# Risk Reduction Program > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-00425 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** February 18, 2020 - **Citation:** 85 FR 9262 ## Text DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 271 [Docket No. FRA-2009-0038, Notice No. 7] RIN 2130-AC11 Risk Reduction Program AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: FRA is issuing this final rule to require each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement a Risk Reduction Program (RRP) to improve the safety of its operations. RRP is a comprehensive, system-oriented approach to safety that determines a railroad operation's level of risk by identifying and analyzing applicable hazards, and involves developing plans to mitigate, if not eliminate, that risk. Each railroad has flexibility to tailor an RRP to its specific railroad operations. Each railroad shall implement its RRP under a written RRP plan that FRA has reviewed and approved. Each railroad shall conduct an annual internal assessment of its RRP, and FRA will audit a railroad's RRP processes and procedures. DATES: This final rule is effective April 20, 2020. ADDRESSES: Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or visit U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk Reduction Program Division, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-6224), Miriam.Kloeppel@dot.gov; or Elizabeth Gross, Attorney Adviser, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590 (telephone: 202-493-1342), Elizabeth.Gross@dot.gov. SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary A. Statutory Authority for This Rulemaking B. Summary of Major Provisions C. Summary of Costs and Benefits II. Abbreviations III. Background and History A. What is a Risk Reduction Program? B. Summary of NPRM C. Proceedings Since the NPRM D. Regulatory Review E. Summary of Comments F. Update on Other Federal Safety Management System Programs IV. Statutory Background A. Rail Safety Improvement Act of 2008 B. Related System Safety and Fatigue Management Plans Rulemakings C. Consultation Process Requirements D. Risk Reduction Information Protection 1. Exemption From Freedom of Information Act Disclosure 2. Discovery and Other Use of Risk Analysis Information in Litigation a. The Statutory Mandate b. The Final Study Report and Its Conclusions V. Discussion of General Comments A. Information Protection 1. Comments Supporting the Proposed Information Protections 2. Comments on Final Study Report 3. Comments Against Any Information Protections a. Comments That the Information Protections Are Unprecedented b. Comments That the Information Protections Will Reduce the Rights of Litigants c. Comments That the Information Protections Will Allow Railroads To Hide Safety Hazards 4. Comments That the RRP Final Rule Does Not Need To Limit the Disclosure of Evidence 5. Comments Requesting Preservation of State Tort Law Based Claims 6. Comments That a Judge Should Determine Information Admissibility 7. Comments Suggesting FRA Should Only Protect a Railroad's Hazard Analysis Form 8. Comments That the Information Protections Are Too Narrow B. Other Topics 1. Transportation of Hazardous Materials 2. Comments on Performance-Based Rule and Flexibility 3. Comments on Streamlined Safety Management System (SMS) 4. Comments on Plan Approval 5. Comments on Fatigue Management Plans 6. Comments on the RSAC Process 7. Comments on the Relationship Between RRP and SSP 8. Comments on the Short Line Safety Institute 9. Comments on Other SMS Programs VI. Section-by-Section Analysis VII. Regulatory Impact and Notices A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Federalism D. International Trade Impact Assessment E. Paperwork Reduction Act F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Executive Summary A. Statutory Authority for This Rulemaking FRA's general authority to issue rules on railroad safety is 49 U.S.C. 20103(a), which establishes the authority of the Secretary of Transportation (Secretary) to promulgate regulations for every area of railroad safety. The Secretary has delegated such statutory responsibilities to the Administrator of FRA. See 49 CFR 1.89. FRA is issuing this rule to satisfy the statutory mandate in sections 103 and 109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156 and 20118-20119. The Secretary delegated responsibility to carry out her responsibilities under RSIA sections 103 and 109, and the general responsibility to conduct rail safety rulemakings under 49 U.S.C. 20103(a), to the Administrator of FRA. See 49 CFR 1.89(a) and (b). B. Summary of Major Provisions FRA is issuing this RRP rule as part of its efforts to continually improve rail safety and to satisfy the statutory mandate in RSIA sections 103 and 109 requiring each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement an RRP. 1 A railroad not otherwise required to comply with the rule may also voluntarily submit an RRP plan for FRA review and approval. On August 12, 2016, 81 FR 53850, FRA published a separate system safety program (SSP) rule implementing this mandate for commuter and intercity passenger railroads. 1 FRA understands that each railroad subject to this RRP rule has a unique operating system, and not all railroads have the same amount of resources. Best practices for implementing an RRP will therefore differ from railroad to railroad. Accordingly, this rule does not establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Instead, the rule establishes general, performance-based requirements. This approach provides each railroad flexibility to tailor those requirements to its specific operations. An RRP is implemented by a written risk reduction program plan (RRP plan). The RRP rule sets forth various elements that a railroad's RRP plan must contain to properly implement an RRP. As part of its RRP plan, a railroad must also describe the various procedures and processes for implementing this rule's requirements. This includes procedures and processes for, but not limited to, the following RRP components: Risk-based hazard management program; safety performance evaluation; safety outreach; technology implementation plan; RRP employee/contractor training; railroad employee involvement; and internal assessment. The main components of an RRP are the risk-based hazard management program and risk-based hazard analysis. A properly implemented risk-based hazard management program and risk-based hazard analysis will identify the hazards and resulting risks on the railroad's system, develop methods to mitigate or eliminate (if practicable) these hazards and risks, and set forth a plan to implement these methods. As part of its RRP, a railroad will also consider various technologies that may mitigate or eliminate the identified hazards and risks. An RRP will affect almost all facets of a railroad's operations. To ensure all railroad employees an RRP directly affects have an opportunity to provide input on the development, implementation, and evaluation of a railroad's RRP, the rule requires railroads to consult in good faith, and use their best efforts to reach agreement with, such employees on the RRP plan contents and any substantive amendments to the plan. Appendix A to the rule contains guidance on what constitutes good faith and best efforts. An RRP can be successful only if a railroad engages in a systematic assessment of the hazards and resulting risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad's assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death. See 49 U.S.C. 20119. Further, Congress authorized FRA, by delegation from the Secretary, to prescribe a rule, subject to notice and comment, to address the results of the study. See 49 U.S.C. 20119(b). FRA contracted to have the study performed, and the RRP notice of proposed rulemaking (NPRM) addressed the study's results and set forth proposed protections for certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages. See 80 FR 10963-10966 (Feb. 27, 2015). To minimize the information protected, information a railroad compiles or collects solely to plan, implement, or evaluate an RRP is protected from discovery, admissibility into evidence, or use for other purposes in a proceeding for damages involving personal injury, wrongful death, or property damage. The rule also preempts State discovery rules and sunshine laws which could be used to require the disclosure of protected information in such proceedings. This rule does not protect information a railroad compiles or collects for a purpose unrelated to the railroad's RRP. Under section 20119(b), the information protection provision is not effective until one year after its publication. All other provisions of this final rule will become effective 60 days after the date of publication. Section 20118 also specifies that certain risk reduction records the Secretary obtains are exempt from the Freedom of Information Act (FOIA) public disclosure requirements. This exemption is subject to two exceptions for disclosure (1) necessary to enforce or carry out any Federal law and (2) when a record is comprised of facts otherwise available to the public and FRA determines disclosure would be consistent with the confidentiality needed for RRPs. See 49 U.S.C. 20118. Unless an RSIA exception applies, FRA would not disclose such records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and 49 CFR 7.23(c)(3). Therefore, FRA concludes railroad risk reduction records in FRA's possession would be exempted from mandatory disclosure under FOIA unless one of the two exceptions applies. The rule requires a Class I railroad to submit its RRP plan to FRA for review no later than August 16, 2021. This submission deadline accounts for the statutory one-year delay before the information protection provision becomes effective. Similarly, the rule does not require railroads with inadequate safety performance (ISP railroads) or railroads the Surface Transportation Board (STB) either reclassifies or newly classifies as Class I railroads after the effective date of the final rule to submit RRP plans before the information protection provisions go into effect. An ISP railroad must submit an RRP plan either 180 days after receiving notice FRA determined the ISP railroad had inadequate safety performance or no later than August 16, 2021, whichever is later. A railroad the STB reclassifies or newly classifies as a Class I railroad must submit its RRP either no later than 90 days following the effective date of the classification or reclassification or no later than August 16, 2021, whichever is later. Within 90 days of receipt of a railroad's RRP plan, FRA will review the plan and determine if it meets the requirements of the rule. If FRA determines the railroad's RRP plan does not comply with the rule, FRA will notify the railroad of how the plan is deficient. The railroad will then have 90 days to correct the deficiencies and resubmit the plan to FRA. Whenever a railroad amends its RRP plan, it must submit the amended plan to FRA for approval and provide a cover letter describing the amendments. (FRA approval is not required for amendments limited to adding or changing a name, title, address, or telephone number of a person, although a railroad must still file the amendment with FRA.) A similar approval process and timeline will apply whenever a railroad substantively amends its RRP. C. Summary of Costs and Benefits The rule requires each Class I freight railroad and each ISP railroad to develop and implement an RRP in accordance with a written RRP plan approved by FRA. The rule sets forth required elements that must be included in a railroad's RRP. FRA estimates that the rule's costs for these elements include: Developing a risk-based hazard management program (HMP); documenting an RRP plan and any RRP plan amendments; consulting with directly affected employees and preparing consultation statements; conducting a safety performance evaluation; conducting safety outreach; conducting a technology analysis and developing a technology implementation plan; ensuring employee involvement; providing RRP training; retaining RRP records; and conducting internal assessments. FRA did not estimate the full incremental costs of railroads conducting additional and systematic hazard and risk analyses or implementing actions to mitigate identified hazards and risks. FRA lacks information to reliably estimate such costs because FRA cannot predict the level of hazards and risks on impacted railroads nor the means these railroads will use to mitigate these risks. Costs begin in the first year of analysis. The below tables summarize the rule's total costs over a ten-year period based on Class I railroads having a 43-percent pre-compliance rate and ISP railroads having no pre-compliance, with a total cost of $40.2 million, using a 7-percent discount rate (present value (PV), 7-percent) (Table 1) and $51.0 million, using a 3-percent discount rate (PV, 3-percent) (Table 2). The annualized costs are $5.7 million (PV, 7-percent) and $5.9 million (PV, 3-percent). Table 1—Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance; PV, 7-Percent Costs Class I railroads ISP railroads All railroads Subpart A: General $7,000 $7,000 Subpart B: RR Programs 35,725,000 2,216,000 37,941,000 Subpart C: RRP Plans 656,000 1,053,000 1,709,000 Subpart D: Review and Approval of Plans 2,000 7,000 9,000 Subpart E: Internal Assessments 171,000 312,000 483,000 Subpart F: External Audits 28,000 32,000 60,000 Total Cost, 7% present value 36,582,000 3,627,000 40,209,000 Annualized, 7% 5,210,000 516,000 5,726,000 Table 2—Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance; PV, 3-Percent Costs Class I railroads ISP railroads All railroads Subpart A: General $9,000 $9,000 Subpart B: RR Programs 45,156,000 3,011,000 48,167,000 Subpart C: RRP Plans 771,000 1,329,000 2,100,000 Subpart D: Review and Approval of Plans 2,000 8,000 10,000 Subpart E: Internal Assessments 230,000 413,000 643,000 Subpart F: External Audits 37,000 43,000 80,000 Total Cost, 3% present value 46,197,000 4,813,000 51,000,000 Annualized, 3% 5,416,000 564,000 5,979,000 Benefits that come from the final rule will vary from railroad to railroad. These benefits are based on each railroad's organizational structure, the ability for labor and management to collaborate, and the steps the railroad takes to implement hazard analysis and mitigation. FRA could not reliably predict the specific risks that each freight railroad will identify, the actions each freight railroad will take to mitigate such risks, or the success rate of such actions. Therefore, this analysis qualitatively describes benefits. Details on the estimated benefits of this final rule can be found in the rule's Regulatory Impact Analysis (RIA), which FRA has prepared and placed in the docket (docket no. FRA-2009-0038). 