by the commuter rail system's owners, a contractor operator, 
or some other entity involved in the rail system, provided the SSP plan 
meets the requirements in the rule and the passenger rail operation 
works with the relevant stakeholders that compose that commuter rail 
system to ensure the system is viewed holistically. Of course, FRA is 
available to assist all passenger rail operations regarding the 
requirements of part 270.
3. Summary of Amendments and Response to States' Comments
    FRA is adding a definition in Sec.  270.5, for ``passenger rail 
operation'' to clarify which entity will need an SSP plan. The 
definition retains the flexibility that entity has in preparing and 
implementing the plan. FRA is also amending other sections of part 270 
to include the term ``passenger rail operation.'' FRA is reframing 
these regulatory sections as a responsibility for each passenger rail 
operation to develop and submit an SSP plan to FRA. These amendments 
are intended to clarify that an SSP plan must be submitted for each 
passenger rail operation, and FRA does not expect each specific entity 
involved in a passenger rail service, whether a railroad or not, to 
establish, submit, and implement its own SSP plan. Rather, each 
passenger rail operation will have one SSP plan. FRA believes that for 
purposes of part 270, these changes effectively and practically 
implement the rule: (1) Consistent with the statutory mandate; (2) 
considering the comments received; and (3) considering the regulatory 
landscape in which the SSP rule overlays and supplements a body of 
existing rail safety regulations and requires centralized analyses. To 
be consistent with this approach, FRA is changing ``railroad'' to 
``passenger rail operation,'' as appropriate, throughout part 270.
    Additionally, FRA is finalizing proposed amendments to the rule 
that clarify that while all persons providing IPR or commuter (or other 
short-haul) rail passenger transportation share responsibility for 
ensuring compliance with the SSP final rule, the rule does not restrict 
a passenger rail operation's ability to provide for an appropriate 
designation of responsibility amongst the entities involved in the 
service. As discussed in the NPRM, any such designation must be 
described in the SSP plan, although a passenger rail operation may also 
notify FRA of a designation by submitting a notice of such designation 
before submitting the SSP plan. The section-by-section analysis 
discusses these proposed amendments in detail below. FRA believes these 
amendments clarify the ability to specify which entity will fulfill the 
responsibilities of this part for each passenger rail operation, so 
that work and effort is not duplicated. FRA will look to the designated 
entity when reviewing and approving a submitted SSP plan, auditing the 
implementation of that plan, and deciding whether to take action to 
enforce the SSP rule requirements.

B. How FRA's Approach Responds to the States' Concerns

    As discussed above, FRA has modified its approach to address the 
concerns raised by the State commenters, and to clarify which entity 
will need an SSP plan. The comments received in response to the NPRM 
raised varying concerns, as described above, from FRA's statutory 
authority over State sponsors, to alleged substantial burdens of the 
rule, and logistical concerns about labor consultation requirements. 
FRA believes that the modified, practical approach this rule requires, 
stressing that there must be a single SSP plan for each passenger rail 
operation, addresses these concerns.
    For example, the State Comments argued that State sponsors are not 
structured to handle the SSP process or they lack sufficient capacity 
to handle the requirements of the SSP process. Simply stated, FRA's 
approach to focus on the passenger rail operation allows for an entity 
that is equipped to manage

[[Page 12832]]

and implement such requirements to be responsible for the operation's 
SSP.
1. Statutory Authority Concerns
    The State Comments asserted that FRA lacks authority to apply the 
SSP rule to State sponsors. As FRA noted in the NPRM, FRA disagrees 
that applying the SSP rule to State sponsors of IPR service goes beyond 
FRA's statutory authority. See 84 FR 27220-21. FRA has a long history 
of applying its safety regulations to State entities involved in 
passenger rail operations. See generally 49 CFR parts 213, 238 and 239. 
However, FRA's modified approach in this rule recognizes that each 
passenger rail operation must have a compliant SSP and SSP plan, but 
does not specifically require State sponsors to develop and implement 
SSPs or SSP plans. This SSP plan must describe each entity involved in 
that passenger rail operation, including State sponsors, and that 
passenger rail operation must ensure all entities involved in the rail 
service work together as a system. Overall, for purposes of part 270, 
FRA focuses on the passenger rail operation, and emphasizes that State 
sponsors of IPR service are only responsible to the extent and degree 
their roles and responsibilities are described in the operation's SSP 
plan. Because this modified approach does not hold a State sponsor 
responsible for specifically submitting an SSP plan or for being 
ultimately responsible under the regulation for the passenger rail 
operation the State sponsors, FRA does not find the States' statutory 
authority concerns to be implicated.
    Although FRA's modified approach in this rule renders the State's 
statutory authority concerns moot, FRA notes that it does not concur 
with the States' comments concerning FRA's jurisdiction over States. 
The State Comments asserted that States are not ``persons'' under the 
definition of ``person'' in 1 U.S.C. 1. See generally SPRC at 5-6. 
Specifically, the State Comments argued that the definition of 
``person'' in 1 U.S.C. 1, includes ``corporations, companies, 
associations, firms, partnerships, societies, and joint stock 
companies, as well as individuals,'' but does not specifically include 
the word ``State.'' See id. The State Comments, by extension, contended 
that a State cannot be a ``railroad carrier'' under 49 U.S.C. 20102(3) 
or under the SSP rule, because those definitions refer to a ``person 
providing railroad transportation.''
    While FRA acknowledges that ``States'' are not explicitly included 
in the general 1 U.S.C. 1 definition and the presumption that 
``persons'' does not include sovereigns, that presumption is not a 
``hard and fast rule of exclusion.'' Vermont Agency of Natural 
Resources v. United States, 529 U.S. 765, 780-82 (2000). FRA's general 
jurisdictional statute, 49 U.S.C. 20103, provides the Secretary of 
Transportation authority to ``prescribe regulations and issue orders 
for every area of railroad safety supplementing laws and regulations in 
effect on October 16, 1970.'' This authority is generally delegated to 
FRA in 49 CFR 1.89.\13\ Additionally, the statutory scheme provides 
that the FRA Administrator shall carry out the duties and powers 
related to railroad safety vested in the Secretary by section 20134(c) 
and chapters 203 through 211 of this title, and by chapter 213 of this 
title for carrying out chapters 203 through 211. See 49 U.S.C. 103(g). 
The penalty provision for general violations relating to railroad 
safety provides that a ``person may not fail to comply with section 
20160 or with a regulation prescribed or order issued by the Secretary 
of Transportation under chapter 201 of this title.'' 49 U.S.C. 21301 
(emphasis added). Additionally, other sections in the penalty 
provisions in 49 U.S.C. ch. 213 apply to a person violating other 
specific railroad safety requirements, such as those relating to 
violations of 49 U.S.C. ch. 203-209 (Safety Appliances, Signal Systems, 
Locomotives, Accidents and Incidents), and 211 (Hours of Service). See 
49 U.S.C. 21302 and 21303.
---------------------------------------------------------------------------

    \13\ See also 49 U.S.C. 103.
---------------------------------------------------------------------------

    The statutory mandate in 49 U.S.C. 20156(h) states that FRA (as 
delegated by the Secretary) ``shall have the authority to assess civil 
penalties pursuant to chapter 213 for a violation of this section, 
including the failure to submit, certify, or comply with a safety risk 
reduction program, risk mitigation plan, technology implementation 
plan, or fatigue management plan.''
    The use of the term ``person'' in 49 U.S.C. ch. 213, and 49 U.S.C. 
20156(h)'s reference to chapter 213 demonstrates that persons used in 
Subtitle V-Rail Programs, Part A-Safety, of the U.S. Code should 
include States or political subdivisions of States. To read the 
statutory scheme otherwise would seemingly mean FRA would not be 
permitted even to issue civil penalties against commuter rail 
authorities (often instrumentalities of a State or locality) for 
violations of Federal rail safety requirements because they would not 
be considered ``persons'' under 49 U.S.C. 21301. This result would be 
incongruous. Additionally, whether or not a State entity may be 
considered a railroad carrier under 49 U.S.C. 20102(3), FRA has 
authority over a person, including a State entity, whose actions, 
roles, or functions affect railroad safety. See 49 U.S.C. 20103. Under 
the modified approach to part 270 explained here, State sponsors of IPR 
service are not required to establish and implement an SSP as railroad 
carriers, but they do have responsibility to the extent they affect 
railroad safety, under FRA's general jurisdiction. See 49 U.S.C. 20103; 
49 CFR part 270.
2. Burden
    The State Comments echoed their previous arguments that the SSP 
rule would impose burdens on State sponsors without improving safety. 
As FRA noted in the NPRM, FRA disagrees and believes that it properly 
considered the costs and burdens of the rule on States that sponsor IPR 
service. See 84 FR 27219-20.
    As explained above, all current State-sponsored IPR services could 
be considered part of Amtrak's SSP. This is because all State sponsors 
currently have agreements with Amtrak to provide IPR service on their 
State-supported routes. As such, the typical IPR service is an Amtrak-
scheduled service using equipment Amtrak operates and maintains. In 
fact, for all State-sponsored IPR service FRA is aware of, Amtrak is 
the operator. FRA continues to attribute the costs of implementing the 
SSP rule for current State-sponsored IPR operations to Amtrak 
(consistent with FRA's past rulemaking practice),\14\ on the 
expectation that Amtrak will prepare either one national SSP plan to 
include State-sponsored routes of IPR service or, if more appropriate, 
potentially submit separate SSPs on behalf of unique services distinct 
from those common to Amtrak's national system. See 81 FR 53892, n. 14; 
84 FR 27219. In the analysis for the SSP final rule, FRA captured any 
costs for future State-sponsored IPR service using operators other than 
Amtrak by estimating there would be one new startup IPR service or 
commuter rail operation in Years 2 and 3 of the analysis and one new 
startup every other year thereafter. See 81 FR 53852; 84 FR 27219.
---------------------------------------------------------------------------

    \14\ See Passenger Equipment Safety Standards, final rule, 64 FR 
25560, 25654 (May 12, 1999) (``The [regulatory] evaluation . . . 
takes into consideration that individual States will contract with 
Amtrak for the provision of rail service on their behalf. In this 
regard, for example, a State may utilize Amtrak's inspection forces 
trained under the rule, and thus not have to train inspection forces 
on its own.'').
---------------------------------------------------------------------------

    Further, while the State Comments alleged substantial and 
undetermined burdens, FRA maintains that these burdens were either 
considered by FRA

[[Page 12833]]

in the regulatory impact analysis or are not mandated by the SSP final 
rule as revised. The State Comments restated previous arguments 
contending the rule would impose the following burdens: (1) States do 
not employ qualified railroad personnel with the detailed technical 
knowledge to develop, implement, and oversee compliance with an SSP and 
would have to hire such individuals; (2) States would face considerable 
challenges in augmenting existing human resources before the 
responsibilities imposed by the rule could be fulfilled; (3) 
implementing the rule will likely require State sponsors to renegotiate 
their existing operating agreements with Amtrak and other contractors 
to ensure the exchanges of information the rule requires and to 
implement required consultation procedures; (4) States may have to 
discontinue IPR service due to the costs imposed by the rule, and if 
they discontinue service, FRA may require States to repay grants/loans; 
and (5) the rule's definition of ``railroad'' potentially opens the 
door to attempts to make States that sponsor IPR service responsible 
for other statutory obligations, including railway labor and retirement 
requirements. See generally 84 FR 27220; Joint Pet. at 4-9; SPRC at 9-
14.
    The rule does not require States to hire additional technical or 
human resources personnel. Further, FRA clarifies that the rule does 
not restrict the ability to designate an entity to fulfill the 
responsibilities under the rule. FRA discusses designation of SSP 
responsibility more fully in the section-by-section analysis below. 
Overall, FRA believes with the changes in the rule text, these alleged 
burdens will fall more appropriately on each applicable passenger rail 
operation, and not specifically on State sponsors who merely provide 
funding to have Amtrak (or another contractor operator) operate 
additional routes as part of its network. FRA expects that the costs to 
such State sponsors of cooperating with Amtrak to allow Amtrak to 
develop and implement an SSP on these State-supported routes will be 
nominal.
    FRA further underscores that State entities involved in providing 
IPR service have always had to comply with FRA safety regulations to 
ensure railroad safety, and they have done so successfully.\15\ Because 
State entities have been complying with their responsibilities under 
these and other statutorily-based rules,\16\ and given the clarified 
responsibility State sponsors have to cooperate with the passenger rail 
operation as it formulates and implements a compliant SSP, FRA does not 
believe that the SSP rule will somehow force States to terminate IPR 
service.
---------------------------------------------------------------------------

    \15\ See 63 FR 24630 (May 4, 1998) and 64 FR 25560 (May 12, 
1999).
    \16\ FRA's Passenger Train Emergency Preparedness regulations 
are generally satisfied by having Amtrak prepare and implement the 
required emergency preparedness plans for the State-supported 
routes. FRA does not require the States to duplicate the efforts of 
the entities that prepare and implement SSP plans for each passenger 
rail operation.
---------------------------------------------------------------------------

    Regarding the States' claim that implementing the final rule will 
result in costs associated with renegotiating contracts, FRA notes that 
the rule itself does not require contract renegotiation. Rather, to the 
extent any such costs will be incurred, they will result from the 
States' own decisions on how the IPR service should be provided, and 
not a requirement of the rule.
    Finally, FRA disagrees with the States that being subject to the 
SSP rule will open them up to application of other statutes. To the 
extent another agency might argue that labor, tax, or other statutes 
apply to the States based on the application of this rule, the 
challenge would be to that agency's statute, not the SSP rule. Further, 
FRA was mandated by the RSIA to issue an SSP rule that specifically 
applies to providers of IPR service.\17\ There is no basis for 
disregarding a statutory mandate because another agency might use it to 
apply an unrelated statute. Further, the amendments in this rule 
addressing the part 270 requirements to each passenger rail operation, 
rather than to each railroad, as applicable, emphasizes that each 
operation must have a compliant SSP, and does not tag a State with any 
specific responsibility. States and, more precisely, the State entities 
through which they act, are ``persons'' subject to part 270 to the 
extent they affect railroad safety, but FRA need not categorize such 
State entities (e.g., transportation departments, rail authorities) 
with a term of art (e.g., railroad carrier) in this context. Therefore, 
the simple obligation to cooperate to ensure a comprehensive SSP is 
developed and submitted for that passenger rail operation (typically by 
the operator of that service) does not suggest State entities will 
become subject to other statutes.
---------------------------------------------------------------------------

    \17\ See 49 U.S.C. 20156(a)(1)(A); 49 CFR 1.89(b).
---------------------------------------------------------------------------

3. Consultation Concerns
    Finally, FRA recognizes the State Comments alleged the rule's 
requirements to consult with IPR operators' employees would interfere 
with State-IPR operator contracts. As discussed above, in formulating 
this final rule, FRA took a practical approach to address the varying 
concerns commenters raised. FRA believes this approach is an 
appropriate way to implement the statutory mandate and is structured to 
impose the requirements on each passenger rail operation without 
interfering with the various stakeholders' current ways of doing 
business. The rule focuses the responsibility on those that have the 
capacity to plan and implement an SSP. The rule does not directly 
impose requirements on State sponsors, unless those sponsors choose to 
adopt that responsibility. Because State sponsors are not specifically 
responsible for filing the plan for a passenger rail operation, FRA 
finds the respective consultation concerns are rendered moot. The rule 
does not require employees of States sponsoring IPR service to consult 
with a contractor operator's employees. FRA's economic analysis 
calculated costs and benefits in this way, and, although the 
requirements are now clarified in the rule text, FRA does not believe 
there is any meaningful change in cost or benefit calculations from 
those of the 2016 final rule.

