Risk Reduction Program
Federal RegisterFeb 27, 2015
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 271
[Docket No. FRA-2009-0038, Notice No. 1]
RIN 2130-AC11
Risk Reduction Program
AGENCY:
Federal Railroad Administration (FRA), Department of Transportation (DOT).
ACTION:
Notice of proposed rulemaking (NPRM).
SUMMARY:
The Rail Safety Improvement Act of 2008 requires the development and implementation of railroad safety risk reduction programs. This NPRM proposes to implement this mandate by requiring each Class I railroad and each railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP) to improve the safety of their operations. RRP is a comprehensive, system-oriented approach to safety that determines an operation's level of risk by identifying and analyzing applicable hazards and involves developing plans to mitigate, if not eliminate, that risk. Each RRP would be statutorily required to include a risk analysis and a technology implementation plan. An RRP would be implemented by a written RRP plan that has been submitted to FRA for review and approval. A railroad would be required to conduct an annual internal assessment of its RRP, and a railroad's RRP processes and procedures would be externally audited by FRA.
DATES:
Written comments must be received by April 28, 2015. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.
FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to March 30, 2015, one will be scheduled and FRA will publish a supplemental notice in the
Federal Register
to inform interested parties of the date, time, and location of any such hearing.
ADDRESSES:
Comments:
Comments related to Docket No. FRA-2009-0038, Notice No. 1, may be submitted by any of the following methods:
•
Web site:
The Federal eRulemaking Portal,
www.regulations.gov.
Follow the Web site's online instructions for submitting comments.
•
Fax:
202-493-2251.
•
Mail:
Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590.
•
Hand Delivery:
Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground level of the West Building, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Instructions:
All submissions must include the agency name, docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AC11). Note that all comments received will be posted without change to
http://www.regulations.gov
, including any personal information provided. Please see the Privacy Act heading in the
SUPPLEMENTARY INFORMATION
section of this document for Privacy Act information related to any submitted comments or materials.
Docket:
For access to the docket to read background documents or comments received, go to
http://www.regulations.gov
at any time or visit the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground level of the West Building, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Miriam Kloeppel, Staff Director, Risk Reduction Program Division, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Mail Stop 25, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-6224),
Miriam.Kloeppel@dot.gov
; or Elizabeth Gross, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, Mail Stop 10, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-1342),
Elizabeth.Gross@dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Introduction
A. Executive Summary
B. Abbreviations
II. Background and History
A. What is a Risk Reduction Program?
B. Passenger Railroads and System Safety Programs
C. Other Federal Safety Management System Programs
D. Risk Reducing FRA Programs
III. Statutory Background
A. Rail Safety Improvement Act of 2008
B. Related System Safety Rulemaking
C. Related Fatigue Management Plans Rulemaking
IV. Proceedings to Date
A. Advance Notice of Proposed Rulemaking (ANPRM)
B. Public Hearings
C. Railroad Safety Advisory Committee
1. Risk Reduction Program (RRP) Working Group
2. Working Group Tentative Agreement Vote
V. Railroads With Inadequate Safety Performance
VI. Risk Reduction Information Protection
A. Exemption From Freedom of Information Act Disclosure
B. Discovery and Other Use of Risk Analysis Information in Litigation
1. The RSIA Mandate
2. The Study and Its Conclusions
3. FRA's Proposal
VII. RRP Plan Consultation Requirements
VIII. Section-by-Section Analysis
IX. Regulatory Impact and Notices
A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Analysis
C. Federalism
D. International Trade Impact Assessment
E. Paperwork Reduction Act
F. Environmental Assessment
G. Unfunded Mandates Reform Act of 1995
H. Energy Impact
I. Privacy Act
I. Introduction
A. Executive Summary
The proposed rulemaking would add to FRA's regulations a new part, which would require each Class I railroad and each railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP). An RRP is a structured program with proactive processes and procedures developed and implemented by a railroad to identify hazards and to mitigate, if not eliminate, the risks associated with those hazards on its system. An RRP encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what action to take to mitigate or eliminate the associated risks.
FRA understands that each railroad that would be subject to the RRP rule would have a unique operating system, and that not all railroads have the same amount of resources. Best practices for implementing an RRP would therefore differ from railroad to railroad. Accordingly, the proposed RRP rule does not establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Instead, the rule proposes only general, performance-based requirements. This approach would
provide each railroad a substantial amount of flexibility to tailor those requirements to its specific operations.
FRA is proposing this RRP rule as part of its efforts to continually improve rail safety and to satisfy the statutory mandate contained in sec. 103 and sec. 109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, Division A, 122 Stat. 4848
et seq.,
codified at 49 U.S.C. 20156, and 20118-20119. The proposed RRP rule is a performance-based rule, and FRA seeks comments on all aspects of the proposed rule.
Section 103 of the RSIA directs the Secretary of Transportation (Secretary) to issue a regulation requiring Class I railroads, railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads), and railroads with inadequate safety performance to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. The proposed rule would implement this mandate for Class I freight railroads and railroads with inadequate safety performance. A railroad not otherwise required to comply with the proposed rule would also be permitted to voluntarily submit an RRP plan for FRA review and approval. A separate system safety program (SSP) rulemaking would similarly implement this mandate for passenger railroads, and an SSP NPRM was published by FRA on September 7, 2012, 77 FR 55372.
Section 109 of the RSIA specifies that certain risk reduction records obtained by the Secretary are exempt from the public disclosure requirements of the Freedom of Information Act (FOIA). This exemption is subject to two exceptions for disclosure necessary to enforce or carry out any Federal law and disclosure when a record is comprised of facts otherwise available to the public and FRA has determined that disclosure would be consistent with the confidentiality needed for RRPs.
See
49 U.S.C. 20118. FRA therefore believes that railroad risk reduction records in its possession would generally be exempted from mandatory disclosure under FOIA. Unless one of the two exceptions provided by the RSIA would apply, FRA would withhold disclosing any such records in response to a FOIA request.
See
5 U.S.C. 552(b)(3) and 49 CFR 7.13(c)(3).
Section 109 of the RSIA also authorizes the Secretary to issue a regulation protecting from discovery and admissibility into evidence in litigation certain information generated for the purpose of developing, implementing, or evaluating an RRP. Currently, the proposed rule would implement sec. 109 with respect to RRPs covered by this proposed part. If an SSP final rule is published before an RRP final rule, however, the information protection provisions contained in the SSP final rule would specifically apply to information generated for an RRP as well.
The Secretary has delegated the responsibility to carry out his responsibilities under both sec. 103 and sec. 109 of RSIA, as well as the general responsibility to conduct rail safety rulemakings, codified at 49 U.S.C. 20103, to the Administrator of FRA.
See
49 CFR 1.89(m) and (oo).
The primary component of an RRP would be an ongoing risk-based hazard management program (risk-based HMP), supported by a risk-based hazard analysis. A properly implemented risk-based HMP would identify hazards and the associated risks on the railroad's system, compare and prioritize the identified risks for mitigation purposes, and develop mitigation strategies to address the risks. An RRP would also be required to contain the following additional components: a safety performance evaluation; a safety outreach component; and a technology analysis and technology implementation plan (which would consider various technologies that may mitigate or eliminate identified hazards and the associated risks). A railroad would also be required to provide RRP training to employees who have significant responsibility for implementing and supporting the railroad's RRP.
Implementation of an RRP would be supported by a written risk reduction program plan (RRP plan) describing the railroad's processes and procedures for implementing the requirements for an RRP. An RRP plan would not be required to contain the results of a railroad's risk-based hazard analysis or to describe specific mitigation strategies. An RRP plan would also be required to contain certain elements that support the development of an RRP, such as a policy statement, a statement of the railroad's RRP goals, a description of the railroad's system, and an RRP implementation plan.
An RRP could be successful only if a railroad engaged in a robust assessment of the hazards and associated risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. In sec. 109 of the RSIA, Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad's assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death.
See
49 U.S.C. 20119. FRA contracted with an outside organization to conduct this study, and the study concluded that it was in the public interest to withhold this type of information from these types of proceedings.
See
“Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations for and Against Protecting Railroad Safety Risk Reduction Program Information,” FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011
.
Furthermore, Congress authorized FRA, by delegation from the Secretary, to prescribe a rule, subject to notice and comment, to address the results of the study.
See
49 U.S.C. 20119(b). The proposed rule would address the study's results and set forth protections of certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages.
An RRP could affect almost all facets of a railroad's operations. To ensure that all employees directly affected by an RRP have an opportunity to provide input on the development, implementation, and evaluation of a railroad's RRP, a railroad would be required to consult in good faith and use its best efforts to reach agreement with all of its directly affected employees on the contents of the RRP plan and any amendments to the plan. Guidance regarding what constitutes “good faith” and “best efforts” would be included in proposed Appendix B.
FRA anticipates that a final RRP rule would become effective 60 days after the date of publication. However, by statute, the protection of certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages would not become applicable until one year after the publication of the final rule. Assuming that an SSP final rule could be published before an RRP final rule, FRA would make the SSP information protection provisions applicable to RRP programs as well. This approach would permit a railroad subject to the RRP rule to obtain information protection as soon as possible. A Class I railroad would be required to submit its RRP plan to FRA for review no later than 545 days after the publication date of the final rule. This deadline for submission accounts for the time that must pass before an information protection provision could become applicable. Similarly, railroads with inadequate safety performance or
railroads either reclassified or newly classified by the Surface Transportation Board (STB) as Class I railroads after the effective date of the final rule would not be required to submit RRP plans before the information protection provisions go into effect. These railroads would be required to submit an RRP plan either no later than 90 days after they have either received notification from FRA that they have been determined to have an inadequate safety performance or after the effective date of the STB classification or reclassification, or no later than 545 days after the publication date of the final rule, whichever is later. If an SSP final rule is published before an RRP final rule, permitting the information protection provision of SSP to apply to RRP information, an RRP final rule may require railroads to submit an RRP plan sooner than 545 days after the publication date of the final rule.
Within 90 days of receipt of a railroad's RRP plan, FRA would review the plan and determine whether it meets all the process and procedure requirements set forth in the regulation. FRA will not be reviewing a railroad's risk-based hazard analysis or selection of particular mitigation strategies as part of its RRP plan. If, during the review, FRA determines that the railroad's RRP plan does not comply with the requirements, FRA would notify the railroad of the specific points in which the plan is deficient. The railroad would then have 60 days to correct these deficient points and resubmit the plan to FRA. Whenever a railroad decides to amend its RRP, it would be required to submit an amended RRP plan to FRA for approval and provide a cover letter describing the amendments. A similar approval process and timeline would apply whenever a railroad amends its RRP plan. A railroad should not begin implementing an RRP plan before obtaining FRA approval, as the information protection provisions proposed in this NPRM would not apply to any risk reduction information that was not compiled or collected pursuant to an FRA-approved RRP plan.
The costs for this proposed regulation basically stem from the requirements for each railroad to which this rule would be applicable to have a fully developed and implemented RRP that is supported by an RRP plan. The primary costs come from the development of an ongoing risk-based HMP, the ongoing evaluation of safety performance, and the safety outreach component of the RRP. In addition, there are costs for the development of a technology implementation plan, the consultation process, and internal assessments.
The total cost for this proposed regulation is $18.6 million, undiscounted. The discounted costs over 10 years are $12.7 million, using a 7 percent discount rate, and $15.7 million, using a 3 percent discount rate.
The proposed rule is expected to improve railroad safety on Class I freight railroads by ensuring that railroad accidents/incidents, associated casualties, other railroad-related incidents and workplace injuries decrease through the process of identifying hazards, mitigating the risks associated with those hazards, and decreasing unsafe work practices. Decreases in unsafe behaviors or hazards create a decrease in railroad-related incidents and casualties. The sections of the proposed RRP regulation that contribute most to the potential benefits include improved or more robust safety cultures, hazard identification and risk-based hazard management, allying technology with risk reduction, systemic evaluation of program and mitigation strategy effectiveness, and the protection of information provision in § 271.11.
FRA has performed a break-even analysis for this proposed rule. In this break-even analysis, FRA has estimated the amount of investment (capital expenditure) savings or the decreases in costs stemming from railroad-related incidents (and their associated casualties) for Class I railroads that the proposed rule would need to break even. FRA has found that only a very small improvement in either safety or investment is sufficient to make the proposed rule break-even. The proposed rule would break even if railroad investments improve by less than .006% (6 thousandths of a percent). FRA believes that such an improvement would quite likely result from the adoption and implementation of RRPs by Class I railroads, which would lead to reductions in the (1) number of railroad accidents/incidents and employee injuries; (2) other railroad incidents and related casualties; (3) employee absenteeism; and (4) employee discipline actions.
B. Abbreviations
The following abbreviations are used in this preamble and are collected here for the convenience of the reader:
CFR Code of Federal Regulations
DOT United States Department of Transportation
FMP Fatigue Management Plan
FOIA Freedom of Information Act
FR Federal Register
FRA Federal Railroad Administration
HMP Hazard Management Program
NPRM Notice of Proposed Rulemaking
OST Office of the Secretary, United States Department of Transportation
PTC Positive Train Control
Pub. L. Public Law
RRP Risk Reduction Program
RSAC Railroad Safety Advisory Committee
RSIA Railroad Safety Improvement Act of 2008, Public Law 110-432, Div. A, 122 Stat. 4848
Secretary Secretary of Transportation
SSP System Safety Program
U.S.C. United States Code
II. Background and History
A. What is a risk reduction program?
Risk reduction is a comprehensive, system-oriented approach to improving safety by which an organization formally identifies and analyzes applicable hazards and takes action to mitigate, if not eliminate, the risks associated with those hazards. It provides a railroad with a set of decision making processes and procedures that can help it plan, organize, direct, and control its business activities in a way that enhances safety and promotes compliance with regulatory standards. As such, risk reduction is a form of safety management system, which is a term generally referring to a comprehensive, process-oriented approach to managing safety throughout an organization.
The principles and processes of risk reduction are based on those of safety management systems developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. Safety management systems have evolved through experience to include a multitude of equally important elements without which the organization's safety does not reliably improve. For ease of understanding, these elements are typically grouped into larger descriptive categories. For safety management systems, these descriptive categories include: (1) An organization-wide safety policy; (2) formal methods for identifying hazards, and for prioritizing and mitigating risks associated with those hazards; (3) data collection, data analysis, and evaluation processes to determine the effectiveness of mitigation strategies and to identify emerging hazards; and (4) outreach, education, and promotion of an improved safety culture within the organization.
