# System Safety Program

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-18301

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** August 12, 2016
- **Citation:** 81 FR 53850

## Text

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 270
[Docket No. FRA-2011-0060, Notice No. 3]
RIN 2130-AC31
System Safety Program

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

FRA is issuing this final rule to mandate that commuter and intercity passenger railroads develop and implement a system safety program (SSP) to improve the safety of their operations. A SSP is a structured program with proactive processes and procedures, developed and implemented by commuter and intercity passenger railroads to identify and mitigate or eliminate hazards and the resulting risks on each railroad's system. A railroad has the flexibility to tailor a SSP to its specific operations. A SSP will be implemented after receiving approval by FRA of a submitted SSP plan. FRA will audit a railroad's compliance with its SSP.

DATES:

This final rule is effective October 11, 2016. Petitions for reconsideration must be received on or before October 3, 2016. Comments in response to petitions for reconsideration must be received on or before November 15, 2016.

ADDRESSES:

Petitions for reconsideration and comments on petitions for reconsideration:
Any petitions for reconsideration or comments on petitions for reconsideration related to this Docket No. FRA-2011-0060, Notice No. 3, 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, Room W12-140 on the ground level of the West Building, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Instructions:
All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AC31). Note that all petitions and 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 petitions, comments or materials.

Docket:
For access to the docket to read background documents, petitions for reconsideration, or comments received, go to
http://www.regulations.gov
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:

Daniel Knote, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Passenger Rail Division; telephone: 631-965-1827; email:
Daniel.Knote@dot.gov
; Robert Adduci, Senior System Safety Engineer, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Passenger Rail Division; telephone: 781-447-0017; email:
Robert.Adduci@dot.gov
; Larry Day, Passenger Rail Safety Specialist, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Passenger Rail Division; telephone: 909-782-0613; email:
Larry.Day@dot.gov
; or Matthew Navarrete, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel; telephone: 202-493-0138; email:
Matthew.Navarrete@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary

A. Purpose of Rulemaking

B. Summary of Major Provisions

C. Summary of the Costs and Benefits

II. Background and History

A. System Safety Program—Generally

B. System Safety Program Overview and Related Actions

i. System Safety at FRA

ii. Federal Transit Administration's Part 659 and MAP-21 Program

iii. FRA's Confidential Close Call Reporting System and Clear Signal for Action Program

C. FRA's Railroad Safety Advisory Committee

III. Statutory Background

A. Rail Safety Improvement Act of 2008

B. Related Risk Reduction Rulemaking

C. System Safety Information Protection

i. Exemption From Freedom of Information Act Disclosure

ii. Discovery and Other Use of Risk Analysis Information in Litigation

1. The Statutory Mandate

2. The Study and Its Conclusions

D. Consultation Requirements

E. Related Fatigue Management Plans Rulemaking

IV. Guidance Manual

V. Discussion of Specific Comments and Conclusions

VI. Section-by-Section Analysis

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

B. Regulatory Flexibility Act and Executive Order 13272

C. Federalism

D. International Trade Impact Assessment

E. Paperwork Reduction Act

F. Environmental Assessment

G. Unfunded Mandates Reform Act of 1995

H. Energy Impact

I. Privacy Act

I. Executive Summary

A. Purpose of Rulemaking

This rule requires commuter and intercity passenger railroads (passenger railroads) to develop and implement a system safety program (SSP). A SSP is a structured program with proactive processes and procedures, developed and implemented by passenger railroads. These processes and procedures will identify then mitigate or eliminate hazards and the resulting risks on the railroad's system. A SSP encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what, if any, action to take to mitigate or eliminate the resulting risks. The rule provides each railroad with a certain amount of flexibility to tailor its SSP to its specific operations. The SSP rule is part of FRA's efforts to continuously improve rail safety and to satisfy the statutory mandate in the Rail Safety Improvement Act of 2008 (RSIA), secs. 103 and 109, Public Law 110-432, Division A, 122 Stat. 4848
et seq.,
codified at 49 U.S.C. 20156, 20118, and 20119.

On September 7, 2012, FRA published a notice of proposed rulemaking (NPRM) to address the following mandates for commuter and intercity passenger railroads. 77 FR 55372, Sept. 7, 2012. Section 103 (49 U.S.C. 20156) of RSIA enacted a statutory provision directing the Secretary of Transportation (Secretary) to issue a regulation requiring certain railroads, including passenger railroads, to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. FRA is establishing separate safety risk reduction program rules for passenger

railroads (SSP) and certain freight railroads (Risk Reduction Program) to account for the significant differences between passenger and freight operations. Section 109 (codified at 49 U.S.C. 20118 and 20119) of RSIA enacted a statutory provision authorizing the Secretary to issue a regulation protecting from discovery and admissibility into evidence in litigation documents generated for the purpose of developing, implementing, or evaluating a safety risk reduction program. This final rule implements these statutory mandates with respect to the system safety program covered by part 270. The Secretary has delegated such statutory responsibilities to the Administrator of FRA.
See
49 CFR 1.89.

B. Summary of Major Provisions

A SSP is implemented by a written SSP plan. The SSP regulation sets forth various elements that a railroad's SSP plan is required to contain to properly implement a SSP. The main components of a SSP are the risk-based hazard management program and risk-based hazard analysis. A properly implemented risk-based hazard management program and risk-based hazard analysis will identify the hazards and resulting risks on the railroad's system, require railroads to develop methods to mitigate or eliminate, if practicable, these hazards and risks, and set forth a plan to implement these methods. As part of its risk-based hazard analysis, a railroad will consider various technologies that may mitigate or eliminate the identified hazards and risks.

As part of its SSP plan, a railroad will also be required to describe the various procedures, processes, and programs it has in place that support the goals of the SSP. These procedures, processes, and programs include, but are not limited to, the following: A maintenance, inspection, and repair program; rules compliance and procedures review(s); SSP employee/contractor training; and a public safety outreach program. Since railroads should already have most of these procedures, processes, and programs in place, railroads will most likely only have to identify and describe such procedures, processes, and programs to comply with the regulation.

A SSP can be successful only if a railroad engages in a robust assessment of the hazards and resulting risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad's assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death.
See
49 U.S.C. 20119. 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). FRA contracted to have the study performed and the SSP NPRM addressed the study's results and set forth proposed protections for certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages. 77 FR 55406, Sept. 7, 2012.

To minimize the information protected, information that is generated
solely for the purpose of developing, implementing, or evaluating a SSP
is protected from (1) discovery, or admissibility into evidence, or use for other purposes in a proceeding for damages involving personal injury, wrongful death, or property damage, and (2) State discovery rules and sunshine laws which could be used to require the disclosure of such information. Information that is compiled or collected for a purpose unrelated to the railroad's SSP is not protected. Under section 109 of RSIA, the information protection provision is not effective until one year after its publication.

In addition to protection from discovery, 49 U.S.C. 20118 specifies that certain risk reduction records obtained by the Secretary also are exempt from the public disclosure requirements of the Freedom of Information Act (FOIA). Records protected under this exemption may only be disclosed if disclosure is necessary to enforce or carry out any Federal law, or disclosure is necessary 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 SSPs. FRA therefore believes that railroad risk reduction records in FRA's possession would generally be exempted from mandatory disclosure under FOIA. Unless one of the two exceptions provided by section 20118 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).

A SSP will affect almost all facets of a railroad's operations. To ensure all employees directly affected by a SSP have an opportunity to provide input on the development, implementation, and evaluation of a railroad's SSP, a railroad must consult in good faith and use best efforts to reach agreement with all directly affected employees on the contents of the SSP plan and amendments to the plan. In an appendix, the rule provides guidance regarding what constitutes “good faith” and “best efforts.”

This rule will become effective 60 days after the publication of the final rule except the protection of certain information discussed above will not become effective until one year after the final rule is published. A railroad is required to submit its SSP plan to FRA for review not more than 180 days after the applicability date of the discovery protections,
i.e.,
485 days after the effective date of the final rule, or not less than 90 days before commencing operations, whichever is later. Within 90 days of receipt of the SSP plan, FRA will review the plan and determine if it meets all the requirements in the regulation. If, during the review, FRA determines that the railroad's SSP plan does not comply with the requirements, FRA will notify the railroad of the specific points in which the plan is deficient. The railroad will then have 90 days to correct these deficient points and resubmit the plan to FRA. Whenever a railroad amends its SSP, it is required to submit an amended SSP 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 SSP.

FRA will work with the railroad and other necessary stakeholders throughout the development of its SSP to help the railroad properly tailor the program to its specific operation.

C. Summary of the Costs and Benefits

Most of the passenger railroads affected by this rulemaking already participate in the American Public Transportation Association (APTA) system safety program and are currently participating in the APTA audit program. Railroads that are still negotiating contracts or not participating directly with APTA, have developed, or are in the process of developing an APTA system safety program. Since the majority of intercity passenger or commuter railroads already have APTA system safety programs, there will not be a significant cost for these railroads to implement the regulatory requirements in this final rule. Thus, the economic impact of the final rule is generally incremental in nature for documentation of existing information and inclusion of certain

elements not already addressed by railroads in their existing programs.

FRA estimated costs in the following areas: Documenting the SSP plan and the safety certification process; SSP training; preparing for and providing information in response to external audits; providing mitigation method information to FRA; preparing technology analysis results and providing them to FRA; providing an annual assessment of SSP performance and improvement plans; consulting with directly affected employees and preparing consultation statements, amending SSP plans; retaining records; and conducting internal SSP assessments.