C. Other Topics

    FRA is addressing the comments received on other topics within the 
section-by-section analysis below. However, as a general matter, FRA 
received no adverse comments on the consultation notification 
amendments and, given the supporting comments received, is adopting the 
changes essentially as proposed. Similarly, FRA is adopting the changes 
in the information protections section generally as proposed, given the 
support for including C\3\RS in the rule's protections.
    Several commenters who supported extending this rule's information 
protections to the C\3\RS program also urged FRA to further extend the 
application of the information protections. For context, the 
information protections generally apply to certain information a 
railroad compiles or collects after August 14, 2017, solely for SSP 
purposes. See 49 CFR 270.105(a). The rule also specifies certain 
categories of information that are not protected, including information 
a railroad compiled or collected on or before August 14, 2017, and that 
the railroad continues to compile and collect, even if the railroad 
uses that for its SSP. See

[[Page 12834]]

49 CFR 270.105(b)(2).\18\ This final rule amends the protections to 
clarify that they apply to information a passenger rail operation 
compiles or collects as part of a C\3\RS program included in its SSP, 
even if the information was compiled or collected on or before August 
14, 2017, for non-SSP purposes.
---------------------------------------------------------------------------

    \18\ For a more detailed discussion on how the information 
protections and their exceptions apply, please see the SSP NPRM and 
final rule. See 77 FR 55373, 55378-79, 55390-92, and 55406 (Sept. 7, 
2012); 81 FR 53851, 53855-56, 53858-60, 53878-82, and 53900 (Aug. 
12, 2016).
---------------------------------------------------------------------------

    Two of the comments urging further expansion of the information 
protections were closely related to FRA's C\3\RS proposal. 
Specifically, APTA suggested FRA expand the information protections to 
cover any Federal program, such as the RISE pilot program or the former 
CSA program, and AAR suggested FRA expand the protections to a 
railroad's in-house confidential close call reporting program. FRA 
understands APTA and AAR are asking FRA to extend the information 
protections to all information a railroad compiles or collects as part 
of these programs, even if the information was compiled or collected on 
or before August 14, 2017, for non-SSP purposes. FRA notes that if a 
railroad compiles or collects information as part of a voluntary 
Federal data program that has solely system safety purposes, such as 
RISE, or a railroad reporting program that has solely system safety 
purposes, the compilation or collection remains solely for SSP 
purposes, and that information is eligible for protection under Sec.  
270.105.
    The remaining comments urging expansion of the rule's information 
protections related not specifically to the C\3\RS proposal, but to the 
nature of the information protections generally. Specifically, APTA 
suggested FRA extend the protections to FOIA/FOIL requests; Amtrak 
suggested the protections should extend to any information resulting 
from SSP plan processes before the effective date of the rule's 
information protection provisions (i.e., August 14, 2017) and should 
include information developed relating to State sponsored routes, 
including circumstances where State entities may be subject to 
disclosure requirements; and MBTA suggested FRA expand the protections 
to FOIA requests.\19\
---------------------------------------------------------------------------

    \19\ FRA assumes that APTA intended ``FOIL'' (i.e., ``Freedom of 
Information Law'') to refer to State freedom of information laws 
generally.
---------------------------------------------------------------------------

    For the reasons discussed below, FRA declines to adopt any of the 
above suggestions.
    As an initial matter, FRA notes that expanding the information 
protections to FOIA requests, as requested by APTA and MBTA, is 
unnecessary because 49 U.S.C. 20118 already exempts certain railroad 
safety risk reduction records the Secretary obtains from mandatory 
disclosure under FOIA. FRA has discussed this FOIA exemption in both 
the SSP and RRP final rules. See 81 FR 53855 and 53878 (Aug. 12, 2016); 
85 FR 9262-63, 9266-67, 9268, and 9270 (Feb. 18, 2020).
    FRA declines to apply the information protections to all 
information a railroad compiles or collects under other FRA programs, 
as requested by APTA, because no other ongoing program presents the 
same challenge as C\3\RS. As the NPRM explained, the information 
protection date of August 14, 2017, presented several problems in 
determining how the information protections would apply to C\3\RS 
programs. See 84 FR 27222-23 (June 12, 2019). Without the clarification 
that all C\3\RS information would be protected when part of an SSP, 
even if the information was compiled or collected on or before August 
14, 2017, for non-SSP purposes, C\3\RS would have found itself in the 
unworkable situation where some C\3\RS information was protected and 
some not, based solely on when a participating railroad joined C\3\RS. 
Id. FRA is unaware of a similar situation with any other FRA program. 
For example, CSA was an FRA pilot project of limited duration, and RISE 
is an FRA program currently under development. All CSA participation 
and information therefore came before August 14, 2017, while all RISE 
participation and information will come afterwards. As a result, all 
CSA and RISE participants and information will effectively be treated 
the same when it comes to the information protections. As for other FRA 
programs that may engage in risk analysis activities, FRA also 
participates in Switching Operations Fatality Analysis (SOFA) Working 
Group and the Fatality Analysis of Maintenance-of-Way Employees and 
Signalmen (FAMES) Committee.\20\ Both SOFA and FAMES are programs 
established well before the date of the rule's information protections 
and have reached a point where membership and participation are stable 
and fairly representative of the railroad industry at large.\21\ 
Although SOFA and FAMES are active programs currently generating data, 
unlike with C\3\RS, FRA does not anticipate significant future growth. 
As such, neither SOFA nor FAMES is likely to present a situation where 
some participants receive protection because they joined after August 
14, 2017, solely as part of an SSP, while participants who joined on or 
before August 14, 2017, do not. As an examination of these programs 
illustrates, FRA concludes it does not need to amend the information 
protections to cover all information a passenger rail operation 
compiles or collects under any Federal program, even if the information 
was compiled or collected on or before August 14, 2017, for non-SSP 
purposes.
---------------------------------------------------------------------------

    \20\ The SOFA Working Group looks for commonalities among 
fatalities that occur during switching operations and develops 
findings and recommendations that will aid in preventing railroad 
employee deaths. See https://www.fra.dot.gov/SOFA. FAMES focuses on 
identifying risks, trends, and factors impacting roadway worker 
safety. See Introduction to the FAMES Committee, May 21, 2012, p. 1, 
available at https://www.fra.dot.gov/eLib/Details/L01182.
    \21\ SOFA began in 1998 and FAMES began in 2009. SOFA includes 
representatives from AAR, ASLRRA, BLET, FRA, and SMART-TD. FAMES 
includes participants and affiliates from AAR, Amtrak, APTA, ASLRRA, 
BMWED, BNSF Railway, BRS, CSX Transportation, Farmrail System, Inc., 
FRA, Norfolk Southern Railway, and Union Pacific Railroad.
---------------------------------------------------------------------------

    Regarding railroads' own confidential close call protection 
programs, FRA declines to expand the protections to all information 
generated by such programs because they are not a single Federal 
program sponsored by FRA. While some railroads may have established 
their own reporting programs on or before August 14, 2017, for non-SSP 
purposes, FRA lacks the direct knowledge necessary to determine that 
the protections should be expanded to cover these programs. If a 
railroad's own program was begun after August 14, 2017, and fits 
entirely within the umbrella of the railroad's SSP or RRP, the existing 
data protections would apply. FRA therefore concludes that it would be 
inappropriate to amend the information protections to cover all 
information a railroad compiles or collects as part of its own 
confidential close call reporting program, even if that information was 
compiled or collected on or before August 14, 2017, for non-SSP 
purposes.
    Finally, FRA declines to address the remaining comments from APTA 
and Amtrak that relate to the nature of the information protections 
generally, as FRA did not intend for this rulemaking to reopen a 
substantive discussion of the protections beyond the limited issue of 
C\3\RS. FRA presented the information protections for public notice and 
comment in both the SSP and RRP rulemaking processes and held public 
hearings on both rulemakings. Numerous parties commented on the 
proposed protections, and FRA

[[Page 12835]]

responded to these comments in the SSP and RRP final rules and in the 
June 2019 NPRM, proposed extending the information protections to FRA-
sponsored C\3\RS programs included in a passenger rail operation's SSP. 
As such, there has already been extensive substantive discussion of the 
information protections. FRA therefore believes that amending the 
information protections in a manner unrelated to the C\3\RS program as 
proposed in this proceeding would not be consistent with the rulemaking 
process through which the protections have already gone, especially 
when FRA did not invite public comment on the protections in general.
    FRA is addressing the comments received on submission time in the 
section-by-section, as applicable.
    Finally, the purpose of this rulemaking was to specifically address 
the petitions for reconsideration on the 2016 SSP final rule and to 
make other necessary clarifying adjustments. FRA was not required to 
address AAR's supplemental comment \22\ on the RRP NPRM in either the 
NPRM or in this final rule. AAR has raised this point directly to FRA 
in the context of larger discussions on regulatory reform, and any 
change to the SSP rule arising from those discussions would follow in a 
separate rulemaking.
---------------------------------------------------------------------------

    \22\ AAR filed its supplemental comment on the RRP NPRM on 
October 31, 2018. The comment period for the RRP NPRM closed on 
October 21, 2015.
---------------------------------------------------------------------------

D. Conforming Amendments to the RRP Final Rule

    The SSP rule implements the RSIA mandate for railroad safety risk 
reduction programs for passenger railroads. On February 18, 2020, FRA 
published a separate RRP final rule addressing the mandate for certain 
freight railroads. See 85 FR 9262 (Feb. 18, 2020). Throughout both the 
SSP and RRP rulemaking proceedings, FRA has consistently stated both an 
SSP and RRP final rule would contain consultation and information 
protection provisions that were essentially identical. See 81 FR 53855 
(Aug. 12, 2016); 80 FR 10955 (Feb. 27, 2015); 85 FR 9262, 9266-68, 
9274-75, 9279, and 9300-01 (Feb. 18, 2020). The NPRM in this proceeding 
stated that FRA may use this final rule to make conforming changes to 
the consultation and information protection provisions of an RRP final 
rule. As discussed further in the section-by-section analysis, FRA is 
therefore amending the RRP rule (49 CFR part 271) as needed to make its 
consultation and information protection provisions consistent with the 
corresponding SSP provisions (as amended by this final rule).

IV. Section-by-Section Analysis

    In response to petitions for reconsideration and comments received 
on the NPRM, FRA is making various clarifying amendments to part 270--
System Safety Program. FRA is also clarifying that the SSP rule's 
information protections apply to C\3\RS programs included in an SSP and 
extending certain compliance dates to account for the stay of the rule. 
FRA is also making conforming changes to 49 CFR part 271, Risk 
Reduction Program. Specific changes are noted for each section below.

Part 270--System Safety Program

Section 270.1--Purpose and scope
    This section contains a formal statement of the rule's purpose and 
scope. FRA is amending paragraphs (a) and (b) to replace the word 
``railroads'' with ``passenger rail operations'' to conform with FRA's 
approach, discussed above. In this manner, FRA makes clear that each 
passenger rail operation is required to improve railroad safety through 
structured, proactive processes and procedures in a system safety 
program.
Section 270.3--Application
    This section sets forth the applicability of the rule. FRA is 
amending paragraphs (a)(1) and (2) to replace the word ``railroads'' 
with ``passenger rail operations'' to conform with the approach 
discussed above. Specifically, paragraph (a)(1) is revised to read that 
this part applies to ``passenger rail operations that operate intercity 
or commuter passenger train service on the general railroad system of 
transportation.'' Further, to maintain consistency and parallelism with 
the language in (a)(1), FRA is amending paragraph (a)(2) to refer to 
``passenger rail operations that operate commuter or other short-haul 
rail passenger train service'' rather than ``railroads that provide'' 
such service.
Section 270.5--Definitions
    This section contains a set of definitions that clarify the meaning 
of important terms as they are used in the rule.
    As proposed, FRA is amending the definitions section of part 270 to 
add a definition for ``Confidential Close Call Reporting System 
(C\3\RS),'' which means an FRA-sponsored voluntary program designed to 
improve the safety of railroad operations by allowing railroad 
employees to confidentially report unsafe events that are either 
currently not required to be reported or are underreported. This 
definition closely parallels the description of C\3\RS on FRA's 
website. See https://www.fra.dot.gov/c3rs.
    Additionally, as part of the changes made throughout the rule to 
phrase the rule's requirements as those belonging to each passenger 
rail operation, FRA is adding a definition for ``Passenger rail 
operation,'' which means an intercity, commuter, or other short-haul 
passenger rail service. The term passenger rail operation generally 
refers to the service itself, and is not limited to the nature of the 
railroad company that conducts the operation. In other words, the 
``passenger rail operation'' is not referring to just the ``operator'' 
or entity that employs the crews operating the train service. See also 
64 FR 25576 (May 12, 1999). By ``operation,'' FRA means the specific 
physical service. The ``passenger rail operation'' encapsulates all the 
pieces of the service (including, but not limited to, the right-of-way, 
track, equipment, crews, railroad employees), and is not limited to a 
specific route. In the commuter context, an example of a ``passenger 
rail operation'' is the Northeast Illinois Regional Commuter Railroad 
Corp. (Metra Rail) service, encompassing Metra Rail's various routes, 
contractor operators, and host railroads. At the same time, the 
``passenger rail operation'' for all current State-sponsored IPR 
services could be considered part of Amtrak's network (including the 
Northeast Corridor, Amtrak's Long Distance routes, and State-supported 
routes). FRA recognizes multiple entities are often involved in a 
passenger rail operation, including contractors, but FRA believes it is 
nonetheless clearer to describe responsibilities with respect to the 
passenger rail operation as a whole, for purposes of implementing the 
regulation.
    FRA is amending the definition of ``Person'' to remove the general 
reference to ``1 U.S.C. 1,'' and replace it with a more applicable and 
FRA-specific statutory provision, ``49 U.S.C. 21301.'' FRA is making 
this clarifying change to refer to FRA's general civil penalty 
authority in 49 U.S.C. 21301 to better align with FRA's safety 
jurisdiction. See also 49 U.S.C. 20103, 20156(h).
    FRA is making small adjustments to the definitions of ``Fully 
implemented,'' ``Hazard,'' and ``System safety program plan,'' to 
conform to the ``passenger rail operation'' framework edits described 
above. For example, the word ``railroad'' in the definition of ``Fully