2 2 Document inspection and copying facilities are available at Room W12-140 on the ground level of the West Building, 1200 New Jersey Avenue SE, Washington, DC 20590. The docket for this rulemaking is also available online at www.regulations.gov under docket no. FRA-2009-0038. FRA expects that the final rule will increase the effectiveness of railroad hazard mitigation strategies, which will reduce the frequency of accidents and incidents on the general railroad system. FRA also expects that the final rule will result in increased employee morale and improved working conditions, which will improve railroad productivity. These benefits will result because the final rule: (1) Ensures that railroads keep their RRPs current and in place; (2) Improves safety culture; (3) Requires ongoing employee involvement and proactive collaboration between labor and management; and (4) Provides information protection which allows for a systematic risk-based hazard analysis. The final rule requires each Class I railroad to have a fully implemented RRP within five years of the rule's effective date and requires the first set of ISP railroads to implement all portions of their RRPs within six years after the final rule's effective date. 3 FRA anticipates that railroads may implement some components of their RRP plan before the required implementation dates specified in the final rule. Therefore, this analysis estimates that the final rule will start generating benefits in the fourth year (year 2022), when Class I railroads will have substantially implemented their RRPs. As previously discussed, Class I railroads have in place existing activities related to the final rule's required components. The existing levels of pre-rule compliance reduce the size of potential benefits that follow from issuing the final rule. 3 An ISP railroad should begin to realize benefits approximately three years after FRA approves its RRP plan, the point when the final rule requires the ISP railroad to have fully implemented its RRP. The final rule requires each ISP railroad that is part of the first group of ISP railroads to implement in full an RRP by the sixth year. II. Abbreviations The following abbreviations are used in this preamble and are collected here for the convenience of the reader: CFR Code of Federal Regulations DOT United States Department of Transportation FMP Fatigue Management Plan FOIA Freedom of Information Act FR Federal Register FRA Federal Railroad Administration HMP Hazard Management Program NPRM Notice of Proposed Rulemaking OST Office of the Secretary, United States Department of Transportation PTC Positive Train Control Pub. L. Public Law RRP Risk Reduction Program RSAC Railroad Safety Advisory Committee RSIA Railroad Safety Improvement Act of 2008, Public Law 110-432, Div. A, 122 Stat. 4848 Secretary Secretary of Transportation SSP System Safety Program U.S.C. United States Code III. Background and History A. What is a Risk Reduction Program? Risk reduction is a comprehensive, system-oriented approach to improving safety by which an organization formally identifies and analyzes applicable hazards and takes action to mitigate, if not eliminate, the risks associated with those hazards. It provides a railroad with a set of decision making processes and procedures that can help it plan, organize, direct, and control its railroad operations in a way that enhances safety and promotes compliance with regulatory standards. As such, risk reduction is a form of safety management system, which is a term generally referring to a comprehensive, process-oriented approach to managing safety throughout an organization. The principles and processes of risk reduction are based on safety management systems (SMS) developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. SMS methodologies have evolved through experience to include a multitude of equally important elements without which the organization's safety performance does not reliably improve. These SMS elements are typically grouped into the following larger descriptive categories: (1) An organization-wide safety policy; (2) formal methods for identifying hazards and prioritizing and mitigating risks associated with those hazards; (3) data collection, data analysis, and evaluation processes to determine the effectiveness of mitigation strategies and to identify emerging hazards; and (4) outreach, education, and promotion of an improved safety culture within the organization. B. Summary of NPRM On February 27, 2015, FRA published the NPRM proposing to require each Class I freight railroad and each freight railroad with inadequate safety performance to develop and implement an RRP to improve the safety of their railroads operations. See 80 FR 10950. The NPRM proposed the following RRP components: (1) A risk-based hazard management program; (2) safety performance evaluation; (3) safety outreach; (4) technology analysis and technology implementation plan; (5) implementation and support training; (6) internal assessments; and (7) external audits. The NPRM also proposed requiring a railroad to submit its RRP plan to FRA for review and approval and to consult in good faith and use its best efforts to reach agreement with all its directly affected employees on the contents of the RRP plan. Finally, the NPRM proposed to protect certain RRP information from discovery, admission into evidence, or use for other purposes in a proceeding for damages. In addition to these specific proposals, the NPRM contained a general background discussion of risk reduction programs and discussed FRA's experience with risk reduction programs, such as passenger railroads that have implemented system safety programs. The NPRM also summarized the rulemaking proceedings that occurred before NPRM publication, including publication of an advanced notice of proposed rulemaking (ANPRM) and related proceedings of the RSAC RRP Working Group. FRA is providing relevant updates to these discussions below. C. Proceedings Since the NPRM The comment period for the NPRM closed on April 28, 2015. As several commenters requested, FRA held a public meeting on August 27, 2015 and invited interested parties to present oral statements and to offer information and views on the proposed rulemaking at the hearing. FRA placed the transcript for the public hearing in the docket for this rulemaking. FRA also reopened the public comment period from July 30, 2015 through September 10, 2015 and from September 15, 2015 through September 18, 2015 to accommodate the public hearing and to allow interested parties to submit comments in response to views and information provided at the public hearing. On September 29, 2015, the RSAC RRP Working Group met to review and discuss comments received in response to both the NPRM and the public hearing. FRA then reopened the comment period for this rulemaking from October 7, 2015 through October 21, 2015 to allow interested parties to submit written comments in response to views or information provided at the RRP Working Group meeting. D. Regulatory Review DOT has invited the public to provide input on existing rules and other agency actions that are good candidates for repeal, replacement, suspension, or modification. See 82 FR 45750 (Oct. 2, 2017). As appropriate, this final rule responds to comments submitted in response to DOT's regulatory review initiative that address railroad safety risk reduction programs under the RSIA. E. Summary of Comments FRA received 80 comments in response to the NPRM, the public hearing, and the RRP Working Group Meeting. Some interested parties submitted multiple comments. FRA received comments from a variety of entities, including railroads, trade associations, non-profit employee labor organizations, State elected representatives, non-profit advocacy organizations, and private citizens. 4 Various interested labor organizations (Labor Organizations I) jointly filed a comment in response to the NPRM, 5 and a different group of labor organizations (Labor Organizations II) also filed a comment in response to information presented at the RRP Working Group meeting. 6 Finally, some organizations also filed a joint comment (Group Letter). 7 Additionally, in response to DOT's regulatory review initiative, American Short Line and Regional Railroad Association (ASLRRA) and the Virginia Railway Express (VRE) each submitted a comment discussing railroad safety risk reduction programs under the RSIA. 4 Commenters included: Academy of Railroad Labor Attorneys; American Association of Justice; American Public Transportation Association; American Short Line and Regional Railroad Association; Association of American Railroads; Association of Tourist Railroads and Railway Museums; Bureau of Locomotive Engineers and Trainmen (BLET); California State Senator (3rd District) Lois Wolk; Chesapeake Climate Action Network; City of Portland, Oregon; DNV GL Oil & Gas Risk Advisory Services; Friends of the Earth; International Association of Sheet Metal, Air, Rail and Transportation Workers—Transportation Division (SMART Transportation Division); Mountain Watershed Association; National Safety Council; New Jersey Work Environment Council; North Platte Peer Review Team; Orion's Angels; Public Citizen Texas; Rancho Rail Line; State of Washington Representative (46th Legislative District) Jessyn Farrell; Toxics Use Reduction Institute; Transport Action Canada; Union Pacific Railroad; and 45 individuals. 5 These included: American Train Dispatchers Association (ATDA); BLET; Brotherhood of Maintenance of Way Employes Division (BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood Railway Carmen Division TCU/IAM; SMART Transportation Division; and Transport Workers Union of America (TWU). 6 These included: BLET; BMWED; BRS; SMART Transportation Division; and Transportation Communication Union (TCU). 