FRA also addressed the use and costs of data protection, which is an important element of this rule. While the rule may protect from discovery some information that in the absence of the rule would not be protected, FRA concludes that the benefits of the protections justify the costs. Without the protections, railroads' risk-based hazard analysis and mitigations may be less robust, which may lead to a less safe environment than with the protections in place. No specific or net incremental costs are incurred by the protections (record keeping and reporting paperwork costs are accounted for in the rule). The information protections are important to ensure the effectiveness of a SSP at almost no additional regulatory cost to the railroad. This means that the information protections provide an incentive to the railroad to be forthright about identified risks, without concern the information may be used in litigation against them.

Total estimated twenty-year costs associated with implementation of the final rule, for existing passenger railroads, range from $2.0 million (discounted at 7%) to $2.9 million (discounted at 3%).

FRA believes that there will be new, startup passenger railroads that will be formed during the twenty-year analysis period. FRA is aware of two passenger railroads that intend to begin operations in the near future. FRA assumed that one of these railroads would begin developing its SSP in Year 2, and that the other would begin developing its SSP in Year 3. FRA further assumed that one additional passenger railroad would be formed and begin developing its SSP every other year after that, in Years 5, 7, 9, 11, 13, 15, 17 and 19. Total estimated twenty-year costs associated with implementation of the final rule, for startup passenger railroads, range from $297 thousand (discounted at 7%) to $485 thousand (discounted at 3%).

Total estimated twenty-year costs associated with implementation of the final rule, for existing passenger railroads and startup passenger railroads, range from $2.3 million (discounted at 7%) to $3.4 million (discounted at 3%).

The estimated costs for existing and startup passenger railroads to implement this rule do not include costs of mitigations that railroads may implement to address hazards, as the cost of hazard mitigation will vary greatly depending on what hazard is being eliminated or mitigated. FRA expects that railroads will implement the most cost-effective mitigations to eliminate or mitigate hazards.

Properly implemented SSPs may be successful in optimizing the returns on railroad safety investments. Railroads can use them to proactively identify potential hazards and resulting risks at an early stage, thus minimizing associated casualties and property damage or avoiding them altogether. Railroads can also use them to identify a wide array of potential safety issues and solutions, which in turn may allow them to simultaneously evaluate various alternatives for improving overall safety with resources available. This results in more cost effective investments. In addition, system safety planning may help railroads maintain safety gains over time. Without a SSP plan to guide them, railroads could adopt countermeasures to safety problems that become less effective over time as the focus shifts to other issues. With SSP plans, those safety gains are likely to continue for longer time periods. SSP plans can also be instrumental in reducing casualties resulting from hazards that are not well addressed through conventional safety programs.

During the course of daily operations, hazards are routinely discovered. Railroads must decide which hazards to address and how, with the limited resources available for this purpose. Without a SSP plan in place, the decision process might become arbitrary. In the absence of the information protections provided by the final rule, railroads might also be reluctant to keep detailed records of known hazards. With a SSP plan in place, railroads may be better able to identify and implement the most cost-effective measures to reduce accidents and incidents and resulting casualties.

The SSP NPRM Regulatory Impact Analysis (RIA) was performed on a breakeven basis. The approach has been modified for the final rule due to the lack of empirical evidence currently available to estimate all relevant regulatory costs, namely those from risk analysis and risk mitigation. These costs are not reasonably predictable until the data protections are in place and each railroad produces and implements their SSP plans assessing their hazards and risk levels. The pool of potential safety benefits is large as evidenced by the totality of accidents and incidents experienced on passenger railroads that this final rule could impact. FRA expects that railroads can achieve sufficient safety benefits to justify quantified and unquantified costs.

SSPs under the APTA program are currently voluntary. This rule focuses on a robust risk-based hazard analysis and mitigation, and the oversight required to achieve full compliance. Passenger railroads must demonstrate a robust SSP and the means to implement the SSP and assure compliance. Railroad management and employees will be accountable to achieve the safety goals in their SSPs, but there will also be FRA oversight to monitor and demand corrective actions if and when necessary.

As documented in the RIA, FRA expects that regulatory costs under the SSP final rule will be modest and only incremental in relation to the railroads' non-regulatory costs because the rule provides information to the industry on what FRA's expectations are for a robust SSP. Railroads should be able to assemble a SSP plan to satisfy the rule by packaging what they currently have under the APTA program that complies with the SSP rule's provisions, along with (1) greater emphasis on eliminating or reducing hazards and the resulting risks, (2) rigorous analysis process, and (3) commitment to achieve the railroad's safety goal through setting priorities of its risk reduction efforts of mitigation. The SSP final rule would also address any gaps in those plans that do not meet the requirements of this rule. The few railroads that are not under the APTA program have their own SSPs or are developing such with FRA's assistance. For instance, when a hazard analysis is performed, this rule requires the railroad to demonstrate the processes and procedures it used to carry-out the analysis and mitigation. This means that, for the most part, FRA would only require actions to address gaps in the SSP plans, such as providing a clear or more robust description of the methods and processes they will use. These actions are expected to maintain and improve the economic benefit that can be achieved through the use of a robust SSP. However, it is difficult to provide a precise cap on the regulatory costs and benefits because the type and level of hazards and corresponding risk are not

known, which is why FRA could not estimate benefits quantitatively.

A benefit (not quantified) of this rule is that it may promote more cost-effective investment of railroad resources. However, FRA does not know to what extent. Therefore, FRA focused on the passenger railroad accidents and incidents this rule will impact. FRA analyzed passenger operation-related accident costs—the costs of accidents this final rule could affect. Between 2001 and 2010, on average, passenger railroads had 3,724 accidents, resulting in 208 fatalities, 3,340 other casualties, and $20.6 million in damage to railroad track and equipment each year. Total quantified twenty-year accident costs total between $33 billion (discounted at 7%) and $51 billion (discounted at 3%). Of course, these accidents also resulted in damage to other property, delays to both railroads and highway users, emergency response and clean-up costs, and other costs not quantified in this analysis. In conclusion, FRA is confident that the accident reduction benefits should justify the $2.3 million (discounted at 7%) to $3.4 million (discounted at 3%) implementation cost over the first twenty years of the final rule.

Table 1—Total Costs (Over 20-Year Period) and Annualized

Current
dollar
value

Discounted
value
7 percent

Discounted
value
3 percent

Total
$4,743,039
$2,327,224
$3,412,651

Annualized
237,152
219,674
229,384

This rule will certainly have benefits incremental to the APTA program. However, FRA could not estimate the benefits of the final rule as SSPs are mostly an organizational structure and program to manage safety through hazard analysis and mitigation. FRA cannot accurately estimate the rule's incremental safety benefits because FRA cannot reliably predict the specific risks each railroad will identify or the specific actions they will take to mitigate such risks relative to the APTA program.

II. Background and History

A. System Safety Program—Generally

On September 7, 2012, FRA published an NPRM proposing to require commuter and intercity passenger railroads to develop and implement a SSP to improve the safety of their operations. 77 FR 55372, Sept. 7, 2012. The NPRM was proposed as part of FRA's efforts to continuously improve rail safety and to satisfy the statutory mandates in 49 U.S.C. 20156, 20118, and 20119.

Railroads operate in a dynamic, fast-paced environment that at one time posed extreme safety risks. Through concerted efforts by railroads, labor organizations, the U.S. DOT, and many other entities, railroad safety has vastly improved. Even though FRA has issued safety regulations and guidance that address many aspects of railroad operations, gaps in safety exist, and hazards and risks may arise from these gaps. FRA believes that railroads are in an excellent position to identify many of these gaps and take the necessary action to mitigate or eliminate the arising hazards and resulting risks. Rather than prescribing the specific actions the railroads need to take, FRA believes it will be more effective to allow the railroads to use their knowledge of their unique operating environment to identify the gaps and determine the best methods to mitigate or eliminate the hazards and resulting risks. A SSP provides a railroad with the tools to systematically and continuously evaluate its system to identify hazards and the resulting risks gaps in safety and to mitigate or eliminate these hazards and risks.

There are many programs that are similar to a SSP. Most notably, the Federal Aviation Administration (FAA) has published a final rule requiring each certificate holder operating under 14 CFR part 121 to develop and implement a safety management system (SMS). 80 FR 1308, Jan. 8, 2015. An SMS is a comprehensive, process-oriented approach to managing safety throughout the organization. An SMS includes an organization-wide safety policy; formal methods for identifying hazards, controlling, and continually assessing risk; and promotion of safety culture. Under FAA's final rule an SMS has four components: Safety Policy, Safety Risk Management, Safety Assurance, and Safety Promotion.
Id.
Similar components can also be found in this SSP rule.

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.
MIL-STD-882 is used by many industries in the U.S. and internationally and certainly could be of use to a railroad when trying to determine which methods to use to comply with the SSP 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.

B. System Safety Program Overview and Related Actions

i. System Safety at FRA

As discussed in the NPRM, system safety is not a new concept to FRA.
See
77 FR 55374. This final rule responds to the statutory mandates set forth in RSIA and is based on lessons learned from past experience with various elements of system safety, as well as recommendations from the Railroad Safety Advisory Committee (RSAC).

ii. Federal Transit Administration's Part 659 and MAP-21 Program

As discussed in the NPRM, the Federal Transit Administration has set forth a regulation that covers State-conducted oversight of the safety and security of rail fixed guideway systems that were not regulated by FRA.
See
77 FR 55375, Sept. 7, 2012; 49 CFR part 659. On March 16, 2016, FTA published the State Safety Oversight (SSO) final rule. 81 FR 14230, Mar. 16, 2016. The SSO rule replaces part 659 and implements certain provisions of the Moving Ahead for Progress in the 21st Century Act, Public Law 112-141 (2012). Many of the same concepts from part 659 are incorporated in the SSP final rule.