[[Page 12836]]

implemented'' is replaced with ``passenger rail operation.'' The words 
``the railroad's'' are replaced with the word ``a'' in the definition 
of ``Hazard.'' Similarly, the definition of ``System safety program 
plan'' is amended to mean ``a document developed by the passenger rail 
operation that implements and supports the system safety program,'' 
rather than ``a document developed by the railroad that implements and 
supports the railroad's system safety program.'' These changes are 
intended to clarify that each passenger rail operation have an SSP 
under the regulation, without focusing specifically on any one entity 
involved in the operation.
Section 270.7--Penalties and Responsibility for Compliance
    This section contains provisions relating to compliance with part 
270 and penalties for violations of part 270.
    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),\23\ that provides the 2019 inflation adjustment to 
civil penalty amounts that may be imposed for violations of certain DOT 
regulations. See 84 FR 37059 (July 31, 2019). To avoid the need to 
update this section every time the civil penalty amounts are adjusted 
for inflation, FRA has changed Sec.  270.7(a) 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 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. These updates are also consistent with the RRP 
final rule.
---------------------------------------------------------------------------

    \23\ 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 84 FR 37059, 37060 (July 31, 
2019).
---------------------------------------------------------------------------

    As discussed above, to effectuate the framework change, FRA 
modified paragraph (b) to add the phrase ``or passenger rail 
operation'' after the words ``duty of a railroad'' and after the words 
``whether or not a railroad'' when describing the duties of this part. 
Paragraph (b) now reads ``[a]lthough the requirements of this part are 
stated in terms of the duty of a railroad or passenger rail operation, 
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 or passenger rail operation) shall perform that function in 
accordance with this part.'' Sec.  270.7(b) (emphasis added).
    For reasons discussed in the NPRM and as discussed above, FRA is 
adding a new paragraph (c)(1) to this section to clarify that even 
though all persons providing IPR or commuter (or other short-haul) rail 
passenger transportation share responsibility for ensuring compliance 
with this part, the rule does not restrict the ability for a passenger 
rail operation to designate a person as responsible for compliance with 
this part.
    However, FRA is not adopting the sentence in (c)(1) proposed in the 
NPRM that would have stated that a designator (designating entity) was 
not relieved of responsibility for compliance with this part. As the 
State Comments explained, this statement rendered the proposed 
designation provision of little comfort. As discussed in the NPRM, 
FRA's policy is to look to a designated entity as the person with 
responsibility for compliance with the SSP final rule. In this final 
rule, FRA emphasizes that it is still FRA's policy to hold a designated 
entity responsible for compliance with this part. Of course, FRA's 
overall approval of an SSP plan takes into account any designation of 
responsibility and, as a result, failure to fulfill those compliance 
responsibilities could lead FRA to reopen consideration of the plan 
under Sec.  270.201(d).
    In paragraph (c)(2)(i), a passenger rail operation may designate a 
person as responsible for compliance with part 270 by including a 
designation of responsibility in the SSP plan. This designation must be 
included in the SSP plan's statement describing the passenger rail 
operation's management and organizational structure and include the 
information specified by Sec.  270.103(e)(6), the details of which are 
discussed below in the section-by-section analysis for that section. 
Any rescission or modification of a designation must be made in 
accordance with the requirements for amending SSP plans in Sec.  
270.201(c).
    FRA notes that the use of ``may'' in paragraph (c)(2) was 
intentional, as this section does not require a passenger rail 
operation to designate a person as responsible for compliance--any 
person can comply with the SSP requirements on its own behalf. However, 
if a passenger rail operation intends to designate a person as 
responsible for compliance, the SSP plan must describe the passenger 
rail operation's management and organizational structure, including 
management responsibilities within the SSP and the distribution of 
safety responsibilities within the organization, in addition to the 
requirements of Sec. Sec.  270.7(c)(2) and 270.103(e)(6).
    Nonetheless, FRA further notes that in approving SSP plans, FRA 
will consider how a designation of responsibility for SSP compliance is 
consistent with the holistic, system-wide nature of safety management 
systems. FRA believes that the systemic nature of SSP requires a single 
entity to have overall responsibility for the entire SSP, to ensure 
that the SSP is properly implemented throughout the passenger rail 
operation's entire system by the potentially various entities 
responsible for separate aspects of the system's safety. FRA therefore 
expects that a designation will identify only a single entity with 
overall responsibility for SSP compliance, as opposed to designating 
SSP responsibility piecemeal to multiple entities.
    Including a designation provision in an SSP plan will not, however, 
relieve the passenger rail operation of responsibility for ensuring 
that host railroads and other persons that provide or utilize 
significant safety-related services appropriately support and 
participate in an SSP, as required under Sec.  270.103(e)(5). 
Designating a single person as responsible for SSP compliance will not 
mean that no other entity participates in the SSP. Rather, it means 
that the designated person has the primary responsibility for ensuring 
overall SSP compliance, which can include ensuring the participation of 
other persons as appropriate.
    FRA acknowledges that some passenger rail operations may wish to 
make a designation of responsibility for SSP compliance clear before 
submitting an SSP plan to FRA, particularly if the designation would 
involve responsibility for consulting with directly affected employees 
on the contents of an SSP plan. Paragraph (c)(2)(ii) therefore states 
that a passenger rail operation may notify FRA of a designation of 
responsibility before submitting an SSP plan by submitting a 
designation notice to the Associate Administrator for Railroad Safety 
and Chief Safety Officer. The notice must include all information 
required under Sec.  270.103(e)(6), although this information must 
still be included in the SSP plan. If a passenger rail operation does 
submit a designation notice under this proposed provision, FRA will 
encourage the passenger rail operation \24\ to share the notice with

[[Page 12837]]

directly affected employees before and during the consultation process. 
Although FRA specifically requested public comment on whether such a 
deadline for this notification would be necessary, FRA received no 
comments on this issue.
---------------------------------------------------------------------------

    \24\ The entity designated by the designation notice (the 
designee) will be the entity representing the passenger rail 
operation and therefore responsible for sharing the notice with its 
directly affected employees.
---------------------------------------------------------------------------

    Accordingly, FRA is finalizing a designation provision as proposed 
in the NPRM, with the modifications discussed above. This provision 
explicitly allows each passenger rail operation to determine what 
entity has responsibility for compliance and submission of the required 
SSP plan. FRA will not select for each passenger rail operation what 
entity will submit the SSP plan. As described above, any designation 
must be detailed in the SSP plan itself. See also Sec.  270.103(e).
Section 270.101--System Safety Program; General
    This section sets forth the general requirements of the rule. Each 
passenger rail operation subject to this part is required to establish 
and fully implement an SSP that 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.
    As discussed above, FRA is amending Sec.  270.101 to be consistent 
with changes throughout part 270 that phrase the rule's requirements in 
terms of a ``passenger rail operation'' instead of a ``railroad.'' 
Specifically, FRA is amending paragraph (a) to state ``each passenger 
rail operation subject to this part . . .'' rather than ``each railroad 
subject to this part.'' Sec.  270.101(a) (emphasis added). FRA is also 
reformulating paragraph (b) to state ``a system safety program shall be 
designed so that it promotes and supports a positive railroad safety 
culture.'' These changes are for clarity and are not intended to alter 
the substantive effect of the rule.
Section 270.103--System Safety Program Plan
    This section requires a passenger rail operation to adopt and fully 
implement an SSP through a written SSP plan containing the information 
required in this section.
    As discussed above, FRA is amending Sec.  270.103 to be consistent 
with changes throughout part 270 by replacing the requirement in 
certain places for the ``railroad'' to be for the ``passenger rail 
operation.'' For example, in paragraph (a), FRA is modifying the 
language in paragraphs (a)(1) and (2) from ``each railroad subject to 
this part. . .'' to ``each passenger rail operation subject to this 
part.'' In paragraph (b), ``each railroad shall set forth in its SSP 
plan a policy statement that endorses the railroad's [SSP]. . .'' 
becomes ``each SSP plan shall contain a policy statement that endorses 
the passenger rail operation's [SSP]. . . .'' Similar changes are made 
throughout Sec.  270.103.
    In some places, such as in paragraph (d), FRA re-framed the 
regulatory language to be applicable to the ``rail system'' as opposed 
to the ``railroad.'' Additionally, throughout the part, FRA adjusted 
references to ``a SSP'' to ``an SSP,'' to conform with grammar 
conventions.
    Paragraph (e) specifically states an SSP plan must include a 
statement describing the system's management and organizational 
structure, and paragraphs (e)(1) through (5) specify information this 
statement must contain. FRA is amending this section to add a new 
paragraph (e)(6), which contains the requirements for a designation 
included in an SSP plan and any designation submitted under Sec.  
270.7(c)(2). Under paragraph (e)(6), a designation must include the 
name and contact information for the designator (designating entity) 
and the designated entity; a statement signed by an authorized 
representative of the designated entity acknowledging responsibility 
for compliance with part 270; a statement affirming a copy of the 
designation has been provided to the primary contact for each non-
profit employee labor organization representing directly affected 
employees for consultation purposes under Sec.  270.107(a)(2); and a 
description of how the directly affected employees not represented by a 
non-profit employee labor organization will be notified of the 
designation for consultation purposes under Sec.  270.107(a). The 
central purpose of this amendment is to ensure there is a specific 
entity identified as the responsible party for submitting an SSP plan 
for each passenger rail operation. FRA is also making minor formatting 
amendments to paragraphs (e)(4) and (5) to account for the additional 
paragraph (e)(6).
    FRA is also modifying the introductory language in paragraph (h) 
regarding rules compliance and procedures review from ``the 
railroad's'' rules and procedures to ``applicable'' rules and 
procedures. FRA recognized the possibility that a passenger rail 
operation may have to comply with another railroad's rules and 
procedures. Similarly, FRA changed ``the railroad's'' to ``applicable'' 
operating and safety rules and maintenance procedures in paragraphs 
(h)(2) and (3). FRA believes the existing language in Sec.  270.103(h) 
was too specific to account for this scenario.
    Other clarifying changes to reflect that the rule's requirements 
are applicable to each passenger rail operation were made throughout 
the section.
Section 270.105--Discovery and Admission as Evidence of Certain 
Information
    This section sets forth the discoverability and admissibility 
protections for certain SSP information. The SSP final rule preamble 
discussed these protections in depth. See 81 FR 53878-53882 (Aug. 12, 
2016). For reasons discussed in the NPRM and after considering the 
comments received, FRA is adding paragraph (a)(3) to this section to 
clarify that for court proceedings initiated after 365 days following 
publication of this final rule, the protections established by this 
section apply to C\3\RS information a passenger rail operation includes 
in its SSP, even if the passenger rail operation compiled or collected 
the C\3\RS information on or before August 14, 2017, for non-SSP 
purposes. FRA is also adding language to the introductory text of 
paragraph (a) to indicate the information protections apply except as 
provided in paragraph (a)(3).
    FRA is making minor formatting amendments to paragraphs (a)(1) and 
(2) to account for the additional paragraph (a)(3).
    FRA is making conforming edits in paragraphs (a) and (b) to refer 
to the ``passenger rail operation'' rather than the ``railroad,'' to be 
consistent with the framework and clarifying changes to the rule 
discussed above.
    Finally, FRA is adding new paragraph (e) to clarify that Sec.  
270.105 does not protect information during civil enforcement or 
criminal law enforcement proceedings. For example, Sec.  270.105 will 
not apply to a civil enforcement or criminal action brought to enforce 
Federal railroad safety laws, or proceedings such as a civil 
enforcement 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 a 
``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 enforcement or 
criminal

[[Page 12838]]

law enforcement case. Nevertheless, to help ensure no attempt is made 
to rely on the rule's information protections in a civil enforcement or 
criminal law enforcement proceeding, paragraph (e) explicitly states 
that Sec.  270.105 does not apply to civil enforcement or criminal 
enforcement actions. This change is consistent with language in the RRP 
final rule (see 49 CFR 271.11).
Section 270.107--Consultation Requirements
    This section requires a passenger rail operation subject to part 
270 to consult with its directly affected employees on the contents of 
its SSP plan. See 49 U.S.C. 20156(g)(1). The SSP final rule preamble 
discussed the requirements of this section in depth. See 81 FR 53882-
53887 (Aug. 12, 2016). As discussed in the NPRM, FRA is making several 
amendments to this section, including incorporating language proposed 
in the Labor Petitions, as modified and clarified by FRA. To account 
for the stay of the SSP final rule, FRA is also extending the 
compliance date for holding the preliminary meeting with directly 
affected employees. Additionally, as discussed above, FRA is amending 
this section to be consistent with changes throughout part 270 by 
replacing certain references to ``railroad'' with references to 
``passenger rail operation.''
Paragraph (a)--General Duty
    Paragraph (a)(2) of this section states that a passenger rail 
operation that consults with a non-profit employee labor organization 
is considered to have consulted with the directly affected employees 
represented by that organization. If a passenger rail operation 
contracts out significant portions of its operations, the contractor 
and the contractor's employees performing those operations are 
considered directly affected employees for part 270 purposes.\25\
---------------------------------------------------------------------------