The requirements of the proposed RRP rule provide a framework for reducing safety risk. While each railroad subject to the proposed rule would be required to develop all required components, the scope and complexity
of those components would vary from one railroad to the next, because of the railroads' differing safety needs, capabilities, and available resources. Because risk reduction is inherently scalable, the burdens imposed by the proposed rule would depend upon the size of a railroad, the type of operations the railroad provides, and the strategies for mitigating risk that the railroad decides to use.
B. Passenger Railroads and System Safety Programs
Risk reduction, as a type of safety management system, is not a new concept to FRA. Specifically, FRA has previously worked with passenger railroads to implement system safety programs (SSP), and has published a separate SSP NPRM for passenger railroads.
See
System Safety Program, 77 FR 55372 (proposed Sep. 7, 2012) (to be codified at 49 CFR part 270). FRA anticipates that an SSP final rule will be published before an RRP final rule.
In 1996, FRA issued Emergency Order No. 20, Notice No. 1 (EO 20), which required, among other things, commuter and intercity passenger railroads to promptly develop interim system safety plans addressing the safety of operations that permit passengers to occupy the leading car in a train.
1
See
61 FR 6876, Feb. 22, 1996. Subsequently, in 1997 APTA and the commuter railroads, in conjunction with FRA and the U.S. DOT, developed the “Manual for the Development of System Safety Program Plans for Commuter Railroads,” to more comprehensively address the safety of these railroad systems. Pursuant to APTA's manual, the existing commuter railroads developed system safety plans, and a triennial audit process for these plans began in early 1998 with FRA's participation. A majority of commuter railroads still participate in APTA's program.
1
FRA issued EO 20 in response to New Jersey Transit (NJT) and Maryland Rail Commuter accidents in early 1996.
FRA has also developed a “Collision Hazard Analysis Guide” to assist passenger rail operators in conducting collision hazard assessments.
2
See
“Collision Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service” (2007), FRA, available at
http://www.fra.dot.gov/eLib/Details/L03191.
The “Collision Hazard Analysis Guide” is based both on MIL-STD-882, discussed below, and the hazard identification/resolution processes described in APTA's “Manual for the Development of System Safety Program Plans for Commuter Railroads.” The “Collision Hazard Analysis Guide” provides a “step-by-step procedure on how to perform hazard analysis and how to develop effective mitigation strategies that will improve passenger rail safety.”
See id.
at 5. Although the “Collision Hazard Analysis Guide” focuses on passenger rail collisions, the techniques described in the guide are also valid for evaluating other hazards or safety issues related to any type of operating system.
See id.
A railroad subject to the requirements of a final RRP rule could use the “Collision Hazard Analysis Guide” as guidance on how to perform a an acceptable hazard analysis.
2
FRA developed the “Collision Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service” following a January 2005 accident in Glendale, CA, in which a Southern California Regional Rail Authority (Metrolink) commuter train derailed after striking an abandoned vehicle left on the tracks. The derailment caused the Metrolink train to collide with trains on both sides of it, a Union Pacific Railroad Company (UP) freight train and another Metrolink train, and resulted in the death of 11 people.
From its experience with the APTA program and the “Collision Hazard Analysis Guide,” FRA has gained substantial knowledge regarding the best methods for developing, implementing, and evaluating SSPs for passenger railroads. This experience is reflected in a recently-published NPRM, developed with the assistance of the Railroad Safety Advisory Committee (RSAC), that would require passenger railroads to develop and implement FRA-approved SSPs.
C. Other Federal Safety Management System Programs
Several Federal agencies have established or proposed safety management system requirements or guidance for regulated entities. For example, the Federal Transit Administration (FTA) has established regulations at 49 CFR part 659 (Rail Fixed Guideway Systems; State Safety Oversight) that implement a Congressional mandate for a program requiring State-conducted oversight of the safety and security of rail fixed guideway systems that are not regulated by FRA.
See
Intermodal Surface Transportation Efficiency Act of 1991, Public Law 102-240, sec. 3029, also codified at 49 U.S.C. 5330; and 60 FR 67034, Dec. 27, 1995.
3
3
FTA's part 659 program applies only to rapid transit systems or portions thereof not subject to FRA's regulations.
See
49 CFR 659.3 and 659.5. FTA amended 49 CFR part 659 in April 2005 to incorporate the experience and insight it had gained regarding the benefits of and recommended practices for implementing State safety oversight requirements.
See
70 FR 22562, Apr. 29, 2005.
The Federal Aviation Administration (FAA) has also published an NPRM proposing to require each certificate holder operating under 14 CFR part 121 to develop and implement a safety management system (SMS).
See
75 FR 68224, Nov. 5, 2010; and 76 FR 5296, Jan. 31, 2011. An SMS “is a comprehensive, process-oriented approach to managing safety throughout the organization.” 75 FR 68224, Nov. 5, 2010. An SMS includes: “an organization-wide safety policy; formal methods for identifying hazards, controlling, and continually assessing risk; and promotion of safety culture.”
Id.
Under FAA's proposed rule, an SMS would have four components: Safety Policy, Safety Risk Management, Safety Assurance, and Safety Promotion.
Id.
at 68225. In addition, the United States Coast Guard has published an NPRM proposing an SMS regulation for towing vessels.
See
76 FR 49976, Aug. 11, 2011. Components similar to those included in both the FAA's SMS regulation as well as the Coast Guard's regulation are found in this RRP rule proposed by FRA.
The U.S. Department of Defense (DoD) has also set forth guidelines for a system safety program. In July 1969, DoD published “System Safety Program Plan Requirements” (MIL-STD-882). MIL-STD-882 is DoD's standard practice for system safety, with the most recent version, MIL-STD-882E, published on May 11, 2012. DoD, MIL-STD-882E, “Department of Defense Standard Practice System Safety” (May 11, 2012). MIL-STD-882 is used by many industries in the U.S., and internationally, and could be useful to a railroad (particularly a smaller railroad with inadequate safety performance) when trying to determine which methods to use to comply with this RRP rule. In fact, MIL-STD-882 is cited in FRA's safety regulations for railroad passenger equipment, 49 CFR part 238, as an example of a formal safety methodology to use in complying with certain analysis requirements in that rule.
See
49 CFR 238.103 and 238.603. Part 238 defines MIL-STD-882 as a standard issued by DoD “to provide uniform requirements for developing and implementing a system safety plan and program to identify and then eliminate the hazards of a system or reduce the associated risk to an acceptable.”
D. Risk Reducing FRA Programs
FRA also has established two voluntary, independent programs that exemplify the philosophy of risk reduction: The Confidential Close Call Reporting System (C3RS) and the Clear Signal for Action (CSA) program. FRA has developed these programs in the
belief that, in addition to process and technology innovations, human factors-based solutions can make a significant contribution to improving safety in the railroad industry.
The FRA C3RS program includes: (1) Voluntary confidential reporting of close-call events by employees; (2) root-cause-analysis problem solving by a Peer Review Team composed of labor, management, and FRA; (3) identification and implementation of corrective actions; (4) tracking the results of change; and (5) reporting the results of change to employees. Confidential reporting and joint labor-management-FRA root-cause problem solving are the most innovative of these characteristics for the railroad industry. Demonstration pilot sites for FRA C3RS are at the Union Pacific Railroad Company (UP), New Jersey Transit, Strasburg Railroad, and the National Railroad Passenger Corporation (Amtrak). An evaluation of one of these demonstration pilot sites indicated that a C3RS program demonstrably resulted in increased safety.
4
See
Ranney, J. and Raslear, T., “Derailments decrease at a C3RS site at midterm,” FRA Research Results: RR12-04, April 2012, available at
http://www.fra.dot.gov/eLib/details/L01321.
4
Additional evaluations will be performed for other demonstration pilot sites as sufficient data become available.
FRA has also implemented the CSA program, another human factors-based solution shown to improve safety. The CSA Program includes: (1) Voluntary peer-to-peer feedback in the work environment on both safe and risky behaviors and conditions (data associated with the program are owned by labor and not disclosed to management); (2) labor Steering Committee root cause analysis and the development of behavior and condition-related corrective actions; (3) Steering Committee implementation of behavior-related corrective actions; (4) joint labor-management Barrier Removal Team refining condition-related corrective actions and implementation; (5) tracking the results of the change; and (6) reporting the results of change to employees. Peer-to-peer feedback on safe and risky behaviors and conditions, root cause analysis, and cooperation between labor and management in corrective actions are the most innovative of these characteristics for the railroad industry. FRA considers the CSA program ready for broad implementation across the industry, as the completion of three demonstration pilots has demonstrated its applicability in diverse railroad work settings. One demonstration pilot covered Amtrak baggage handlers; a second covered UP yard crews; and a third covered UP road crews.
See
Coplen, M. Ranney, J. & Zuschlag, M., “Promising Evidence of Impact on Road Safety by Changing At-risk Behavior Process at Union Pacific,” FRA Research Results: RR08-08, June 2008, available at
http://www.fra.dot.gov/eLib/details/L03483;
Coplen, M. Ranney, J., Wu, S. & Zuschlag, M., “Safe Practices, Operating Rule Compliance and Derailment Rates Improve at Union Pacific Yards with STEEL Process—A Risk Reduction Approach to Safety,” FRA Research Results: RR09-08, May 2009, available at
http://www.fra.dot.gov/eLib/details/L04248.
After the completion of these pilot projects, BNSF Railway Company (BNSF) elected to participate in a peer-to-peer pilot project, and UP elected to develop and implement a system-wide peer-to-peer program modeled in part on the CSA demonstration pilots. Currently, FRA is funding the development of low cost program materials to aid in its distribution starting with passenger rail.
The C3RS and CSA programs embody many of the concepts and principles found in an RRP: Proactive identification of hazards and risks; analysis of those hazards and risks; and implementation of appropriate action to eliminate or mitigate the hazards and risks. While FRA does not intend to require any railroad to implement a C3RS or CSA program as part of its RRP, FRA believes that these types of programs would be useful for a railroad developing an RRP, and encourages railroads to include such programs as part of their RRPs. FRA seeks comment on the extent to which these programs might be useful in the development of an RRP or as a component of an RRP.
III. Statutory Background
A. Rail Safety Improvement Act of 2008
In sec. 103 of the RSIA, Congress directed the Secretary to issue a regulation requiring certain railroads to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program.
See
49 U.S.C. 20156. The Secretary has delegated this responsibility to the FRA Administrator.
See
49 CFR 1.89(oo) (74 FR 26981, Jun. 5, 2009);
see also
49 U.S.C. 103(g). The railroads required to comply with such a regulation include:
(1) Class I railroads;
(2) Railroad carriers with inadequate safety performance, as determined by the Secretary; and
(3) Railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads).
The proposed rule would implement this railroad safety risk reduction mandate for Class I freight railroads and railroads with inadequate safety performance.
See
49 U.S.C. 20156(a)(1). Generally, these railroads would be required to assess and manage risk and develop proactive risk mitigation strategies to promote safety improvement. The proposed rule would also implement the Congressional mandate permitting a railroad not required to develop and implement an RRP to voluntarily submit an RRP plan meeting the requirements of any final RRP rule to FRA for review and approval.
See
49 U.S.C. 20156(a)(4). As proposed, a railroad voluntarily submitting an RRP plan for FRA approval would be required to implement the plan in accordance with FRA's requirements and could be subject to civil penalties for noncompliance. The proposed rule would also implement other specific safety risk reduction program requirements found in sec. 103, such as the requirement that a railroad consult with, employ good faith and use its best efforts to reach agreement with all of its directly affected employees (including any non-profit employee labor organization representing a class or craft of directly affected employees) on the contents of the railroad's RRP plan.
The proposed rule would also respond to sec. 109 of the RSIA, which addresses the protection of information in railroad safety risk analyses.
See
49 U.S.C. 20118. In sec. 109, Congress specified that certain risk reduction records obtained by the Secretary are exempt from the public disclosure requirements of the Freedom of Information Act (FOIA).
See
49 U.S.C. 20118. Section 109 also directed FRA to complete a study evaluating whether it is in the public interest (including public safety and the legal rights of persons injured in railroad accidents) to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a railroad certain risk reduction information, including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks.
See
49 U.S.C. 20119(a). Based upon authority granted by Congress in sec. 109, the proposed rule contains provisions responding to the results of this study, which found that it is in the public interest to protect certain risk reduction information from discovery or admission into evidence in a Federal or
State court proceeding for damages.
See
49 U.S.C. 20119(b). The study and its results will be discussed in greater depth later in this preamble.
B. Related System Safety Rulemaking
A separate SSP rulemaking, as discussed above, would implement the sec. 103 and sec. 109 RSIA mandates for passenger railroads.
See
49 U.S.C. 20156(a). On September 7, 2012, FRA published an NPRM proposing an SSP rule in the
Federal Register
.
See
77 FR 55372. Establishing separate safety risk reduction rules for passenger railroads and the Class I freight railroads
5
would allow these rules to account for significant differences between passenger and freight operations. For example, freight railroads may generate risks uniquely associated with the transportation of hazardous materials. The proposed RRP rule can be specifically tailored to these types of risks, which are not independently generated by passenger railroads.
5
There is only one Class I railroad that also qualifies as a passenger railroad: Amtrak. Amtrak would be required to comply with the proposed requirements of the SSP rule. So long as Amtrak remains in compliance with the requirements of an SSP rule, Amtrak would be deemed to be in compliance with an RRP rule. This same approach will be taken for any passenger railroad that also becomes designated as a Class I railroad.
Some overlap would exist between certain components of the proposed SSP and RRP rules. Most significantly, the RRP and SSP rules would contain essentially identical provisions implementing the consultation requirements of sec. 103(g) and responding to the information protection study mandated under sec. 109 of the RSIA. There was significant discussion during the RRP and SSP RSAC processes on how to implement these provisions of the RSIA. FRA worked with the General Passenger Safety Task Force's System Safety Task Group and the RRP Working Group to receive input regarding how information protection and the consultation process should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. The consultation and information protection provisions proposed in this NPRM, therefore, are essentially identical to those proposed in the 2012 SSP NPRM.
In response to the SSP NPRM, FRA has received a number of comments addressing the proposed consultation and information protection provisions. While FRA intends to discuss these comments further as part of the ongoing RRP and SSP RSAC processes, FRA has decided not to respond to the SSP comments on the consultation and information protection provisions in this NPRM. Any comments submitted to the SSP NPRM regarding these provisions, however, will be considered applicable to the RRP NPRM as well and will be considered before publication of an RRP final rule. Ultimately, FRA anticipates that the consultation and information protection provisions of the SSP and RRP rules will be essentially identical.