MAP-21 made a number of fundamental changes to the statutes that authorize FTA programs at 49 U.S.C. ch. 53. On October 3, 2013, FTA published an advance notice of proposed rulemaking (ANPRM) seeking comment

on the implementation of these changes.
See
78 FR 61251, Oct. 3, 2013. The ANPRM sought comment on several provisions within the Public Transportation Safety Program (National Safety Program) authorized at 49 U.S.C. 5329, and the transit asset management (National TAM System) requirements authorized at 49 U.S.C. 5326.
Id.
Specifically, FTA sought comment on its initial interpretations, proposals, and questions regarding: (1) The requirements of the National Safety Program relating to the National Public Transportation Safety Plan, the Public Transportation Agency Safety Plan, and the Public Transportation Safety Certification Training Program; (2) the requirements of the National TAM System, including four proposed options under consideration for defining and measuring state of good repair; and (3) the relationship between safety, transit asset management, and state of good repair.
Id.
at 61252. FTA also sought comment on its intent to propose adoption of the SMS
1

approach as the method to develop and implement the National Safety Program.
Id.
While many of the requirements of the National Safety Program and the National TAM System apply equally to all modes of public transportation, FTA intends to focus, initially, on rail transit systems' implementation of and compliance with these requirements.
Id.
at 61251.

1
As discussed previously, FAA has published a final rule requiring each certificate holder operating under 14 CFR part 121 to develop and implement an SMS.
See
80 FR 1308.

In the ANPRM, FTA made it clear that if another Federal agency (
e.g.,
FRA) regulates the safety of a particular mode of transportation, FTA, as part of the rulemaking pursuant to MAP-21, does not intend to set forth duplicative, inconsistent, or conflicting regulations. 78 FR 61251, Oct. 3, 2013. FTA specifically highlighted that it does not intend to promulgate safety regulations that will apply to either commuter rail systems that are regulated by FRA.
Id.
Further, FTA's regulatory jurisdiction is explicitly limited by two statutory provisions.
Id.
at 61253. First, FTA is prohibited from promulgating safety performance standards for rolling stock that is already regulated by another Federal agency,
e.g.,
FRA.
See
49 U.S.C. 5329(b)(2)(C)(i). Second, the requirements of the State Safety Oversight Program will not apply to rail transit systems that are subject to regulation by FRA.
See
49 U.S.C. 5329(e)(1) and (e)(2).

On February 5, 2016, FTA published an NPRM proposing requirements for the Public Transportation Agency Safety Plan. 81 FR 6344. The NPRM proposed “requirements for the adoption of Safety Management Systems (SMS) principles and methods; the development, certification, and update of Public Transportation Agency Safety Plans; and the coordination of Public Transportation Agency Safety Plan elements with other FTA programs and proposed rules, as specified in 49 U.S.C. 5329.”
Id.
at 6344-45. The NPRM reaffirms FTA's intent not to promulgate safety regulations that would apply to commuter rail systems that are regulated by the FRA.
Id.
at 6345, 6346, 6351, 6353, 6361, and 6369. FTA clarifies that, primarily, due to the information protections set forth in this FRA SSP rule, a public transportation provider cannot use its SSP for other modes of transportation aside from a commuter rail operation that falls under this SSP rule.
Id.
at 6351.

Since FRA is publishing the SSP final rule after FTA published the NPRM for Public Transportation Agency Safety Plans (the FTA Agency Safety Plan NPRM), but before the FTA Agency Safety Plan final rule, railroads and other interested stakeholders will have the opportunity to compare the SSP final rule with the FTA Agency Safety Plan NPRM.

iii. Risk Reduction Program Rulemaking

FRA is currently developing, with the assistance of the RSAC, a separate risk reduction rule, referred to as the risk reduction program (RRP), that would implement the requirements of sections 20156, 20118, and 20119 for Class I freight railroads and railroads with inadequate safety performance. The RRP NPRM was published in the
Federal Register
on February 27, 2015. 80 FR 10949. The RRP rulemaking is discussed
infra
in the “Statutory Background” section.

iv. FRA's Confidential Close Call Reporting System and Clear Signal for Action Program

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.
2

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.

2
The history and structure of C3RS and CSA program were discussed extensively in the SSP NPRM. 77 FR 55375-76.

The C3RS and CSA program embody many of the concepts and principles found in a SSP: 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 require any railroad to implement a C3RS or CSA program as part of their SSP, FRA does believe that these types of programs would prove useful in the development of a SSP and encourages railroads to include such programs as part of their SSP.

C. FRA's Railroad Safety Advisory Committee

The SSP rule was developed with the assistance of the RSAC.
3

This rule incorporates the majority of RSAC's recommendations. FRA decided not to incorporate certain recommendations because they were unnecessary or duplicative and their exclusion would not have a substantive effect on the rule. The rule also contains elements that were not part of RSAC's recommendations. The majority of these elements are added to provide clarity and to conform to
Federal Register
formatting requirements. However, FRA notes the areas in which the exclusion of the RSAC recommendations or the inclusion of elements not part of the RSAC recommendations do have a substantive effect on the rule and will provide an explanation for doing so.

3
The history, structure, and SSP-related proceedings were discussed extensively in the SSP NPRM. 77 FR 55376-78.

III. Statutory Background

A. Rail Safety Improvement Act of 2008

In section 103 of the RSIA, Congress enacted a statutory provision directing 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. This statutory mandate is codified at 49 U.S.C. 20156 (section 20156). The Secretary has delegated this statutory responsibility to the FRA Administrator.
See
49 CFR 1.89, 77 FR 49965, 49984, Aug. 17, 2012;
see also
49 U.S.C. 103(g). The railroads required to be subject to such a regulation include the following:

(1) Class 1 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 SSP rule implements sections 20156, 20118, and 20119 as they apply to railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads). The SSP rule is a risk reduction program in that it requires a passenger railroad to assess and manage risk and to develop proactive hazard management methods to promote safety improvement. The rule contains provisions that, while not explicitly required by the statutory safety risk reduction program mandate, are necessary to properly implement the mandate and are consistent with the intent behind the mandate. Further, as mentioned previously, many of the elements in the rule are modeled after the APTA System Safety Manual; therefore, the majority of railroads will have already implemented those elements. The rule also implements section 20119, which addresses the protection of information in railroad safety risk analyses and will be discussed further in the rule.

B. Related Risk Reduction Rulemaking

As discussed,
supra,
the RRP NPRM proposes implementing the requirements of sections 20156, 20118, and 20119 for Class I freight railroads and railroads with inadequate safety performance. To avoid duplicative requirements, as proposed, the RRP rule would not apply to any passenger railroad already required to comply with the SSP rule. Establishing separate safety risk reduction rules for passenger railroads and Class I freight railroads will allow those rules to account for the significant differences between passenger and freight operations. For example, passenger operations generate risks uniquely associated with the passengers that utilize their services. The SSP rule can be tailored specifically to these types of risks, which are not independently generated by freight railroads. Further, freight railroads may generate risks uniquely associated with the transportation of hazardous materials and the proposed RRP rule can be specifically tailored to these types of risks, which are not independently generated by passenger railroads.

Some overlap may exist between certain components of the SSP and RRP rules. Most significantly, the SSP and RRP final rules most likely will contain similar provisions implementing the consultation requirements of section 20156(g) and responding to the information protection study section 20119(a) mandated. There was significant discussion during the SSP and RRP RSAC processes on how to implement these statutory mandates. 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. Based on the comments received in response to the SSP NPRM, FRA has revised the consultation process requirement and the information protections. These revisions are discussed further in the discussion of comments section.

C. System Safety Information Protection

Section 20119(b) 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 a SSP.

i. Exemption From Freedom of Information Act Disclosure

In section 20118, Congress determined that for risk reduction programs to be effective, the risk analyses must be shielded from production in response to FOIA requests. 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).

Section 20118(a) 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 also applies to records made available to FRA for inspection or copying pursuant to a risk reduction program or pilot program. Section 20118(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 section 20118 qualifies as an Exemption 3 statute under FOIA.
4

FRA therefore believes that SSP records in its possession are exempted from mandatory disclosure under FOIA, unless one of two exceptions provided by the statute 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.

4
In 2009, Congress amended 5 U.S.C. 552(b)(3) to require Exemption 3 statutes to specifically cite to section 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 20118, which was enacted in October of 2008.

ii. Discovery and Other Use of Risk Analysis Information in Litigation

1. The Statutory Mandate

The RSIA also addressed the disclosure and use of risk analysis information in litigation. Section 20119(a), one of the statutory provisions enacted by the RSIA, 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. In conducting this study, section 20119(a) required FRA to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public.
See id.
Section 20119(b) 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). Section 20119(b)

prohibits any such rule from becoming effective until one year after its adoption.

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 section 20119(a), 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
(final report), 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 determined that substantial support exists for the conclusion that a rule that protects “railroad safety risk information from use in civil litigation involving claims for personal injuries or wrongful death would serve the broader public interest.”
Study of Existing Legal Protections
at 63. The final report highlighted the fact that, in the past with similar programs, Congress has deemed that it is in the public's interest to place statutory limitations on the disclosure or use of certain information for use by the Federal government.
Id.
The safety risk reduction programs RSIA mandated, according to the final report, involve public interest considerations similar to the ones Congress has protected through statutory limitations and these limitations have been upheld by courts. Many of the comments to the final report agree that limiting the use on information collected pursuant to a safety risk reduction program mandated by RSIA in discovery or litigation would serve the broad public interest by encouraging and facilitating the timely and complete disclosure of safety-related information to FRA. Further, the final report underscored FRA's statutory duty to protect the broader public interest in ensuring rail safety and that this public interest outweighs the individual interests of future litigants who may bring damage claims against railroads. Therefore, the final report concluded “after balancing all of the considerations that bear upon the public interest . . . the balance weighs in favor of adopting rules prohibiting the admissibility or discovery of information compiled or collected for FRA railroad safety risk reduction programs in a civil action where a plaintiff seeks damages for personal injury or wrongful death.”
Id.
at 64.