    \25\ As discussed in the section-by-section analysis for the new 
definition of ``passenger rail operation,'' FRA recognizes that a 
single passenger rail operation is often composed of multiple 
entities, including contractors. FRA believes it is nonetheless 
clearer, when describing the rule's requirements, to refer to the 
responsibilities of the ``passenger rail operation'' as a whole. In 
the context of the consultation requirement, this means that FRA 
does expect the entities involved in the passenger rail operation to 
be responsible for meeting the consultation requirement applicable 
to the operation. For example, when an entity enters into a contract 
on behalf of a passenger rail operation, that entity would be 
responsible for consulting with contractors or contractor employees 
to the extent required by paragraph (a)(2).
---------------------------------------------------------------------------

    For reasons discussed in the NPRM and as discussed above, FRA is 
amending paragraph (a)(2) to add that unless agreed otherwise, for 
consultation purposes, the primary point of contact for directly 
affected employees represented by a non-profit employee labor 
organization is the general chairperson for that non-profit employee 
labor organization. Alternatively, at the beginning of the consultation 
process, a non-profit employee labor organization and a passenger rail 
operation may agree upon a different point of contact. While the Labor 
Petition requested FRA amend paragraph (a)(3) to establish the general 
chairperson of a non-profit employee labor organization as a passenger 
rail operation's primary point of contact, FRA believes such a 
provision belongs more appropriately in paragraph (a)(2), which 
contains requirements addressing the consultation process generally. 
Paragraph (a)(3), in contrast, only addresses the preliminary meeting 
portion of the consultation process. By amending paragraph (a)(2) 
instead of paragraph (a)(3), FRA is clarifying that a general 
chairperson is the primary contact for the entire consultation process, 
not just the preliminary meeting. FRA specifically requested public 
comment on whether amending paragraph (a)(2) instead of paragraph 
(a)(3) would adequately address the Labor Petition's concerns. FRA 
received no comments on this issue.
    Existing paragraph (a)(3) requires a passenger rail operation to 
have a preliminary meeting with its directly affected employees to 
discuss how the consultation process will proceed no later than April 
10, 2017. To account for the stay of the SSP final rule, as discussed 
in the NPRM, FRA is amending paragraph (a)(3)(i) to extend the deadline 
for the preliminary meeting from April 10, 2017, to 120 days after the 
publication date of this final rule.
Paragraph (b)(3)--Consultation Statements
    Paragraph (b)(3) requires a passenger rail operation consultation 
statement to include a service list containing the name and contact 
information for each international/national president of any non-profit 
employee labor organization representing a class or craft of the 
passenger rail operation's directly affected employees.\26\ When a 
passenger rail operation submits its SSP plan and consultation 
statement, it must simultaneously send a copy of both to all 
individuals identified in the service list.
---------------------------------------------------------------------------

    \26\ Paragraph (b)(3) also requires the service list to contain 
the name and contact information for any directly affected employee 
who significantly participated in the consultation process 
independently of a non-profit employee labor organization.
---------------------------------------------------------------------------

    FRA is amending paragraph (b)(3) to add that the service list must 
also include the name and contact information for either each general 
chairperson of any non-profit employee labor organization representing 
a class or craft of the passenger rail operation's directly affected 
employees or the agreed-upon point of contact that the non-profit 
employee labor organization and the passenger rail operation agreed 
upon at the beginning of the consultation process.
Section 270.201--Filing and Approval
    This section contains the requirements for filing an SSP plan and 
FRA's approval process. As discussed in the NPRM, FRA is amending 
paragraph (a)(1) to account for the stay of the requirements of the SSP 
final rule. Because FRA extended the date of the preliminary meeting 
under Sec.  270.107(a)(3), it is also necessary to extend the time for 
a passenger rail operation to submit its SSP plan to FRA. FRA proposed 
providing one year after the publication date of this rule to submit 
SSP plans to FRA for review and approval.
    FRA specifically requested public comment on whether an entire year 
following the publication of a final rule would be necessary for 
submission of SSP plans to FRA, or whether a shorter deadline, such as 
six months, would provide sufficient time. As mentioned above, MBTA 
commented that it supported FRA's proposal to allow a full year to 
submit SSP plans to FRA (and indicated a shorter time frame would be 
insufficient). APTA commented that FRA should instead provide two years 
from the date of the final rule, to be similar to the time frame FTA 
provided in implementing the SMS program. Amtrak generally commented 
that FRA should implement the rule immediately. Given these comments, 
FRA is providing each passenger rail operation with a one-year period 
after the publication date of this rule, as proposed, to submit SSP 
plans to FRA for review and approval.
    Additionally, as discussed above, FRA is amending Sec.  270.201 be 
consistent with changes throughout the part by replacing the 
requirement for the ``railroad'' to be framed as a responsibility of 
the ``passenger rail operation.'' For example, in paragraph (a)(1), 
each ``passenger rail operation'' to which this part applies shall 
submit one copy of its SSP plan, rather than each ``railroad.'' As 
noted above, FRA expects that in most instances, the entity conducting 
the railroad operation will

[[Page 12839]]

submit the passenger rail operation's SSP plan.
Section 270.203--Retention of System Safety Program Plan
    This section contains the requirements for retaining an SSP plan. 
As discussed above, FRA is amending Sec.  270.203 be consistent with 
changes throughout part 270 by replacing the requirement for ``each 
railroad'' to retain a copy of the SSP plan, with a requirement that 
``each passenger rail operation'' retain a copy of the SSP plan.
Section 270.301--General
    This section describes the general requirement for each SSP to be 
assessed internally and audited externally by FRA. As discussed above, 
FRA is amending Sec.  270.301 to be consistent with changes throughout 
the part by clarifying the responsibility for the SSP's internal 
assessment lies with ``the passenger rail operation.''
Section 270.303--Internal System Safety Program Assessment
    This section describes the requirements for each SSP to be assessed 
internally. As discussed above, FRA is amending Sec.  270.303 be 
consistent with changes throughout part 270 by replacing references to 
``the railroad'' with ``the passenger rail operation.''
Section 270.305--External Safety Audit
    This section describes the process FRA will use when it conducts 
audits of a passenger rail operation's SSP. As discussed above, FRA is 
amending Sec.  270.305 to be consistent with changes throughout the 
part by clarifying the responsibility falls on ``the passenger rail 
operation.''
Appendix A to Part 270 [Reserved]
    FRA has removed its civil penalty guidelines from the CFR to the 
FRA website. See 84 FR 23730 (May 23, 2019). FRA intends to change the 
wording in the guidelines on the website to be consistent with the 
changes made in this rule. For example, FRA intends to revise the 
existing reference to the failure to hold the preliminary meeting by 
April 10, 2017, as that date has passed, and is being adjusted in this 
final rule.
Appendix B to Part 270--Federal Railroad Administration Guidance on the 
SSP Consultation Process
    Appendix B contains guidance on how each passenger rail operation 
could comply with the consultation requirements of Sec.  270.107. FRA 
is amending appendix B as proposed to reflect the amended compliance 
dates in Sec. Sec.  270.107(a)(3)(i) and 270.201(a)(1). FRA also made 
changes throughout appendix B to clarify, as discussed above, by 
removing the modifier ``railroad's'' from ``railroad's SSP plan,'' and, 
where appropriate, changing references from ``railroad'' to ``passenger 
rail operation.''
    Additionally, FRA removed a sentence from the guidance about the 
passenger rail operation waiting to hold substantive consultations 
regarding the contents of its SSP to take advantage of the information 
protection provisions once they go into effect, because for purposes of 
49 U.S.C. 20119(b), the information protection provisions were adopted 
on August 12, 2016. That adoption was unaffected by the subsequent 
stays, so the rule's information protections are applicable to 
information a passenger rail operation compiles or collects after 
August 14, 2017.
Appendix C to Part 270--Procedures for Submission of SSP Plans and 
Statements From Directly Affected Employees
    Appendix C provides passenger rail operations and directly affected 
employees the option to file SSP plans or consultation statements 
electronically. FRA is amending appendix C to be consistent with the 
changes throughout the part. For example, FRA is removing references to 
``railroad's'' from phrases like ``railroad's SSP plan.'' Additionally, 
certain references to ``railroad'' were changed to ``passenger rail 
operation,'' where appropriate, to be consistent with other edits made 
in this part.
Part 271--Risk Reduction Program
    As discussed in Section III.D of the preamble, FRA is making 
conforming changes to part 271 to mirror those in part 270.
Section 271.5--Definitions
    For reasons discussed in Section III.D of the preamble and in the 
section-by-section analysis for Sec.  270.5, FRA is amending Sec.  
271.5 by adding a definition for ``Confidential Close Call Reporting 
System (C\3\RS).'' FRA is also revising the definition of ``Person'' to 
remove the general reference to ``1 U.S.C. 1'' and replace it with a 
more applicable and FRA-specific provision, ``49 U.S.C. 21301.''
Section 271.11--Information Protections
    As discussed in Sections III.C and III.D of the preamble, FRA is 
adding paragraph (a)(3) to Sec.  271.11 to clarify that for court 
proceedings initiated after 365 days following publication of this 
final rule, the information protections established by this section 
apply to C\3\RS information a railroad includes in its RRP, even if the 
railroad compiled or collected the C\3\RS information on or before 
February 17, 2021, for non-RRP purposes. FRA is also adding language to 
the introductory text of paragraph (a) to indicate the information 
protections apply except as provided in paragraph (a)(3).
    FRA is also making minor formatting amendments to paragraphs (a)(1) 
and (2) to account for the additional paragraph (a)(3).
Section 271.207--Consultation
    For reasons discussed in Section III.D of the preamble and the 
section-by-section analysis for Sec.  270.107, FRA is amending 
paragraph (a)(2) of Sec.  271.207 to add that, unless agreed otherwise, 
for consultation purposes, the primary point of contact for directly 
affected employees represented by a non-profit employee labor 
organization is the general chairperson for that non-profit employee 
labor organization. Alternatively, at the beginning of the consultation 
process, a non-profit employee labor organization and a railroad may 
agree upon a different point of contact. Similarly, FRA is also 
amending paragraph (d)(3) to add that a service list must also include 
the name and contact information for either each general chairperson of 
any non-profit employee labor organization representing a class or 
craft of a railroad's directly affected employees or the agreed-upon 
point of contact that the non-profit employee labor organization and 
the railroad agreed upon at the beginning of the consultation process.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule is a non-significant rulemaking and evaluated in 
accordance with existing policies and procedures under Executive Order 
12866 and DOT Order 2100.6. See 58 FR 51735, Sep. 30, 1993 and https://www.transportation.gov/regulations/2018-dot-rulemaking-order. The scope 
of this analysis is limited to the revisions that FRA is making in this 
rulemaking. FRA concluded that because this final rule generally 
includes only voluntary actions or alternative action by designated 
entities that will be voluntary, or clarifying edits, this final rule 
does not impart

[[Page 12840]]

additional burdens or benefits on regulated entities.
    Pursuant to petitions for reconsideration FRA received in response 
to the SSP final rule and comments received on the NPRM, this final 
rule contains six sets of substantive amendments to part 270. As 
discussed in Section III.D of the preamble, this rule also amends part 
271 to ensure that the RRP and SSP rules have essentially identical 
consultation and information protection provisions. The following 
paragraphs describe analysis of the effects of the amendments.
    First, to address the States' concerns discussed in Section III of 
the NPRM and as explained above, the final rule amends part 270 to 
clarify that a passenger rail operation subject to the part may 
designate an entity as responsible for SSP compliance under Sec. Sec.  
270.7(c) and 270.103(e)(6). As any such designation will be voluntary, 
such clarification adds no additional burden nor provides any 
additional safety benefit. In addition, the revisions to Sec. Sec.  
270.7(c) and 270.103(e)(6) clarify the responsibilities of the 
designated entity. FRA requested comment from the public on the costs 
and benefits described in this paragraph. Although the States commented 
on the purported burdens of part 270 generally, FRA did not receive 
specific comments on the NPRM's economic analysis.
    Second, to address the Labor Petition's concerns discussed in 
Section II of the NPRM, FRA is amending both the SSP and RRP rules to 
add the general chairperson of a non-profit employee labor organization 
(or a non-profit employee labor organization primary point of contact 
agreed on at the beginning of the consultation process) as the point of 
contact for directly affected employees represented by that non-profit 
employee labor organization.
    Third, FRA received a comment from AAR on the 2012 SSP NPRM voicing 
concern that an inadvertent failure to serve a general chairperson may 
result in FRA deeming a railroad as not using ``best efforts'' in the 
consultation process. In response to such concern, FRA is allowing a 
passenger rail operation and a non-profit employee labor organization 
to establish an alternative point of contact within the non-profit 
employee labor organization. This point of contact could be a person 
the passenger rail operation and non-profit employee labor organization 
agree on at the beginning of the consultation process. FRA anticipates 
any burden associated with requiring the inclusion of a general 
chairperson in the service list (see paragraph above) will be 
significantly alleviated, if not eliminated altogether, by the 
provision allowing passenger rail operations and non-profit employee 
labor organizations to agree on an alternative point of contact. 
Although FRA specifically requested comment from the public on this 
conclusion, it did not receive adverse comment, and generally finalized 
the provision as proposed.
    Fourth, as discussed in Section VI of the NPRM, FRA is amending the 
information protections in both the SSP and RRP rules to address the 
C\3\RS program. Because this amendment merely addresses the scope of 
the protections provided by the SSP and RRP final rules, there are no 
burdens associated with it.
    Fifth, FRA is also adjusting the various compliance dates in part 
270 to account for the stay of the SSP final rule's requirements. 
Because the adjustments are necessary only to conform the rule's 
deadlines with the stay, they have already been accounted for in the 
regulatory impact analysis that accompanied the final rule extending 
the stay. See 84 FR 45683 (Aug. 30, 2019).
    Finally, as discussed above, FRA is amending part 270 throughout to 
frame the responsibilities of the rule as belonging to each passenger 
rail operation. This language does not affect FRA's existing economic 
analysis of the costs and burdens of the rule.
    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866. 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).