Furthermore, FRA intends to make any information protection provision in a final SSP rule applicable to any railroad safety risk reduction program required under chapter II of subtitle B of title 49, Code of Federal Regulations, such as an RRP. When Congress granted FRA authority to issue a rule based upon the results of the study, it also specified that any such rule could not become effective until one year after its adoption.
See
49 U.S.C. 20119(b). Making an SSP information protection provision applicable to any RRP program would allow RRP information to be protected from use in certain litigation sooner. This would allow a railroad subject to the proposed RRP rule to begin developing its RRP earlier, without having to wait an entire year for the information protection provisions to become effective.
In addition to the proposed consultation and information protection sections, some overlap would exist between various other RRP and SSP provisions (
e.g.,
certain definitions, the process for amending plans, etc.). The requirements in this proposed NPRM generally follow those in the SSP NPRM, and do not reflect any comments FRA has received in response to the SSP NPRM. FRA recognizes that drafting proposals on related topics simultaneously can give the appearance of overlapping or duplicative requirements. As these rulemakings progress, we will work to minimize any overlapping or duplicative requirements.
C. Related Fatigue Management Plans Rulemaking
Section 103(f) of the RSIA states that an RRP must include a fatigue management plan meeting certain requirements.
See
49 U.S.C. 20156(d)(2) and 20156(f). This proposed RRP rulemaking does not address this mandate, however, because it is currently being considered by a separate rulemaking process.
On December 8, 2011, the RSAC voted to establish a Fatigue Management Plans Working Group (FMP Working Group). The purpose of the FMP Working Group is to provide “advice regarding the development of implementing regulations for Fatigue Management Plans and their deployment under the Rail Safety Improvement Act of 2008.” “Railroad Safety Advisory Committee Task Statement: Fatigue Management Plans,” Task No.: 11-03, Dec. 8, 2011. (A copy of this statement will be placed in the public docket for this RRP rulemaking.) Specifically, the FMP Working Group is tasked to: “review the mandates and objectives of the [RSIA] related to the development of Fatigue Management Plans, determine how medical conditions that affect alertness and fatigue will be incorporated into Fatigue Management Plans, review available data on existing alertness strategies, consider the role of innovative scheduling practices in the reduction of employee fatigue, and review the existing data on fatigue countermeasures.”
Id.
FRA notes that the RRP Working Group recommended including a placeholder in the proposed RRP rule text that would require a railroad, as part of its RRP, to develop a fatigue management plan no later than three years after the effective date of the final rule, or three years after commencing operations, whichever is later. This placeholder did not contain any additional substantive requirements, however, and was intended merely to be an acknowledgement of the RSIA fatigue management plan mandate. FRA has elected to not include this placeholder; however, because it may create confusion regarding the separate FMP Working Group process and the ongoing fatigue management plans rulemaking. Rather, FRA will address the substantive requirements of the fatigue management plan mandate in the separate rulemaking that FRA has initiated. FRA would approve an RRP plan without the fatigue management plan component prior to the issuance of fatigue management final rule, provided the plan met all other applicable RRP requirements. Until the fatigue management plan final rule is effective, a railroad could use the processes and procedures in its RRP to address fatigue-related issues.
IV. Proceedings to Date
A. Advance Notice of Proposed Rulemaking (ANPRM)
On December 8, 2010, FRA published an ANPRM soliciting public comment on how FRA could best develop and implement a risk reduction regulation based upon the requirements of the RSIA.
See
75 FR 76345-76351.
Comments were due by February 7, 2011.
FRA received 11 written comments in response to the ANPRM from a variety of entities, including railroads, industry organizations, non-profit employee labor organizations, a consulting firm, and a private citizen.
6
Many of the questions and issues raised by commenters were subsequently discussed in depth during the RSAC process. This NPRM, therefore, will contain only a very brief overview of the comments. Written comments submitted in response to the ANPRM are in the public docket for this proceeding and can be viewed and downloaded at
www.regulations.gov.
6
The following 18 entities were signatories to comments in response to the ANPRM: Amtrak; Association of American Railroads (AAR); Association of Railways Museums, Inc. (ARM); American Public Transportation Association (APTA); American Short Line and Regional Railroad Association (ASLRRA); American Train Dispatchers Association (ATDA); Behavioral Science Technology (BST); Brotherhood of Locomotive Engineers and Trainmen (BLET/IBT); Brotherhood of Maintenance of Way Employees Division (BMWED/IBT); Brotherhood of Railroad Signalmen (BRS); Metrolink; New York State Metropolitan Transportation Authority (NYSMTA); Patrick J. Coyle (Chemical Facility Security News); Southern Pennsylvania Transportation Authority (SEPTA); Transport Workers Union of America (TWU); Transportation Communications Union (TCU); Trinity Railway Express; Tourist Railway Association (TRA); and United Transportation Union (UTU).
Many of the ANPRM commenters identified similar issues or questions. Two commenters recommended that FRA develop a performance-based risk reduction rule, in order to encourage railroads to find flexible and creative solutions to safety risks. These commenters also stressed the importance of protecting risk reduction information from disclosure and use in litigation. Other commenters requested clarification on the relationship between risk reduction and system safety, or expressed concerns related to how a risk reduction rule would address issues such as contractors or training requirements. Commenters also provided recommendations on how FRA should identify railroads with inadequate safety performance. Several labor organizations also submitted a joint comment strongly emphasizing the importance of the sec. 103(g) consultation requirements. Issues such as the above were subsequently discussed at length with both industry and labor organization representatives during the RSAC process.
B. Public Hearings
Following publication of the ANPRM and close of the comment period, FRA also held two public hearings that provided interested persons an opportunity to discuss the development of a risk reduction regulation in response to the ANPRM. Interested persons were invited to present oral statements and to proffer information and views at the hearings. The first public hearing was held on July 19, 2011 in Chicago, IL, and the second public hearing was held on July 21, 2011 in Washington, DC.
See
76 FR 40320, July 8, 2011. During the hearings, testimony was given by representatives of the AAR, ASLRRA, Rail World, Inc., and the Teamsters Rail Conference (the BLET/IBT and BMWED/IBT). As with the comments in response to the ANPRM, the hearing testimony focused almost exclusively on topics that continued to be discussed during the RSAC process. Significant topics of discussion included the following: The identification of railroads with inadequate safety performance; the consultation requirements of sec. 103(g); the role of contractors within a railroad's RRP; the information protection study mandated by sec. 109; retention of RRP records; and FRA review of a railroad's RRP. Transcripts of the public hearings are in the public docket for this proceeding and can be viewed and downloaded at
www.regulations.gov.
C. Railroad Safety Advisory Committee (RSAC)
Following the close of the ANPRM comment period and the public hearings, FRA decided that additional input regarding the development of a risk reduction regulation would be beneficial. FRA therefore placed the risk reduction rulemaking into a modified RSAC process, which discussed many of the questions and concerns that appeared in the ANPRM and in responses thereto.
1. Risk Reduction Program (RRP) Working Group
FRA proposed Task No. 11-04 to the RSAC on December 8, 2011. The RSAC accepted the task, and formed the Risk Reduction Program (RRP) Working Group (Working Group) for the purpose of developing and implementing RRP under the RSIA. The Working Group is comprised of members from the following organizations:
• AAR;
7
7
The AAR is comprised of members including the following entities: BNSF Railway Company (BNSF); Canadian National Railway Company (CN); Canadian Pacific Railway (CP); CSX Transportation, Inc. (CSXT); Iowa Interstate Railroad, Ltd. (IAIS); Kansas City Southern (KCS); Metra Electric District; Norfolk Southern Corporation (NS); and UP.
• Amtrak;
• APTA;
• ASLRRA;
• BLET;
• BMWED;
• BRS;
• FRA;
• Long Island Rail Road (LIRR);
• Metro-North Commuter Railroad Company (Metro-North);
• National Association of Railroad Passengers (NARP);
• National Railroad Construction and Maintenance Association;
• National Transportation Safety Board (NTSB);
• SEPTA;
• TRA; and
• UTU.
The Working Group completed its work after four in-person meetings and several conference calls. The first meeting of the Working Group took place on January 31 and February 1, 2012, in Cambridge, Massachusetts. At that meeting the group discussed the appropriate scope of a risk reduction regulation and heard several presentations from stakeholders regarding the requirements of the RSIA and current risk reduction practices on railroads. Subsequent meetings were held in Washington, DC on April 10, 2012; May 16, 2012; and June 13, 2012.
At the April, May, and June meetings, the group discussed a document entitled “Recommendations to the Administrator,” which provided FRA advice to consider in developing a risk reduction rule. The document was updated after each meeting to reflect the Working Group's discussions.
2. Working Group Tentative Agreement Vote
At the conclusion of the Working Group's last meeting on June 13, 2012, the Working Group obtained tentative agreement on the “Recommendations to the Administrator” document. This document did not include advice regarding railroads with inadequate safety performance, as this was developed further during subsequent conference calls. The document was also not put before the full RSAC for vote, and therefore does not represent formal RSAC consensus. FRA utilized the comments and documents from the Working Group when developing the proposed rule text, although it has streamlined and reorganized suggestions from the Working Group in order to make the rule's requirements as clear as possible. FRA has also attempted to note in this NPRM areas in which the proposed rule text substantively differs from the Working Group's suggestions. Ultimately, however, language contained in this proposed rule reflects
the RSIA statutory requirements and the Working Group's tentative agreement on how the requirements should be applied.
V. Railroads With Inadequate Safety Performance
As previously discussed, sec. 103 of the RSIA directs FRA to require railroads with inadequate safety performance (as determined by FRA) to develop and implement an RRP. FRA discussed potential definitions of inadequate safety performance during the April, May, and June 2012 RSAC Working Group meetings, and also conducted several conference calls discussing the issue after the final June 2012 Working Group meeting. These meetings and conference calls developed and refined a general approach to determining inadequate safety performance, and discussed several specific concerns of the ASLRRA, whose member railroads are those most likely to be affected by FRA's approach. For example, participants in the conference calls expressed concerns regarding the need for consistent nationwide application of FRA's approach to determining inadequate safety performance. FRA achieved tentative agreement on the proposed approach, but did not seek consensus.
As a result of these discussions and tentative agreement, FRA developed an annual process, involving two phases, for determining whether a railroad's safety performance may be inadequate. This process would only evaluate railroads that were not already complying with an SSP or RRP rule, including voluntarily-compliant railroads. In the first phase, FRA would conduct a statistical quantitative analysis to determine a railroad's safety performance index, using the three most recent full calendar years' historical data maintained by FRA. The quantitative analysis would utilize the following four factors: (1) Fatalities; (2) FRA reportable injury/illness rate; (3) FRA reportable accident/incident rate; and (4) FRA violation rate. Railroads that had either a fatality, or that were at or above the 95th percentile in at least two of the three other factors (FRA reportable injury/illness, FRA reportable accident/incident, or FRA violation rate), would be further examined in a qualitative assessment. FRA would notify the railroads identified for further examination in a qualitative assessment, and would give them an opportunity to comment and provide evidence explaining why they should or should not be required to develop an RRP. A railroad would also be required to inform its employees that it had received the notification from FRA and that employees could submit confidential comments on the matter directly to FRA. For the second phase of its analysis, FRA would consider the comments from the railroads, and any comments from the railroad's employees, as well as any other pertinent evidence, in a qualitative review of the railroad's safety performance. Following the qualitative review, FRA would notify the affected railroads regarding whether or not they must develop an RRP.
Based on Working Group input and results from the C3RS and CSA projects, FRA also determined appropriate timeframes for compliance, and deadlines for various notices and submissions. A railroad with inadequate safety performance would have to comply with this part 271 for a period of at least five years, after which it could petition FRA for removal from the program. These provisions are discussed further in the section-by-section analysis.
During discussions, the RSAC Working Group advised FRA to allow a railroad with inadequate safety performance to choose to establish either an RRP in compliance with this proposed part 271 or an SSP in compliance with proposed part 270. For reasons discussed further in the section-by-section analysis for § 271.13, FRA has not included this suggestion in the NPRM, but could ultimately include it in a final rule.
VI. Risk Reduction Information Protection
Section 109 of the RSIA (codified at 49 U.S.C. 20118-20119) authorizes FRA to issue a rule protecting risk analysis information generated by railroads. These provisions would apply to information generated by passenger railroads pursuant to the proposed system safety rulemaking and to any railroad safety risk reduction programs required by FRA for Class I railroads and railroads with inadequate safety performance.
As previously discussed, the information protection provisions proposed in this NPRM are essentially identical to provisions in the proposed SSP rule, as there was significant discussion during the SSP and RRP RSAC processes on how to implement this provision of the RSIA. FRA worked with the System Safety Task Group and the Risk Reduction Program Working Group to receive input regarding how information protection should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. While the language proposed in this NPRM does not respond to comments already received in response to the SSP NPRM, FRA will consider comments submitted to both the SSP and RRP NPRMs regarding the information protection provisions when developing an RRP final rule.
A. Exemption From Freedom of Information Act Disclosure
In sec. 109 of the RSIA (codified at 49 U.S.C. 20118-20119), Congress determined that for risk reduction programs to be effective, the risk analyses must be shielded from production in response to Freedom of Information Act (FOIA) requests.
See
49 U.S.C. 20118. FOIA is a Federal statute establishing certain requirements for the public disclosure of records held by Federal agencies.
See
5 U.S.C. 552. Formal rules for making FOIA requests to DOT agencies are set forth in 49 CFR part 7. Generally, FOIA requires a Federal agency to make most records available upon request, unless a record is protected from mandatory disclosure by one of nine exemptions. One of those exemptions, known as Exemption 3, applies to records that are specifically exempted from disclosure by statute, if the statute requires that matters be withheld from the public in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld.
See
5 U.S.C. 552(b)(3) and 49 CFR 7.13(c)(3).
8
8
In 2009, Congress amended 5 U.S.C. 552(b)(3) to require Exemption 3 statutes to specifically cite to sec. 552(b)(3).
See
OPEN FOIA Act of 2009, Public Law 111-83, 123 Stat. 2142, 2184 (Oct. 28, 2009). Because this requirement applies only to statutes enacted after October 29, 2009, however, it does not apply to section 109 of the RSIA, which was enacted in October of 2008.
Section 109(a) of the RSIA specifically provides that a record obtained by FRA pursuant to a provision, regulation, or order related to a risk reduction program or pilot program is exempt from disclosure under FOIA. The term “record” includes, but is not limited to, “a railroad carrier's analysis of its safety risks and its statement of the mitigation measures it has identified with which to address those risks.”
Id.