7 Group Letter organizations were: Alliance for Justice; Bay Area Refinery Corridor Coalition; Blue Ridge Environmental Defense League; Center for Effective Government; Center for Justice and Democracy; Citizens Acting for Rail Safety; Citizens for a Clean Harbor; Crockett-Rodeo United to Defend the Environment; Benicians for a Safe and Healthy Community; Delaware Riverkeeper Network; Forest Ethics; Friends of Grays Harbor; Friends of the Earth; Idaho Conservation League; Milwaukee Riverkeeper; Protect All Children's Environment; Public Citizen; United Steelworkers; US PIRG; Sciencecorps; Sierra Club; The SunFlower Alliance; Yolo MoveOn; and Youghiogheny Riverkeeper, Mountain Watershed Association. Generally, all commenters were in favor of RRP. While the comments contained varying suggestions on the structure and breadth of an RRP, most commenters agreed a properly implemented RRP would increase the safety of railroad operations. Many commenters, however, expressed concern about the FRA proposal to limit the use of some RRP information in legal proceedings for damages. FRA discusses this and other specific comments in further detail below. E. Update on Other Federal Safety Management System Programs The RRP NPRM discussed other Federal agencies that had established or proposed safety management system requirements or guidance for regulated entities. Specifically, the NPRM discussed Federal Transit Administration regulations, regulations the Federal Aviation Administration (FAA) proposed, and guidelines the U.S. Department of Defense published. See 80 FR 10953 (Feb. 27, 2015). For a discussion of post-NPRM developments with these programs and new Federal safety management system initiatives please see the SSP final rule at 81 FR 53853-53854 (Aug. 12, 2016). IV. Statutory Background A. Rail Safety Improvement Act of 2008 RSIA section 103(a) directs the Secretary to issue a regulation requiring Class I railroads, railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads), and railroads with inadequate safety performance to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. RSIA section 103(a)(4) also states that railroads not required to comply with this rule may voluntarily submit to FRA for approval an RRP plan meeting the requirements. Section 20156 codifies these provisions. This RRP rule implements section 20156 as it applies to Class I freight railroads, freight railroads with inadequate safety performance, and voluntarily-compliant railroads. The RRP rule is a risk reduction program in that it requires subject railroads to assess and manage risk and to develop proactive hazard management methods to promote safety improvement. The rule contains provisions that, while not explicitly required by the statutory safety risk reduction program mandate, are necessary to properly implement the mandate and are consistent with the intent behind the mandate. B. Related System Safety and Fatigue Management Plans Rulemakings This RRP final rule addresses the RSIA sections 103 and 109 RRP mandate for Class I freight railroads and freight railroads with inadequate safety performance. Two separate rulemakings address the mandate for passenger railroads and for Fatigue Management Plans. The NPRM discussed both these rulemakings and how they related to the RRP rulemaking. See 80 FR at 10955. FRA published an SSP final rule for passenger railroads on August 12, 2016. See 81 FR 53850. 8 8 On August 30, 2019, FRA issued a final rule extending a stay of the SSP rule's requirements to March 4, 2020. See 84 FR 45683 (2019). FRA issued the stay to develop its response to various petitions for reconsideration of the SSP final rule. Id. Section 20156(d)(2) states an RRP must include a fatigue management plan (FMP) that meets the requirements of section 20156(f). However, this RRP final rule does not implement this mandate because FRA is addressing FMPs in a separate rulemaking. The RSAC Fatigue Management Plans Working Group (FMP Working Group), which completed its work in September 2013, submitted its recommendations to FRA for further consideration. FRA is currently drafting an FMP NPRM. Once FRA publishes an FMP rule, FRA will consider any FMP a railroad develops and implements under that rule part of a railroad's RRP or SSP. Before FRA issues an FMP final rule, FRA will approve RRP plans that do not contain an FMP component, if the RRP plan meets all other applicable RRP requirements. A railroad may still, however, elect to use processes and procedures in its RRP plan to address fatigue-related railroad safety issues. C. Consultation Process Requirements Section 20156(g)(1) states that a railroad required to establish a safety risk reduction program must “consult with, employ good faith and use its best efforts to reach agreement with, all of its directly affected employees, including any non-profit employee labor organization representing a class or craft of directly affected employees of the railroad carrier, on the contents of the safety risk reduction program.” Section 20156(g)(2) further provides that if a railroad and its directly affected employees “cannot reach consensus on the proposed contents of the plan, then directly affected employees and such organizations may file a statement with the Secretary explaining their views on the plan on which consensus was not reached.” Section 20156(g)(2) further provides that FRA must consider these views during review and approval of a railroad's RRP plan. As proposed in the NPRM, the rule implements this mandate by requiring each railroad required to establish an RRP to consult with its directly affected employees (using good faith and best efforts) on the contents of its RRP plan. A railroad must also include a consultation statement in its submitted plan describing how it consulted with its employees. If a railroad and its employees cannot reach consensus, directly affected employees may file a statement with FRA describing their views on the plan. Like the information protection provisions discussed below, the RRP and SSP rules have essentially identical provisions regarding the consultation process requirements because there was significant discussion during the SSP and RRP RSAC processes on how to implement section 20156(g). FRA worked with the General Passenger Safety Task Force's System Safety Task Group to receive input on how to address the consultation process, with the understanding that FRA would include the same language in both the SSP and RRP NPRMs for review and comment. The minor differences between the consultation provisions in the RRP and SSP rules are discussed in the section-by-section analysis for § 271.207. D. Risk Reduction Information Protection 1. Exemption From Freedom of Information Act Disclosure In section 20118, Congress exempted railroad safety analysis records from public disclosure in response to FOIA requests. Generally, FOIA requires a Federal agency to make most records available upon request, unless a record is protected from mandatory disclosure by one of nine exemptions. One of those exemptions, Exemption 3, applies to records specifically exempted from disclosure by statute if the statute requires the matters be withheld from the public in such a manner as to leave no discretion on the issue or establishes particular criteria for withholding or refers to particular types of matters to be withheld. See 5 U.S.C. 552(b)(3). See also 49 CFR 7.23(c)(3). The NPRM explains FRA's conclusion that section 20118 is a FOIA Exemption 3 statute and, therefore, exempts RRP records in FRA's possession from mandatory disclosure under FOIA, unless one of the two RSIA exceptions discussed above applies. See 80 FR at 10957-10958. FRA did not receive any comments questioning its conclusion so FRA refers interested readers to the NPRM's analysis of this conclusion. Id. 2. Discovery and Other Use of Risk Analysis Information in Litigation a. The Statutory Mandate Section 20119(a) directed FRA to conduct a study to determine whether it is in the public interest to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any information (including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program. Section 20119(a) required FRA to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public for the study. Section 20119(b) also states that upon completion of the study, if in the public interest, FRA could prescribe a rule addressing the results of the study. Section 20119(b) states any such rule is not effective until one year after its adoption. b. The Final Study Report and Its Conclusions FRA contracted with a law firm, Baker Botts L.L.P. (Baker Botts), to conduct the study for FRA. Various study documents are available for review in public docket no. FRA-2011-0025, which interested parties can access online at www.regulations.gov. First, Baker Botts prepared an initial report identifying and evaluating other Federal safety programs that protect safety-related information from use in litigation. See Report on Federal Safety Programs and Legal Protections for Safety-Related Information, FRA, docket no. FRA-2011-0025-0002, April 14, 2011. Next, as section 20119(a) requires, FRA published a Federal Register document seeking public comment on whether it would be in the public interest to protect certain railroad risk reduction information from use in litigation. See 76 FR 26682 (May 9, 2011). Interested parties may view comments received in response to this document in the public docket. On October 21, 2011, Baker Botts produced a final report on the study. See Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations For and Against Protecting Railroad Safety Risk Reduction Program Information ( Final Study Report ), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The Final Study Report contains analyses of other Federal programs that protect similar safety-related information, the public comments submitted to the docket, and whether it would be in the public interest, including the interests of public safety and the legal rights of persons injured in railroad accidents, to protect railroad risk reduction information from disclosure during litigation. The Final Study Report determines that substantial support exists for the conclusion that a rule that protects “railroad safety risk information from use in civil litigation involving claims for personal injuries or wrongful death would serve the broader public interest.” Final Study Report at 63. The Final Study Report highlights that, in the past, with similar programs, Congress deemed it is in the public's interest to place statutory limitations on disclosing or using certain information used by the Federal Government. Id. The safety risk reduction programs that RSIA mandates, according to the Final Study Report, involve public interest considerations similar to the ones Congress has protected through statutory limitations, and courts have upheld these limitations. The Final Study Report explains that many of the public comments submitted to the docket agree that limiting the use of information collected for a safety risk reduction program mandated by RSIA in discovery or litigation would serve the broad public interest by encouraging and facilitating the timely and complete disclosure of safety-related information to FRA. Further, the Final Study Report underscores FRA's statutory duty to protect the broader public interest in ensuring rail safety and concludes that this public interest outweighs the individual interests of future litigants who may bring damage claims against railroads. Therefore, the Final Study Report concludes that after balancing all of the considerations that bear upon the public interest . . . the balance weighs in favor of adopting rules prohibiting the admissibility or discovery of information compiled or collected for FRA railroad safety risk reduction programs in a civil action where a plaintiff seeks damages for personal injury or wrongful death. Id. at 64. In response to the Final Study Report, the RRP NPRM proposed in § 271.11 to protect any information compiled or collected for the sole purpose of developing, implementing, or evaluating an RRP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage. The NPRM clarified that the protected information would include a railroad's identification of safety hazards, analysis of safety risks, and statement of the mitigation measures for addressing those risks. Protected information could be in the form of plans, reports, documents, surveys, schedules, lists, data, or any other form. FRA received multiple comments in response to the information protections that both the SSP and RRP NPRM proposed and has modified its approach based on these comments. These changes are discussed further in the discussion of comments section and the corresponding section-by-section analysis. V. Discussion of General Comments This section discusses general comments FRA received on the RRP NPRM relating to the proposed information protections and the overall nature of the proposed rule. The section-by-section analysis discusses all other comments as they relate to specific sections, including any changes to the rule text FRA made in response. A. Information Protection FRA received numerous comments regarding the proposed information protections and has modified the proposed information protections based on both the received comments and the information protection provisions in the SSP final rule. As discussed in the NPRM, this RRP final rule contains an information protection provision substantively identical to the information protection provision in the SSP final rule. 9 See 81 FR 53900 (Aug. 12, 2016). FRA believes different RRP and SSP provisions governing information protection would be confusing. Further, the SSP and RRP RSAC processes significantly discussed how to implement the information protections. FRA worked with both the General Passenger Safety Task Force's System Safety Task Group and the RRP Working Group to receive input on how the SSP and RRP rules should address information protection, with the understanding that both rules would likely contain the same language. 9 The minor differences between the RRP and SSP information protections involve the use of “risk reduction program” instead of “system safety program” and citations to relevant provisions in the RRP rule instead of provisions in the SSP rule. To correct a minor typo in the SSP information protection provision, the RRP information protection provision also uses the term “proceeding” instead of “proceedings.” No substantive difference is intended by this correction. 