In response to the final report, the SSP NPRM proposed in § 270.105 to protect any information compiled or collected solely for the purpose of developing, implementing or evaluating a 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 includes 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. FRA received multiple comments in response to the proposed information protections and made revisions based on these comments. These revisions are discussed further in the discussion of comments section and the corresponding section-by-section analysis.

D. Consultation Requirements

Section 20156(g)(1), states that a railroad required to establish a safety risk reduction program must “consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.” Section 20156(g)(2) further provides that if a “railroad 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.” FRA must consider these views during review and approval of a railroad's SSP plan.

In the NPRM, FRA proposed to implement this mandate by requiring each railroad required to establish a SSP to consult with its directly affected employees (using good faith and best efforts) on the contents of its SSP plan. A railroad is required 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.

As with the information protection provisions, FRA anticipates the RRP rule will have essentially identical provisions regarding the consultation requirements since there was significant discussion during the SSP and RRP RSAC processes on how to implement section 20156(g). 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.

E. Related Fatigue Management Plans Rulemaking

Section 20156(d)(2) states that a SSP must include a fatigue management plan that meets the requirements of section 20156(f). This SSP final rule does not address this mandate 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. 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.

The working group completed its work in September 2013 and submitted its recommendations to FRA for further consideration. Ultimately, any fatigue management plans required by FRA pursuant to section 20156(d)(2) and 20156(f) would be considered part of a railroad's overall SSP.

FRA notes that the SSP NPRM had a placeholder in proposed § 270.103(t) that would require a railroad, as part of its SSP, 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 and was intended merely to be an acknowledgement of the statutory fatigue management plan mandate. FRA has elected to not include this placeholder in the final rule because it may create confusion regarding the separate FMP Working Group process and the ongoing fatigue management plans rulemaking.

IV. Guidance Manual

The preamble of the SSP NPRM outlined FRA's plan to publish a guidance manual that would assist in the development, implementation, and evaluation of a railroad's SSP. FRA believes sufficient guidance is currently available to railroads that would assist in implementing a SSP. As discussed previously, a majority of passenger railroads affected by this rule participate in the APTA system safety program and are currently participating in the APTA audit program. APTA has published significant guidance regarding its program, primarily, APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads. APTA,
Manual for the Development of System Safety Program Plans for Commuter Railroads,
(May 15, 2006), available on APTA's Web site at
http://www.apta.com/resources/reportsandpublications/Pages/Rail.aspx
. FRA has also developed guidance regarding implementing system safety principals in its Collision Hazard Analysis Guide. The Collision Hazard Analysis Guide supports APTA's Manual by providing a “step-by-step procedure on how to perform hazard analysis and how to develop effective mitigation strategies that will improve passenger rail safety.” FRA,
Collision Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service,
5 (October 2007), available at
www.fra.dot.gov
. FRA believes APTA's guidance on its system safety program and FRA's Collision Hazard Analysis Guide would provide the necessary assistance to railroads implementing a SSP. As noted previously, FRA will work with each railroad to provide the necessary assistance and guidance for implementing a SSP.

V. Discussion of Specific Comments and Conclusions

FRA received 19 written comments in response to the NPRM, including comments from members of the railroad industry, trade organizations, labor organizations, as well as members of the general public. Specifically, comments were received from the following organizations: Alaska Railroad Corporation, American Association for Justice, Amtrak, Association of American Railroads (AAR), APTA, Maelstrom Society, National Safety Council, New York State Metropolitan Transportation Authority (MTA), Northeast Illinois Regional Commuter Railroad Corporation (Metra), Parsons Brinkerhoff, Inc., and Trinity Railway Express. Interested labor organizations (Labor Organizations) jointly filed a comment. The Labor Organizations included: American Train Dispatchers Association, Brotherhood of Locomotive Engineers and Trainmen, Brotherhood of Maintenance of Way Employes Division, Brotherhood Railway Carmen Division TCU/IAM, Sheet Metal, Air, Rail and Transportation Workers, and Transportation Workers Union of America (TWU). The following discussion provides an overview of the written comments FRA received in response to the NPRM. More detailed discussions of specific comments and how FRA has chosen to address these comments in the final rule can be found in the relevant section-by-section analysis portion of this preamble.

Generally, all of the comments submitted were in favor of SSP. While the comments varied on the structure and breadth of a SSP, there was agreement that a properly implemented SSP would increase safety of the railroad's operations. As discussed previously, there are two concurrent rulemakings that will implement sections 20156, 20118, and 20119, the SSP rule and the RRP rule. FRA established separate safety risk reduction rules for passenger railroads and the Class I freight railroads to account for significant differences between passenger and freight operations. Many commenters requested that FRA make it clear that the SSP requirements are separate from the forthcoming RRP rule and a railroad will not be required to submit both a SSP plan and RRP plan to FRA. It is not the intent that one railroad will be required to satisfy both regulations,
i.e.,
be required to implement both a SSP and RRP and submit the corresponding plans to FRA for review and approval.

Certain commenters provided specific scenarios involving multiple rail operations and inquired which railroad would be required to comply with which regulation. One example involved a commuter railroad subject to the SSP rule that contracts certain portions of its passenger operations to a freight railroad that may be subject to the proposed RRP rule. In this scenario, the entity that is ultimately responsible for providing the passenger service would be responsible for complying with the SSP rule, which would be the commuter railroad. The fact that the commuter railroad contracts its operations to the freight railroad does not result in the delegation of the duty to comply with the SSP rule to that freight railroad. Contracting out these operations may pose certain hazards and risks. Therefore, the commuter railroad's SSP needs to take into account that the passenger operations are contracted out to another railroad. If the freight railroad also conducts freight operations over the same track in which it conducts the passenger operations for the commuter railroad and the freight railroad is required to implement a RRP, that segment will be included in the freight railroad's RRP and must take into consideration the risks and hazards posed by the passenger operation. Further, if the freight railroad conducts freight operations over the same track in which it conducts the passenger operations for the commuter railroad, the commuter railroad's SSP must take into consideration the risks and hazards posed by the freight operations.

Another commenter presented the scenario in which a passenger railroad subject to the SSP rule owns and maintains, but does not dispatch, a segment of track in which there are freight operations. From the example, it is not clear if the passenger railroad is also operating on that segment. If the passenger railroad is operating on that segment, pursuant to § 270.3(a), it will need to include that segment in its SSP. If the passenger railroad is not operating on that segment of track, but there are freight operations on that segment of

track by another railroad, the passenger railroad will include that segment in its SSP because, as discussed in the section-by-section analysis for § 270.103(d)(2), the passenger railroad will be required to identify the persons that utilize significant safety-related services and by operating on track that the passenger railroad owns and maintains, the freight operators are utilizing significant safety-related services of the passenger railroad. Further, FRA would expect the passenger railroad to include that segment in the description of its rail system pursuant to § 270.103(d)(1). The railroad conducting freight operations on that segment of track may be required to implement a RRP and that segment may need to be included in its RRP.

Another example was a situation in which a passenger railroad has two terminals on its system where there are freight operations adjacent (within 25') to the passenger operations. In this scenario, FRA would expect the passenger railroad's SSP to assess what hazards and resulting risks arise due to the proximity of the freight operations to the passenger operations; however, the actual freight operations would not be included in the passenger railroad's SSP. FRA does not intend these three examples to cover every scenario a railroad may encounter; rather, these examples provide guidance concerning what facts FRA will find determinative regarding which railroad will be required to comply with which regulation. Since FRA cannot contemplate every scenario, railroads and other interested parties are welcomed and encouraged to reach out to FRA for guidance regarding application of the SSP rule to a railroad's specific operations.

In many instances in the NPRM, FRA stated that it plans on working with the railroads on certain aspects of the rule. The Labor Organizations expressed concern that FRA plans on exclusively working with the railroads and not allowing any other interested party to be involved, effectively substituting FRA for the Labor Organizations in the statutory-mandated consultation role. This was not FRA's intent behind those statements. Rather, the intent was to make it clear that FRA would be available to provide guidance to the railroads on the various aspects of the rule, not that there would be an exclusive partnership between FRA and the railroads to develop the railroads' SSPs. FRA will work with the railroads and will not replace the Labor Organizations and any other directly affected employee in their consultation role. FRA has amended the language to make this intention clear. It is also important to note that through the consultation process in § 270.107, railroad employees will always have an opportunity to provide input on the railroads' SSPs.

The Labor Organizations also believe that the NPRM supports a continuation of self-analysis by the railroads, which, they claim, is inconsistent with the intent behind RSIA. As evidence, the Labor Organizations point to multiple instances in the NPRM where FRA states that railroads have flexibility and/or discretion to make certain determinations on certain requirements of the rule, such as the waiver section proposed in § 270.7, the lack of a penalty schedule in the NPRM, and that, in limited instances, a railroad is allowed to make safety-critical changes to its SSP without prior FRA approval.

The SSP rule is directly dependent on a railroad's ability to thoroughly and candidly assess its hazards and resulting risks. The SSP requires a railroad to engage in self-analysis that will be conducted in conjunction with the railroad's directly affected employees and FRA oversight. Since no two railroads operations are exactly the same, no SSP will be exactly the same, which means that a railroad will need a certain degree of flexibility to tailor a SSP to its specific operations. Regardless of the amount of flexibility afforded to the railroads, the directly affected employees, including the Labor Organizations, will have an opportunity to provide input and work with the railroads on the development of the SSP. Regarding the lack of a penalty schedule, FRA typically does not include penalty schedules in an NPRM; however, this final rule does include a penalty schedule.