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601 et seq., and 
Executive Order 13272, 67 FR 53461 (Aug. 16, 2002), require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an Initial Regulatory Flexibility 
Analysis unless it determines and certifies that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. The six sets of revisions within this final 
rule would not impart any additional burden on regulated entities. Four 
of the sets of revisions add clarity to the SSP final rule, and the 
revision requiring submission of the designation notice to FRA is 
voluntary and would only apply if a designation is made. Another 
revision allows an alternative non-profit employee labor organization 
primary point of contact to be agreed on at the beginning of the 
consultation process, thereby eliminating or significantly mitigating 
any burden associated with the revision requiring inclusion of a 
general chairperson in the service list.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``linehaul railroad'' 
that has fewer than 1,500 employees, a ``short line railroad'' with 
fewer than 1,500 employees, or a ``commuter rail system'' with annual 
receipts of less than $15.0 million dollars. See ``Size Eligibility 
Provisions and Standards,'' 13 CFR part 121, subpart A. Additionally, 5 
U.S.C. 601(5) defines as ``small entities'' governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts with populations less than 50,000. Federal agencies may adopt 
their own size standards for small entities, in consultation with SBA 
and in conjunction with public comment. Pursuant to that authority, FRA 
has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors, and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891 (May 9, 
2003), codified at appendix C to 49 CFR part 209. The $20-million limit 
is based on the STB's revenue threshold for a Class III railroad. 
Railroad revenue is adjusted for inflation by applying a revenue 
deflator formula in accordance with 49 CFR 1201.1-1. FRA is using this 
definition for this rulemaking.
    For purposes of this analysis, the SSP portions of this rule will 
impact 33 commuter or other short-haul passenger railroads and two 
intercity passenger railroads, Amtrak and the ARC.\27\ Neither of the 
intercity passenger railroads is considered a small entity. Amtrak 
serves populations well in excess of 50,000, and the ARC is owned

[[Page 12841]]

by the State of Alaska, which has a population well in excess of 
50,000.
---------------------------------------------------------------------------

    \27\ This analysis considers all current State-sponsored IPR 
services to be part of Amtrak's SSP, which is a reasonable 
expectation as discussed in this final rule.
---------------------------------------------------------------------------

    Based on the definition of ``small entity,'' only one commuter or 
other short-haul railroad is considered a small entity: the Hawkeye 
Express (operated by the Iowa Northern Railway Company). For purposes 
of this analysis, the RRP portions of this rule will affect 7 Class I 
railroads and a maximum of 50 Class III railroads. See 85 FR 9262, 
9307-11 (Feb. 18, 2020).
    Although the regulation may impact a substantial number of small 
entities, by virtue of its impact on the only identified small entity 
that is a commuter or other short-haul railroad subject to the SSP 
rule, and the maximum of 50 Class III railroads that could be affected 
by the RRP rule, it would merely provide additional clarifying 
information without introducing any additional burden. Further, any 
potential impact on small entities would be positive. The regulation 
would therefore not have a significant impact on a substantial number 
of small entities.
    A substantial number of small entities may be impacted by this 
regulation; however, any impact would be minimal. Although FRA 
requested comments as to the impact that the NPRM would have on both 
small passenger railroads as well as all passenger railroads in 
general, no comments were received on this issue.

C. 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              Respondent universe             Total annual responses             response         burden hours    equivalent 28
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
270.103--System Safety Program  35 passenger rail operations....  11.7 plans......................  40 hours............             467         $42,777
 Plan (SSP Plan)--
 Comprehensive written SSP
 Plan that meets all of this
 section's requirements.
--Copies of designations to     35 passenger rail operations....  11.7 copies.....................  2 minutes...........              .4              30
 non-profit employee labor
 organizations (New
 requirement).
--Designation notifications to  35 passenger rail operations....  11.7 notices....................  5 minutes...........               1              76
 employees not represented by
 non-profit employee labor
 organizations (New
 requirement).
--Records of system safety      35 passenger rail operations....  495 records.....................  15 seconds..........               2             157
 training for employees/
 contractors/others.
--(q)(1) Performance of risk-   35 passenger rail operations....  35 analyses results.............  20 hours............             700          53,200
 based hazard analyses and
 furnishing of results of risk-
 based hazard analyses upon
 request of FRA/participating
 part 212 States.
--(q)(2) Identification and     35 passenger rail operations....  35 mitigation methods             10 hours............             350          26,600
 implementation of risk                                            descriptions.
 mitigation methods and
 furnishing of descriptions of
 specific risk mitigation
 methods that address hazards
 upon request of FRA/
 participating part 212 States.
--(r)(1) Performance of         35 passenger rail operations....  35 results of technology          10 hours............             350          26,600
 technology analysis and                                           analysis.
 furnishing of results of
 system's technology analysis
 upon request of FRA/
 participating part 212 States.
270.107(a)--Consultation        35 passenger rail operations....  11.7 consults (w/labor union      1 hour..............              12             912
 requirements--consultation                                        reps.).
 with directly affected
 employees on SSP Plan.
--(a)(3)(ii) Notification to    35 passenger rail operations....  11.7 notices....................  30 minutes..........               6             456
 directly affected employees
 of preliminary meeting at
 least 60 days before being
 held.
--(b) Consultation statements   35 passenger rail operations....  11.7 statements.................  1 hour..............              12             912
 that includes service list
 with name & contact
 information for labor
 organization chairpersons &
 non-union employees who
 participated in process.
--Copies of consultations       35 passenger rail operations....  11.7 copies.....................  1 minute............              .2              15
 statements to service list
 individuals.
270.201(b)--SSP Plan found      35 passenger rail operations....  4 amended plans.................  30 hours............             120           9,120
 deficient by FRA and
 requiring amendment.
--Review of amended SSP Plan    35 passenger rail operations....  1 further amended plan..........  20 hours............              20           1,520
 found deficient and requiring
 further amendment.
--Reopened review of initial    35 passenger rail operations....  1 amended plans.................  30 hours............              30           2,280
 SSP Plan approval for cause
 stated.
270.203--Retention of SSP       35 passenger rail operations....  16 copies.......................  10 minutes..........               3             228
 Plans--Retained copies of SSP
 Plans.
270.303--Annual internal SSP    35 passenger rail operations....  16 evaluations/reports..........  2 hours.............              32           2,432
 assessments/reports conducted.
--Certification of results of   35 passenger rail operations....  35 certification statements.....  2 hours.............              70           8,050
 internal assessment by chief
 safety official.
270.305--External safety        35 passenger rail operations....  6 plans.........................  12 hours............              72           8,280
 audit--Submission of
 improvement plans in response
 to results of FRA audit.
--Improvement plans found       35 passenger rail operations....  2 amended plans.................  10 hours............              20           1,520
 deficient by FRA and
 requiring amendment.
--Status report to FRA of       35 passenger rail operations....  2 reports.......................  4 hours.............               8             608
 implementation of
 improvements set forth in the
 improvement plan.
Appendix B--Additional          35 passenger rail operations....  4 documents.....................  15 minutes..........               1              76
 documents provided to FRA
 upon request.
Appendix C--Written requests    35 passenger rail operations....  7 written requests..............  15 minutes..........               2             152
 to file required submissions
 electronically.
                               -------------------------------------------------------------------------------------------------------------------------

[[Page 12842]]

 
    Totals....................  35 passenger rail operations....  776 responses...................  N/A.................           2,279         186,001
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

    \28\ FRA derived the wage rates from the Surface Transportation 
Board website for 2018 wage data, and it uses the average annual 
wages for each employee group as follows: For Executives, Officials, 
and Staff Assistants, this cost amounts to $115 per hour. For 
Professional and Administrative staff, this cost amounts to $76 per 
hour.
---------------------------------------------------------------------------

    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 Railroad Safety, Federal Railroad Administration, at 202-493-
6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to 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 for part 
270 is 2130-0599.\29\
---------------------------------------------------------------------------

    \29\ No changes are necessary to the RRP rule's PRA analysis to 
account for the conforming amendments to the consultation and 
information protection provisions in this rule. See 85 FR 9262, 
9311-13 (Feb. 18, 2020).
---------------------------------------------------------------------------

D. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for 
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545 
(May 26, 1999)) as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive 
Orders, and related regulatory requirements. FRA has determined that 
this rule is not a major Federal action, requiring the preparation of 
an environmental impact statement or environmental assessment, because 
it is categorically excluded from detailed environmental review 
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May 
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this rule that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this rule is 
not a major Federal action significantly affecting the quality of the 
human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255 (Aug. 10, 
1999)), requires FRA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
federalism implications that imposes substantial direct compliance 
costs and that is not required by statute, unless the Federal 
Government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments or the agency consults 
with State and local government officials early in the process of 
developing the regulation. Where a regulation has federalism 
implications and preempts State law, the agency seeks to consult with 
State and local officials in the process of developing the regulation.
    FRA has analyzed this rule in accordance with the principles and 
criteria contained in Executive Order 13132. VTrans commented that the 
SSP rule had significant federalism implications that FRA did not 
consider regarding the rule's applicability to VTrans. See VTrans at 
12. Specifically, VTrans contended the rule ``would have a chilling 
effect'' on States (like Vermont), that, in reliance on existing law, 
have ``structured their support for . . . intercity passenger rail 
service to avoid `railroad carrier' status.'' See id. As discussed 
above, FRA does not believe the proposal or SSP final rule raised such 
implications. However, in any event, the revisions to the rule make 
even clearer that no such implications are intended.
    This rule generally clarifies or makes technical amendments to the 
requirements contained in part 270, System Safety Program, and part 
271, Risk Reduction Program. FRA has determined that this final rule 
has no federalism implications, other than the possible preemption of 
State laws under 49 U.S.C. 20106. Therefore, the consultation and 
funding requirements of Executive Order 13132 do not apply, and 
preparation of a federalism summary impact statement for the rule is 
not required.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law). Section 202 of the Act (2 
U.S.C. 1532) further requires that before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100,000,000 or more (adjusted 
annually for inflation) in any one year, and before promulgating any 
final rule for which a general notice of proposed rulemaking was 
published, the agency shall prepare a written statement detailing the 
effect on State, local, and tribal governments and the private sector. 
This rule would not result in such an expenditure, and thus

[[Page 12843]]

preparation of such a statement is not required.

G. Energy Impact

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

List of Subjects

49 CFR Part 270

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

49 CFR Part 271

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

The Rule

    For the reasons discussed in the preamble, FRA amends parts 270 and 
271 of chapter II, subtitle B of title 49, Code of Federal Regulations, 
as follows:

PART 270--SYSTEM SAFETY PROGRAM

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

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


0
2. In Sec.  270.1, revise paragraphs (a) and (b) to read as follows:


Sec.  270.1   Purpose and scope.

    (a) The purpose of this part is to improve railroad safety through 
structured, proactive processes and procedures developed and 
implemented by passenger rail operations. This part requires certain 
passenger rail operations to establish a system safety program that 
systematically evaluates railroad safety hazards and the resulting 
risks on their systems and manages those risks 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 railroad system safety 
programs. This part does not restrict passenger rail operations from 
adopting and enforcing additional or more stringent requirements not 
inconsistent with this part.
* * * * *

0
3. In Sec.  270.3, revise paragraphs (a)(1) and (2) to read as follows:


Sec.  270.3   Application.

    (a) * * *
    (1) Passenger rail operations that operate intercity or commuter 
passenger train service on the general railroad system of 
transportation; and
    (2) Passenger rail operations that operate commuter or other short-
haul rail passenger train service in a metropolitan or suburban area 
(as described by 49 U.S.C. 20102(2)), including public authorities 
operating passenger train service.
* * * * *

0
4. In Sec.  270.5:
0
a. Add a definition in alphabetical order for ``Confidential Close Call 
Reporting System (C\3\RS)'';
0
b. Revise the definitions of ``Fully implemented'' and ``Hazard'';
0
c. Add a definition in alphabetical order for ``Passenger rail 
operation''; and
0
d. Revise the definitions of ``Person'' and ``System safety program 
plan''.
    The additions and revisions read as follows:


Sec.  270.5   Definitions.

* * * * *
    Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad 
operations by allowing railroad employees to confidentially report 
currently unreported or underreported unsafe events.
* * * * *
    Fully implemented means that all elements of a system safety 
program as described in the SSP plan are established and applied to the 
safety management of the passenger rail operation.
    Hazard means any real or potential condition (as identified in a 
risk-based hazard analysis) that can cause injury, illness, or death; 
damage to or loss of a system, equipment, or property; or damage to the 
environment.
* * * * *
    Passenger rail operation means an intercity, commuter, or other 
short-haul passenger rail service.
    Person means an entity of any type covered under 49 U.S.C. 21301, 
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; any employee of such owner, manufacturer, 
lessor, lessee, or independent contractor or subcontractor.
* * * * *
    System safety program plan means a document developed by the 
passenger rail operation that implements and supports the system safety 
program.
* * * * *

0
5. Revise Sec.  270.7 to read as follows:


Sec.  270.7   Penalties and responsibility for compliance.

    (a) Any person who 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 persons, 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 who knowingly 
and willfully falsifies a record or report required by this part may be 
subject to criminal penalties under 49 U.S.C. 21311. FRA's website at 
www.fra.dot.gov contains a schedule of civil penalty amounts used in 
connection with this part.
    (b) Although the requirements of this part are stated in terms of 
the duty of a railroad or passenger rail operation, 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 
or passenger rail operation) shall perform that function in accordance 
with this part.
    (c)(1) All persons providing intercity rail passenger or commuter 
(or other short-haul) rail passenger service share responsibility for 
ensuring compliance with this part. Nothing in this paragraph (c), 
however, shall restrict the ability to provide for an appropriate 
designation

[[Page 12844]]

of responsibility for compliance with this part.
    (2)(i) Any passenger rail operation subject to this part may 
designate a person as responsible for compliance with this part by 
including a designation of responsibility in the SSP plan. This 
designation must be included in the SSP plan's statement describing the 
passenger rail operation's management and organizational structure and 
include the information specified by Sec.  270.103(e)(6).
    (ii) A passenger rail operation subject to this part may notify FRA 
of a designation of responsibility before submitting an SSP plan by 
first submitting a designation of responsibility notice to the 
Associate Administrator for Railroad Safety and Chief Safety Officer. 
The notice must include all information required under Sec.  
270.103(e)(6), and this information must also be included in the SSP 
plan.

0
6. Revise Sec.  270.101 to read as follows:


Sec.  270.101   System safety program; general.

    (a) Each passenger rail operation subject to this part shall 
establish and fully implement a system safety program 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. A system safety program 
shall include a risk-based hazard management program and risk-based 
hazard analysis designed to proactively identify hazards and mitigate 
or eliminate the resulting risks. The system safety program shall be 
fully implemented and supported by a written SSP plan described in 
Sec.  270.103.
    (b) A system safety program shall be designed so that it promotes 
and supports a positive railroad safety culture.

0
7. Revise Sec.  270.103 to read as follows:


Sec.  270.103   System safety program plan.