1. Comments Supporting the Proposed Information Protections Several commenters agreed with FRA's conclusion that the proposed information protections are necessary, including Association of American Railroads (AAR), American Public Transportation Association (APTA), ASLRRA, Union Pacific Railroad (UP), and Labor Organizations I. These commenters support FRA's position that the litigation protections are necessary for a railroad to engage in a thorough and candid analysis of the hazards and resulting risks on its system. Based on those comments, FRA believes both railroad management and railroad labor generally agree an RRP final rule must have some form of information protections. 2. Comments on Final Study Report Several commenters questioned the neutrality and the substance of the Baker Botts Final Study Report. Commenters questioning the neutrality of Final Study Report included American Association for Justice (AAJ), Academy of Railroad Labor Attorneys (ARLA), Labor Organizations I, Labor Organizations II, and several individuals. These commenters provided several examples of Baker Botts' alleged bias, including: (1) Citations to Baker Botts' website; (2) a book by William G. Thomas titled Lawyering for the Railroad: Business, Law, and Power in the South (Louisiana State University Press, 1999), which describes Baker Botts' historical representation of Southern Pacific Railroad beginning in the later 1800s until sometime in the 1900s; (3) a Baker Botts associate's prior employment with Norfolk Southern Corporation; and (4) a website indicating that Baker Botts was involved in litigation related to the July 6, 2013 rail accident in Lac-Mégantic, Quebec. The commenters did not provide a specific example of Baker Botts representing a railroad in litigation involving claims for damages at the time of the study. After evaluating these comments, FRA concludes that it complied with all legal requirements, including the RSIA and the Federal Acquisitions Regulations (FAR), in selecting Baker Botts and conducting the study. See section 20119 and FAR 48 CFR 9.505 through 9.505-4 and 9.508. Further, FRA has not found any conflict or representation indicating that Baker Botts had a bias in favor of railroad management at the time of the study. For example, any involvement of Baker Botts in Lac-Mégantic-related litigation occurred after the firm completed the study in October 2011. FRA also reviewed Lawyering for the Railroad: Business, Law, and Power in the South. Although the book correctly states that Baker Botts represented Southern Pacific railroad beginning in the late 1800s until sometime in the 1900s, the book does not have an example of Baker Botts representing a railroad at the time of the study. Baker Botts also conducted its own conflict check when submitting its bid in response to FRA's request for proposal (RFP) 10 and only found one matter involving advice it provided to a railroad on environmental issues, not rail safety. Further, Baker Botts, as a law firm, must comply with the legal ethical standards of the appropriate State or risk discipline or disbarment of its attorneys. 10 FRA's RFP, Solicitation Number DTFR-53-10-R-00008, is available at https://www.fbo.gov/index?s=opportunity&mode=form&id=56e2462fb07daa6e45155c3be66ddf02&tab=core&tabmode=list. AAJ, ARLA, and Labor Organizations II also submitted comments arguing that the Final Study Report did not give adequate consideration to the interests of railroad accident victims, their families, and the general public. For example, ARLA and Labor Organizations II assert the report only focuses on the railroads' alleged interests and why FRA should protect risk reduction information. FRA disagrees and believes the Final Study Report adequately considered the interests of railroad accident victims, their families, and the general public. As section 20119(a) required, FRA solicited input for the report from railroads, railroad nonprofit employee labor organizations, railroad accident victims and their families, and the general public, including AAJ. See 76 FR 26682 (May 9, 2011) and Letters Dated May 12, 2011, to Stakeholders Inviting Comments (FRA-2011-0025-0006). In response, FRA received 22 comments representing 25 affected entities, including railroads, AAJ, Public Citizen (a non-profit public interest organization), various railroad non-profit employee labor organizations, and individuals. The Final Study Report summarizes comments both supporting and opposing a rule that would protect risk reduction information. See generally Final Study Report at 37-46. The Final Study Report also analyzes the relevant public interest considerations, including considerations opposing a rule limiting discovery and admissibility. See generally Id. at 53-63. Specifically, the Final Study Report considers: (1) Victims' compensation; (2) the necessity of a regulation; (3) promoting railroad safety; (4) promoting the reporting of railroad accidents; (5) promoting open government and freedom of information; (6) what kinds of documents a regulation should protect; and (7) administrative procedure. Therefore, FRA concludes the Final Study Report adequately considered the public interest and the rights of railroad accident victims and their families. 3. Comments Against Any Information Protections Several commenters objected to including any information protections in the final rule. These included AAJ, ARLA, the non-profit organizations represented by the Group Letter, California State Senator Wolk, Washington State Representative Farrell, the City of Portland, and several individuals and other non-profit organizations. Overall, the primary objections of many commenters opposed to any information protections are that the protections would (1) ignore the importance of transparency in railroad safety and (2) reduce, not improve, railroad safety. FRA disagrees. First, in section 20118, Congress specifically exempted railroad safety analysis records from mandatory disclosure under FOIA, indicating that Congress concluded the benefits of improved railroad safety outweighed the benefits of complete transparency in railroad safety. Second, the information protections will not change the information available to litigants today, as information currently discoverable and admissible will remain discoverable and admissible. Further, the information protections will improve railroad safety by encouraging railroads to engage in a systematic and honest assessment of the hazards and resulting risks on their systems. A railroad's risk-based Hazard Management Program (HMP) will not improve railroad safety if a railroad is reluctant to reveal risks and hazards because a litigant could use that information against the railroad in a court proceeding for damages. a. Comments That the Information Protections Are Unprecedented AAJ contends the proposed information protections are unprecedented. While AAJ recognizes certain existing programs have information protections, AAJ argues those programs have two key features: (1) Congress directed disclosure of documents be limited, and (2) limited disclosure applies predominately to documents actually submitted to a Federal agency. AAJ believes that the RRP information protections do not have either of these key features. ARLA also claims the safety-related statutes and regulations the Final Study Report cites only protect data a governmental agency holds, not a private entity such as a railroad. (FRA notes that not all railroads are private entities.) While Congress did not set forth specific information protections in section 20119, Congress explicitly gave FRA authority to promulgate such protections. As discussed previously, section 20119(a) directs FRA to conduct a study to determine if certain information protections would be in the public interest, and Congress described the specific parameters of the information protections the study had to consider. Congress then authorized FRA to promulgate a rule, subject to notice and comment, which addresses the results of the study. Id. FRA has complied with Congress' mandate and has included information protections in this rule consistent with the specific parameters Congress described. FRA does not believe the information protections are invalid simply because Congress didn't promulgate specific protections. Additionally, nothing in section 20119 limits the information protections to documents a railroad submits to FRA. Congress' language in section 20119 states that the information protections, depending on the results of the study, could apply to information a railroad does not submit to FRA. Under section 20119(a), the study must consider information protections that would apply to documents a railroad compiles and collects for “the purpose of planning, implementing, or evaluating a safety risk reduction program.” Because Congress did not limit the information protections only to documents a railroad submits to FRA, FRA has authority to protect documents a railroad possesses. Further, nothing in 23 U.S.C. 409 (section 409), the statute FRA used as a model for the proposed information protections, or the Supreme Court's decision in Pierce County v. Guillen, 537 U.S. 129 (2003) (which upheld the validity and constitutionality of section 409), 11 limits the information protections to documents submitted to the Federal Highway Administration (FHWA) as part of the Hazard Elimination Program. In that case, the Supreme Court did not base its interpretation of section 409 on whether documents were submitted to FHWA. Rather, the Supreme Court held the information protections extended to information because the Hazard Elimination Program required compiling or collection of that information. See Guillen, 537 U.S. at 146. Like the statute at issue in that case, because the RSIA requires railroads to compile and collect information for an RRP, it is appropriate to protect any information the railroad compiles or collects for that purpose, even if the railroad never submits that information to FRA. 11 For additional discussion on FRA's decision to base the RRP information protection provisions on section 409 and Guillen, FRA refers readers to the NPRM. See 80 FR 10963-10964 (Feb. 27, 2015). AAJ claims that in the limited circumstances where provisions have protected data, the provisions have been narrowly tailored and construed. AAJ believes the proposed information protections are overly broad and inconsistent with any other government program that limits some disclosure of evidence. FRA agrees with AAJ that the information protections must be narrowly tailored and construed. In Guillen, the Supreme Court recognized that “statutes establishing evidentiary privileges must be construed narrowly because privileges impede the search for truth.” Guillen at 144-45. Because section 409 established a privilege, the Court construed it narrowly to the extent the text of the statute permitted. Id. at 145. FRA believes the RRP information protections are consistent with the Court's narrow interpretation of section 409. Further, FRA has tailored the RRP protections even more narrowly than section 409 by limiting them to information a railroad originally compiled or collected “solely” for the purpose of planning, implementing or evaluating an RRP, as the section-by-section analysis for § 271.11 discusses. Labor Organizations II commented that, with the exception of section 409, each safety law or regulation the Final Study Report cites allows discovery of information. FRA believes Labor Organizations II's characterization of the Final Study Report is inaccurate because the final report identifies two additional safety statutes prohibiting both the discoverability and the admissibility of information. The first is 49 U.S.C. 6307(b)(2)(B)(i), which specifies reports submitted to DOT's Bureau of Transportation Statistics (BTS) under 49 U.S.C. 6302(b)(3)(B) are “immune from legal process.” 12 “Accordingly, no litigant may subpoena the report in discovery or obtain it through any other legal proceeding.” Final Study Report at 20. The second statute is 46 U.S.C. 6308(a), which protects from discovery marine casualty reports the U.S. Coast Guard creates under 46 U.S.C. 6301. 