APTA expressed concern that the proposed rule was more prescriptive in significant respects than current FRA practices. APTA believes that the level of specificity in the proposed rule diminishes the flexibility needed so that the railroads can adapt their SSP plans to local conditions. Further, APTA states such specificity could divert a railroad's attention from assessing its operation risk to assessing regulatory compliance risk and would only expand the amount of paper and bureaucracy needed to comply with the rule with little to no increase in safety. APTA believes that FRA has expanded the elements of the APTA program which threatens to divert attention from the railroad's core safety practices and the highest risk of railroad operations. As examples, APTA points to the requirements associated with scheduling, reporting, and conducting consultation with the directly affected employees pursuant to § 270.102; defining, outlining, measuring, and promoting a positive safety culture pursuant to § 270.103(c) and (v); the concept of fully implemented; and the requirement that the railroad establish milestones to track the progress of implementation. Each one of these examples, according to APTA, is an instance in which railroads may have a different understanding of the requirement and therefore, subjectivity is introduced into the process and does not support a consistent regulatory framework.

FRA disagrees with APTA's assertions. As discussed above, the SSP rule is structured so that a railroad can tailor the program to its operations. The SSP rule sets forth general parameters and the railroad will design its program so that it fits these parameters, addresses the railroad's operations, and eliminates or reduces hazards on the railroad's operations. As with most new FRA regulations, significant interaction between FRA, the railroads, and other stakeholders will be necessary to ensure all parties understand the proper implementation for the rule. The majority of railroads that are required to comply with this rule already participate in APTA's system safety program. FRA believes that this rule does not add a significant paperwork and bureaucracy burden compared to what is already required by APTA's program. FRA does not believe the rule is more directive than the APTA program; rather, since most of the railroads that will implement a SSP already participate in the APTA program, the railroads are familiar with the concept and application of system safety and will be ready to adapt their existing APTA program to the requirements set forth in this rule. Further, implementation of the SSP rule will more than likely be the railroad conducting a gap analysis between its current APTA program and the SSP rule and modifying that program where necessary to bring it into compliance with the SSP rule.

The majority of the comments supported and understood that the discovery protections are necessary for a railroad to engage in a thorough and candid analysis of the hazards and resulting risks on its system; however, the American Association for Justice (AAJ) objected to the inclusion of any information protections. AAJ claims that: (1) The proposed information protections are unprecedented; (2) FRA can promulgate a SSP regulation without the information protections; (3)

the information protections will reduce the rights of persons injured in railroad accidents; (4) the information protections will allow railroads to hide safety hazards; and (5) FRA should specifically preserve State tort law based claims.

First, AAJ claims that proposed information protections are unprecedented. AAJ recognizes that there are existing programs that have information protections; however, AAJ argues that these programs have two key features: (1) Congress directed that disclosure of documents be limited, and (2) limited disclosure applies predominately to documents actually submitted to a federal agency. AAJ believes that the SSP information protections do not have either of these key features.

While Congress did not set forth specific information protections in section 20119, Congress gave FRA authority to set forth such specific protections. As discussed previously, in section 20119(a), Congress directed FRA to conduct a study to determine if certain information protections would be in the public interest. Congress set forth the specific parameters of the information protections that the study must consider. Congress then authorized FRA to promulgate a rule, subject to notice and comment, which addressed the results of the study.
Id.
FRA has complied with Congress' mandate and has set forth information protections that are consistent with the specific parameters set forth by Congress. FRA does not believe that the information protections are invalid simply because Congress didn't promulgate specific protections.

Nothing in section 20119 limits the information protections to documents that are submitted to FRA. The language used by Congress in section 20119 indicates the information protections, depending on the results of the study, could apply to information that may not even be submitted to FRA. Pursuant to section 20119(a), the study must consider information protections that would apply to documents that are compiled and collected for “the purpose of planning, implementing, or evaluating a safety risk reduction program.” Since Congress did not limit the information protections only to documents that are submitted to FRA, it is within FRA's authority to set forth information protections that apply to documents within a railroad's possession.

Nothing in 23 U.S.C. 409 (section 409), the statute that SSP information protections are modeled after, or the Supreme Court's decision in
Guillen
(which reviewed the validity and constitutionality of section 409), limits the information protections to documents submitted to the Federal Highway Administration (FHWA).
5

The Court's interpretation of section 409 was not based on whether the documents were submitted to FHWA. Rather, the Court held that the information protections were extended to the information because the Hazard Elimination Program required compiling or collection of that information.
Pierce County
v.
Guillen,
537 U.S. 129, 146 (2003). In the case of the SSP, the railroads are required by statute to compile and collect information for a SSP, so, like section 409 and the holding in
Guillen,
the protections are extended to that information.

5
Section 409 and
Guillen
are discussed extensively in the section-by-section analysis of § 270.105.

AAJ claims that in the limited circumstances in which data has been protected, the provisions have been narrowly tailored and construed. AAJ believes that SSP information protections are overly broad and inconsistent with any other government program that limits some disclosure of evidence.

FRA agrees with AAJ's assertion that the SSP information protections must be narrowly tailored and construed. In
Guillen,
the Court recognized that “statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for truth.”
Guillen
at 144-45. Since section 409 established a privilege, the Court construed it narrowly to the extent the text of the statute permitted.
Id.
at 145. FRA believes the SSP information protections are consistent with the Court's narrow interpretation of section 409.

Furthermore, the SSP protections are more narrowly tailored than the protections in section 409. Section 270.105(a)(2) limits the protections to information that was originally compiled and collected “solely” for the purpose of planning, implementing or evaluating a SSP. This means that information compiled or collected for any other purpose is not protected, even if the railroad also uses that information for its SSP. For example, if a railroad is required by another provision of law or regulation to compile or collect information, the information protections do not apply to that information. “Solely” also means that a railroad must continue to use that information only for its SSP. If a railroad subsequently uses for any other purpose information that was initially compiled or collected for a SSP, that information is not protected to the extent that it is used for the non-SSP purpose. These additional limits result in protections that are more narrow and specific than those in section 409, which does not include any language similar to “solely” that would limit protected information to information generated only for the exclusive purpose of the Hazard Elimination Program.

Second, AAJ contends that FRA can issue a SSP rule without the discovery protections, just like FAA did in its SMS rulemaking. A significant difference between the FRA and FAA programs is the scope of statutory authority Congress gave each agency for protection of information collected or maintained as part of an SMS. The FAA's authority, set forth in 49 U.S.C. 44735, limits the protection of SMS data that is voluntarily submitted, such as reports, data, or other information produced or collected for purposes of developing and implementing an SMS, from FOIA disclosure by the FAA. FRA's authority to implement SMS information protections is based on 49 U.S.C. 20119, and recommendations resulting from the required study under section 20119.

As discussed previously, the Study 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 Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations For and Against Protecting Railroad Safety Risk Reduction Program Information
at 63-64. Therefore, FRA believes the information protections are consistent with the authority provided by Congress as set forth in 49 U.S.C. 20119 and the conclusion of the Study.

Third, AAJ believes the SSP information protections will reduce the rights of persons injured in railroad accidents. AAJ points to the fact that in many cases, evidence a railroad knew or should have known of a hazard is the key to proving the railroad's liability, particularly for Federal Employers Liability Act cases. AAJ believes that the study concluded without analysis that injured people could continue to be able to pursue legal remedies because access to documents that are currently discoverable would remain discoverable. AAJ does not believe this conclusion is accurate because the information protections may shield the

documents/data necessary to show that the railroad knew or should have known of the hazard.

The SSP information protections have been drafted with the goal that a plaintiff is no worse off than they would have been had the SSP rule never existed. This is consistent with section 409 and the Court's interpretation of that section.
See Guillen
at 146. To ensure a plaintiff is no worse off, § 270.105(b) sets forth certain exceptions to the information protections. Pursuant to § 270.105(b), the information protections are not extended to information compiled or collected for a purpose other than that specifically identified in § 270.105(a). Further, if certain information was discoverable and admissible before the enactment of the SSP rule protections, § 270.105(b) ensures that the information remains discoverable and admissible. These exceptions are discussed extensively in the section-by-section analysis for § 270.105(b). FRA believes that these exceptions strike an appropriate balance between ensuring that plaintiffs are no worse than they would have been if the SSP rule had not existed and encouraging the railroads to make a robust and candid assessment of the hazards and resulting risks on their system.

According to AAJ, the information protections will allow railroads to hide safety hazards. AAJ believes that the threat of disclosure of these hazards creates an incentive for railroads to correct them immediately. AAJ points to multiple cases that they believe provide proof that railroads routinely hide evidence of hazards.

FRA disagrees with this assertion. The purpose of the SSP is for railroads to identify hazards and resulting risks on their system and take the appropriate measures to mitigate or eliminate these hazards. Without the information protections, a SSP could result in an effort-free tool for plaintiffs in litigation against railroads, which would discourage railroads from identifying hazards and resulting risks, thus frustrating the intent behind section 20156. FRA believes that the SSP and information protections will encourage railroads to identify and address, rather than hide, hazards. Furthermore, if a railroad is already required by another law or regulation to collect information to show compliance with existing laws or regulations, that information will not be protected. Therefore, railroads will not be able to use the SSP information protections to hide issues of non-compliance.

Finally, AAJ requests that FRA specifically preserve state tort law based claims. AAJ believes that since railroads are required to submit their SSP plans to FRA for approval, railroads may claim that they are immune from any safety hazard claim or either that the state law claim is preempted by FRA's approval of the SSP.