    (a) General. (1) Each passenger rail operation subject to this part 
shall adopt and fully implement a system safety program through a 
written SSP plan that, at a minimum, contains the elements in this 
section. This SSP plan shall be approved by FRA under the process 
specified in Sec.  270.201.
    (2) Each passenger rail operation subject to this part shall 
communicate with each railroad that hosts passenger train service for 
that passenger rail operation and coordinate the portions of the SSP 
plan applicable to the railroad hosting the passenger train service.
    (b) System safety program policy statement. Each SSP plan shall 
contain a policy statement that endorses the passenger rail operation's 
system safety program. This policy statement shall:
    (1) Define the passenger rail operation's authority for the 
establishment and implementation of the system safety program;
    (2) Describe the safety philosophy and safety culture of the 
passenger rail operation; and
    (3) Be signed by the chief official of the passenger rail 
operation.
    (c) System safety program goals. Each SSP plan shall contain a 
statement defining the goals for the passenger rail operation's system 
safety program. This statement shall describe clear strategies on how 
the goals will be achieved and what management's responsibilities are 
to achieve them. At a minimum, the goals shall be:
    (1) Long-term;
    (2) Meaningful;
    (3) Measurable; and
    (4) Focused on the identification of hazards and the mitigation or 
elimination of the resulting risks.
    (d) Rail system description. (1) Each SSP plan shall include a 
statement describing the rail system. The description shall include: 
The rail operations, including any host operations; the physical 
characteristics of the rail system; the scope of rail service; the rail 
system's maintenance activities; and any other pertinent aspects of the 
rail system.
    (2) Each SSP plan shall identify the persons that enter into a 
contractual relationship with the passenger rail operation to either 
perform significant safety-related services on the passenger rail 
operation's behalf or to utilize significant safety-related services 
provided by the passenger rail operation for purposes related to 
railroad operations.
    (3) Each SSP plan shall describe the relationships and 
responsibilities between the passenger rail operation and: Host 
railroads, contractor operators, shared track/corridor operators, and 
persons providing or utilizing significant safety-related services as 
identified pursuant to paragraph (d)(2) of this section.
    (e) Management and organizational structure. Each SSP plan shall 
contain a statement that describes the management and organizational 
structure of the passenger rail operation. This statement shall include 
the following:
    (1) A chart or other visual representation of the organizational 
structure of the passenger rail operation;
    (2) A description of the passenger rail operation's management 
responsibilities within the system safety program;
    (3) A description of how safety responsibilities are distributed 
within the rail organization;
    (4) Clear identification of the lines of authority used by the 
passenger rail operation to manage safety issues;
    (5) A description of the roles and responsibilities in the 
passenger rail operation's system safety program for each host 
railroad, contractor operator, shared track/corridor operator, and any 
persons utilizing or providing significant safety-related services as 
identified pursuant to (d)(2) of this section. As part of this 
description, the SSP plan shall describe how each host railroad, 
contractor operator, shared track/corridor operator, and any persons 
utilizing or providing significant safety-related services as 
identified pursuant to paragraph (d)(2) of this section supports and 
participates in the passenger rail operation's system safety program, 
as appropriate; and
    (6) If a passenger rail operation subject to this part designates a 
person as responsible for compliance with this part under Sec.  
270.7(c)(2), the following information must be included in the 
passenger rail operation's SSP plan and any notice of designation 
submitted under Sec.  270.7(c)(2):
    (i) The name and contact information of the designator;
    (ii) The name and contact information of the designated entity and 
a statement signed by an authorized representative of the designated 
entity acknowledging responsibility for compliance with this part;
    (iii) A statement affirming that a copy of the designation has been 
provided to the primary point of contact for each non-profit employee 
labor organization representing directly affected employees for 
consultation purposes under Sec.  270.107(a)(2); and
    (iv) A description of how directly affected employees not 
represented by a non-profit employee labor organization were notified 
of the designation for consultation purposes under Sec.  270.107(a).
    (f) System safety program implementation process. (1) Each SSP plan 
shall contain a statement that describes the process the passenger rail 
operation will use to implement its system safety program. As part of 
the implementation process, the SSP plan shall describe:
    (i) Roles and responsibilities of each position that has 
significant responsibility for implementing the system safety program, 
including those held by employees and other persons utilizing or 
providing significant safety-related services as identified pursuant to 
(d)(2) of this section; and

[[Page 12845]]

    (ii) Milestones necessary to be reached to fully implement the 
program.
    (2) A system safety program shall be fully implemented within 36 
months of FRA's approval of the SSP plan pursuant to subpart C of this 
part.
    (g) Maintenance, repair, and inspection program. (1) Each SSP plan 
shall identify and describe the processes and procedures used for 
maintenance and repair of infrastructure and equipment directly 
affecting railroad safety. Examples of infrastructure and equipment 
that directly affect railroad safety include: Fixed facilities and 
equipment, rolling stock, signal and train control systems, track and 
right-of-way, passenger train/station platform interface (gaps), and 
traction power distribution systems.
    (2) Each description of the processes and procedures used for 
maintenance and repair of infrastructure and equipment directly 
affecting safety shall include the processes and procedures used to 
conduct testing and inspections of the infrastructure and equipment.
    (3) If a manual or manuals comply with all applicable Federal 
regulations and describe the processes and procedures that satisfy this 
section, the SSP plan may reference those manuals. FRA approval of an 
SSP plan that contains or references such manuals is not approval of 
the manuals themselves; each manual must independently comply with 
applicable regulations and is subject to a civil penalty if not in 
compliance with applicable regulations.
    (4) The identification and description required by this section of 
the processes and procedures used for maintenance, repair, and 
inspection of infrastructure and equipment directly affecting railroad 
safety is not intended to address and should not include procedures to 
address employee working conditions that arise in the course of 
conducting such maintenance, repair, and inspection of infrastructure 
and equipment directly affecting railroad safety as set forth in the 
plan. FRA does not intend to approve any specific portion of an SSP 
plan that relates exclusively to employee working conditions.
    (h) Rules compliance and procedures review. Each SSP plan shall 
contain a statement describing the processes and procedures used by the 
passenger rail operation to develop, maintain, and comply with 
applicable rules and procedures directly affecting railroad safety and 
to comply with the applicable railroad safety laws and regulations 
found in this chapter. The statement shall identify:
    (1) The operating and safety rules and maintenance procedures that 
are subject to review under this chapter;
    (2) Techniques used to assess the compliance of the passenger rail 
operation's employees with applicable operating and safety rules and 
maintenance procedures, and applicable railroad safety laws and 
regulations; and
    (3) Techniques used to assess the effectiveness of the passenger 
rail operation's supervision relating to the compliance with the 
applicable operating and safety rules and maintenance procedures, and 
applicable railroad safety laws and regulations.
    (i) System safety program employee/contractor training. (1) Each 
employee who is responsible for implementing and supporting the system 
safety program, and any persons utilizing or providing significant 
safety-related services will be trained on the passenger rail 
operation's system safety program.
    (2) Each passenger rail operation shall establish and describe in 
its SSP plan a system safety program training plan. A system safety 
program training plan shall set forth the procedures by which employees 
that are responsible for implementing and supporting the system safety 
program, and any persons utilizing or providing significant safety-
related services, will be trained on the system safety program. A 
system safety program training plan shall help ensure that all 
personnel who are responsible for implementing and supporting the 
system safety program understand the goals of the program, are familiar 
with the elements of the program, and have the requisite knowledge and 
skills to fulfill their responsibilities under the program.
    (3) For each position identified pursuant to paragraph (f)(1)(i) of 
this section, the training plan shall describe the frequency and 
content of the system safety program training that the position 
receives.
    (4) If a position is not identified under paragraph (f)(1)(i) of 
this section as having significant responsibility to implement the 
system safety program but the position is safety-related or has a 
significant impact on safety, personnel in those positions shall 
receive training in basic system safety concepts and the system safety 
implications of their position.
    (5) Training under this subpart may include, but is not limited to, 
classroom, computer-based, or correspondence training.
    (6) The passenger rail operation shall keep a record of all 
training conducted under this part and update that record as necessary. 
The system safety program training plan shall set forth the process 
used to maintain and update the necessary training records required by 
this part.
    (7) The system safety program training plan shall set forth the 
process used by the passenger rail operation to ensure that it is 
complying with the training requirements set forth in the training 
plan.
    (j) Emergency management. Each SSP plan shall contain a statement 
that describes the processes used to manage emergencies that may arise 
within the passenger rail operation's system including, but not limited 
to, the processes to comply with applicable emergency equipment 
standards in part 238 of this chapter and the passenger train emergency 
preparedness requirements in part 239 of this chapter.
    (k) Workplace safety. Each SSP plan shall contain a statement that 
describes the programs established to protect the safety of the 
passenger rail operation's employees and contractors. The statement 
shall include a description of:
    (1) The processes that help ensure the safety of employees and 
contractors while working on or in close proximity to railroad property 
as described in paragraph (d) of this section;
    (2) The processes that help ensure that employees and contractors 
understand the requirements established by the passenger rail operation 
pursuant to paragraph (f)(1) of this section;
    (3) Any fitness-for-duty programs or any medical monitoring 
programs; and
    (4) The standards for the control of alcohol and drug use in part 
219 of this chapter.
    (l) Public safety outreach program. Each passenger rail operation 
shall establish and set forth a statement in its SSP plan that 
describes its public safety outreach program to provide safety 
information to railroad passengers and the general public. Each 
passenger rail operation's safety outreach program shall provide a 
means for railroad passengers and the general public to report any 
observed hazards.
    (m) Accident/incident reporting and investigation. Each SSP plan 
shall include a statement that describes the processes that the 
passenger rail operation uses to receive notification of accidents/
incidents, investigate and report those accidents/incidents, and 
develop, implement, and track any corrective actions found necessary to 
address an investigation's finding(s).
    (n) Safety data acquisition. Each passenger rail operation shall 
establish and set forth a statement in its SSP plan that describes the 
processes it uses to collect, maintain, analyze, and

[[Page 12846]]

distribute safety data in support of the system safety program.
    (o) Contract procurement requirements. Each SSP plan shall set 
forth a statement that describes the process(es) used to help ensure 
that safety concerns and hazards are adequately addressed during the 
safety-related contract procurement process.
    (p) Risk-based hazard management program. Each passenger rail 
operation shall establish a risk-based hazard management program as 
part of the system safety program. The risk-based hazard management 
program shall be fully described in the SSP plan.
    (1) The risk-based hazard management program shall establish:
    (i) The processes or procedures used in the risk-based hazard 
analysis to identify hazards on the rail system;
    (ii) The processes or procedures used in the risk-based hazard 
analysis to analyze identified hazards and support the risk-based 
hazard management program;
    (iii) The methods used in the risk-based hazard analysis to 
determine the severity and frequency of hazards and to determine the 
corresponding risk;
    (iv) The methods used in the risk-based hazard analysis to identify 
actions that mitigate or eliminate hazards and corresponding risks;
    (v) The process for setting goals for the risk-based hazard 
management program and how performance against the goals will be 
reported;
    (vi) The process to make decisions that affect the safety of the 
rail system relative to the risk-based hazard management program;
    (vii) The methods used in the risk-based hazard management program 
to support continuous safety improvement throughout the life of the 
rail system; and
    (viii) The methods used to maintain records of identified hazards 
and risks and the mitigation or elimination of the identified hazards 
and risks throughout the life of the rail system.
    (2) The SSP plan's description of the risk-based hazard management 
program shall include:
    (i) The position title of the individual(s) responsible for 
administering the risk-based hazard management program;
    (ii) The identities of stakeholders who will participate in the 
risk-based hazard management program; and
    (iii) The position title of the participants and structure of any 
hazard management teams or safety committees that may be established to 
support the risk-based hazard management program.
    (q) Risk-based hazard analysis. (1) Once FRA approves a passenger 
rail operation's SSP plan pursuant to Sec.  270.201(b), the risk-based 
hazard analysis methodology identified in paragraphs (p)(1)(i) through 
(iii) of this section shall be applied to identify and analyze hazards 
on the rail system and to determine the resulting risks. At a minimum, 
the aspects of the rail system that shall be analyzed include: 
Operating rules and practices, infrastructure, equipment, employee 
levels and schedules, management structure, employee training, and 
other aspects that have an impact on railroad safety not covered by 
railroad safety regulations or other Federal regulations.
    (2) A risk-based hazard analysis shall identify specific actions 
that shall be implemented using the methods described in paragraph 
(p)(1)(iv) of this section that will mitigate or eliminate the hazards 
and resulting risks identified by paragraph (q)(1) of this section.
    (3) A passenger rail operation shall also conduct a risk-based 
hazard analysis pursuant to paragraphs (q)(1) and (2) of this section 
when there are significant operational changes, system extensions, 
system modifications, or other circumstances that have a direct impact 
on railroad safety.
    (r) Technology analysis and implementation plan. (1) A passenger 
rail operation shall develop, and periodically update as necessary, a 
technology analysis and implementation plan as described by this 
paragraph. The passenger rail operation shall include this technology 
analysis and implementation plan in its SSP plan.
    (2) A passenger rail operation's technology analysis and 
implementation plan shall describe the process used to:
    (i) Identify and analyze current, new, or novel technologies that 
will mitigate or eliminate the hazards and resulting risks identified 
by the risk-based hazard analysis pursuant to paragraph (q)(1) of this 
section; and
    (ii) Analyze the safety impact, feasibility, and costs and benefits 
of implementing the technologies identified by the processes under 
paragraph (r)(2)(i) of this section that will mitigate or eliminate 
hazards and the resulting risks.
    (3) Once FRA approves a passenger rail operation's SSP plan 
pursuant to Sec.  270.201(b), including the technology analysis and 
implementation plan, the passenger rail operation shall apply:
    (i) The processes described in paragraph (r)(2)(i) of this section 
to identify and analyze technologies that will mitigate or eliminate 
the hazards and resulting risks identified by the risk-based hazard 
analysis pursuant to paragraph (q)(1) of this section. At a minimum, 
the technologies a passenger rail operation 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; and
    (ii) The processes described in paragraph (r)(2)(ii) of this 
section to the technologies identified by the analysis under paragraph 
(r)(3)(i) of this section.
    (4) If a passenger rail operation decides to implement any of the 
technologies identified in paragraph (r)(3) of this section, in the 
technology analysis and implementation plan in the SSP plan, the 
passenger rail operation shall:
    (i) Describe how it will develop, adopt, implement, maintain, and 
use the identified technologies; and
    (ii) Set forth a prioritized implementation schedule for the 
development, adoption, implementation and maintenance of those 
technologies over a 10-year period.
    (5) Except as required by subpart I of part 236 of this chapter, if 
a passenger rail operation decides to implement a positive train 
control system as part of its technology analysis and implementation 
plan, the technology implementation plan 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).
    (6) The passenger rail operation shall not include in its SSP plan 
the analysis conducted pursuant to paragraph (r)(3) of this section. A 
passenger rail operation shall make the results of any analysis 
conducted pursuant to paragraph (r)(3) of this section available upon 
request to representatives of FRA and States participating under part 
212 of this chapter.
    (s) Safety Assurance--(1) Change management. Each passenger rail 
operation shall establish and set forth a statement in its SSP plan 
describing the processes and procedures used to manage significant 
operational changes, system extensions, system modifications, or other 
significant changes that will have a direct impact on railroad safety.
    (2) Configuration management. Each passenger rail operation shall 
establish a configuration management program

[[Page 12847]]

and describe the program in its SSP plan. The configuration management 
program shall:
    (i) Identify who has authority to make configuration changes;
    (ii) Establish processes to make configuration changes to the rail 
system; and
    (iii) Establish processes to ensure that all departments of the 
system affected by the configuration changes are formally notified and 
approve of the change.
    (3) Safety certification. Each passenger rail operation shall 
establish and set forth a statement in its SSP plan that describes the 
certification process used to help ensure that safety concerns and 
hazards are adequately addressed before the initiation of operations or 
major projects to extend, rehabilitate, or modify an existing system or 
replace vehicles and equipment.
    (t) Safety culture. Each SSP plan shall contain a statement that 
describes how the passenger rail operation measures the success of its 
safety culture identified in paragraph (b)(2) of this section.