This FOIA exemption would also apply to records made available to FRA for inspection or copying pursuant to a risk reduction program or pilot program. Section 109(c) also gives FRA the discretion to prohibit the public disclosure of risk analyses or risk mitigation analyses obtained under other FRA regulations if FRA determines that the prohibition of
public disclosure is necessary to promote public safety.
FRA believes that sec. 109 of the RSIA qualifies as an Exemption 3 statute under FOIA. FRA therefore believes that railroad risk reduction records in its possession would generally be exempted from mandatory disclosure under FOIA, unless one of two exceptions provided by the RSIA would apply.
See
49 U.S.C. 20118(a)-(b). The first exception permits disclosure when it is necessary to enforce or carry out any Federal law. The second exception permits disclosure when a record is comprised of facts otherwise available to the public and when FRA, in its discretion, has determined that disclosure would be consistent with the confidentiality needed for a risk reduction program or pilot program.
B. Discovery and Other Use of Risk Analysis Information in Litigation
1. The RSIA Mandate
The RSIA also addressed the disclosure and use of risk analysis information in litigation. Section 109 directed FRA to conduct a study to determine whether it was in the public interest to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any information (including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program.
See
49 U.S.C. 20119(a). In conducting this study, the RSIA required FRA to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public.
See id.
The RSIA also states that upon completion of the study, if in the public interest, FRA may prescribe a rule to address the results of the study (
i.e.,
a rule to protect risk analysis information from disclosure during litigation).
See
49 U.S.C. 20119(b). The RSIA prohibits any such rule from becoming effective until one year after its adoption.
See id.
2. The Study and Its Conclusions
FRA contracted with a law firm, Baker Botts L.L.P., to conduct the study on FRA's behalf. Various documents related to the study are available for review in public docket number FRA-2011-0025, which can be accessed online at
www.regulations.gov.
As a first step, the contracted law firm prepared a comprehensive report identifying and evaluating other Federal safety programs that protect risk reduction information from use in litigation.
See
“Report on Federal Safety Programs and Legal Protections for Safety-Related Information,” FRA, docket no. FRA-2011-0025-0002, April 14, 2011. Next, as required by sec. 109 of the RSIA, FRA published a
Federal Register
notice seeking public comment on the issue of whether it would be in the public interest to protect certain railroad risk reduction information from use in litigation.
See
76 FR 26682, May 9, 2011. Comments received in response to this notice may be viewed in the public docket.
On October 21, 2011, the contracted law firm produced a final report on the study.
See
“Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations For and Against Protecting Railroad Safety Risk Reduction Program Information” (Study), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The final report contained analyses of other Federal programs that protect similar risk reduction data, the public comments submitted to the docket, and whether it would be in the public interest, including the interests of public safety and the legal rights of persons injured in railroad accidents, to protect railroad risk reduction information from disclosure during litigation. The final report concluded that it would be within FRA's authority and in the public interest for FRA to promulgate a regulation protecting certain risk analysis information held by the railroads from discovery and use in litigation and makes recommendations for the drafting and structuring of such a regulation.
See id.
at 63-64.
3. FRA's Proposal
In response to the final study report, this NPRM is proposing to protect any information compiled or collected solely for the purpose of developing, implementing or evaluating an RRP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage. The information protected would include a railroad's identification of its safety hazards, analysis of its safety risks, and its statement of the mitigation measures with which it would address those risks and could be in the following forms or other forms: Plans, reports, documents, surveys, schedules, lists, or data. Additional specifics regarding this proposal will be discussed in the section-by-section analysis of this NPRM.
VII. RRP Plan Consultation Requirements
Section 103(g)(1) of the RSIA states that a railroad required to establish a safety risk reduction program must “consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.” 49 U.S.C. 20156(g)(1). Section 103(g)(2) of the RSIA further provides that if a “railroad carrier and its directly affected employees, including any nonprofit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, cannot reach consensus on the proposed contents of the plan, then directly affected employees and such organizations may file a statement with the Secretary explaining their views on the plan on which consensus was not reached.” 49 U.S.C. 20156(g)(2). The RSIA requires FRA to consider these views during review and approval of a railroad's RRP plan.
FRA is proposing to implement this mandate by requiring each railroad required to establish an RRP to consult with its directly affected employees (using good faith and best efforts) on the contents of its RRP plan. A railroad would have to include a consultation statement in its submitted plan describing how it consulted with its employees. If a railroad and its employees were not able to reach consensus, directly affected employees could file a statement with FRA describing their views on the plan. Additional specifics regarding this proposal are discussed in the section-by-section analysis of this NPRM for proposed §§ 271.207 and 271.209.
As with this NPRM's information protection provisions, the proposed language is essentially identical to provisions proposed in the 2012 SSP NPRM, since there was significant discussion during the SSP and RRP RSAC processes on how to implement this provision of the RSIA. FRA worked with the System Safety Task Group to receive input regarding how the consultation process should be addressed, with the understanding that the same language would be included in both the SSP and RRP NPRMs for review and comment. While the language proposed in this NPRM does not respond to comments already
received in response to the SSP NPRM, FRA will consider comments submitted to both the SSP and RRP NPRMs regarding consultation requirements when developing an RRP final rule.
VIII. Section-by-Section Analysis
FRA proposes to add a new part 271 to chapter 49 of the CFR. Part 271 would satisfy the RSIA requirements regarding safety risk reduction programs for Class I railroads and railroads with inadequate safety performance.
See
49 U.S.C. 20156(a)(1). Part 271 would also protect certain information compiled or collected pursuant to a safety risk reduction program from admission into evidence or discovery during court proceedings for damages.
See
49 U.S.C. 20119.
The proposed rule would require a risk reduction program that is a somewhat streamlined version of a safety management system. To adhere as closely as possible to the requirements of the RSIA, FRA has not proposed to include a number of program and plan components that are common to many safety management systems. For example, FRA is not proposing to include a requirement for a description of the railroad management and organizational structure (including charts or other visual representations), but instead asks for a less specific system description. The RRP plan is also not required to contain a description of the processes and procedures used for maintenance and repair of infrastructure and equipment, rules compliance and procedures review, workplace safety, workplace safety assurance, or public safety outreach. FRA is also not proposing to require an RRP to establish processes ensuring that safety concerns are addressed during the procurement process. As additional examples, a full safety management system would also require: (1) Development and implementation of processes to manage emergencies; (2) processes and procedures for the railroad to manage changes that have a significant effect on railroad safety; (3) processes and permissions for making configuration changes to the railroad; and (4) safety certification prior to initiation of operations or implementation of major projects. The proposed RRP rule does not currently include such requirements. FRA is specifically seeking public comments regarding whether any or all of these elements should be considered essential in order for RRP to function effectively, and requirements for such additional elements may be included in the final rule.
The proposed rule contains various filing and communication requirements. FRA is generally requesting public comment on whether any provision imposing a filing or communication requirement should permit a railroad to comply with that requirement electronically.
Subpart A—General
Subpart A of the proposed rule would contain general provisions, including a formal statement of the rule's purpose and scope, and provisions limiting the discovery and admissibility of certain RRP information.
Section 271.1—Purpose and Scope
Proposed § 271.1 would set forth the purpose and scope of the proposed rule. Paragraph (a) would state that the purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. The proposed rule would require each affected railroad to establish an RRP that systematically evaluates railroad safety hazards on its system and manages the risks generated by those hazards in order to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities. The proposed rule would not require an RRP to address every safety hazard on a railroad's system. For example, rather than identifying every safety hazard on its system, a large railroad could take a more focused and project-specific view of safety hazard identification.
Paragraph (b) would state that the proposed rule prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. A railroad would not be restricted from adopting and enforcing additional or more stringent requirements that are not inconsistent with a rule arising from this proposed rule.
Paragraph (c) would state that the proposed rule protects information generated solely for the purpose of developing, implementing, or evaluating an RRP. FRA may decide not to include this provision in the final rule if an SSP final rule is published significantly before an RRP final rule, so that the SSP information protection provision could be made applicable to RRPs.
Paragraph (d) would contain a clarifying statement indicating that RRPs are not intended to address certain areas of employee safety. While FRA is always concerned with the safety of railroad employees performing their duties, employee safety in maintenance and servicing areas generally falls within the jurisdiction of the United States Department of Labor's Occupational Safety and Health Administration (OSHA). It is not FRA's intent in this rule to displace OSHA's jurisdiction with regard to the safety of employees while performing inspections, tests, and maintenance, except where FRA has already addressed workplace safety issues, such as blue signal protection in 49 CFR part 218. Similar provisions are found in other rules, clarifying that FRA does not intend to displace OSHA's jurisdiction over certain subject matters.
See, e.g.,
49 CFR 238.107(c). FRA requests public comment on whether this statement clearly indicates the relationship between RRPs and OSHA's jurisdiction.
Similarly, while FRA is concerned with environmental damage that could result from the violation of Federal railroad safety laws and regulations, FRA does not intend this rule to address environmental hazards and risks that are unrelated to railroad safety and that would fall within the jurisdiction of the Environmental Protection Agency (EPA). For example, FRA would not expect a railroad's RRP to address environmental hazards regarding particulate emissions from locomotives that otherwise comply with FRA's safety regulations. FRA seeks public comment on whether it is necessary for this section to contain a clarifying statement regarding any such subject matter that this proposed part may affect, whether potentially implicating the jurisdiction of OSHA, EPA, or another agency of the Federal government.
Section 271.3—Application
The RSIA directs FRA to require each Class I railroad, railroad carrier that has inadequate safety performance, and railroad that provides intercity rail passenger or commuter rail passenger transportation to establish a railroad safety risk reduction program.
See
49 U.S.C. 20156(a)(1). This proposed rule sets forth requirements related to a railroad safety risk reduction program for Class I freight railroads and railroads with inadequate safety performance. Safety risk reduction programs for railroads that provide intercity rail passenger or commuter rail passenger transportation are being addressed in a separate SSP rulemaking.
Paragraph (a) would state that, except as provided in paragraph (b) of this section, this part applies to Class I railroads, railroads determined to have inadequate safety performance pursuant to proposed § 271.13, and railroads that voluntarily comply with the part 271 requirements pursuant to § 271.15 (voluntarily-compliant railroads).
FRA proposes to exempt certain railroads from the proposed rule's applicability. The applicability exemptions proposed in paragraphs (b)(1) through (4) are general exemptions found in many FRA regulations. The first exemption, proposed in paragraph (b)(1), would apply to rapid transit operations in an urban area that are not connected to the general railroad system of transportation. Paragraph (b)(1) is intended merely to clarify the circumstances under which rapid transit operations would not be subject to FRA jurisdiction under the proposed rule. It should be noted, however, that some rapid transit type operations, given their links to the general system, are within FRA's jurisdiction, and FRA would specifically intend for part 271 to apply to those rapid transit type operations.
Paragraph (b)(2) proposes an exemption for operations commonly described as tourist, scenic, historic, or excursion service, whether on or off the general railroad system of transportation. Tourist, scenic, historic, or excursion rail operations are defined by proposed § 271.5, and this exemption is consistent with other FRA regulations.
See
49 CFR 227.3(b)(4), 232.3(c)(5), 238.3(c)(3) and 239.3(b)(3). FRA has also proposed to exempt tourist operations, whether on or off the general railroad system of transportation, from the proposed SSP rule. It should be noted, however, that this exemption would not cover any freight operations conducted by a railroad that also performed tourist operations. A railroad with both freight and tourist operations may be required to establish an RRP covering the freight operations if the railroad is determined to have inadequate safety performance. The railroad's tourist operations would also have to be addressed by the RRP to the extent that they created hazards affecting the freight operations. If the tourist operations are conducted by a separate entity, they would have to be addressed by a railroad's RRP as required by proposed § 271.101(d), which would require a railroad to ensure that any persons utilizing or providing safety-sensitive services support and participate in the railroad's RRP. FRA specifically requests public comment on this exemption and how an RRP final rule should address tourist operations that may create hazards for freight operations.
Paragraph (b)(3) would clarify that the requirements of the proposed rule do not apply to the operation of private passenger train cars, including business or office cars and circus train cars. While FRA believes that a private passenger car operation should be held to the same basic level of safety as other passenger train operations, such operations were not specifically identified in the RSIA mandate, and FRA is taking into account the potential burden that would be imposed by requiring private passenger car owners and operators to conform to the requirements of this part. FRA is also proposing to exempt private passenger train cars from the SSP rule, which would implement the RSIA mandate for passenger railroads.
Paragraph (b)(4) proposes an exemption for railroads that operate only on track inside an installation that is not part of the general railroad system of transportation (
i.e.,
plant railroads, as defined in § 271.5). Plant railroads are typified by operations such as those in steel mills that do not go beyond the plant's boundaries and that do not involve the switching of rail cars for entities other than themselves. Generally, safety issues on a plant railroad are factually unique, limited to a single operation, and can be addressed with targeted safety measures. An RRP is designed to address systemic safety issues on a railroad's operations through proactive processes and procedures. Due to the difference in the type of safety issues plant railroads typically encounter and the complexity of safety issues an RRP is designed to address, plant railroads are exempt from implementing an RRP.
Paragraph (b)(5) would exempt from the proposed RRP rule any commuter or intercity passenger railroad that is already subject to an FRA SSP rule. As RRP and SSP rules would both implement the RSIA mandate for railroad safety risk reduction programs, FRA believes that requiring a commuter or intercity passenger railroad to maintain two separate safety risk reduction programs would be an unnecessary and duplicative burden. FRA is therefore proposing to exempt commuter or intercity passenger railroads required to comply with the SSP rule from the RRP rule's requirements. Railroads should note that this proposal would not exempt freight operations conducted by another railroad on the same track as a commuter or intercity passenger railroad. A railroad with both freight and passenger operations would be required to account for its freight operations in its SSP. FRA is specifically requesting public comment on this proposal and may elect in the final rule to require railroads with both freight and passenger operations to implement both an RRP and SSP, or to implement an RRP accounting for passenger operations.
Section 271.5—Definitions
Proposed § 271.5 would contain a set of definitions clarifying the meaning of important terms used in the proposed rule. The proposed definitions are carefully worded in an attempt to minimize potential misinterpretation of the regulations. FRA requests public comment regarding the terms defined in this section and whether other terms should also be defined.