This concern was also raised by the Labor Organizations. To address this issue, FRA included § 270.201(b)(4) in the final rule, which provides that approval of a railroad's SSP plan under this part does not constitute approval of the specific actions the railroad will implement under its SSP plan pursuant to § 270.103(q)(2) and shall not be construed as establishing a Federal standard regarding those specific actions.

FRA will not review or approve the specific mitigation and elimination measures that a railroad may adopt to address the hazards and risks that it identifies.
See
§ 270.201(a)(2). The SSP rule is not intended to preempt State standards of care regarding the specific risk mitigation actions a railroad will implement under its SSP. Accordingly, § 270.201(b)(4) clarifies that FRA approval of a railroad's SSP plan under this final rule does not constitute approval of the specific mitigation and elimination measures that the railroad will implement pursuant to § 270.103(q)(2) and should not be construed as establishing a Federal standard of care regarding those specific actions.

VI. Section-by-Section Analysis

FRA is adding a new part 270 to title 49 of the CFR. Part 270 satisfies the statutory requirements regarding safety risk reduction programs for railroads providing intercity rail passenger or commuter rail passenger service.
See
49 U.S.C. 20156. Part 270 also protects certain information compiled or collected pursuant to a safety risk reduction program from admission into evidence or discovery during certain court proceedings for damages.
See
49 U.S.C. 20119.

Subpart A—General

Section 270.1 Purpose and Scope

This section contains a formal statement of the final rule's purpose and scope and remains unchanged from the NPRM. Paragraph (a) states that the purpose of the rule is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. The rule requires a railroad to establish a program that systematically evaluates railroad safety hazards and the resulting risks on its system and manages those risks in order to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities.

Paragraph (b) states that the rule prescribes minimum Federal safety standards for the preparation, adoption, and implementation of railroad system safety programs. The rule does not restrict railroads from adopting and enforcing additional or more stringent requirements not inconsistent with this part.

Paragraph (c) explains that the rule provides for the protection of information generated solely for the purpose of developing, implementing, or evaluating a system safety program under this part. In addition to the SSP, § 270.1(c) of the NPRM proposed implementing protection of information for a railroad safety risk reduction rule required by FRA for Class I freight railroads and railroads with in adequate safety performance,
i.e.,
the RRP rule. 77 FR 55379. Upon further consideration, FRA has determined that the RRP protections should be implemented in the RRP final rule, not in this rule. Accordingly, this section has been revised to only apply to this SSP final rule.

NY MTA recommended that the term “solely” be deleted from paragraph (c) and § 270.105(a) to protect studies or risk analyses that are not developed expressly to comply with this part. NY MTA believes that it is in the public interest to ensure that railroads conduct on-going and thorough self-critical examinations and expressed concern that if these types of studies or analyses are not protected, they may be used against the railroad in a court proceeding. As discussed further in the section-by-section analysis for § 270.105, FRA only has the authority under section 20119(b) to protect documents that are created pursuant to a SSP; therefore, deleting the term “solely” would improperly expand the protections beyond the limits of FRA's authority.

Section 270.3 Application

This section sets forth the applicability of the rule and remains unchanged from the NPRM. Section 20156(a)(1) mandates that FRA require each Class I railroad, a railroad carrier that has inadequate safety performance, or a railroad that provides intercity rail passenger or commuter rail passenger transportation to establish a railroad safety risk reduction program. This rule sets forth the requirements of a railroad safety risk reduction program for a railroad that provides intercity rail passenger or commuter rail passenger

transportation. Safety risk reduction programs for Class I railroads and railroads with inadequate safety performance will be addressed in the separate RRP rulemaking proceeding.
See
80 FR 10950 (RRP NPRM).

Paragraph (a) explains that this rule applies to railroads that operate intercity or commuter passenger train service on the general railroad system of transportation and railroads that provide commuter or other short-haul rail passenger train service in a metropolitan or suburban area (as described by 49 U.S.C. 20102(2)), including public authorities operating passenger train service. A public authority that provides passenger commuter train service by contracting out the actual operation to another railroad or independent contractor is regulated by FRA as a railroad under the provisions of the rule. Although the public authority is ultimately responsible for the development and implementation of a SSP (along with all related recordkeeping requirements), the railroad or other independent contractor that operates the authority's commuter passenger train service is expected to comply with the SSP established by the public authority, including implementation of the SSP plan.

In commenting on the NPRM, the Alaska Railroad proposed that when FRA next submits technical corrections of Federal statutes to Congress, FRA no longer use the terms “intercity passenger” and “commuter passenger” and instead use the term “passenger” to refer to these type of railroads. The Alaska Railroad believes that the terms, “intercity passenger” and “commuter passenger,” are based on an old, outdated statutory context. While FRA does not agree or disagree with the Alaska Railroad's position regarding the use of these terms, FRA agrees with the Alaska Railroad that this issue is a matter to be handled legislatively by Congress—not a matter to be handled by FRA in a rulemaking.

AAR expressed concern that paragraph (a) could lead to confusion that certain freight railroads may be required to have a SSP in addition to a RRP because some freight railroads operate commuter trains on behalf of commuter agencies and some freight railroads provide tracks over which passenger trains operate. To avoid confusion, AAR proposed that “railroads that primarily provide freight service and are potentially subject to risk reduction program regulations” should be excepted from the rule. The discussion of comments section addressed multiple scenarios raised by commenters that involve freight operations and passenger operations and which railroad would be responsible for which program. Simply because a passenger railroad contracts out passenger service to a freight railroad does not mean the duty to comply with this rule has been automatically delegated to the freight railroad and the passenger railroad no longer is required to comply with this rule. The passenger railroad ultimately is responsible for complying with this rule and the freight railroad providing the passenger service is required to comply with the passenger railroad's SSP.
See
§ 270.7(b). FRA believes that AAR's suggested language would only lead to further confusion rather than clarification. It is not clear which railroads would be classified as “primarily provid[ing] freight service” and, therefore, it would not be clear which railroad would be excepted from complying with this rule. Due to this ambiguity, AAR's suggested language is not adopted.

Metra requested that an RSAC recommendation regarding delegation of duties under this rule be inserted into the final rule. The RSAC recommended that if a passenger railroad contracts all activities that relate to the passenger service to another entity, the sponsoring passenger railroad may seek approval from the FRA Associate Administrator of Safety to delegate responsibility for the SSP to the other entity. FRA chose not to adopt this recommendation. It would not be consistent with FRA's statutory jurisdiction over passenger railroads to allow delegation of responsibility under this part, so that a passenger railroad could effectively divest itself of legal responsibility under the rule. In certain instances, including this part, FRA allows a railroad to contract with another entity to perform the duties required by a rule; however, FRA's approach has always been never to allow a railroad to delegate completely responsibility for compliance with a rule to another entity. Since the SSP rule is the first of its kind for FRA and the railroad industry, FRA believes it is important for the passenger railroad to be responsible for compliance with the rule to ensure that the railroad is involved in system safety planning and implementation under the rule.

In paragraph (b), certain railroads are excepted from the final rule's applicability. The exceptions proposed in the NPRM are adopted in the final rule. The first exception, in paragraph (b)(1), covers rapid transit operations in an urban area that are not connected to the general railroad system of transportation. This paragraph clarifies the circumstances under which rapid transit operations are not subject to FRA jurisdiction under this part. It should be noted, however, that some operations having rapid transit characteristics are within FRA's jurisdiction given their connections to the general system,
e.g.,
shared use of the general system right-of-way. FRA specifically intends for part 270 to apply to such operations.

Paragraph (b)(2) sets forth an exemption for operations commonly described as tourist, scenic, historic, or excursion service whether on or off the general railroad system. Tourist, scenic, historic, or excursion rail operations is defined in § 270.5. This exemption is consistent with the treatment of tourist, scenic, historic, or excursion rail operations in FRA's other regulations concerning passenger operations, including the underlying basis for the regulatory approach taken in those regulations.
See
49 CFR 238.3(c)(3), 64 FR 25576 (May 12, 1999); and 239.3(b)(3), 63 FR 24644 (May 4, 1998).

Paragraph (b)(3) makes clear that the requirements of the 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 statutory mandate and FRA is taking into account the burden that would be imposed by requiring private passenger car owners and operators to conform to the requirements of this part. Private passenger cars are often hauled by host railroads, such as Amtrak and commuter railroads, and these hosts often impose their own safety requirements on the operation of the private passenger cars. Pursuant to this rule, these host railroads are required to have SSPs in place to protect the safety of their own passengers; in turn, the private car passengers benefit from these programs even without the rule directly covering private car owners or operators. In the case of non-revenue passengers, including employees and guests of railroads that are transported in business and office cars, as well as persons traveling on circus trains, the railroads are expected to provide for their safety consistent with existing safety operating procedures and protocols for normal train operations.

Finally, paragraph (b)(4) sets forth an exception from the requirements of this part 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 § 270.5). 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.

Section 20156(a)(4) allows a railroad carrier that is not required to submit a railroad safety risk reduction program to voluntarily submit such a program. If the railroad voluntary submits a program, it shall comply with the requirements set forth in section 20156 and is subject to approval by the Secretary. In the NPRM, FRA sought comment on whether a provision that allows a railroad to establish voluntarily a SSP should be added to the final rule. FRA did not receive a significant number of comments in response to this request and the comments FRA did receive, supported voluntary compliance with the rule.