13 12 The Final Study Report discussed a previous version of section 6307(b)(2)(B)(i), 49 U.S.C. 111(k)(a)(2)(B)(i), repealed in 2012. See Pub. L. 112-141, Div. E, Title II, section 52011(c)(1), July 6, 2012, 126 Stat. 895. However, substantively, sections 6307(b)(2)(B)(i) and 111(k)(a)(2)(B)(i) are identical and have the same “immune from legal process” language. Because section 6302(b)(3)(B)(vi)(1) requires BTS to collect statistics on “transportation safety across all modes and modally,” FRA believes section 6307(b)(2)(B)(i) is a safety law. 13 Because marine casualty investigations identify the cause of accidents resulting in fatalities, FRA believes section 6308(a) is also a safety law. Further, Labor Organizations II's argument acknowledges that section 409 prohibits discovery. As discussed in the NPRM, FRA believes section 409 is the best model for the RRP information protections because Congress used similar language in section 409 and section 20119 authorizing information protection and because Guillen determined section 409 was constitutional. See 80 FR at 10963. ARLA also commented that virtually every safety law the Final Study Report discussed has exceptions to the protection against disclosure and admissibility. FRA notes that the information protections in § 271.11 are narrowly tailored and will not provide blanket protection for all railroad RRP information. The rule excepts from protection several categories of RRP information, such as (1) information discoverable and admissible before publication of the RRP final rule, (2) information another provision of law or regulation requires the railroad to compile or collect, and (3) information a railroad does not use “solely” for an RRP purpose. Accordingly, FRA concludes this rule contains several exceptions to the information protections and is not inconsistent with other safety laws with exceptions to protections against discoverability and admission into evidence. b. Comments That the Information Protections Will Reduce the Rights of Litigants AAJ argues the RRP information protections will reduce the rights of persons injured in railroad accidents. AAJ asserts that evidence a railroad knew or should have known of a hazard is key in many cases to prove the railroad's liability, particularly for Federal Employers' Liability Act cases. AAJ believes the Final Study Report concluded without analysis that injured people could continue to pursue legal remedies because access to currently discoverable documents would remain discoverable. AAJ does not believe this conclusion is accurate because it contends the information protections may shield the documents/data necessary to show the railroad knew or should have known of the hazard. AAJ also commented that the information protections are one-sided because they shield the railroad from discovery, while permitting the railroad to obtain extensive discovery regarding a plaintiff's knowledge of a hazard or risk. The Chesapeake Climate Action Network (CCAN) expressed similar concerns. FRA has drafted the RRP information protections so a plaintiff or defendant is no worse off than he or she would have been if the RRP rule never existed. This is consistent with section 409 and the Supreme Court's interpretation of that section. See Guillen at 146. To ensure a plaintiff is no worse off, § 271.11(b) has certain exceptions to the information protections. Under § 271.11(b), the information protections are not extended to information compiled or collected for a purpose other than that specifically identified in § 271.11(a). Further, if certain information was discoverable and admissible before the enactment of the RRP rule, § 271.11(b) ensures the information remains discoverable and admissible. This is true even if the railroad (1) continues to compile or collect that information as part of its RRP or (2) stops compiling or collecting that information outside the RRP and then begins to compile or collect that information again as part of its RRP. These exceptions are discussed extensively in the section-by-section analysis for § 271.11(b). These exceptions strike a reasonable balance between ensuring that plaintiffs are no worse than they would have been if the RRP rule had not existed and encouraging railroads to undertake a systematic and candid assessment of the hazards and resulting risks on their system. c. Comments That the Information Protections Will Allow Railroads To Hide Safety Hazards AAJ asserts the information protections will allow railroads to hide safety hazards. AAJ believes the threat of disclosure of these hazards creates an incentive for railroads to correct them immediately. AAJ points to multiple cases it believes prove railroads routinely hide evidence of hazards. CCAN also argues that the information protections would allow railroads to hide knowledge of safety problems and delay correcting known or suspected hazards. Labor Organizations II express a similar concern that the information protections would prevent knowledge of future risks known by railroads. Specifically, Labor Organizations II assert the information protections would hide risks uncovered by a railroad resulting from future rulemakings. FRA disagrees. The purpose of the RRP is for railroads to identify hazards and resulting risks and to take the appropriate measures to mitigate or eliminate these hazards. Without the information protections, an RRP could result in an effort-free tool for plaintiffs in litigation against railroads, which would discourage railroads from identifying hazards and resulting risks, thus frustrating the intent behind section 20156. The RRP rule and information protections will encourage railroads to identify and address hazards. Further, if a railroad is already required by another law or regulation to collect information to show compliance with existing laws or regulations, that information will not be protected. Further, the information protections' narrow application to information that a railroad compiles or collects “solely” for an RRP purpose will not allow a railroad to claim that the provisions protect all information regarding risks relating to future technologies or rulemakings. Once a railroad uses such information beyond the scope of its RRP, § 271.11 will not protect the non-RRP use of the information outside the railroad's RRP. For example, if the railroad gives RRP information to a contractor to use while performing maintenance work for the railroad, § 271.11 will not extend to the contractor's use of the information. Therefore, railroads will not be able to use the RRP information protections to hide issues of non-compliance or avoid future regulatory requirements. Several commenters also expressed concern the information protection provisions would allow railroads to hide information related to the transportation of crude oil by rail. One individual specifically commented that the RRP final rule should require railroads to provide detailed crude-by-rail information. The information protection provisions in this final rule explicitly do not protect any information that a railroad must compile or collect “pursuant to any other provision of law or regulation.” This excludes from protection any crude oil information a railroad must collect under Federal law, including (but not limited to) the Enhanced Tank Car Standards and Operational Controls for High-Hazard Flammable Trains (HHFT Final Rule) that FRA and the Pipelines and Hazardous Materials Safety Administration (PHMSA) jointly issued. See generally 80 FR 26644-26750 (May 8, 2015). Further, because the HHFT Final Rule and other Federal regulations contain provisions requiring the provision and maintenance of certain hazardous material information, FRA does not believe that this RRP final rule should impose additional crude-by-rail information requirements. See e.g., DOT's Emergency Restriction/Prohibition Order, DOT-OST-2014-0067, May 7, 2014, available at https://www.transportation.gov/briefing-room/emergency-order. 4. Comments That the RRP Final Rule Does Not Need To Limit the Disclosure of Evidence AAJ contends that FRA can issue an RRP rule without limiting the discovery of evidence, just like FAA did in its Safety Management System (SMS) rulemaking. FRA disagrees. A significant difference between the FRA and FAA programs is the scope of statutory authority Congress gave each agency to protect information collected or maintained as part of an SMS. The FAA's authority under 49 U.S.C. 44735 limits the protection of SMS voluntarily-submitted information (such as reports, data, or other information produced or collected for purposes of developing and implementing an SMS) to protection from FOIA disclosure by the FAA. Congress similarly protects risk reduction information from mandatory FOIA disclosure in section 20118. However, Congress gave FRA authority to further protect RRP information in section 20119, which directed FRA to conduct the study and authorized FRA to issue a regulation addressing the results of that study. As discussed above, the Final Study Report concludes that it would be within FRA's authority and in the public interest for FRA to promulgate a regulation protecting certain risk analysis information held by the railroads from discovery and use in litigation. The final report also makes recommendations for the drafting and structuring of such a regulation. See Final Study Report at 63-64. Therefore, FRA determined the information protections in this final rule are consistent with the authority Congress provided in section 20119 and the conclusion of the Final Study Report. ARLA also argues that railroads will honestly identify risks and mitigations without the information protections because labor unions will assure a railroad's compliance by participating in the identification of risks and mitigations. FRA agrees with ARLA that employee participation in the risk-based HMP is essential and will improve a railroad's RRP. FRA does not believe, however, that employee participation alone can overcome a railroad's reluctance to fully identify hazards and risks. Further, employees and labor unions may not represent the interests of the public or other accident victims. FRA therefore believes the information protections will provide important additional encouragement for a railroad to assess its hazards and risks. 5. Comments Requesting Preservation of State Tort Law Based Claims AAJ requests that FRA specifically preserve State tort law based claims. AAJ believes that because railroads must submit their RRP plans to FRA for approval, railroads may claim they are immune from any safety hazard claim or that FRA's approval of the RRP plan preempts any State law claim. Non-profit employee labor organizations also raised this concern in response to the SSP NPRM. To address this issue, FRA is including § 271.301(d)(4) in the final rule, which provides that approval of a railroad's RRP plan under this part does not constitute approval of the specific actions the railroad will implement under its RRP plan and shall not be construed as establishing a Federal standard regarding those specific actions. FRA will not approve the specific mitigation and elimination measures a railroad adopts to address identified hazards and risks. FRA also does not intend the RRP rule to preempt State standards of care regarding the specific risk mitigation actions a railroad will implement under its RRP plan. Accordingly, § 271.301(d)(4) clarifies that FRA approval of a railroad's RRP plan is not approval of any specific actions a railroad implements under that RRP plan, including any specific mitigation and elimination measures a railroad chooses. 6. Comments That a Judge Should Determine Information Admissibility Labor Organizations II propose a compromise position where “risk reduction facts would be admissible if it is determined by a judge that the information would be `in furtherance of the highest degree of safety in railroad transportation.' ” As Labor Organizations II explain, the phrase “in furtherance of the highest degree of safety in railroad transportation” comes from 49 U.S.C. 103(c), which is the safety standard Congress mandated FRA to follow in its administration of railroad safety. FRA does not believe this suggestion would improve the proposed information protections. Labor Organizations II's proposal only addresses the admission of risk reduction information into evidence and does not indicate whether discovery protections are necessary. The suggestion also does not clarify when a judge should determine whether admissibility of information is in furtherance of the highest degree of safety in railroad transportation. As such, FRA believes the suggestion would lead to the type of litigation avalanche that AAJ and ARLA fear, where courts would have to routinely interpret the meaning of “in furtherance of the highest degree of safety in railroad transportation.” Labor Organizations II's suggestion is therefore too imprecise to implement and would lead to an increase in costly litigation. 7. Comments Suggesting FRA Should Only Protect a Railroad's Hazard Analysis Form One individual suggested that FRA narrowly draft the regulation to only protect a railroad's hazard analysis form from disclosure. FRA declines to implement this individual's suggestion. The suggested approach would leave too much risk reduction information unprotected, resulting in inadequate information protections. For example, the suggested approach would not protect information a railroad might not include in the hazard analysis form, such as supporting data spreadsheets or candid discussions with employees about hazards and risks. The suggested approach also would not protect information a railroad uses to track the effectiveness of an implemented mitigation measure. Further, an effective RRP cannot lock important information in a hazard analysis form forever, as a railroad must use such information for other mandatory RRP components (such as its Safety Performance Evaluation or annual Internal Assessment). Moreover, the suggested approach could encourage a railroad to claim protection for non-RRP information simply by placing it in a hazard analysis form. FRA believes, however, that information should be protected based on how the railroad is using the information ( e.g., is the railroad using the information solely for RRP purposes?), not merely on whether or not the railroad included the information in a hazard analysis form. Finally, protecting information beyond a railroad's hazard analysis is consistent with section 20119(a), which directed FRA to study protecting RRP information in various forms, including “any report, survey, schedule, list, or data compiled or collected” for various RRP purposes. The final rule also does not require a railroad to use a specific hazard analysis form for its RRP, so it would be unclear which document would be the “hazard analysis form.” Therefore, the information protections would be applied inconsistently based on which document was considered the “hazard analysis form.” For these reasons, FRA declines to adopt the suggested approach. 