“Accident/incident” means (1) any impact between railroad on-track equipment and a highway user (including automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, pedestrians, and all other modes of surface transportation motorized and un-motorized, at a highway-rail grade crossing); (2) any collision, derailment, fire, explosion, act of God, or other event involving operation of railroad on-track equipment (standing or moving) that results in reportable damages greater than the current reporting threshold identified in 49 CFR part 225 to railroad on-track equipment, signals, track, track structures, and roadbed; and (3) each death, injury, or occupational illness that is a new case and meets the general reporting criteria listed in 49 CFR 225.19(d)(1) through (6) if any event or exposure arising from the operation of a railroad is a discernible cause of a significant aggravation to a pre-existing injury or illness. Regarding item (3), the event or exposure arising from the operation of a railroad need only be one of the discernible causes; it need not be the sole or predominant cause. The proposed definition is identical to the definition for “accident/incident” contained in FRA's accident/incident reporting regulations at 49 CFR part 225.
“Administrator” means the Administrator of the Federal Railroad Administration or his or her delegate.
“FRA” means the Federal Railroad Administration.
“FRA Associate Administrator” means the Associate Administrator for Railroad Safety/Chief Safety Officer, Federal Railroad Administration, or the Associate Administrator's delegate.
“Fully implemented” means that all RRP elements, as described in an RRP plan, have been established and applied to the safety management of the railroad.
“Hazard” means any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. Because the proposed definition would be limited to hazards
identified in a railroad's risk-based hazard analysis, discussed in proposed § 271.103, this would include hazards related to “infrastructure; equipment; employee levels and work schedules; operating rules and practices; management structure; employee training; and other areas impacting railroad safety that are not covered by railroad safety laws or regulations or other Federal laws or regulations.” FRA does not intend this definition to include hazards that are completely unrelated to railroad safety and that would fall exclusively under the jurisdiction of either OSHA or the EPA. The proposed definition is identical to the SSP NPRM's proposed definition for “hazard” and is based on an existing definition of the term found in 49 CFR part 659, which contains FTA's regulations regarding system safety program plans.
See
49 CFR 659.5. The RSAC RRP Working Group advised FRA to specify that the “system” referenced by the definition of “hazard” was a “safety system.” FRA decided not to follow this suggestion, however, in order to maintain consistency between the proposed RRP and SSP rules. FRA also believes that the descriptor “safety” would improperly limit the scope of the proposed definition. An RRP should address hazards that could result in damage or loss to any system related to the railroad's operations, and not merely safety systems.
“Inadequate safety performance” means safety performance that FRA has determined to be inadequate based on the analysis described in proposed § 271.13.
“Mitigation strategy” means an action or program to reduce or eliminate the risk generated by a hazard.
“Person” means an entity of any type covered under 1 U.S.C. 1, including, but not limited to, the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor or subcontractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor or subcontractor.
“Pilot project” means a limited scope project used to determine whether quantitative proof suggests that a particular system or mitigation strategy has potential to succeed on a full-scale basis.
“Plant railroad” means a type of operation that has traditionally been excluded from the application of FRA regulations because it is not part of the general railroad system of transportation. Under § 271.3, FRA has chosen to exempt plant railroads, as defined in this proposed section, from the proposed rule. In the past, FRA has not defined the term “plant railroad” in other regulations that it has issued because FRA assumed that its “Statement of Agency Policy Concerning Enforcement of the Federal Railroad Safety Laws, The Extent and Exercise of FRA's Safety Jurisdiction”, 49 CFR part 209, Appendix A (FRA's Policy Statement or the Policy Statement), provided sufficient clarification as to the definition of that term. However, it has come to FRA's attention that certain rail operations believed that they met the characteristics of a plant railroad, as set forth in the Policy Statement, when, in fact, their rail operations were part of the general railroad system of transportation (general system) and therefore did not meet the definition of a plant railroad. FRA would like to avoid any confusion as to what types of rail operations qualify as plant railroads. FRA would also like to save interested persons the time and effort needed to cross-reference and review FRA's Policy Statement to determine whether a certain operation qualifies as a plant railroad. Consequently, FRA has decided to define the term “plant railroad” in this part 271.
The proposed definition would clarify that when an entity operates a locomotive to move rail cars in service for other entities, rather than solely for its own purposes or industrial processes, the services become public in nature. Such public services represent the interchange of goods, which characterizes operation on the general system. As a result, even if a plant railroad moves rail cars for entities other than itself
solely on its property,
the rail operations will likely be subject to FRA's safety jurisdiction because those rail operations bring plant trackage into the general system.
The proposed definition of the term “plant railroad” is consistent with FRA's longstanding policy that it will exercise its safety jurisdiction over a rail operation that moves rail cars for entities other than itself because those movements bring the track over which the entity is operating into the general system.
See
49 CFR part 209, Appendix A. Indeed, FRA's Policy Statement provides that “operations by the plant railroad indicating it [i]s moving cars on . . . trackage for other than its own purposes (
e.g.,
moving cars to neighboring industries for hire)” brings plant track into the general system and thereby subjects it to FRA's safety jurisdiction. 49 CFR part 209, Appendix A. Additionally, this interpretation of the term “plant railroad” has been upheld in litigation before the U.S. Court of Appeals for the Fifth Circuit.
See Port of Shreveport-Bossier
v.
Federal Railroad Administration,
No. 10-60324 (5th Cir. 2011) (unpublished per curium opinion).
“Positive train control” means a system designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position, as described in subpart I of 49 CFR part 236.
“Railroad” means: (1) Any form of non-highway ground transportation that runs on rails or electromagnetic guideways, including—
(i) Commuter or other short-haul rail passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and
(ii) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads, but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation; and
(2) A person or organization that provides railroad transportation, whether directly or by contracting out operation of the railroad to another person.
The definition of “railroad” is based upon 49 U.S.C. 20102(1) and (2), and encompasses any person providing railroad transportation directly or indirectly, including a commuter rail authority that provides railroad transportation by contracting out the operation of the railroad to another person, as well as any form of non-highway ground transportation that runs on rails or electromagnetic guideways, but excludes urban rapid transit not connected to the general system.
“Risk” means the combination of the probability (or frequency of occurrence) and the consequence (or severity) of a hazard.
“Risk-based HMP” means a risk-based hazard management program.
“Risk reduction” means the formal, top-down, organization-wide approach to managing safety risk and assuring the effectiveness of safety risk mitigation strategies. It includes systematic procedures, practices, and policies for the management of safety risk.
“RRP” means a Risk Reduction Program.
“RRP plan” means a Risk Reduction Program plan.
“Safety culture” means the shared values, actions, and behaviors that demonstrate a commitment to safety over competing goals and demands. FRA is proposing this definition because the RSIA requires a railroad's RRP to address safety culture.
See
49 U.S.C. 20156(c). Because there was significant discussion in the RRP Working Group as to whether this definition was needed, however, FRA specifically requests public comment on the necessity and content of the proposed definition.
The proposed “safety culture” definition was discussed in the section-by-section analysis of the SSP NPRM.
See
77 FR 55382. This definition is based on a research paper published by the DOT Safety Council.
See
U.S. Dep't of Transp., Safety Council, “Safety Culture: A Significant Driver Affecting Safety in Transportation 2” (2011), available at
http://safetycouncil.dot.gov/publications/safety-research-paper.pdf.
The DOT Safety Council developed this definition after extensive review of definitions used in a wide range of industries and organizations over the past two decades.
FRA acknowledges that this proposed definition is different than the one recommended by the RRP Working Group, and that railroads may have a different understanding of what constitutes safety culture. During RRP Working Group discussions, for example, some participants expressed the concern that the language “over competing goals and demands” would require a railroad to make safety the ultimate priority to the exclusion of all other concerns, without providing flexibility for a railroad to balance the concerns of profit and efficiency. FRA believes it is important, however, to utilize in this rule a definition that has been formulated by the DOT Safety Council. Furthermore, the proposed definition would not require a railroad to always prioritize safety concerns over competing goals and demands (
i.e.,
it would not require a railroad to have a perfect safety culture). Rather, the definition merely expresses how a safety culture can be evaluated by measuring the extent to which a railroad emphasizes safety over competing goals and demands, without imposing any such requirement.
“Safety performance” means a realized or actual safety accomplishment relative to stated safety objectives.
“Safety outreach” means the communication of safety information to support the implementation of an RRP throughout a railroad.
“Senior management” means personnel at the highest level of a railroad's management who are responsible for making major policy decisions and long-term business plans regarding the operation of the railroad.
“STB” means the Surface Transportation Board of the United States.
“Tourist, scenic, historic, or excursion operations” means railroad operations that carry passengers, often using antiquated equipment, with the conveyance of the passengers to a particular destination not being the principal purpose. Train movements of new passenger equipment for demonstration purposes are not tourist, scenic, historic, or excursion operations. This definition is consistent with FRA's other regulations.
See
49 CFR 238.5 and 239.5.
The RSAC RRP Working Group recommended including definitions for the following terms: safety performance index and safety performance threshold. FRA determined that these definitions did not provide any additional clarity and were unnecessary. FRA requests public comment regarding whether any of these definitions or any other definitions should be added to the final rule.
Section 271.7—Waivers
Proposed § 271.7 would explain the process for requesting a waiver from a provision of the rule. FRA has historically entertained waiver petitions from parties affected by an FRA regulation. In reviewing such requests, FRA conducts investigations to determine if a deviation from the general regulatory criteria is in the public interest and can be made without compromising or diminishing railroad safety.
The rules governing the FRA waiver process are found in 49 CFR part 211. In general, these rules state that after a petition for a waiver is received by FRA, a notice of the waiver request is published in the
Federal Register
, an opportunity for public comment is provided, and an opportunity for a hearing is afforded the petitioning or other interested party. After reviewing information from the petitioning party and others, FRA would grant or deny the petition. In certain circumstances, conditions may be imposed on the grant of a waiver if FRA concludes that the conditions are necessary to assure safety or if they are in the public interest, or both.
Section 271.9—Penalties and Responsibility for Compliance
Proposed § 271.9 would contain provisions regarding the proposed penalties for failure to comply with the proposed rule and the responsibility for compliance.
Paragraph (a) would identify the civil penalties that FRA may impose upon any person that violates or causes a violation of any requirement of the proposed rule. These penalties would be authorized by 49 U.S.C. 20156(h), 21301, 21302, and 21304. The proposed penalty provision parallels penalty provisions included in numerous other safety regulations issued by FRA. Essentially, any person that violates any requirement of the rule arising from this rulemaking or causes the violation of any such requirement would be subject to a civil penalty of at least $650 and not more than $25,000 per violation. Civil penalties would be assessed against individuals only for willful violations. Where a grossly negligent violation or a pattern of repeated violations creates an imminent hazard of death or injury to individuals, or causes death or injury, a penalty not to exceed $105,000 per violation could be assessed. In addition, each day a violation continues would constitute a separate offense. Maximum penalties of $25,000 and $105,000 are required by the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 28 U.S.C. 2461, note, as amended by the Debt Collection Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-373 (April 26, 1996), which requires each agency to regularly adjust certain civil monetary penalties in an effort to maintain their remedial impact and promote compliance with the law. Furthermore, a person could be subject to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully falsifying reports required by these regulations. FRA believes that the inclusion of penalty provisions for the failure to comply with the regulations is important in ensuring that compliance is achieved. The proposed rule does not include a schedule of civil penalties, but a final rule would contain such a schedule.
Proposed paragraph (b) would clarify that any person, including but not limited to a railroad, contractor, or subcontractor for a railroad, or a local or state governmental entity that performs any function covered by the proposed rule, must perform that function in accordance with the requirements of part 271.
Section 271.11—Discovery and Admission as Evidence of Certain Information
As discussed in section VI of the preamble, above, an RSIA-mandated study by FRA concluded that it is in the public interest to protect certain information generated by railroads from discovery or admission into evidence in litigation. Section 109 of the RSIA provides FRA with the authority to promulgate a regulation if FRA determines that it is in the public interest, including public safety and the legal rights of persons injured in railroad accidents, to prescribe a rule that addresses the results of the study.
Following the issuance of the study, the RSAC met and reached consensus on recommendations regarding the discovery and admissibility of information for the proposed SSP rule, with the understanding that an identical provision would be included in a proposed RRP rule. RSAC recommended that FRA issue a rule that would protect documents generated solely for the purpose of developing, implementing, or evaluating an RRP from: (1) Discovery, or admissibility into evidence, or considered for other purposes in a Federal or State court proceeding for damages involving property damage, personal injury, or wrongful death; and (2) State discovery rules and sunshine laws that could be used to require the disclosure of such information. As previously discussed in section III.B of the preamble, FRA published an SSP NPRM on September 7, 2012, and the information protection language contained in this RRP NPRM is essentially identical to that proposed by the SSP NPRM.
See
77 FR 55390-55392. While this RRP NPRM does not respond to comments already received in response to the SSP NPRM, FRA will consider comments submitted to both the SSP and RRP NPRMs regarding the information protection provisions when developing an RRP final rule.
Also, sec. 109 of the RSIA mandates that the effective date of a rule prescribed pursuant to that section must be one year after the publication of that rule. FRA believes that the public interest considerations for the protections in § 271.11 are the same for the SSP rule for passenger railroads. Therefore, assuming that an SSP final rule might be published before an RRP final rule, FRA would likely make the SSP information protection provisions applicable to RRP programs as well. The effect of this proposal is that the information protection for RRP would become applicable one year after publication of an SSP final rule, permitting a railroad subject to the RRP rule to obtain information protection as soon as possible. FRA requests public comment regarding this approach.
In this § 271.11, FRA proposes discovery and admissibility protections that are based on the study's results and the RSAC recommendations. FRA modeled this proposed section after 23 U.S.C. 409. In sec. 409, Congress enacted statutory protections for certain information compiled or collected pursuant to Federal highway safety or construction programs.
See
23 U.S.C. 409. Section 409 protects both data compilations and raw data. A litigant may rely on sec. 409 to withhold certain documents from a discovery request, in seeking a protective order, or as the basis to object to a line of questioning during a trial or deposition. Section 409 extends protection to information that may never have been in any Federal entity's possession.
Section 409 was enacted by Congress in response to concerns raised by the States that compliance with the Federal road hazard reporting requirements could reveal certain information that would increase the States' risk of liability. Without confidentiality protections, States feared that their “efforts to identify roads eligible for aid under the Program would increase the risk of liability for accidents that took place at hazardous locations before improvements could be made.”
Pierce County
v.
Guillen,
537 U.S. 129, 133-34 (2003) (citing H.R. Doc. No. 94-366, p. 36 (1976)).
In
Guillen,
the Court considered the application of sec. 409 to documents created pursuant to the Hazard Elimination Program, which is a Federal highway program that provides funding to State and local governments to improve the most dangerous sections of their roads.