As discussed in the NPRM, FRA anticipates that the majority of railroads which voluntarily submit a railroad safety risk reduction program under section 20156(a)(4) would do so pursuant to the RRP regulation that is the subject of a separate proceeding. Paragraph (a) is broad and intended to cover the majority of the railroads that provide commuter and intercity passenger service. Absent the exceptions in paragraph (b), if a railroad is not required by this part to establish a SSP, that railroad more than likely does not provide commuter and intercity passenger service and, therefore, may be required to establish a RRP. If these railroads are not required to establish a RRP but decide to voluntarily establish a railroad safety risk reduction program pursuant to section 20156(a)(4), the RRP regulation would more than likely be better suited for their operations because, due to the breadth of paragraph (a), they are most likely not a railroad that provides commuter or intercity passenger service. Therefore, FRA believes voluntary compliance with a statutory-mandated risk reduction program, including a SSP, is better addressed in the forthcoming RRP rule.
See
80 FR 10969 and 10992 for the proposed RRP voluntary compliance section and discussion.

Section 270.5 Definitions

This section contains a set of definitions that clarify the meaning of important terms as they are used in the rule. The definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. Many of the definitions are based on definitions in FTA's part 659 and APTA's system safety program. In the NPRM, FRA requested comment and input regarding the proposed terms defined in this section and specifically whether other terms should be defined. FRA received multiple comments in response to this request. Generally, commenters did not have significant issues with the proposed definitions; however, some commenters recommended adding definitions for certain terms.

The Labor Organizations suggested that FRA add the definitions that the RSAC recommended but FRA chose not to include in the NPRM. The definitions were for the following terms: Contractor, FTA, hazard analysis, improvement plan, individual investigation, passenger operations, passenger railroad, railroad property, risk-based hazard management, safety, safety certification, safety culture, safety-related services, safety-related employee, sponsoring railroad, system safety program, and system safety program plan. Trinity Railways also requested that FRA add definitions for passenger railroad, safety-related services, and sponsoring railroad. Regarding the terms FTA, individual investigation, passenger operations, railroad property, safety-related employee, and sponsoring railroad, FRA declines to add definitions for these terms because these terms are not used in the rule text. Regarding the terms contractor and safety, these terms have a common understanding throughout the railroad industry and do not have a particular meaning within the rule, so definitions for these terms are not necessary. Regarding the terms hazard analysis, improvement plan, passenger railroad, safety certification, and safety-related services, there are sections within the rule that address the meaning of each term and FRA believes that it is unnecessary to include definitions for these terms as well.
See
§§ 270.3(a), 270.103(d)(2) and (3), (q), and (s)(3), 270.303(b)(4), and 305(b)(1). However, FRA has decided to add definitions for the terms risk-based hazard management, safety culture, system safety program, and system safety program plan. A discussion of all the definitions used in this part follows.

“Administrator” refers to Federal Railroad Administrator or his or her delegate.

“Configuration management” means the process a railroad uses to ensure that the configurations of all property, equipment and system design elements are properly documented.

“FRA” means the Federal Railroad Administration.

“Fully implemented” means that all the elements of the railroad's SSP plan required by this part are established and applied to the safety management of the railroad. APTA commented that the proposed definition for “fully implemented” included two sentences and that each sentence provided the same information but in a different context and that this could lead to confusion as to how it should be applied. However, FRA notes that the proposed definition contained only one sentence and believes that it was sufficiently clear to avoid confusion. APTA may have been referring to the section-by-section analysis discussion for this definition. In this regard, FRA has not included that additional discussion here to maintain clarity.

“Hazard” means any real or potential condition, as identified in the railroad's risk-based hazard analysis under § 270.103(q), that can cause injury, illness, or death; damage to or loss of a system; or damage to equipment, property, or the environment. This definition is based on the existing definition of the term in FTA's part 659. 49 CFR 659.5. FRA does not intend this definition to include hazards that are completely unrelated to railroad safety, such as environmental hazards that would fall under the exclusive jurisdiction of the United States Environmental Protection Agency (EPA) or workplace safety hazards that would fall under the exclusive jurisdiction of the United States Department of Labor's Occupational Safety and Health Administration (OSHA). Railroad safety hazards that fall under FRA jurisdiction that could cause damage to the environment, however, would be included in this definition. For example, the potential of a derailment of a tank car at a location due to track geometry would fall under this definition. If that derailment would not likely result in a release of hazardous materials, it would fall under FRA's jurisdiction. However, if the derailment has a high potential for the release of hazardous material, that would be a hazard that would fall under this definition that is related to railroad safety and may fall under both FRA's and EPA's jurisdiction. An example of a railroad hazard that would fall exclusively under EPA's jurisdiction is air pollution caused by locomotive emissions. This hazard is not within FRA's jurisdiction and would not be included in this definition.
See e.g.,
40 CFR part 92 (Control of Air Pollution from Locomotives and Locomotive Engines).

“Passenger” means a person, excluding an on-duty employee, who is on board, boarding, or alighting from a rail vehicle for the purpose of travel. This definition is modeled after the

definition of “passenger” in FTA's regulations at part 659, which defines a “passenger” as “a person who is on board, boarding, or alighting from a rail transit vehicle for the purpose of travel.” 49 CFR 659.5. FRA has added the phrase “excluding an on-duty employee” to the definition to clarify that, if a person is engaging in these activities (on board, boarding, or alighting) and they are an off-duty railroad employee, that person is considered a passenger for the purposes of this rule.

“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.

“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 § 270.3, FRA has chosen to exempt plant railroads, as defined in § 270.5, from the regulation. 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 meaning 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 part 270.

The definition clarifies 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 operations 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 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 curiam opinion). APTA believes that since the term “plant railroad” is provided in support of 49 CFR part 209 it does not need to be defined within the context of the SSP rule. FRA disagrees. Plant railroads will be exempt from the rule; therefore, FRA believes it is necessary to clearly define what type of operations will be considered a “plant railroad.”

“Positive train control system” means a system designed to prevent train-to-train collisions, overspeed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position, as described in subpart I of 49 CFR part 236. APTA believes that since the term “positive train control” is provided in support of 49 CFR part 236 it does not need to be defined within the context of the SSP rule. FRA disagrees. Since “positive train control system” has a specific meaning within FRA's regulations, it is important that the meaning of the term used within the SSP rule is consistent with part 236.

“Rail vehicle” means railroad rolling stock, including, but not limited to, passenger and maintenance vehicles.

“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, and any form of non-highway ground transportation that runs on rails or electromagnetic guideways, but excludes urban rapid transit not connected to the general system.

“Risk” means the combination of the probability (or frequency of occurrence) and the consequence (or severity) of a hazard.

“Risk-based hazard management” means the processes (including documentation) used to identify and analyze hazards, assess and rank corresponding risks, and eliminate or mitigate the resulting risks. This is a high-level definition of “risk-based hazard management” and will provide a general understanding of the concept of what is “risk-based hazard management.” Risk-based hazard management is a key component of a railroad's SSP and § 270.103(p) sets forth the requirements for a risk-based hazard management program.

“Safety culture” means the shared values, actions and behaviors that demonstrate commitment to safety over competing goals and demands. This definition was proposed in the NPRM section-by-section analysis of § 270.101(b). This definition is from the DOT Safety Council's May 2011 research paper,
SAFETY CULTURE: A Significant Driver Affecting Safety in Transportation.
The DOT Safety Council developed this definition after extensive review of definitions for safety culture used in a wide range of industries and organizations over the

past two decades. FRA recognizes that railroads may have a slightly different understanding of what exactly makes up safety culture; however, for the purposes of this rule, FRA believes it is important to establish a shared definition of safety culture. Organizations with a strong safety culture will consistently choose safety over performance when faced with the choice of cutting corners to increase performance. Safety culture is discussed further in section-by-section analysis for § 270.101(b), which requires a railroad to design its SSP so that it promotes a positive safety culture.

“System safety” means the application of management, economic, and engineering principles and techniques to optimize all aspects of safety, within the constraints of operational effectiveness, time, and cost, throughout all phases of the system life cycle. By specifying that system safety operates within certain constraints, this definition clarifies that there may be hazards on the railroad's system that a railroad may not be capable of fully mitigating or eliminating, or where the costs to address the hazard are not commensurate with the risks. Rather, the railroad would monitor the hazard and at some point, if feasible, employ methods to mitigate or eliminate that hazard and resulting risk.

“System safety program” means a comprehensive process for the application management and engineering principles and techniques to optimize all aspects of safety. A railroad's SSP sets out how the railroad will implement system safety in its operations. Because this part describes specific requirements of a system safety program, this definition is intended to be high-level.

“System safety program plan” means a document developed by the railroad that implements and supports the railroad's SSP. Section 270.103 sets forth the specific requirements of a SSP plan.

“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 concerning passenger operations.
See
49 CFR 238.5 and 239.5.

The NPRM proposed a waiver process in § 270.7 in which a railroad could request a waiver from a provision of the SSP rule. FRA determined that such a provision is unnecessary because the rules governing the FRA waiver process are already set forth in 49 CFR part 211. Therefore, a waiver provision has not been included in the SSP final rule.

Section 270.7 Penalties and Responsibility for Compliance

This section, originally proposed as § 270.9, contains provisions regarding the penalties for failure to comply with the rule and the responsibility for compliance. It is adopted and remains unchanged from the NPRM.

As explained in the NPRM, paragraph (a) identifies the civil penalties that FRA may impose upon any person that violates or causes a violation of any requirement of this part. These penalties are authorized by 49 U.S.C. 20156(h), 21301, 21302, and 21304. The penalty provision parallels penalty provisions included in numerous other safety regulations issued by FRA. In general, any person who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least $839 and not more than $27,455 per violation. Civil penalties may 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 persons, or causes death or injury, a penalty not to exceed $109,819 per violation may be assessed. In addition, each day a violation continues constitutes a separate offense. Maximum penalties of $27,455 and $109,819 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 Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, Sec. 701. Furthermore, a person may 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 failure to comply with the regulations is important in ensuring that compliance is achieved. This final rule includes a schedule of civil penalties as Appendix A to this part. Because a penalty schedule is a statement of agency policy, notice and comment was not required before its issuance.
See
5 U.S.C. 553(b)(3)(A).