8. Comments That the Information Protections Are Too Narrow FRA received several comments arguing that the proposed information protections are too narrow. ASLRRA commented that FRA is not protecting data as Congress intended in the RSIA, asserting FRA improperly relied on section 409 and the Supreme Court's decision in Guillen because both significantly predate the RSIA. Instead, ASLRRA believes that FRA should only rely on the RSIA and protect “any report, survey, schedule, list or data compiled or collected for the purpose of evaluating, planning or implementing a railroad safety risk reduction program . . . including a railroad carrier's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks.” According to ASLRRA, any limitations FRA imposes on this language are inappropriate. FRA disagrees and believes it has properly limited the scope of the information protections. As explained above, FRA believes it correctly used section 409 and Guillen as models for the information protections. ASLRRA provided no reason, other than age, why FRA should not consider Guillen' s analysis sound guidance for establishing RRP information protections. FRA also believes ASLRRA mischaracterized Congress' intent in section 20119. Section 20119 does not directly establish parameters for protecting risk reduction information. Rather, it requires FRA to conduct a study and authorizes FRA to promulgate a rule addressing the results of that study. Section 20119(b) also does not mandate the scope of any information protections. FRA therefore concludes that the proposed information protections are consistent with Congress' intent in the RSIA to authorize FRA to decide the scope of the information protections. ASLRRA also questions FRA's explanation in the NPRM preamble that the information protections would extend to the Short Line Safety Institute (Institute) only if FRA finds the Institute is part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). Specifically, ASLRRA asserts there is no evidence small railroads will attempt to obtain approval for, or operate under, inadequate programs. FRA supports development of the Institute. FRA does not believe, however, it has authority under RSIA to extend information protections to programs that do not fully meet the requirements of this RRP final rule. Section 20119(a) (emphasis added) only mandated FRA (as delegated by the Secretary) to study protections for information “compiled or collected for the purpose of evaluating, planning, or implementing a railroad safety risk reduction program required under this chapter. ” Under the rule, a complete RRP must contain several components, including (but not limited to) a railroad's risk-based HMP and safety performance evaluation. A railroad must also comply with the rule's requirements for RRP internal assessment and external evaluations. If the Institute either does not meet all the rule's requirements for a railroad, or is otherwise not part of a railroad's broader RRP that does meet the requirements, the Institute is neither a complete RRP nor part of a complete RRP, and the information protections may not extend to Institute information. In a joint comment, AAR and ASLRRA (AAR/ASLRRA) commented on the NPRM's discussion in the preamble, which states § 271.11 would only protect information once FRA approves a railroad's RRP plan. They believe that approach does not make sense and would weaken the rule's protections. After reviewing the NPRM's discussion, FRA agrees with AAR/ASLRRA that the discussion in the preamble to the proposed rule does not properly reflect the scope of the information protections. See 80 FR 10952 (Feb. 27, 2015). In the preamble to the NPRM, FRA explained that railroads should not begin implementing an RRP plan before FRA approval, erroneously stating the information protections would not apply to information a railroad did not compile or collect for an FRA-approved RRP plan. FRA's intent was to explain that a railroad should not begin performing hazard analysis or implementing mitigation measures under its RRP plan before FRA approves the plan. However, FRA overlooked that once the information protections are in effect, but before FRA approves a railroad's RRP plan, a railroad could compile or collect information for the purpose of developing its RRP plan that should be protected. FRA therefore does not intend to limit the information protections only to information a railroad compiles or collected for an RRP plan FRA has already approved. Accordingly, § 271.11 protects information compiled or collected solely for the purpose of planning, implementing, or evaluating an RRP. B. Other Topics 1. Transportation of Hazardous Materials Some commenters (including Friends of the Earth, Mountain Watershed Association, and approximately four individuals) suggested that an RRP final rule should require railroads to address issues related to high-hazard flammable trains and routing of hazardous materials. One individual asserted that the RRP final rule should simply ban the transportation of Bakken crude oil, while another individual suggested constructing a tank car inspection facility on the Canadian border. FRA shares the commenters' concerns regarding the safe transportation of large quantities of crude oil and other hazardous materials by rail, and DOT has taken numerous actions to reduce the risk to public safety and the environment posed by the movement of crude oil and other energy products by rail. A summary of those actions and more information are available online at: https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview. DOT has also addressed the routing of hazardous materials by rail. Under 49 CFR 172.820, railroads must perform a routing analysis for HHFTs and other trains carrying certain explosives, material poisonous by inhalation, and radioactive materials. See § 172.820(a). At a minimum, this routing analysis must consider 27 separate safety and security factors. See § 172.820(d) and part 172, appendix D. FRA enforces these routing requirements under 49 CFR 209.501 and can (in consultation with PHMSA, the Transportation Security Administration, and the STB) direct a railroad to use an alternative route if the railroad's route selection documentation and underlying analysis are deficient and fail to establish that the chosen route poses the least overall safety and security risk. See § 209.501(a) and (d). Because these (and other) DOT actions address hazardous materials routing and the safety of transporting crude oil by rail, FRA does not believe the RRP final rule needs to impose additional—and potentially duplicative—requirements directed at these issues. Nothing in the final rule, however, prohibits a railroad from including HHFTs and hazardous materials routing in its risk-based HMP, and many railroads may choose to do so, particularly if they find that doing so allows them to more efficiently comply with both the RRP rule and the other DOT requirements addressing hazardous materials. A railroad including HHFTs and hazardous materials routing in its risk-based HMP would still, of course, remain subject to requirements of Federal hazardous materials and rail safety laws and regulations that apply independently of this final rule. (FRA notes that the rule's information protection provisions will not apply to any hazardous materials routing or safety information a railroad must collect under another Federal law or regulation.) FRA further notes that the mitigating actions a railroad may take to reduce the risk of any accident/incident will often be the same actions a railroad would take to reduce the risk of an accident/incident resulting in a release of hazardous materials ( e.g., mitigating actions taken to prevent derailments). Finally, FRA's approach is consistent with the RSIA, which does not specifically require a railroad to include HHFTs and hazardous materials routing in its risk analysis. See 49 U.S.C. 20156(c). 2. Comments on Performance-Based Rule and Flexibility The NPRM preamble described RRP as a performance-based rule that would provide a railroad flexibility to tailor RRP requirements to its specific operations. See 80 FR 10950-10951 (Feb. 27, 2015). As the NPRM preamble explains, each railroad has a unique operating system and not all railroads have the same amount of resources. Id. Accordingly, FRA did not propose to establish prescriptive requirements that may be appropriate for one railroad but unworkable for another. Id. To clarify, the NPRM's description of RRP as a performance-based rule refers primarily to how a railroad identifies hazards and chooses strategies to mitigate risks associated with those hazards. FRA is requiring railroads to specify the performance standard (reduction in safety risk as identified in a statement defining specific, measurable goals of the RRP and describing clear strategies for reaching those goals under § 271.203(c)) but is not specifying the specific subject areas, processes, or tools to be used by the railroads in complying with the rule. The purpose of an RRP is to reduce a railroad's accidents/incidents, injuries, and fatalities, but the railroad has flexibility to identify hazards and mitigate risks in a manner best-suited to its unique system. FRA would not, for example, require a railroad to use a specific hazard analysis tool or mandate implementation of a certain mitigation strategy to address a risk. How a railroad prepares, adopts, and implements an RRP, however, is subject to minimum Federal standards, in that a railroad must support its RRP with an RRP plan that contains certain components, follow the provisions of that RRP plan, and ensure that it conducts an internal assessment of its RRP. In short, requirements for an RRP's substance are performance-based, but an RRP's process must meet certain minimum Federal standards. Several commenters supported FRA's decision to propose a performance-based, flexible RRP rule. AAR/ASLRRA acknowledged the performance-based nature of RRP, while Amtrak commented that the final rule “needs to be performance based and flexible. It should provide the opportunity for new creative programs rather than a prescriptive checklist of requirements or conditions.” DNV-GL also noted the NPRM was “to a large extent aligned with good risk management practice in potentially hazardous industries[,] particularly those that have learned the lessons of previous accidents and implemented performance-based regimes of safety regulation.” Labor Organizations I and several non-profit organizations and individuals expressed concern that FRA described RRP as a performance-based, flexible rule. Public Citizen Texas, for example, commented that the proposed flexibility did not comply with the RSIA mandate. The nature of SMS demands a performance-based, flexible RRP rule. Not every railroad will have the same hazards and risks, and different railroads may find different mitigation strategies equally effective for certain risks. Additionally, FRA notes that the RRP final rule reflects every RSIA requirement (except for the portions of the RSIA mandate the SSP final rule addresses and the FMP rulemaking will address). FRA therefore believes that establishing an RRP final rule that is performance-based and flexible reflects the outcome-oriented nature of SMS and meets the RSIA mandate. Regarding Labor Organizations I's specific comment, FRA clarifies in this preamble that both the RRP and SSP rule provide railroads flexibility to tailor an RRP or SSP to a railroad's particular operations. Like the SSP rule, the RRP rule depends on a railroad's ability to thoroughly and candidly assess its unique hazards and risks, not the railroad's ability to meet certain prescriptive requirements. Rather, RRP requires a railroad to engage in self-analysis that a railroad will conduct in conjunction with the railroad's directly affected employees and FRA oversight. Since no two railroads' operations are exactly the same, no two RRPs will be exactly the same. Further, regardless of the amount of flexibility the RRP rule affords railroads, the directly affected employees, including Labor Organizations I, will have an opportunity to provide input and work with the railroads on the development of the RRP plan. FRA also added provisions to the final rule clarifying that a railroad must involve its employees in the RRP. The section-by-section analysis will specifically discuss these provisions further. 