0
8. In Sec.  270.105, revise paragraphs (a) and (b)(2) and add paragraph 
(e) to read as follows:


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

    (a) Protected information. Except as provided in paragraph (a)(3) 
of this section, any information compiled or collected after August 14, 
2017, solely for the purpose of planning, implementing, or evaluating a 
system safety program under this part shall not be subject to 
discovery, admitted into evidence, or considered for other purposes in 
a Federal or State court proceeding for damages involving personal 
injury, wrongful death, or property damage. For purposes of this 
section:
    (1) ``Information'' includes plans, reports, documents, surveys, 
schedules, lists, or data, and specifically includes a passenger rail 
operation's analysis of its safety risks under Sec.  270.103(q)(1) and 
a passenger rail operation's statement of mitigation measures under 
Sec.  270.103(q)(2);
    (2) ``Solely'' means that a passenger rail operation originally 
compiled or collected the information for the exclusive purpose of 
planning, implementing, or evaluating a system safety program under 
this part. Information compiled or collected for any other purpose is 
not protected, even if the passenger rail operation also uses that 
information for a system safety program. ``Solely'' also means that a 
passenger rail operation continues to use that information only for its 
system safety program. If a passenger rail operation subsequently uses 
for any other purpose information that was initially compiled or 
collected for a system safety program, this section does not protect 
that information to the extent that it is used for the non-system 
safety program purpose. The use of that information within the 
passenger rail operation's system safety 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 of 
regulation; and
    (3) A passenger rail operation may include a Confidential Close 
Call Reporting System (C\3\RS) program in a system safety program 
established under this part. For Federal or State court proceedings 
described by this paragraph (a) that are initiated after March 4, 2021, 
the information protected by this paragraph (a) includes C\3\RS 
information a passenger rail operation includes in its system safety 
program, even if the passenger rail operation compiled or collected the 
C\3\RS information on or before August 14, 2017, for purposes other 
than planning, implementing, or evaluating a system safety program 
under this part.
    (b) * * *
    (2) Information compiled or collected on or before August 14, 2017, 
and that continues to be compiled or collected, even if used to plan, 
implement, or evaluate a system safety program; or
* * * * *
    (e) Enforcement. This section does not apply to civil enforcement 
or criminal law enforcement proceedings.

0
 9. Revise Sec.  270.107 to read as follows:


Sec.  270.107   Consultation requirements.

    (a) General duty. (1) Each passenger rail operation required to 
establish a system safety program 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 SSP plan.
    (2) A passenger rail operation that consults with a non-profit 
employee labor organization as required by paragraph (a)(1) of this 
section is considered to have consulted with the directly affected 
employees represented by that organization. For directly affected 
employees represented by a non-profit employee labor organization, the 
primary point of contact shall be either the general chairperson of 
that non-profit employee labor organization or a non-profit employee 
labor organization primary point of contact the passenger rail 
operation and the non-profit employee labor organization agree on at 
the beginning of the consultation process. If a passenger rail 
operation contracts out significant portions of its operations, the 
contractor and the contractor's employees performing those operations 
shall be considered directly affected employees for the purposes of 
this part.
    (3) A passenger rail operation shall have a preliminary meeting 
with its directly affected employees to discuss how the consultation 
process will proceed. A passenger rail operation is not required to 
discuss the substance of an SSP plan during this preliminary meeting. A 
passenger rail operation must:
    (i) Hold the preliminary meeting no later than July 2, 2020;
    (ii) Notify the directly affected employees of the preliminary 
meeting no less than 60 days before it is held.
    (4) Appendix B to this part contains non-mandatory guidance on how 
a passenger rail operation may comply with the requirements of this 
section.
    (b) Consultation statements. A passenger rail operation required to 
submit an SSP plan under Sec.  270.201 must also submit, together with 
the plan, a consultation statement that includes the following 
information:
    (1) A detailed description of the process utilized to consult with 
directly affected employees;
    (2) If the passenger rail operation could not reach agreement with 
its directly affected employees on the contents of its SSP plan, 
identification of any known areas of disagreement and an explanation of 
why it believes agreement was not reached; and
    (3) A service list containing the name and contact information for 
either each international/national president and general chairperson of 
any non-profit employee labor organization representing a class or 
craft of the passenger rail operation's directly affected employees, or 
each non-profit employee labor organization primary point of contact 
the passenger rail operation and the non-profit employee labor 
organization agree on at the beginning of the consultation process. 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. When a passenger rail operation submits its SSP plan and 
consultation statement to FRA pursuant to Sec.  270.201, it must also 
simultaneously send a copy of

[[Page 12848]]

these documents to all individuals identified in the service list.
    (c) Statements from directly affected employees. (1) If a passenger 
rail operation and its directly affected employees cannot reach 
agreement on the proposed contents of an SSP plan, the directly 
affected employees may file a statement with the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer explaining 
their views on the plan on which agreement was not reached with the FRA 
Associate Administrator for Railroad Safety and Chief Safety Officer at 
Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590. The FRA 
Associate Administrator for Railroad Safety and Chief Safety Officer 
shall consider any such views during the plan review and approval 
process.
    (2) A passenger rail operation's directly affected employees have 
30 days following the date of the submission of a proposed SSP plan to 
submit the statement described in paragraph (c)(1) of this section.
    (d) Consultation requirements for system safety program plan 
amendments. A passenger rail operation's SSP plan must include a 
description of the process the passenger rail operation will use to 
consult with its directly affected employees on any subsequent 
substantive amendments to the system safety program. The requirements 
of this paragraph do not apply to non-substantive amendments (e.g., 
amendments that update names and addresses of railroad personnel).

0
10. Revise Sec.  270.201 to read as follows:


Sec.  270.201   Filing and approval.

    (a) Filing. (1) Each passenger rail operation to which this part 
applies shall submit one copy of its SSP plan to the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer, 1200 New 
Jersey Avenue SE, Washington, DC 20590, no later than March 4, 2021, or 
not less than 90 days before commencing passenger operations, whichever 
is later.
    (2) The passenger rail operation shall not include in its SSP plan 
the risk-based hazard analysis conducted pursuant to Sec.  270.103(q). 
A passenger rail operation shall make the results of any risk-based 
hazard analysis available upon request to representatives of FRA and 
States participating under part 212 of this chapter.
    (3) The SSP plan shall include:
    (i) The signature, name, title, address, and telephone number of 
the chief safety officer who bears primary managerial authority for 
implementing the program for the submitting passenger rail operation. 
By signing, this chief official is certifying that the contents of the 
SSP plan are accurate and that the passenger rail operation will 
implement the contents of the program as approved by FRA;
    (ii) The contact information for the primary person responsible for 
managing the system safety program; and
    (iii) The contact information for the senior representatives of any 
host railroad, contractor operator, shared track/corridor operator, or 
persons utilizing or providing significant safety-related services.
    (4) As required by Sec.  270.107(b), each passenger rail operation 
must submit with its SSP plan a consultation statement describing how 
it consulted with its directly affected employees on the contents of 
its SSP plan. Directly affected employees may also file a statement in 
accordance with Sec.  270.107(c).
    (b) Approval. (1) Within 90 days of receipt of an SSP plan, FRA 
will review the SSP plan to determine if the elements prescribed in 
this part are sufficiently addressed. This review will also consider 
any statement submitted by directly affected employees pursuant to 
Sec.  270.107(c).
    (2) FRA will notify each person identified in the SSP plan under 
Sec.  270.201(a)(3) in writing whether the proposed plan has been 
approved by FRA, and, if not approved, the specific points in which the 
SSP plan is deficient. FRA will also provide this notification to each 
individual identified in the service list accompanying the consultation 
statement required under Sec.  270.107(b).
    (3) If FRA does not approve an SSP plan, the affected passenger 
rail operation shall amend the proposed plan to correct all 
deficiencies identified by FRA and provide FRA with a corrected copy of 
the SSP plan not later than 90 days following receipt of FRA's written 
notice that the proposed SSP plan was not approved.
    (4) Approval of an SSP plan under this part does not constitute 
approval of the specific actions a passenger rail operation will 
implement under an SSP plan pursuant to Sec.  270.103(q)(2) and shall 
not be construed as establishing a Federal standard regarding those 
specific actions.
    (c) Review of amendments. (1)(i) A passenger rail operation shall 
submit any amendment(s) to the SSP plan to FRA not less than 60 days 
before the proposed effective date of the amendment(s). The passenger 
rail operation shall file the amended SSP plan with a cover letter 
outlining the changes made to the original approved SSP plan by the 
proposed amendment(s). The cover letter shall also describe the process 
the passenger rail operation used pursuant to Sec.  270.107(d) to 
consult with its directly affected employees on the amendment(s).
    (ii) If an amendment is safety-critical and the passenger rail 
operation is unable to submit the amended SSP plan to FRA 60 days 
before the proposed effective date of the amendment, the passenger rail 
operation shall submit the amended SSP plan with a cover letter 
outlining the changes made to the original approved SSP plan by the 
proposed amendment(s) and why the amendment is safety-critical to FRA 
as near as possible to 60 days before the proposed effective date of 
the amendment(s).
    (iii) 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 in paragraphs (c)(1)(i) and (ii) of this 
section, although the passenger rail operation shall still file the 
proposed amendment with FRA's Associate Administrator for Railroad 
Safety and Chief Safety Officer. These proposed amendments may be 
implemented upon filing with FRA. All other proposed amendments must 
comply with the formal approval process in paragraph (c) of this 
section.
    (2)(i) Except as provided in paragraph (c)(1)(iii) of this section, 
FRA will review the proposed amended SSP plan within 45 days of 
receipt. FRA will then notify the primary contact person of each 
affected passenger rail operation whether the proposed amended plan has 
been approved by FRA, and if not approved, the specific points in which 
each proposed amendment to the SSP plan is deficient.
    (ii) If FRA has not notified the passenger rail operation by the 
proposed effective date of the amendment(s) whether the proposed 
amended plan has been approved or not, the passenger rail operation may 
implement the amendment(s) pending FRA's decision.
    (iii) If a proposed SSP plan amendment is not approved by FRA, no 
later than 60 days following the receipt of FRA's written notice, the 
passenger rail operation shall provide FRA either a corrected copy of 
the amendment that addresses all deficiencies noted by FRA or written 
notice that the passenger rail operation is retracting the amendment.
    (d) Reopened review. Following initial approval of a plan, or 
amendment, FRA may reopen consideration of the plan or amendment for 
cause stated.

[[Page 12849]]

    (e) Electronic submission. All documents required to be submitted 
to FRA under this part may be submitted electronically. Appendix C to 
this part provides instructions on electronic submission of documents.

0
 11. Revise Sec.  270.203 to read as follows:


Sec.  270.203   Retention of system safety program plan.

    Each passenger rail operation to which this part applies shall 
retain at its system headquarters, and at any division headquarters, 
one copy of the SSP plan required by this part and one copy of each 
subsequent amendment to that plan. These records shall be made 
available to representatives of FRA and States participating under part 
212 of this chapter for inspection and copying during normal business 
hours.

0
12. Revise Sec.  270.301 to read as follows:


Sec.  270.301   General.

    The system safety program and its implementation shall be assessed 
internally by the passenger rail operation and audited externally by 
FRA or FRA's designee.

0
 13. Revise Sec.  270.303 to read as follows:


Sec.  270.303   Internal system safety program assessment.

    (a) Following FRA's initial approval of the passenger rail 
operation's SSP plan pursuant to Sec.  270.201, the passenger rail 
operation shall annually conduct an assessment of the extent to which:
    (1) The system safety program is fully implemented;
    (2) The passenger rail operation is in compliance with the 
implemented elements of the approved system safety program; and
    (3) The passenger rail operation has achieved the goals set forth 
in Sec.  270.103(c).
    (b) As part of its SSP plan, the passenger rail operation shall set 
forth a statement describing the processes used to:
    (1) Conduct internal system safety program assessments;
    (2) Internally report the findings of the internal system safety 
program assessments;
    (3) Develop, track, and review recommendations as a result of the 
internal system safety program assessments;
    (4) Develop improvement plans based on the internal system safety 
program assessments. Improvement plans shall, at a minimum, identify 
who is responsible for carrying out the necessary tasks to address 
assessment findings and specify a schedule of target dates with 
milestones to implement the improvements that address the assessment 
findings; and
    (5) Manage revisions and updates to the SSP plan based on the 
internal system safety program assessments.
    (c)(1) Within 60 days of completing its internal SSP plan 
assessment pursuant to paragraph (a) of this section, the passenger 
rail operation shall:
    (i) Submit to FRA a copy of the passenger rail operation's internal 
assessment report that includes a system safety program assessment and 
the status of internal assessment findings and improvement plans to the 
FRA Associate Administrator for Railroad Safety and Chief Safety 
Officer, Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590; 
and
    (ii) Outline the specific improvement plans for achieving full 
implementation of the SSP plan, as well as achieving the goals of the 
plan.
    (2) The passenger rail operation's chief official responsible for 
safety shall certify the results of the internal SSP plan assessment.