Paragraph (b) clarifies that the requirements in the rule are applicable to any person (as defined in the rule) that performs any function or task required by the rule. Although various sections of the rule address the duties of passenger railroads, FRA intends that any person who performs any action on behalf of a passenger railroad or any person who performs any action covered by the rule is required to perform that action in the same manner as required of the passenger railroad, or be subject to FRA enforcement action. For example, if a passenger railroad contracts with another entity to perform duties covered by this rule, that entity is required to perform those duties in the same manner as the passenger railroad. While the passenger railroad remains responsible for complying with the rule, FRA can take enforcement action any person who performs any action on behalf of a passenger railroad or any person who performs any action covered by the rule.

Subpart B—System Safety Program Requirements

Section 270.101 System Safety Program: General

This section sets forth the general requirements of the rule and remains unchanged from the NPRM. Each railroad subject to this part (
i.e.,
each passenger railroad) is required to establish and fully implement a SSP that systematically evaluates railroad safety hazards on its system and manages the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities. The main components of a railroad's SSP will be the risk-based hazard management program and risk-based hazard analysis that will be designed to proactively identify hazards and mitigate or eliminate the resulting risks from those hazards. The risk-based hazard management program and risk-based hazard analysis requirements are set forth in § 270.103(p) and (q).

To properly implement a SSP, a railroad is required to set forth a SSP plan pursuant to § 270.103. The SSP plan will be a document or a series/collection of documents that contain all of the elements required by this part and shall be designed to support the railroad's SSP.

Paragraph (b) requires that a railroad's SSP be designed so that it promotes a positive safety culture. Safety culture, as defined in § 270.5, is the shared values, actions and behaviors that demonstrate commitment to safety over competing goals and demands. U.S. DOT, Safety Council Research Paper,
SAFETY CULTURE: A Significant Driver Affecting Safety in Transportation
(May 2011). Research has shown that when an organization has a strong safety culture, accidents and incidents are less frequent and less severe.
Id.
at 4. Conversely, if an organization's safety culture is weak,

significant and catastrophic accidents are more likely to occur.
Id.
For a railroad to achieve its SSP goals, the mitigation or elimination of safety hazards and risks on the rail system, the railroad must have a positive and strong safety culture, so it is vital that the railroad's SSP be designed so that it promotes a positive safety culture. Consistent with the Safety Council Research Paper, FRA believes that there are 10 elements that support a strong safety culture on a railroad.
Id.
at 7. These elements are: (1) Having leadership that is clearly committed to safety; (2) practicing continuous learning; (3) making decisions that demonstrate that safety is prioritized over competing demands; (4) having clearly defined reporting systems and accountability; (5) promoting a safety-conscious work environment; (6) making employees feel personally responsible for safety; (7) fostering open and effective communication across the railroad; (8) fostering mutual trust between employees and the railroad; (9) responding to safety concerns in a fair and consistent manner; and (10) having training and other resources available to support safety.
Id.
at 7-8. While these 10 elements are not requirements of this rule, FRA believes that if a railroad incorporates each element, the railroad will have a strong safety culture. Further, implementing these elements will provide the railroad the necessary framework to effectively describe its safety culture as required by § 270.103(b)(2) and describe how it measures the success of its safety culture as required § 270.103(t).

Section 270.103 System Safety Program Plan

This section implements a railroad's SSP through a SSP plan. This section received numerous comments and these comments are addressed in the appropriate subsection to which they refer. As mentioned previously, a railroad is required to create a written SSP plan to fully implement and support its SSP. This section sets forth all of the required elements of the railroad's SSP plan.

Paragraph (a) establishes that a railroad's SSP plan must contain the minimum elements set forth in this section. FRA did not receive any comments regarding paragraph (a) and therefore it remains unchanged from the NPRM. As provided in § 270.201, a railroad's SSP plan must be submitted to and approved by the FRA Associate Administrator for Railroad Safety and Chief Safety Officer. FRA Associate Administrator for Railroad Safety and Chief Safety Officer approval of the SSP plan will be considered approval of the railroad's SSP as required by section 20156(a)(3).

In certain scenarios, a railroad providing passenger service is not the railroad that owns the track on which passenger service is being operated. Rather, the railroad that owns the track hosts the railroad providing the passenger train service. For a railroad providing passenger train service to effectively identify, evaluate, and manage the hazards and resulting risks on the system over which it operates, as required by this part, the railroad needs to evaluate all aspects of the operation. As such, paragraph (a)(2) of this section addresses the coordination that must occur between a railroad providing passenger service and a railroad hosting that passenger service. If certain aspects of the operation are not under the control of the railroad providing passenger service but are controlled by the railroad hosting the operation, the two railroads need to communicate so those aspects can be adequately addressed by the railroad's SSP. A passenger railroad may have multiple railroads hosting its passenger train service on its system and therefore needs to coordinate with each railroad. If a railroad hosting the passenger train service does not cooperate with the railroad providing the passenger train service to coordinate the applicable parts of the SSP, under § 270.7, the railroad hosting the passenger train service may be subject to civil penalties because it may cause the railroad providing the passenger service to violate the requirements of this part. For example, if a passenger railroad service is hosted by a freight railroad and that freight railroad is responsible for track maintenance, the freight railroad will need to provide the passenger railroad the necessary information regarding track maintenance for the passenger railroad to prepare its SSP plan. Since track maintenance has significant impact on the safety of rail operations, it is a vital element of a railroad's SSP plan. Therefore, if the freight railroad refuses to provide the passenger railroad the necessary information regarding track maintenance, the passenger railroad will not be able to fully comply with this part and, consequently, the freight railroad may be subject to civil penalties for causing the passenger railroad to fail to comply with this part.

APTA requested that FRA address coordination issues whereby one railroad can adopt and operate under another railroad's SSP plan. There is nothing in this rule prohibiting a railroad's SSP plan from adopting certain portions of another railroad's SSP plan if those portions cover the same operations on both railroads. However, no two railroad operations are exactly the same; therefore, no two SSP plans will be exactly the same. If a railroad adopts portions of another railroad's plan, the operations covered by those portions of the plan must involve the same directly affected employees and both railroads must independently comply with the consultation requirements under this rule.

APTA also requested that FRA allow railroads to develop SSP plans for a jointly served facility and allow properties with multiple host railroads to have SSP plans specific to each of the territories that a host railroad supports. There is nothing in the rule prohibiting railroads from jointly developing portions of their SSP plans; however, the railroads must ensure that the jointly developed portions address all the necessary requirements of this rule. Each railroad can include the jointly developed portions in their plans, but each portion must involve the same directly affected employees and both railroads must independently comply with the consultation requirements under this rule.

Paragraph (b) requires each SSP plan to have a policy statement that endorses the railroad's SSP. It should be noted that proposed paragraph (c)(1) has been moved to paragraph (b). The policy statement required by this paragraph should define, as clearly as possible, the railroad's authority for the establishment and implementation of the SSP. This includes the legal name of the entity responsible for developing the railroad, any authorizing or implementing legislation, and federal, state & local statutes enacted to establish the railroad.

The policy statement is required to be signed by the chief official of the railroad. This signature would indicate that the top level of management at the railroad endorses the railroad's SSP. AAR requested that the chief official for safety should be required to sign the system safety program, not the chief official at the railroad. AAR believes that the title of “chief official at the railroad” is ambiguous because railroads have different organizational structures and there may not be one person with the title of “chief official.” AAR claims that FRA has departed from the language in the statutory mandate which requires the chief official for safety to sign the SSP plan. AAR also believes that the chief official for safety is the more appropriate person to sign the SSP plan because he/she will be more familiar with the details of the SSP

than the other senior railroad officials and the chief official for safety will be directly responsible for the preparation of the SSP plan. FRA does not disagree that the chief official for safety should be required to sign the SSP plan. Indeed, the chief official for safety is not only required by this rule to sign the SSP plan but is required to certify that the contents of the SSP plan are accurate and that the railroad will implement the contents of the plan.
See
49 CFR 270.201(a)(3)(i). FRA is not deviating from the requirements in the statutory mandate. Section 270.201(a)(3)(i) virtually mirrors the language in section 20156(b). AAR has mistaken § 270.103(b) as requiring the chief official at the railroad to sign the SSP plan. This paragraph requires the chief official at the railroad only to sign the SSP policy statement, not the entire SSP plan. Prior experience with effective risk management programs has demonstrated to FRA the importance of the active involvement of the highest officials in improving safety and safety culture. For this reason, FRA has determined that the chief official at the railroad must sign the SSP policy statement.

FRA notes that this policy statement is also required to describe the safety philosophy and culture of the railroad. Section 270.101(b) requires a railroad to design its SSP so that it promotes and supports a positive safety culture as defined by § 270.5. In order for a railroad to properly design its SSP so that it promotes and supports a positive safety culture, it first needs to describe its safety culture and philosophy. As discussed previously, FRA believes that there are 10 elements that are critical to a strong safety culture and these 10 elements provide the necessary framework for a railroad to comprehensively describe its safety culture. Once its safety culture is described, the railroad must also describe how it measures the success of its safety culture pursuant to paragraph (t) of this section. The requirement for this description was proposed in § 270.103(c)(1) of the NPRM; however, as discussed in the next paragraph, FRA has determined to delete proposed § 270.103(c).

As proposed in the NPRM, paragraph (c) would have required a railroad to set forth a statement in its SSP plan that describes the purpose and scope of the railroad's SSP. The statement would have been required to have, at a minimum, three elements. However, upon further consideration, FRA has determined that these three elements are better placed elsewhere in the rule. Therefore, proposed § 270.10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-18301. Public record. Not legal advice.