Id.
at 133. To be eligible for the program, the State or local government must (1) maintain a systematic engineering survey of all roads, with descriptions of all obstacles, hazards, and other dangerous conditions; and (2) create a prioritized plan for improving those conditions.
Id.
The Court held that sec. 409 protects information actually compiled or collected by any government entity for the purpose of participating in a Federal highway program, but does not protect information that was originally compiled or collected for purposes unrelated to the Federal highway program, even if the information was at some point used for the Federal highway program.
Guillen
at 144. The Court took into consideration Congress's desire to make clear that the Hazard Elimination Program “was not intended to be an effort-free tool in litigation against state and local governments.”
Id.
at 146. However, the Court also noted that the text of sec. 409 “evinces no intent to make plaintiffs worse off than they would have been had section 152 [Hazard Management Program] funding never existed.”
Id.
The Court also held that sec. 409 was a valid exercise of Congress's powers under the Commerce Clause because sec. 409 “can be viewed as legislation aimed at improving safety in the channels of commerce and increasing protection for the instrumentalities of interstate commerce.”
Id.
A comparison of the text of sec. 409 with sec. 109, which was added to the U.S. Code by the RSIA, shows that Congress used similar language in both provisions. Given the similar language and concept of the two statutes, and the Supreme Court's expressed acknowledgement of the constitutionality of sec. 409, FRA views sec. 409 as an appropriate model for proposed § 271.11.
FRA proposes that under certain circumstances, information (including plans, reports, documents, surveys, schedules, lists, or data) would not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding for damages. This information may not be used in such litigation for any purpose when it is compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP, including the railroad's analysis of its safety risks conducted pursuant to proposed § 271.103(b) and any identification of the mitigation measures with which it would address those risks pursuant to proposed § 271.103(c). Proposed § 271.11(a) applies to information that may not be in the Federal government's possession; rather, it may be information the railroad has as part of its RRP but would not be required to provide to the Federal government under this part.
The RSIA identifies reports, surveys, schedules, lists, and data as the forms of information that should be included as part of FRA's Study.
See
49 U.S.C. 20119(a). However, FRA does not necessarily view this as an exclusive list. In the statute, Congress directed FRA to consider the need for protecting information that includes a railroad's analysis of its safety risks and its statement of the mitigation measures with which it would address those risks. Therefore, FRA deems it necessary to include “documents” and “plans” in this proposed provision to effectuate Congress' directive in sec. 109 of the
RSIA. Notwithstanding, FRA does not propose protecting all documents and plans that are part of an RRP. Rather, as proposed in § 271.11(a), the document has to be “compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP under this part.” The meaning of “compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP under this part” is discussed below.
As discussed previously, the proposed regulation would require a railroad to implement its RRP through an RRP plan. While the railroad will not provide in the RRP plan that it submits to FRA the results of the risk-based hazard analysis and the specific mitigation strategies it will be implementing, its own RRP plan may contain this information while it is in the possession of the railroad. Therefore, to adequately protect this type of information, the term “plan” is added to cover a railroad's RRP plan and any hazard elimination or mitigation plans.
It is important to note that these proposed protections will only extend to information (including plans, reports, documents, surveys, schedules, lists, or data) that is “compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP.” The term “compiled and collected” is taken directly from the RSIA. FRA recognizes that railroads may be reluctant to compile or collect extensive and detailed information regarding the safety hazards and associated risks on their system if this information could potentially be used against them in litigation. The term “compiles” refers to information that is generated by the railroad for the purposes of an RRP; whereas the term “collected” refers to information that is not necessarily generated for the purposes of the RRP, but is assembled in a collection for use by the RRP. It is important to note that the collection is protected; however, each separate piece of information that is not originally compiled for use by the RRP remains subject to discovery and admission into evidence subject to any other applicable provision of law or regulation.
The information has to be compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. The use of the term “solely” means that the original purpose of compiling or collecting the information is exclusively for the railroad's RRP. A railroad cannot compile or collect the information for one purpose and then try to use proposed paragraph (a) to protect that information simply because it also uses that information for its RRP. The railroad's original and primary purpose of compiling or collecting the information must be for developing, implementing, or evaluating its RRP in order for the protections to be extended to that information.
Information a railroad had previously compiled or collected for non-RRP purposes would also not be protected, even if the railroad continued to compile or collect that information as part of its RRP. This is because RSIA limits the protections to information that is compiled or collected pursuant to a risk reduction program required by the statute; therefore, the proposed protections cannot be extended to information that was compiled or collected prior to the proposed rule because that information was not collected pursuant to a risk reduction program required by RSIA. As discussed above, when interpreting section 409, the Supreme Court held that there is no reason to interpret the protections as protecting information plaintiffs would have been free to obtain prior to the enactment of the Hazard Elimination Program. Consistent with the Court's ruling in
Guillen,
the proposed protections would not protect information that plaintiffs would have been free to obtain prior to the enactment of the proposed rule.
Furthermore, a single type of record, plan, document, etc., could contain both information that would be protected under the proposed provision and information that would not be protected. In other words, an entire railroad document or record would not be protected simply because it contained a single piece of information that was protected. For example, if a railroad began collecting a new type of information as part of its accident investigations, and that information was being collected solely for the purpose of developing, implementing, or evaluating its RRP, that specific information would be protected. The information that had been historically collected as part of the railroad's accident investigation program, however, would remain unprotected. FRA stresses that the intent of the proposed provisions is to leave neither railroads nor plaintiffs worse off than before the implementation of an RRP rule.
Additionally, if the railroad is required by another provision of law or regulation to collect the information, the protections of proposed paragraph (a) do not extend to that information because it is not being compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. For example, information that a railroad must compile pursuant to FRA's accident/incident reporting regulations would not be protected.
The information protections would also not apply to information generated by safety risk reduction programs that do not fully comply with all the requirements of a final RRP rule. Section 109 extends protection to information generated by a safety risk reduction program that includes all the required elements of an RRP; a program that includes one or more, but not all, of the required elements of an RRP would not satisfy these statutory requirements. For example, FRA supports the development of the Short Line Safety Institute (
see http://www.fra.dot.gov/eLib/details/L15890
) to promote the safety of short line and regional railroad operations, information generated by such an institute as part of a short line or regional railroad's risk reduction program would only be protected if: (1) The railroad uses the information generated by the institute in a fully-implemented RRP, and (2) that information meets the other requirements in § 109 to receive protection. It is important to note, however, that RRP is scalable by design. Full compliance with the RRP regulation by a short line or regional railroad is therefore not likely to be as complex and comprehensive as it would be for a larger railroad, and a short line or regional railroad that voluntarily complies with an RRP final rule will receive information protection. FRA therefore believes it would be both unnecessary and not authorized by the RSIA to extend the proposed information protection provisions to safety risk reduction programs that did not fully comply with a final RRP rule. FRA invites public comment on this approach.
The information must be compiled or collected solely for the purpose of developing, implementing, or evaluating an RRP. These three terms are taken directly from the RSIA. They cover the necessary uses of the information compiled or collected solely for the RRP. To develop an RRP, a railroad will need to conduct a risk-based hazard analysis to evaluate and identify the safety hazards and associated risks on its system. This type of information is essential and is information that a railroad does not necessarily already have. In order for the railroad to conduct a robust risk-based hazard analysis to develop its RRP, the protections from discovery and admissibility are extended to the RRP development stage. Based on the information generated by the risk-based
hazard analysis, the railroad would implement measures to mitigate or eliminate the risks identified. To properly implement these measures, the railroad will need the information regarding the hazards and risks on the railroad's system identified during the development stage. Therefore, the protection of this information is extended to the implementation stage. Finally, the railroad would be required to evaluate whether the measures it implements to mitigate or eliminate the hazards and risks identified by the risk-based hazard analysis are effective. To do so, it will need to review the information developed by the risk-based hazard analysis and the methods it has used to implement the elimination/mitigation measures. The use of this information in the evaluation of the railroad's RRP is protected.
The proposed protections would not apply to the fact that a railroad ultimately implemented a particular mitigation strategy, although the protections would apply to the information informing the railroad's decision as part of its RRP. For example, a railroad may elect to implement a new type of technology, such as new track inspection vehicles, as part of its technology implementation plan. Once the railroad is using these new track inspection vehicles, the fact that the railroad is using them is not protected by the proposed provision, as the track inspection vehicles are now serving a purpose other the development, implementation, or evaluation of the railroad's RRP (
i.e.,
they are being used for railroad operational purposes). The manner in which the railroad is using these track inspection vehicles would also not necessarily be protected (
e.g.,
is the railroad operating the track inspection vehicles properly?). Information from the technology analysis and technology implementation plan regarding the adopted track inspection vehicles, however, would remain protected. For example, an analysis of the track inspection vehicles' likely effectiveness in mitigating an identified hazard, as opposed to other mitigation strategies, would remain protected, as would any analyses regarding investment decisions related to the vehicles as opposed to alternative mitigations. Information regarding other technologies that had been analyzed but were not selected as mitigation strategies would also be protected. Information regarding the track inspection vehicles' ultimate effectiveness in addressing the identified hazard and risk would also be protected. FRA specifically requests public comment on this discussion.
The information covered by this proposed section shall not be subject to discovery, admitted into evidence, or considered for other purposes in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. The protections apply to discovery, admission into evidence, or consideration for others purposes. The first two situations come directly from the RSIA; however, FRA determined that for the protections to be effective they must also apply to any other situation where a litigant might try to use the information in a Federal or State court proceeding that involves a claim for damages involving personal injury, wrongful death, or property damage. For example, under proposed § 271.11, a litigant would be prohibited from admitting into evidence a railroad's risk-based hazard analysis. However, without the additional language, the railroad's risk-based hazard analysis could be used by a party for the purpose of refreshing the recollection of a witness or by an expert witness to support an opinion. The additional language, “or considered for other purposes,” ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective hazard elimination or mitigation measures, the protections should be extended to any use in a proceeding.
FRA further notes that this proposed section applies to Federal or State court proceedings that involve a claim for damages involving personal injury, wrongful death, or property damage. This means, for example, if a proceeding has a claim for personal injury and a claim for property damage, the protections are extended to that entire proceeding; therefore, a litigant cannot use any of the information protected by this section as it applies to either the personal injury or property damage claim. While sec. 109 of the RSIA only required the study to consider proceedings that involve a claim for damages involving personal injury or wrongful death, the RSAC (which includes both railroad and labor representation) recommended that FRA extend the information protection provisions to proceedings involving claims for property damage as well.
FRA believes it is advisable to follow this RSAC recommendation because extending the proposed information protections to property damage claims is consistent with the goal of encouraging railroads to engage in a robust and candid hazard analysis and to develop meaningful mitigation measures. The typical railroad accident resulting in injury or death also involves some form of property damage. Without protecting proceedings that involve a claim for property damage, a litigant could bring two separate claims arising from the same incident in two separate proceedings, the first for property damages and the second one for personal injury or wrongful death, and be able to conduct discovery regarding the railroad's risk analysis and to introduce this analysis in the property damage proceeding but not in the personal injury or wrongful death proceeding. This means that a railroad's risk analysis could be used against the railroad in a proceeding for damages. If this is the case, a railroad will be hesitant to engage in a robust and candid hazard analysis and develop meaningful mitigation measures. FRA also believes that expanding the information protection provisions to property damage claims would be supported by the same considerations underlying the study's conclusion that protecting risk reduction information from use in civil litigation claims for personal injuries or wrongful death would serve the broader public interest. FRA's proposed approach would also mitigate potential confusion from the application of different discovery and evidential standards for personal injury, wrongful death, and property damage claims all potentially arising from the same event.
Proposed paragraph (b) would ensure that the proposed protections set forth in paragraph (a) do not extend to information compiled or collected for a purpose other than that specifically identified in paragraph (a). This type of information shall continue to be discoverable, admissible into evidence, or considered for other purposes if it was discoverable, admissible, or considered for other purposes prior to the existence of this section. This includes information compiled or collected for a purpose other than that specifically identified in paragraph (a) that either: (1) Existed prior to 365 days after the publication date of a final rule; (2) was compiled or collected prior to 365 days after the publication date of a final rule and continues to be compiled or collected; or (3) is compiled and collected after 365 days after the publication date of a final rule. Proposed paragraph (b) affirms the
intent behind the use of the term “solely” in paragraph (a), in that a railroad could not compile or collect information for a different purpose and then expect to use paragraph (a) to protect that information just because the information is also used in its RRP. If the information was originally compiled or collected for a purpose unrelated to the railroad's RRP, then it is unprotected and would continue to be unprotected.
Examples of the types of information that proposed paragraph (b) applies to may be records related to prior incidents/accidents and reports prepared in the normal course of business (such as inspection reports). Generally, this type of information is often discoverable, may be admissible in Federal and State proceedings, or considered for other purposes, and should remain discoverable, admissible, or considered for other purposes where it is relevant and not unduly prejudicial to a party after the implementation of this part. However, FRA recognizes that evidentiary decisions are based on the facts of each particular case; therefore, FRA does not intend this to be a definitive and authoritative list. Rather, FRA merely provides these as examples of the types of information that paragraph (a) is not intended to protect.
Proposed paragraph (c) clarifies that a litigant cannot rely on State discovery rules, evidentiary rules, or sunshine laws that could be used to require the disclosure of information that is protected by paragraph (a). This provision is necessary to ensure the effectiveness of the Federal protections established in paragraph (a) in situations where there is a conflict with State discovery rules or sunshine laws. The concept that Federal law takes precedence where there is a direct conflict between State and Federal law should not be controversial as it derives from the constitutional principal that “the Laws of the United States . . . shall be the supreme Law of the Land.” U.S. Const., Art. VI. Additionally, FRA notes that 49 U.S.C. 20106 is applicable to this section, as FRA's study concluded that a rule “limiting the use of information collected as part of a railroad safety risk reduction program in discovery or litigation” furthers the public interest by “ensuring safety through effective railroad safety risk reduction program plans.”
See
Study at 64. FRA concurs in this conclusion. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to sec. 20106.
Section 271.13—Determination of Inadequate Safety Performance
Proposed § 271.13 would describe FRA's methodology for determining which railroads must comply with this part because they have inadequate safety performance. Overall, this section describes how FRA's analysis would have two phases: A statistically-based quantitative analysis phase followed by a qualitative assessment phase. Only railroads identified as possibly having inadequate safety performance in the quantitative analysis would continue on to the qualitative assessment, as discussed further below.