0
 14. Revise Sec.  270.305 to read as follows:


Sec.  270.305   External safety audit.

    (a) FRA may conduct, or cause to be conducted, external audits of a 
system safety program. Each audit will evaluate compliance with the 
elements required by this part in an approved SSP plan. FRA shall 
provide the passenger rail operation written notification of the 
results of any audit.
    (b)(1) Within 60 days of FRA's written notification of the results 
of the audit, the passenger rail operation shall submit to FRA for 
approval an improvement plan to address the audit findings that require 
corrective action. At a minimum, the improvement plan shall identify 
who is responsible for carrying out the necessary tasks to address 
audit findings and specify target dates and milestones to implement the 
improvements that address the audit findings.
    (2) If FRA does not approve the passenger rail operation's 
improvement plan, FRA will notify the passenger rail operation of the 
specific deficiencies in the improvement plan. The affected passenger 
rail operation shall amend the proposed plan to correct the 
deficiencies identified by FRA and provide FRA with a corrected copy of 
the improvement plan no later than 30 days following its receipt of 
FRA's written notice that the proposed plan was not approved.
    (3) Upon request, the passenger rail operation shall provide to FRA 
and States participating under part 212 of this chapter for review a 
report upon request regarding the status of the implementation of the 
improvements set forth in the improvement plan established pursuant to 
paragraph (b)(1) of this section.

0
15. Revise appendix B to part 270 to read as follows:

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

    A passenger rail operation required to develop a system safety 
program under this part must in good faith consult with and use its 
best efforts to reach agreement with its directly affected employees on 
the contents of the SSP plan. See Sec.  270.107(a). This appendix 
discusses the meaning of the terms ``good faith'' and ``best efforts,'' 
and provides non-mandatory guidance on how to comply with the 
requirement to consult with directly affected employees on the contents 
of the SSP plan.
    The 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. The guidance is not legally 
binding in its own right and will not be relied upon by the U.S. 
Department of Transportation as a separate basis for affirmative 
enforcement action or other administrative penalty. Conformity with 
this guidance (as distinct from existing statutes and regulations) is 
voluntary only, and nonconformity will not affect rights and 
obligations under existing statutes and regulations.

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

    ``Good faith'' and ``best efforts'' are not interchangeable terms 
representing a vague standard for the Sec.  270.107 consultation 
process. Rather, each term has a specific and distinct meaning. When 
consulting with directly affected employees, therefore, a passenger 
rail operation must independently meet the standards for both the good 
faith and best efforts obligations. A passenger rail operation that 
does not meet the standard for one or the other will not be in 
compliance with the consultation requirements of Sec.  270.107.
    The good faith obligation requires a passenger rail operation to 
consult with employees in a manner that is honest, fair, and 
reasonable, and to genuinely pursue agreement on the contents of an SSP 
plan. If a passenger rail operation consults with its employees merely 
in a

[[Page 12850]]

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 passenger rail operation's directly affected 
employees express concerns with certain parts of the SSP plan, and the 
passenger rail operation neither addresses those concerns in further 
consultation nor attempts to address those concerns by making changes 
to the SSP 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 passenger rail operation must pursue to reach 
agreement with its employees on the contents of its system safety 
program. While the good faith obligation is concerned with the 
passenger rail operation's state of mind during the consultation 
process, the best efforts obligation is concerned with the specific 
efforts made by the passenger rail operation in an attempt to reach 
agreement. This would include considerations such as whether a 
passenger rail operation had held sufficient meetings with its 
employees to address or make an attempt to address any concerns raised 
by the employees, or whether the passenger rail operation had made an 
effort to respond to feedback provided by employees during the 
consultation process. For example, a passenger rail operation would not 
meet the best efforts obligation if it did not initiate the 
consultation process in a timely manner, and thereby failed to provide 
employees sufficient time to engage in the consultation process. 
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 SSP plans, FRA will determine on a case-by-case 
basis whether a passenger rail operation has met its Sec.  270.107 good 
faith and best efforts obligations. This determination will be based 
upon the consultation statement submitted by the passenger rail 
operation pursuant to Sec.  270.107(b) and any statements submitted by 
employees pursuant to Sec.  270.107(c). If FRA finds that these 
statements do not provide sufficient information to determine whether a 
passenger rail operation used good faith and best efforts to reach 
agreement, FRA may investigate further and contact the passenger rail 
operation or its employees to request additional information. If FRA 
determines that a passenger rail operation did not use good faith and 
best efforts, FRA may disapprove the SSP plan submitted by the 
passenger rail operation and direct the passenger rail operation to 
comply with the consultation requirements of Sec.  270.107. Pursuant to 
Sec.  270.201(b)(3), if FRA does not approve the SSP plan, the 
passenger rail operation 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 passenger rail operation did not use good faith and best 
efforts to consult and reach agreement with its directly affected 
employees. If a passenger rail operation then does not submit to FRA 
within 90 days an SSP plan meeting the consultation requirements of 
Sec.  270.107, FRA could impose penalties for failure to comply with 
Sec.  270.201(b)(3).

Guidance on How a Passenger Rail Operation May Consult With Directly 
Affected Employees

    Because the standard imposed by the best efforts obligation will 
vary depending upon the passenger rail operation, there may be 
countless ways to comply with the consultation requirements of Sec.  
270.107. Therefore, FRA believes it is important to maintain a flexible 
approach to the Sec.  270.107 consultation requirements, to give a 
passenger rail operation 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 
passenger rail operation may proceed when consulting (utilizing good 
faith and best efforts) with employees in an attempt to reach agreement 
on the contents of an SSP plan. FRA believes this guidance may be 
useful as a starting point for those that are uncertain about how to 
comply with the Sec.  270.107 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 passenger rail operation may use to consult with represented and non-
represented employees could differ significantly.
    This guidance does not establish prescriptive requirements but 
merely outlines a consultation process a passenger rail operation may 
choose to follow. A passenger rail operation's consultation statement 
could indicate that it 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 SSP plan.

Employees Represented by a Non-Profit Employee Labor Organization

    As provided in Sec.  270.107(a)(2), a passenger rail operation 
consulting with the representatives of a non-profit employee labor 
organization on the contents of an SSP plan will be considered to have 
consulted with the directly affected employees represented by that 
organization.
    A passenger rail operation 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 SSP plan.
     Pursuant to Sec.  270.107(a)(3)(i), a passenger rail 
operation must meet with representatives from a non-profit employee 
labor organization (representing a class or craft of the passenger rail 
operation's directly affected employees) no later than July 2, 2020, to 
begin the process of consulting on the contents of the SSP plan. A 
passenger rail operation must provide notice at least 60 days before 
the scheduled meeting.
     During the time between the initial meeting and the 
applicability date of Sec.  270.105 the parties may meet to discuss 
administrative details of the consultation process as necessary.
     Within 60 days after the applicability date of Sec.  
270.105 a passenger rail operation should have a meeting with the 
directed affected railroad employees to discuss substantive issues with 
the SSP.
     Pursuant to Sec.  270.201(a)(1), a passenger rail 
operation would file its SSP plan with FRA no later than March 4, 2021, 
or not less than 90 days before commencement of new passenger service, 
whichever is later.
     As provided by Sec.  270.107(c), if agreement on the 
contents of an SSP plan could not be reached, a labor organization 
(representing a class or craft of the passenger rail operation's 
directly affected employees) may file a statement with the FRA 
Associate Administrator for Railroad Safety and Chief Safety Officer 
explaining its views on the plan on which agreement was not reached.

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

    FRA recognizes that some (or all) of a passenger rail operation's 
directly affected employees may not be represented by a non-profit 
employee labor organization. For such non-represented employees, the 
consultation

[[Page 12851]]

process described for represented employees may not be appropriate or 
sufficient. For example, FRA believes that a passenger rail operation 
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 SSP plan. FRA therefore is 
providing the following guidance regarding how a passenger rail 
operation may utilize good faith and best efforts when consulting with 
non-represented employees on the contents of its SSP plan.
     By April 20, 2020, a passenger rail operation should 
notify non-represented employees that--
    (1) The passenger rail operation is required to consult in good 
faith with, and use its best efforts to reach agreement with, all 
directly affected employees on the proposed contents of its SSP plan;
    (2) The passenger rail operation is required to meet with its 
directly affected employees by July 2, 2020, to address the 
consultation process;
    (3) Non-represented employees are invited to participate in the 
consultation process (and include instructions on how to engage in this 
process); and
    (4) If a passenger rail operation is unable to reach agreement with 
its directly affected employees on the contents of the proposed SSP 
plan, an employee may file a statement with the FRA Associate 
Administrator for Railroad Safety and Chief Safety Officer explaining 
the employee's views on the plan on which agreement was not reached.
     This initial notification (and all subsequent 
communications, as necessary or appropriate) could be provided to non-
represented employees in the following ways:
    (1) Electronically, such as by email or an announcement on the 
passenger rail operation's website;
    (2) By posting the notification in a location easily accessible and 
visible to non-represented employees; or
    (3) By providing all non-represented employees a hard copy of the 
notification. A passenger rail operation could use any or all of these 
methods of communication, so long as the notification complies with the 
passenger rail operation's obligation to utilize best efforts in the 
consultation process.
     Following the initial notification and initial meeting to 
discuss the consultation process (and before the passenger rail 
operation submits its SSP plan to FRA), a passenger rail operation 
should provide non-represented employees a draft proposal of its SSP 
plan. This draft proposal should solicit additional input from non-
represented employees, and the passenger rail operation should provide 
non-represented employees 60 days to submit comments to the passenger 
rail operation on the draft.
     Following this 60-day comment period and any changes to 
the draft SSP plan made as a result, the passenger rail operation 
should submit the proposed SSP plan to FRA, as required by this part.
     As provided by Sec.  270.107(c), if agreement on the 
contents of an SSP plan cannot be reached, then a non-represented 
employee may file a statement with the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer explaining employee's views on 
the plan on which agreement was not reached.

0
 16. Revise appendix C to part 270 to read as follows:

Appendix C to Part 270--Procedures for Submission of SSP Plans and 
Statements From Directly Affected Employees

    This appendix summarizes procedures for the submission of an SSP 
plan and statements by directly affected employees consistent with the 
requirements of this part.

Submission by a Passenger Rail Operation and Directly Affected 
Employees

    As provided for in Sec.  270.101, a system safety program shall be 
fully implemented and supported by a written SSP plan. Each passenger 
rail operation must submit its SSP plan to FRA for approval as provided 
for in Sec.  270.201.
    As provided for in Sec.  270.107(c), if a passenger rail operation 
and its directly affected employees cannot come to agreement on the 
proposed contents of the SSP plan, the directly affected employees have 
30 days following the submission of the proposed SSP 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.
    The passenger rail operation's and directly affected employees' 
submissions shall be sent to the FRA Associate Administrator for 
Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey 
Avenue SE, Washington, DC 20590. When a passenger rail operation 
submits its SSP plan and consultation statement to FRA pursuant to 
Sec.  270.201, it must also simultaneously send a copy of these 
documents to all individuals identified in the service list pursuant to 
Sec.  270.107(b)(3).
    Each passenger rail operation and directly affected employee is 
authorized to file by electronic means any submissions required under 
this part. Before any person submits anything 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 passenger rail operation or directly affected 
employee(s);
    (2) The names of two individuals, including job titles, who will be 
the passenger rail operation'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 passenger rail operation's or 
directly affected employees' points of contact;
    (4) The system or main headquarters address located in the United 
States;
    (5) The email addresses for the passenger rail operation's or 
directly affected employees' points of contact; and
    (6) The daytime telephone numbers for the passenger rail 
operation's or directly affected employees' points of contact.
    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, Mail Stop 25, 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 passenger rail operation that 
electronically submits an initial SSP 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 passenger rail operation that 
submits the materials does so by delivering the written materials to 
the Associate Administrator and opts not to submit the materials 
electronically. A passenger rail operation 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.

[[Page 12852]]

PART 271--RISK REDUCTION PROGRAM

0
17. The authority citation for part 271 continues to read as follows:

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


0
18. In Sec.  271.5, add a definition in alphabetical order for 
``Confidential Close Call Reporting System (C\3\RS)'' and revise the 
definition of ``Person'' to read as follows:


Sec.  271.5   Definitions.

* * * * *
    Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad 
operations by allowing railroad employees to confidentially report 
currently unreported or underreported unsafe events.
* * * * *
    Person means an entity of any type covered under 49 U.S.C. 21301, 
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; any employee of such owner, manufacturer, 
lessor, lessee, or independent contractor or subcontractor.
* * * * *

0
19. In Sec.  271.11, revise paragraphs (a) introductory text and 
(a)(1), the final sentence of paragraph (a)(2), and add paragraph 
(a)(3) to read as follows:


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

    (a) Protected information. Except as provided in paragraph (a)(3) 
of this section, any information compiled or collected after 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);
    (2) * * * This section does not protect information that is 
required to be compiled or collected pursuant to any other provision of 
law or regulation; and
    (3) A railroad may include a Confidential Close Call Reporting 
System (C\3\RS) program in a risk reduction program established under 
this part. For Federal or State court proceedings described by this 
paragraph (a) that are initiated after March 4, 2021, the information 
protected by this paragraph (a) includes C\3\RS information a railroad 
includes in its risk reduction program, even if the railroad compiled 
or collected the C\3\RS information on or before February 17, 2021, for 
purposes other than planning, implementing, or evaluating a risk 
reduction program under this part.
* * * * *

0
20. In Sec.  271.207, add a second sentence to paragraph (a)(2) and 
revise paragraph (d)(3) to read as follows:


Sec.  271.207   Consultation requirements.

    (a) * * *
    (2) * * * For directly affected employees represented by a non-
profit employee labor organization, the primary point of contact shall 
be either the general chairperson of the non-profit employee labor 
organization or a non-profit employee labor organization primary point 
of contact the railroad and the non-profit employee labor organization 
agree on at the beginning of the consultation process.
* * * * *
    (d) * * *
    (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, or each non-profit employee labor organization 
primary point of contact the railroad and the non-profit employee labor 
organization agree on at the beginning of the process. 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. 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.
* * * * *

    Issued in Washington, DC, on February 28, 2020.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2020-04424 Filed 3-2-20; 8:45 am]
 BILLING CODE 4910-06-P

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