3. Comments on Streamlined Safety Management System (SMS) The NPRM preamble also described the proposed RRP rule as a streamlined version of an SMS, explaining that FRA had not included a number of components common to SMS to closely adhere to the RSIA mandate. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble specifically identified the following components that FRA did not propose: (1) Processes ensuring that safety concerns are addressed during the procurement process; (2) development and implementation of processes to manage emergencies; (3) processes and procedures for a railroad to manage changes that have a significant effect on railroad safety; (4) processes and permissions for making configuration changes to a railroad; and (5) safety certification prior to the initiation of operations or implementation of major projects. See 80 FR 10959 (Feb. 27, 2015). Generally, the non-profit organizations and individuals who expressed concern about the flexibility of the proposed RRP rule also questioned FRA's description of RRP as streamlined and asserted that the proposed RRP rule was less rigorous than the RSIA mandate, which requires a “comprehensive and systematic” safety management system. DNV-GL shared the concerns of these commenters, arguing that every element of a safety management system is important and that “it is better to have a basic program in place for every element than to be excellent in some and have no program in others.” Labor Organizations I also asked to better understand why FRA was not requiring the additional components, arguing that they would expect an RRP to contain the “proven safety systems such as the items FRA identifies.” FRA disagrees with the commenters that the proposed rule does not comply with the RSIA mandate (except for the portions of the RSIA mandate the SSP final rule addresses and the FMP rulemaking will address). As the NPRM explained, FRA proposed a streamlined version of a safety management system “to adhere as closely as possible to the requirements of the RSIA.” Id. The RSIA does not mandate a full SMS 14 but requires railroad RRPs to contain certain components, each of which the RRP final rule also contains (as supplemented by the SSP and FMP rulemakings). The RRP final rule adequately addresses railroad safety hazards by following the RSIA mandate, particularly as the core of the program is a systematic risk-based hazard management program that includes a risk-based hazard analysis. 14 The NPRM explained that a full SMS would contain numerous components FRA was not proposing to mandate in the RRP rule, such as a description of the railroad management and organizational structure (including charts or other visual representations) or a description of the processes and procedures used for maintenance and repair of infrastructure and equipment, rules compliance and procedures review, workplace safety, workplace safety assurance, or public safety outreach. Id. 4. Comments on Plan Approval The NPRM preamble stated FRA would only approve the processes and procedures in a railroad's RRP plan, not the entire RRP. See 80 FR 10977 (Feb. 27, 2015). FRA will not, for example, approve specific mitigation measures in a railroad's RRP plan. FRA received several comments from individuals and non-profit organizations urging FRA to approve entire RRPs, not just RRP plans. These commenters were concerned FRA's decision to only approve RRP plans represented a diminished role for FRA implementation and oversight of RRPs and did not comply with the RSIA mandate. FRA disagrees and believes its decision to approve only RRP plans satisfies the RSIA mandate. Section 20156(a)(3) directs FRA to “review and approve or disapprove railroad safety risk reduction program plans within a reasonable period of time.” (Emphasis added.) Further, an RRP is an ongoing program that supports continuous safety improvement. As discussed in the NPRM, “a railroad that conducts a one-time risk-based hazard analysis and does nothing further after addressing the results of that analysis will not have established a compliant RRP.” 80 FR at 10969 (Feb. 27, 2015). An RRP is not a one-time exercise. As such, FRA does not believe it is possible to meaningfully approve a railroad's entire RRP, because an RRP should be continuously moving forward and improving. If FRA approved a railroad's program, it would require a railroad to freeze an RRP at the moment of approval. That position is not consistent with the dynamic and changing nature of a successful RRP. FRA therefore is not changing the final rule to require FRA approval of a railroad's RRP. 5. Comments on Fatigue Management Plans The RSIA requires an RRP to include an FMP meeting certain requirements. The RRP NPRM did not address this mandate because FRA, with the assistance of industry stakeholders, is implementing it through the separate FMP rulemaking process. Labor Organizations I commented that FRA was violating the RSIA mandate by failing to require FMPs in the proposed rule text and that “the proposal of the FRA to provide an unknown number of years of additional delay is the functional equivalent of an open-ended waiver.” Labor Organizations I also commented that RSIA section 108 required FRA to promulgate a fatigue rulemaking no later than October 2011. FRA notes that RSIA section 108 applies specifically to hours-of-service reform, not the fatigue management programs that RSIA section 103 mandates for RRP. See 49 U.S.C. 20156(f). As such, arguments based on RSIA section 108 are inapplicable to FMPs. Nevertheless, FRA is working to issue a proposed FMP rulemaking. As the NPRM discussed, the RSAC voted to establish the FMP Working Group to address the FMP mandate in December 2011. The FMP Working Group completed its work in September 2013 and submitted its recommendations to FRA. FRA is considering these recommendations as it develops an FMP rulemaking. Ultimately, any fatigue management plans that FRA requires pursuant to section 20156(d)(2) and (f) would be part of a railroad's overall RRP. FRA does not believe that it is failing to meet the RSIA mandate by addressing the FMP requirements in a separate rulemaking process with stakeholder assistance. The SSP final rule takes the same approach and does not include FMP requirements. See 81 FR 53856-53857 (Aug. 12, 2016). 6. Comments on the RSAC Process FRA received comments from several individuals arguing that the RSAC RRP Working Group process was flawed because it did not include an industry risk reduction analysis expert. One commenter specifically noted the RSAC process did not include participation from those in high-risk industries, including chemical shipping industries, universities, and consultants. These commenters suggested that FRA should reopen the comment period and reconsider the proposed rule based on much more information from the at-risk public and public officials and from experts on industrial SMS. FRA declines to reopen the comment period again for several reasons. First, FRA representatives who have participated in the APTA system safety program have significant experience with industry risk reduction programs, as explained in the SSP NPRM. See 77 FR 55375 (Sept. 7, 2012). Railroad representatives who participated in the RSAC process also brought to the process experience with risk reduction programs. Overall, the RRP Working Group included a number of certified safety professionals, certified industrial hygienists, system safety managers, and safety directors. FRA therefore concludes that the RSAC RRP Working Group included ample expertise in the area of industry risk reduction analysis. Second, FRA has provided the public—including public officials, private individuals, and experts on industrial SMS—ample notice and opportunity to participate in the RRP rulemaking process. The RSIA mandate first notified the public FRA must require certain railroads to implement railroad safety risk reduction programs. The Regulatory Plan and Unified Agenda of Regulatory and Deregulatory Actions (published by the Regulatory Information Service Center and made available to the public at www.Reginfo.gov ) have also included the risk reduction rulemaking since the fall of 2009. See http://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPubId=200910&showStage=active&agencyCd=2100&Image58.x=35&Image58.y=17. The ANPRM also solicited public comment on how FRA could best develop and implement a risk reduction regulation based on the RSIA requirements. See 75 FR 76345-76351 (Dec. 8, 2010). Interested persons could submit comments to the ANPRM. FRA received 12 written comments in response to the ANPRM from a variety of entities, including railroads, industry organizations, non-profit employee labor organizations, a consulting firm, and a private citizen. The RSAC subsequently discussed in depth many of the questions and issues these comments raised. After it published the ANPRM and the comment period closed, FRA also held two public hearings (announced in the Federal Register ) giving interested persons an additional opportunity to present oral statements and to offer information and views on development of a risk reduction regulation in response to the ANPRM. See 76 FR 40320 (July 8, 2011). As with the ANPRM, the hearing testimony focused on topics the RSAC RRP Working Group continued to discuss. As noted above, FRA also held a public hearing and reopened the comment period on several occasions following the publication of the NPRM. The RSAC RRP Working Group also met to review and discuss comments received in response to the NPRM and the public hearing. Overall, FRA concludes reopening the RRP NPRM for further consideration and comment is not necessary because the RSAC RRP Working Group contained sufficient expertise in risk reduction and because FRA provided interested risk reduction experts numerous opportunities to participate in the rulemaking process. 7. Comments on the Relationship Between RRP and SSP FRA explained in the NPRM preamble that it worked with both the RSAC RRP Working Group and the RSAC System Safety Task Group on language implementing the RSIA mandate on information protection and consultation process requirements, with the understanding the RRP and SSP NPRMs would include the same language on both issues for review and comment. See 80 FR 10955 (Feb. 27, 2015). As such, the RRP NPRM did not respond to comments that FRA received in response to the SSP NPRM, but explained that FRA would consider comments responding to both NPRMs when developing the RRP final rule. See 80 FR 10958-10959 (Feb. 27, 2015). Labor Organizations I objected to FRA's position, arguing that FRA had a duty to address comments on the SSP NPRM in the RRP NPRM. FRA disagrees. SSP and RRP are separate rulemakings that apply to different entities. FRA concluded, therefore, that it would be fair to allow Class I railroads and potential ISP railroads the same opportunity to respond to the proposed information protections and consultation process requirements that the passenger railroads had in responding to the SSP NPRM. Moreover, because this final rule contains the same information protection provision as the SSP final rule, it incorporates FRA's response to all comments received on the matter in both the SSP and RRP rulemakings. 8. Comments on the Short Line Safety Institute ASLRRA commented that small railroad participation in the Short Line Safety Institute (Institute) should suffice as complete compliance with the requirements in the NPRM. According to ASLRRA, the Institute assessment process is a comprehensive review of safety practices and culture, which it believes is consistent with the intent of an RRP. ASLRRA acknowledges that a key component of an effective RRP is performance of a risk assessment and claims the Institute has teams of assessors specifically trained (using FRA-approved materials) in a well-documented safety assessment process. ASLRRA also claims FRA would fulfill the Small Business Regulatory Enforcement Fairness Act (SBREFA) requirement to grant special considerations to small businesses by accepting participation in the Institute as satisfying RRP requirements. In response to DOT's request for public comments on its regulatory review initiative, ASLRRA similarly commented that FRA should utilize the Institute to work with short line railroads as the mechanism for risk reduction within the short line industry and not place unnecessary and burdensome regulations on short lines. See 82 FR 45750-45753 (Oct. 2, 2017) and DOT-OST-2017-0069-2666. The following discussion is FRA's response to ASLRRA's comments discussing the Institute for both the NPRM and DOT's regulatory reform initiative. FRA supports the development of the Institute to promote the safety of short line and regional railroad operations. However, for Institute participation to constitute an RRP, the Institute would have to fully comply with each RRP requirement this final rule establishes, which are consistent with the RSIA requirements. FRA currently cannot determine whether the Institute will fully comply with the RSIA mandate or the requirements of this final rule. For example, FRA cannot determine whether the Institute will include certain mandated components, such as an RRP plan reviewed and approved by FRA, consultation with directly affected employees