Proposed paragraph (a) describes FRA's methodology as a two-phase annual analysis, comprised of both a quantitative analysis and a qualitative assessment. This analysis would not include railroads excluded under proposed § 271.3(b) (
e.g.,
commuter or intercity passenger railroads that would be subject to FRA SSP requirements), railroads otherwise required to comply with part 271 (
i.e.,
Class I railroads and railroads previously determined to have inadequate safety performance under this section), railroads that voluntarily comply with this part under proposed § 271.15, and new railroads that have reported accident/incident data to FRA for fewer than three years, except that new railroads formed through an amalgamation of operations (for example, railroads formed through consolidations, mergers, or acquisitions of control) will be included in the analysis using the combined accident/incident data of the pre-amalgamation entities. FRA is requesting public comment on whether and, if so, how, it should also exclude from the analysis railroads formed by splitting off from a larger railroad.
FRA specifically requests comment on whether railroads that comply voluntarily under § 271.15 should be included in FRA's analysis, and FRA's final rule may elect to include voluntarily-compliant railroads in the analysis.
Paragraph (b) would describe the quantitative analysis, which would make a threshold identification of railroads that might have inadequate safety performance. Paragraph (b)(1) would specify that the quantitative analysis would be statistically-based and would include each railroad within the scope of the analysis, using historical safety data maintained by FRA for the three most recent full calendar years. The quantitative analysis would identify four factors regarding a railroad's safety performance: (1) Fatalities; (2) FRA reportable injury/illness rate; (3) FRA reportable accident/incident rate; and (4) FRA violation rate.
9
9
During RRP Working Group discussions, the ASLRRA expressed concern that use of FRA violation data to determine safety performance might be inappropriate, because FRA's prosecutorial discretion may result in different railroads receiving more or fewer violations. FRA believes that a railroad identified during the quantitative analysis could raise such a concern during the qualitative assessment, and FRA would consider that concern when making the final determination regarding the railroad's safety performance.
The first factor, described in proposed paragraph (b)(1)(i), is a railroad's number of on-duty employee fatalities during the three-year period, determined using Worker on Duty-Railroad Employee (Class A) information reported on FRA Form 6180.55a
10
pursuant to FRA's accident/incident reporting regulations in part 225. FRA is requesting public comment on whether this factor should include fatalities to other classes of persons reported on FRA Form 6180.55a, such as Railroad Employee Not On Duty (Class B), Worker on Duty-Contractor (Class F), Nontrespassers-On Railroad Property (Class D), etc.
10
Railroads use Form 6180.55a to report on-duty employee injuries and occupational illnesses.
The second factor, described in proposed paragraph (b)(1)(ii), is a railroad's FRA on-duty employee injury/illness rate, calculated using “Worker on Duty-Railroad Employee” information reported on FRA Form 6180.55a and Form 6180.55
11
pursuant to FRA's accident/incident reporting regulations in part 225. This rate would be calculated with the following formula:
11
Railroads use Form 6180.55 to report the number of employee hours.
Injury/Illness Rate = (Total FRA Reportable On-Duty Employee Injuries + Total FRA Reportable On-Duty Employee Occupational Illnesses over a 3-year period) ÷ (Total Employee Hours over a 3-year period/200,000)
This calculation would give the rate of employee injuries and occupational illnesses per 200,000 employee hours calculated over a 3-year period. FRA is requesting public comment on whether this factor should include injuries/illnesses to other classes of persons reported on FRA Form 6180.55a, such as Railroad Employee Not On Duty
(Class B), Worker on Duty-Contractor (Class F), Nontrespassers-On Railroad Property (Class D), etc.
The third factor, described in proposed paragraph (b)(1)(iii), is a railroad's FRA reportable rail equipment accident/incident rate, calculated using information reported on FRA Form 6180.54 and Form 6180.55.
12
This rate would be calculated with the following formula:
12
Railroads use Form 6180.54 to report accidents/incidents and Form 6180.55 to report total train miles.
Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail Equipment Accidents/Incidents over a 3-year period ÷ (Total Train Miles over a 3-year period/1,000,000)
This calculation would give the rate of rail equipment accidents/incidents per 1,000,000 train miles calculated over a 3-year period. FRA is not proposing to exclude rail equipment accident/incidents occurring at highway-rail grade crossings from this calculation, as highway-rail grade crossings present a significant safety issue for many railroads. FRA requests public comment on whether it should consider excluding rail equipment accidents/incidents occurring at highway-rail grade crossings from this calculation.
The fourth factor, described in proposed paragraph (b)(1)(iv), is a railroad's FRA violation rate, calculated using FRA's field inspector data system, which captures the number of violations and is made available to each railroad. The calculation also uses information reported to FRA on Form 6180.55. This rate would be calculated with the following formula:
Violation Rate = Total FRA Violations over a 3-year period ÷ (Total Train Miles over a 3-year period ÷ 1,000,000)
This calculation gives the rate of violations issued by FRA to a railroad per 1,000,000 train miles calculated over a 3-year period.
Proposed paragraph (b)(2) states that the quantitative analysis would identify a railroad as possibly having inadequate safety performance if at least one of two conditions were met. Identified railroads would be examined further in the qualitative assessment, described below.
The first condition would be whether a railroad has had one or more fatalities. FRA considers an on-duty employee fatality a strong indication of inadequate safety performance. If a railroad has at least one fatality within the 3-year period of the quantitative analysis, that railroad will be examined further in the qualitative assessment.
The second condition would be whether a railroad was at or above the 95th percentile in at least two of the three factors described in proposed paragraphs (b)(1)(ii) through (iv) of this section (
e.g.,
a railroad's FRA injury/illness rate, FRA accident/incident rate, and FRA violation rate). For example, if the scope of data includes a set of 100 railroads, the railroads with the five highest injury/illness rates, accident/incident rates, or violation rates would be flagged. Those railroads flagged in two or more of these factors would be examined further in the qualitative assessment. Preliminary analyses estimate that FRA's proposed approach would identify approximately 42 railroads over a five year period, which FRA believes is a reasonable pool of potential railroads to examine further in the qualitative analysis. Lowering the threshold to railroads in the 90th percentile would identify approximately 84 railroads, and lowering the threshold further to the 80th percentile would identify approximately about 167 railroads. While FRA believes these lower thresholds would yield a pool too large and unwieldy to address comprehensively in the qualitative analysis, FRA requests public comment on whether it should consider flagging railroads at a threshold either above or below the 95th percentile in two or more of the identified factors.
Proposed paragraph (c) would describe FRA's qualitative assessment of railroads identified in the quantitative analysis as possibly having inadequate safety performance. During the qualitative assessment, FRA would consider input from both a railroad and the railroad's employees, as well as any other pertinent information. FRA believes such input would be helpful in determining whether the quantitative analysis accurately identified a problem with the railroad's safety performance.
Paragraph (c)(1) would state that FRA would provide initial written notification to railroads identified in the threshold quantitative analysis as possibly having inadequate safety performance. Paragraph (c)(1)(i) would further specify that a notified railroad must inform its employees of FRA's notice within 15 days of receiving notification. This employee notification would have to be posted at all locations where a railroad reasonably expects its employees to report for work and have an opportunity to observe the notice. The notice must be continuously displayed until 45 days following FRA's initial notice. A railroad must use other means to notify employees who do not have a regular on-duty point to report for work, consistent with the railroad's standard practice for communicating for employees. Such a notification could take place by email, for example. The notification must inform employees that they may submit confidential comments to FRA regarding the railroad's safety performance, and must contain instructions for doing so. Any such employee comments must be submitted within 45 days of FRA's initial notice.
Likewise, paragraph (c)(1)(ii) would provide railroads 45 days from FRA's initial notice to provide FRA documentation supporting any claim that the railroad does not have inadequate safety performance. For example, if a fatality on railroad property was determined to be due to natural causes (such as cardiac arrest), or an accident/incident due to an act of God, the railroad's chief safety officer could provide a signed letter attesting to the facts, and asserting the railroad's reasons for believing that it should not be found to have inadequate safety performance. A railroad could also submit information regarding any extenuating circumstances of an incident or the severity of an injury (for example, a bee sting may not be as serious a safety concern as a broken bone). FRA will also consider explanations regarding FRA-issued violations, as well as any mitigating action taken by the railroad to remedy the violations.
Paragraph (c)(2) would generally describe the qualitative assessment of railroads identified by the quantitative analysis. During the qualitative assessment, FRA would consider any information provided by a railroad or its employees pursuant to paragraph (c)(1) of this section, as well as any other pertinent information. FRA may communicate with the railroad during the assessment to clarify its understanding of any information the railroad may have submitted. Based upon the qualitative assessment, FRA would make a final determination regarding whether a railroad has inadequate safety performance no later than 90 days following FRA's initial notice to the railroad.
Paragraph (d) would state that FRA will provide a final notification to each railroad given an initial notification pursuant to paragraph (c) of this section, informing the railroad whether or not it has been found to have inadequate safety performance. A railroad with inadequate safety performance must develop and implement an RRP compliant with the proposed rule and must provide FRA an RRP plan no later than 90 days after receiving the final notification, as provided by proposed § 271.301(a).
The RRP Working Group advised FRA to allow a railroad with inadequate safety performance to choose to establish either an RRP in compliance with proposed part 271 or an SSP in compliance with proposed part 270. The Working Group believed that some railroads (particularly smaller railroads more in need of formal structures to help them improve safety) would elect to develop, with FRA assistance, an SSP rather than an RRP. While FRA supports providing additional flexibility to railroads with inadequate safety performance, this provision has not been included in the current rule text because an SSP rule has not yet taken effect. If the SSP rule goes into effect before the publication of an RRP final rule, FRA would review this section and could provide for the choice in the final rule, as advised by the Working Group. FRA is also soliciting additional public comment on such an approach.
Paragraph (e) would state that a railroad with inadequate safety performance would have to comply with the requirements of part 271 for at least five years, running from the date on which FRA approves the railroad's RRP plan. FRA believes a five-year compliance period provides the minimum amount of time necessary for an RRP to have a substantive effect on a railroad's safety performance, particularly if, pursuant to proposed § 271.221, the railroad has taken 36 months (3 years) to fully implement its RRP. An evaluation of an FRA C3RS demonstration site showed the following safety improvements after two and a half years: (1) A 31-percent increase in the number of cars moved between incidents; (2) improved labor-management relationships and employee engagement (
i.e.,
an improved safety culture); and (3) a reduction in discipline cases. FRA believes this evaluation shows that risk-reduction-type programs can successfully yield positive impacts within a period of only a few years.
See
Ranney, J. and Raslear, T., “Derailments decrease at a C3RS site at midterm,” FRA Research Results: RR12-04, April 2012, available at
http://www.fra.dot.gov/eLib/details/L01321.
The five-year minimum compliance period should create the time necessary to determine whether safety improvements achieved upon implementation of the RRP are sustainable. Furthermore, the initial development and implementation of an RRP requires the expenditure of resources, and as discussed in the Regulatory Impact Analysis for this proposed rule, FRA does not expect an RRP to create a full level of benefits until the RRP is fully implemented or no later than the fourth year after the implementation of the rule. A minimum five-year compliance period, therefore, provides time for a railroad to begin receiving the full benefits of its RRP investment, although fewer overall benefits could be received if the railroad had elected to take the entire three years provided to fully implement its RRP.
At the end of the five-year period, under proposed paragraph (f), the railroad could petition FRA, according to the procedures for waivers in 49 CFR part 211, for approval to discontinue compliance with part 271. Upon receiving a petition, FRA would evaluate the railroad's safety performance in order to determine whether the railroad's RRP has resulted in significant safety improvements, and whether these measured improvements are likely to be sustainable in the long term. FRA's evaluation would include a quantitative analysis as described in proposed paragraph (b). FRA would also examine qualitative factors and review information from FRA RRP audits and other relevant sources.
Analysis of the railroad's safety performance for purpose of deciding whether its petition should be granted will be driven by the unique characteristics of the railroad and its RRP; for this reason it is not possible to enumerate the types of data that will be examined in the context of a petition to discontinue compliance. In general, FRA would look at information to determine whether real and lasting changes to the operational safety and to the organizational safety culture had been made. The Safety Board will use staff recommendations and other information it deems necessary to make a final determination about whether granting a petition is in the interest of public safety. FRA seeks comment, however, on whether it should specify various factors, criteria, and data that should be considered to determine whether a waiver should be granted. If so, what should those factors, criteria, and data be? FRA may include any such standards in a final rule.
After completing the evaluation, FRA would notify the railroad in writing whether or not it would be required to continue compliance with part 271. FRA specifically requests public comment on whether railroads with inadequate safety performance should be required to comply with part 271 permanently. In general, RRPs are strategies for gradually improving railroad safety over the long-term. If a railroad discontinues an implemented RRP, this could result in the loss of many future safety improvements. Additionally, the development and implementation of an RRP require the expenditure of railroad resources. If an RRP is ended too soon, this might result in a railroad not obtaining the greatest benefit possible from its RRP investment. Requiring permanent compliance for railroads with inadequate safety performance, therefore, could maximize both the safety improvement and benefits of an RRP over the long-term. Furthermore, an inadequate safety performance railroad required to comply with part 271 permanently would also continue to receive the information protections provided for in proposed § 271.11. FRA requests comment on this approach and could elect to require continued compliance for inadequate safety performance railroads in a final rule.
FRA also specifically requests public comment on whether the five-year compliance period in proposed paragraph (e) should run from the date that the railroad's RRP is fully implemented—rather than the date on which FRA approved the railroad's RRP plan—in order to provide more time for the RRP to have a significant effect on the railroad's safety and for FRA to obtain more information in order to determine whether it should consider granting a petition for approval to discontinue compliance with this part. This alternative approach would also provide an incentive for a railroad to implement its RRP quickly, as doing so would then allow the railroad to terminate its RRP sooner as well.
FRA also specifically requests public comment on what should happen when FRA denies an inadequate safety performance railroad's petition to discontinue compliance with part 271. Should the railroad be permitted to submit a new petition as soon as it wishes, or should the regulations impose a new mandatory compliance period upon the railroad? In other words, should FRA permit the railroad to submit a new petition immediately or only after a certain period of time, such as one year or five years?
Railroads should note that § 271.223 proposes to give each affected railroad 36 months, running from the date FRA approves the railroad's RRP plan, to fully implement its RRP. If the final rule ultimately adopts this proposal, FRA anticipates that a petition for approval to discontinue compliance would most likely be unsuccessful if an inadequate safety performance railroad took the entire 36 months to achieve full implementation. In such a scenario, FRA would likely find that a petition could not be granted because it had only two years' worth of data to determine
whether the fully implemented RRP had been successful in improving the railroad's safety performance. FRA would be more likely to grant a petition, however, if the railroad had fully implemented its RRP before the 36-month deadline. FRA anticipates that many inadequate safety performance railroads, with systems significantly smaller than those of Class I railroads, would not require the full 36 months to implement an RRP.
FRA would encourage a railroad with inadequate safety performance to continue its RRP even if FRA grants its petition to discontinue compliance with part 271. If a railroad does continue its RRP, it could be considered a voluntarily-compliant railroad under proposed § 271.15, which would allow proposed § 271.11 to continue to protect information that continues to be compiled or collected pursuant to the railroad's RRP from discovery and admission as evidence in litigation. If a railroad decides not to continue with a part 271-compliant RRP, information that had been compiled or collected pursuant to the part 271-compliant RRP would remain protected under § 271.11. Any information compiled or collected pursuant to a non-compliant RRP, however, would not be protected under § 271.11.
Section 271.15—Voluntary Compliance
The RSIA provides that railroads not required to establish a railroad safety risk reduction program may nevertheless voluntarily submit for FRA approval a plan meeting the requirements of the statute.
See
49 U.S.C. 20156(a)(4). Proposed § 271.15(a) would implement this language by permitting a railroad not otherwise subject to the proposed rule to voluntarily comply by establishing and fully implementing an RRP that meets the requirements of this part 271. Any such voluntary RRP must be supported by an RRP plan that has been submitted to FRA for approval pursuant to the requirements of proposed subpart D. Paragraph (a) would also clarify that following FRA's approval of the RRP plan for a voluntarily-compliant railroad, the railroad could be subject to civil penalties or other enforcement action if it then failed to comply with the part 271 requirements. It is important to ensure that voluntarily-compliant railroads meet the regulatory requirements because information compiled or collected pursuant to a voluntarily-compliant RRP would be protected from discovery or disclosure in litigation under proposed § 271.11. If the RRP information for a voluntarily-compliant railroad is protected, FRA believes such a railroad should be subject to civil penalties or other enforcement action for failing to comply with part 271. FRA specifically requests public comment on this proposal.
Paragraph (b) would specify that a voluntarily-compliant railroad would be required to comply with this part 271's requirements for a minimum period of five years, running from the date on which FRA approves the railroad's RRP plan. As explained above regarding railroads with inadequate safety performance, FRA believes that a minimum five-year period may provide time for a railroad to realize the safety improvements and benefits associated with its RRP investment. Under proposed paragraph (c), a voluntarily-compliant railroad would be able to petition FRA for approval to discontinue compliance with this part after the end of this five-year period. Any such petition would have to be filed in accordance with the procedures for waivers contained in 49 CFR part 211. This NPRM is not proposing any specific standards for the granting of such petitions other than what are currently found in part 211. FRA requests public comment, however, on whether it should establish such standards and, if so, what those standards should consist of. Furthermore, as with inadequate safety performance railroads, FRA specifically requests public comment on whether the minimum five-year compliance period should run from the date that a railroad's RRP is fully implemented, in order to provide more time for the RRP to have a significant effect on the railroad's safety.
Paragraph (d) would provide that the information protection provisions of proposed § 271.11 (Discovery and admission as evidence of certain information) would not apply to information that was compiled or collected pursuant to a voluntarily-compliant RRP that was not conducted in accordance with the provisions of this part 271. As discussed in the section-by-section analysis for § 271.11, voluntary risk reduction programs (such programs generated as part of a Short Line Safety Institute) would have to fully comply with an RRP final rule in order for the information generated to be protected from discovery and use as evidence in litigation.
During the RSAC process, FRA and the RRP Working Group discussed the possibility of permitting Class II or Class III railroads not otherwise required to comply with this proposed rule to voluntarily comply with an SSP rule instead of an RRP rule. While not proposed in this NPRM, as an SSP rule has not been finalized, FRA is specifically requesting public comment on whether railroads should be permitted to voluntarily comply with an SSP rule. The FRA may elect to either include such an approach in an RRP final rule or to amend an SSP final rule to provide for such.
Subpart B—Risk Reduction Program Requirements
Subpart B would contain the basic elements of an RRP required by the proposed rule. The proposed rule would provide a railroad significant flexibility in developing and implementing an RRP.
Section 271.101—Risk Reduction Programs
Proposed § 271.101 would contain general requirements regarding RRPs. Paragraph (a)(1) would require railroads to establish and fully implement an RRP meeting the requirements of this part 271. As specified by the RSIA, an RRP must systematically evaluate safety hazards on a railroad's system and manage risks associated with those hazards to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities.
See
49 U.S.C. 20156(a)(1)(A). FRA intends for an RRP to be scalable based upon the size of a railroad. For example, a large railroad would not be expected to identify every safety hazard on its system, but could take a more focused and project specific view of safety hazard identification. A railroad with a smaller system (
e.g.,
a Class II or III railroad determined to have inadequate safety performance), however, might be asked to take a closer look at specific safety hazards.
Paragraph (a) also clarifies that an RRP must be an ongoing program that supports continuous safety improvement. A railroad that conducts a one-time risk-based hazard analysis and does nothing further after addressing the results of that analysis will not have established a compliant RRP. Paragraph (a) would also list the necessary components that an RRP must contain, including: (1) A risk-based hazard management program (described in § 271.103); (2) a safety performance evaluation component (described in § 271.105); (3) a safety outreach component (described in § 271.107); (4) a technology analysis and technology implementation plan (described in § 271.109); and (5) RRP implementation and support training (described in § 271.111).
Paragraph (b) would require a railroad's RRP to be supported by an RRP plan, meeting the requirements of
proposed subpart C, that has been approved by FRA.
Paragraph (c) would address railroads subject to the RRP rule that host passenger train service for passenger railroads subject to the requirements of the proposed SSP rule. Under § 270.103(a)(2) of the proposed SSP rule, a passenger railroad must communicate with each host railroad to coordinate the portions of its SSP plan that are applicable to the host railroad. Paragraph (c) would require a host railroad, as part of its RRP, to participate in this communication and coordination with the passenger railroad.
Paragraph (d) would require a railroad to ensure that persons utilizing or performing on its behalf a significant safety-related service support and participate in the railroad's RRP. Such persons would include entities such as host railroads, contract operators, shared track/corridor operators, or other contractors utilizing or performing significant safety-related services, and must be identified by the railroad in its RRP plan pursuant to proposed § 271.205(b).
Section 271.103—Risk-Based Hazard Management Program
This proposed section would contain the requirements for each risk-based hazard management program (HMP). Proposed § 271.103(a)(1) would require a railroad's RRP to include a risk-based HMP that proactively identifies hazards and mitigates the risks associated with those hazards. A risk-based HMP must be integrated, system-wide, and ongoing. The scope of a risk-based HMP would be scalable based upon the size and extent of the railroad's system.
Paragraph (a)(2) proposes that a risk-based HMP must be fully implemented (
i.e.,
activities initiated) within 36 months after FRA approves a railroad's RRP plan. Full implementation means that a railroad should have completed its risk analysis and begun mitigation strategies within 36 months of plan approval. If a railroad elects to test a mitigation strategy in a pilot project (as permitted by proposed § 271.103(c)(2)), “fully implemented” means that the pilot project must be fully operational within 36 months.
Paragraph (b) would state that a railroad must conduct a risk-based hazard analysis as part of its risk-based HMP. The types of principles and processes that inform a successful risk-based hazard analysis have already been well-established by programs previously discussed in this preamble, such as MIL-STD-882, APTA's “Manual for the Development of System Safety Program Plans for Commuter Railroads”, and FRA's “Collision Hazard Analysis Guide.” A railroad subject to a final RRP rule could use any of these programs for guidance on how to conduct a risk-based hazard analysis, pursuant to FRA's approval of the processes in the railroad's RRP plan under proposed § 271.211. As described in the “Collision Hazard Analysis Guide,” a risk-based hazard analysis is performed to identify hazardous conditions for the purpose of mitigation, and could include several analysis techniques applied throughout the lifetime of an RRP.
See
“Collision Hazard Analysis Guide” at 8. A full hazard analysis could consist of various analyses, including a Preliminary Hazard Analysis, Failure Modes and Effects Analysis, Operating Hazard Analysis, and others, although existing operations already designed, built, and operating may not require all these analyses.
Id.
FRA specifically requests public comment regarding what type of additional guidance would help railroads comply with the requirements of this proposed section.
Paragraph (b) specifies that, at a minimum, a risk-based hazard analysis must address the following components of a railroad's system: Infrastructure; equipment; employee levels and work schedules; operating rules and practices; management structure; employee training; and other areas impacting railroad safety that are not covered by railroad safety laws or regulations or other Federal laws or regulations.
While the RSIA directed railroads to address safety culture in their risk-based hazard analyses, FRA chose not to be prescriptive regarding this requirement, as prescribing how risk-based hazard analysis would identify hazards generated by a safety culture would be difficult. FRA would require railroads to measure their safety culture, however, in proposed § 271.105(a), and believes that this proposed approach would adequately address any related safety concerns presented by a railroad's safety culture. With respect to measuring safety culture, the proposed rule would permit railroads to identify the safety culture measurements methods that they find most effective and appropriate to their local conditions. When measuring safety culture, FRA would expect a railroad to use a method that was capable of correlating a railroad's safety culture with actual safety outcomes. For example, such measurement methods could include surveys that assess safety culture using validated scales, or some other method or measurement that accurately identifies aspects of the railroad's safety culture that correlate to safety outcomes. Ultimately, FRA would expect a railroad to demonstrate that improvements in the measured aspects of safety culture would reliably lead to reductions in accidents, injuries, and fatalities. FRA requests public comment on how a railroad should measure its safety culture as part of its RRP.
As further described in paragraph (b), a risk-based hazard analysis must identify hazards by analyzing the following: (1) Various aspects of the railroad's system (including any operational changes, system extensions, or system modifications); and (2) accidents/incidents, injuries, fatalities, and other known indicators of hazards (such as data compiled from a close call reporting program). A railroad must then calculate risk by determining and analyzing the likelihood and severity of potential events associated with the identified hazards. These risks must then be compared and prioritized for the purpose of mitigation.
Paragraph (c)(1) would require a railroad, based on its risk-based HMP, to design and implement mitigation strategies that improve safety by mitigating or eliminating aspects of a railroad's system that increase risks identified in the risk-based hazard analysis and enhancing aspects of a railroad's system that decrease risks identified in the risk-based hazard analysis. As provided in proposed paragraph (c)(2), a railroad could use pilot projects (including those conducted by other railroads) to determine whether quantitative data suggests that a particular mitigation strategy has potential to succeed on a full-scale basis. FRA anticipates that railroads will design and implement mitigation strategies that are either cost-beneficial or cost-neutral. FRA requests public comment on this assumption. FRA is specifically interested in the experience of any railroads that may have already utilized risk reduction strategies, and whether or not such railroads have realized cost benefits from the design and implementation of risk mitigation strategies. In railroads' experiences, how much have mitigation strategies related to risk reduction activities cost?
As discussed above in the analysis of the purpose and scope provisions of proposed § 271.1, FRA does not intend the proposed regulation to address hazards and risks that are completely unrelated to railroad safety and that would fall directly under the jurisdiction of either OSHA or the EPA. FRA would not, therefore, expect a risk-based HMP to address hazards and risks that go beyond the limits of FRA's railroad safety jurisdiction. A risk-based
HMP should, however, include railroad safety hazards and risks that could result in damage to the environment, such as a derailment that could result in a hazardous materials release. In such situations, the underlying hazard or risk would fall within FRA's railroad safety jurisdiction. FRA seeks public comment on whether this section should include a statement clarifying the railroad safety scope of the risk-based HMP.
Additionally, the proposed regulation does not define a level of risk that railroads must target with their risk-based HMPs. FRA's Passenger Equipment Safety Standards require passenger railroads, however, when procuring new passenger cars and locomotives, to ensure that fire safety considerations and features in the design of the equipment reduce the risk of personal injury caused by fire to an acceptable level using a formal safety methodology such as MIL-STD-882.
See
49 CFR 238.103(c). Passenger railroads operating Tier II passenger equipment are also required to eliminate or reduce risks posed by identified hazards to an acceptable level.
See
49 CFR 238.603(a)(3). FRA seeks comment on whether a final RRP rule should define levels of risks that a railroad's risk-based HMP must target.
Section 271.105—Safety Performance Evaluation
This section would contain requirements for safety performance evaluations. Safety performance evaluation is a necessary part of a railroad's RRP because it determines whether the RRP is effectively reducing risk. It also monitors the railroad's system to identify emerging or new risks. In this sense, it is essential for ensuring that a railroad's RRP is an ongoing process, and not merely a one-time exercise.
Paragraph (a) would require a railroad to develop and maintain ongoing processes and systems for evaluating the safety performance of a railroad's system. A railroad must also develop and maintain processes and systems for measuring its safety culture. For example, a railroad could measure its safety culture by surveying employees and management to establish an initial baseline safety culture, and then comparing that initial baseline to subsequent surveys. FRA would give a railroad substantial flexibility, however, to decide which safety culture measurement was the best fit for the organization. FRA's primary concern would be that the selected measurement would provide a way to demonstrate that an improvement in the safety culture measurement would reliably lead to a corresponding improvement in safety. Overall, a safety performance evaluation would consist of both a safety monitoring and a safety assessment component.
Paragraph (b) would establish the safety monitoring component by requiring a railroad to monitor the safety performance of its system. At a minimum, a railroad must do so by establishing processes and systems for acquiring safety data and information from the following sources: (1) Continuous monitoring of operational processes and systems (including any operational changes, system extensions, or system modifications); (2) periodic monitoring of the operational environment to detect changes that may generate new hazards; (3) investigations of accidents/incidents, injuries, fatalities, and other known indicators of hazards; (4) investigations of reports regarding potential non-compliance with Federal railroad safety laws or regulations, railroad operating rules and practices, or mitigation strategies established by the railroad; and (5) a reporting system through which employees can report safety concerns (including, but not limited to, hazards, issues, occurrences, and incidents) and propose safety solutions and improvements. The requirement for a reporting system would not require a railroad to establish an extensive program like FRA's Confidential Close Call Reporting System (C3RS). Rather, a railroad would have substantial flexibility to design a reporting system best suited to its own organization (or, if a railroad already has some sort of reporting system, to modify it to meet the needs of the railroad's RRP). For example, a railroad could decide whether or not it wanted its reporting system to be confidential or non-punitive.
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Or, in the alternative, the reporting system could be something as simple as a suggestion box made available to employees.
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If a railroad elected to use a reporting system that was non-punitive in nature, FRA would expect it to contain certain li
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