on the contents of an RRP plan, annual internal assessments, and a technology implementation plan. Rather, FRA believes it is more appropriate to make this determination when reviewing RRP plans under § 271.301 of the final rule. Further, FRA does not believe it has to accept the Institute as a fully-compliant RRP to comply with SBREFA or otherwise avoid placing unnecessary and burdensome regulations on short line and regional railroads. Because an RRP is scalable by design, a short line or regional railroad's full compliance with an RRP final rule is not likely to be as complex and comprehensive as it would be for a larger railroad. The rule will therefore not unduly burden short line and regional railroads. The Final Regulatory Flexibility Analysis in Section VII.B further discusses how FRA has considered small business concerns in developing the RRP final rule. 9. Comments on Other SMS Programs As both the NPRM and this preamble discuss, other Federal agencies have established or proposed SMS requirements, and SMS programs have developed to assure high safety performance in various industries, including aviation, passenger railroads, the nuclear industry, and other industries with the potential for catastrophic accidents. FRA received several comments urging FRA to consider other such SMS programs as both positive and negative models for RRP. Transport Action Canada (TAC) commented that the effect of SMS in the Canadian railroad industry has not been positive. Specifically, TAC expressed concern that SMS-type programs such as RRP are “incapable of assuming . . . the role of government in ensuring public safety.” FRA does not believe this RRP rule will result in FRA abdicating its role ensuring railroad safety, as any alleged weakness of SMS programs in Canada does not mean SMS programs in the United States cannot be successful. The United States' railroad safety laws and regulations are different than Canada's, and the RRP rule will not replace or modify any of FRA's railroad safety regulations, responsibilities, or enforcement tools. An RRP will supplement FRA oversight of railroad safety, not replace it. Various commenters suggested other SMS programs as models for RRP, such as the United States Environmental Protection Agency's (EPA) Risk Management Program, the Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Federal Transit Administration (FTA) approach, and the Massachusetts Toxics Use Reduction Act (TURA). FRA notes that some of these SMS programs operate very differently from the way FRA exercises its railroad safety authority. For example, States have primary responsibility for enforcing SMS programs under MAP-21 through the State Safety Oversight (SSO) Program. See State Safety Oversight (SSO) Program, available at http://www.fta.dot.gov/tso_15863.html (“The SSO program is administered by eligible States with rail transit systems in their jurisdiction. FTA provides Federal funds through the SSO Formula Grant Program for eligible States to develop or carry out their SSO programs. Under 49 U.S.C. Section 5329(e), as amended by [MAP-21], FTA is required to certify each State's program to ensure compliance with MAP-21.”). Further, as FRA has already stressed elsewhere, this final rule hews closely to the RSIA mandate. If FRA used other SMS programs as a model for RRP, rather than the RSIA requirements, this could cause FRA to either fail to meet or exceed the limits of RSIA's statutory mandate. VI. Section-by-Section Analysis FRA is adding a new part 271 to chapter 49 of the CFR. This part satisfies the RSIA requirements for safety risk reduction programs for Class I railroads and railroads with inadequate safety performance. See 49 U.S.C. 20156(a)(1). This part also protects certain information compiled or collected for a safety risk reduction program from admission into evidence or discovery during court proceedings for damages. See 49 U.S.C. 20119. Subpart A—General Subpart A of the final rule contains general provisions (including a formal statement of the rule's purpose and scope) and provisions limiting the discovery and admissibility of certain RRP information. Section 271.1—Purpose and Scope Section 271.1 explains the rule's purpose and scope. Paragraph (a) states the purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. Paragraph (a) also states this rule requires each affected railroad to establish an RRP that systematically evaluates railroad safety hazards on its system and manages the risks generated by those hazards to reduce the number and rates of railroad accidents/incidents, injuries, and fatalities. Except for replacing the phrase “in order to” with “to” for the purpose of streamlining the regulatory language, FRA has not changed paragraph (a) from the NPRM. As the NPRM explained, the rule does not require an RRP to address every safety hazard on a railroad's system. For example, rather than identifying every safety hazard on its system, a large railroad could take a more focused and project-specific view of safety hazard identification. See 80 FR 10959 (Feb. 27, 2015). An individual commenter suggested FRA's RRP rule should use an “All-Hazards” approach. FRA declines to adopt this suggestion because the RSIA requires an RRP to address only “railroad safety risks” and § 271.1(a) of the final rule accurately reflects this mandate by requiring RRPs to “systematically evaluate railroad safety hazards.” The RSIA does not authorize RRPs that address hazards other than railroad safety hazards. Paragraph (b) states that this part prescribes minimum Federal safety standards for the preparation, adoption, and implementation of RRPs. A railroad is not restricted from adopting and enforcing additional or more stringent requirements that are not inconsistent with the rule. FRA did not receive any comments on this paragraph and adopts it as proposed. Paragraph (c) states that the rule protects information a railroad compiles or collects solely for the purpose of planning, implementing, or evaluating an RRP. While paragraph (c) in the proposed rule specified that the rule would protect information “generated” solely for developing, implementing, or evaluating an RRP, FRA has replaced the term “generated” with the phrase “compiles or collects” to promote consistency with § 271.11. FRA has also replaced the term “developing” with the term “planning” from § 271.11. FRA made these changes only to improve clarity and consistency between this section and § 271.11 and not to make any substantive change in this part's information protections. Paragraph (d) explains the final rule does not require an RRP to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. For example, an RRP is not required to address environmental hazards that would fall under the exclusive jurisdiction of the United States Environmental Protection Agency (EPA) or workplace safety hazards that would fall under the exclusive jurisdiction of the United States Department of Labor's Occupational Safety and Health Administration (OSHA). Paragraph (d) also explains an RRP should not address the safety of employees while performing inspections, tests, and maintenance. The only exception is where FRA has exercised its jurisdiction over the safety issue, as in 49 CFR part 218, subpart B, which establishes blue signal protection for workers. FRA will not approve any specific portion of an RRP plan that addresses hazards related to a safety issue that falls under the exclusive jurisdiction of another Federal agency unless FRA has exercised its jurisdiction over the safety issue. Paragraph (d) of the NPRM proposed the same language regarding working conditions, but did not include the first sentence discussing hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble explained that while FRA is always concerned with the safety of railroad employees performing their duties, employee safety in maintenance and servicing areas generally falls under OSHA's jurisdiction. Id. The NPRM similarly explained that FRA did not intend RRPs to address environmental hazards and risks unrelated to railroad safety that fall under EPA's jurisdiction. Id. For example, the NPRM stated FRA would not expect a railroad's RRP to address environmental hazards regarding particulate emissions from locomotives that otherwise comply with FRA's safety regulations. Id. AAR/ASLRRA commented the language in proposed paragraph (d) did not achieve clarification and specifically suggested FRA clarify its intent by precisely stating that the scope of an RRP does not include matters within OSHA's jurisdiction. AAR/ASLRRA also stated paragraph (d) did not address environmental issues under EPA jurisdiction. To address AAR/ASLRRA's concern regarding EPA's jurisdiction, FRA changed paragraph (d) in the final rule to add the first sentence plainly stating that an RRP is not required to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. The purpose of this language is to incorporate the NPRM's explanation that an RRP should not address hazards that fall exclusively under the jurisdiction of another Federal agency, such as EPA. FRA has otherwise not changed the proposed text of paragraph (d) that relates to working conditions, as similar language appears in the SSP final rule and FRA's regulations on passenger equipment safety standards. 15 See §§ 270.103(g)(4) and 238.107(c). The purpose of the language is to make clear that FRA neither intends to displace OSHA jurisdiction with respect to employee working conditions generally nor specifically with respect to the maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety. FRA does not intend to approve any specific portion of an RRP plan that relates exclusively to employee working conditions covered by OSHA. The term “approve” is used to make clear that any part of an RRP plan that relates to employee working conditions exclusively covered by OSHA will not be approved even if the overall plan is approved. Additionally, the term “specific” reinforces that the particular portion of the plan that relates to employee working conditions exclusively covered by OSHA will not be approved; however, the rest of the plan may still be approved. If there is any confusion whether an RRP plan covers an OSHA-regulated area, FRA is available to provide assistance. The preamble to the SSP final rule contains this same explanation regarding SSP plans and working conditions exclusively covered by OSHA. See 81 FR 53871 (Aug. 12, 2016). 15 While §§ 270.103(g)(4) and 238.107(c) contain reference to working conditions “as set forth in the plan,” the RRP final rule does not contain this language because an RRP plan is not required to specifically address working conditions that arise in the course of conducting maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety. FRA is also leaving the reference to FRA regulations on blue signal protection, which does not appear in the corresponding SSP language, to improve clarity. FRA does not intend this difference to indicate any substantive difference between the SSP and RRP language, as the preamble to the SSP final rule contains the same example regarding blue signal protection. See 81 FR 53870 (Aug. 12, 2016). Overall, FRA's intent behind paragraph (d) in the NPRM and this final rule has not changed, and FRA has changed the language solely to address AAR/ASLRRA's concerns regarding clarity. The NPRM discussion of paragraph (d) therefore remains applicable to paragraph (d) in this final rule. See 80 FR 10959 (Feb. 27, 2015). Section 271.3—Application This section sets forth application of the rule. Except for additional language in paragraph (c), this section is the same as in the NPRM. Thus, FRA is not repeating the NPRM section-by-section analysis for paragraphs (a) and (b) in this final rule, but refers interested readers to the NPRM. See 80 FR 10959-10960 (Feb. 27, 2017). FRA is, however, discussing comments it received regarding tourist railroads and Class II and Class III railroads in response to the NPRM. Paragraph (b)(2) of the NPRM proposed that the rule would not apply to tourist, scenic, historic, or excursion operations, whether on or off the general railroad system of transportation. See 80 FR 10989 (Feb. 27, 2015). The NPRM specifically requested public comment on how an RRP final rule should address tourist operations that may create hazards for freight operations. In response, Labor Organizations I responded that FRA should require all railroads to account for tourist operations on their lines in performing the self-critical analysis and include such operations in the railroad's RRP. FRA agrees with Labor Organizations I that a railroad required to comply with this rule must account for tourist operations on its system. FRA has made changes responding to this comment in § 271.101(d), which requires railroads to identify tourist operations that operate over the railroad's track (even if the tourist railroad is exempt from this rule) and to ensure the tourist railroad supports and participates in the railroad's RRP. The section-by-section analysis for § 271.101(d) discusses these changes further. In this final rule, FRA added a paragraph (c) that includes language from the SSP final rule. See § 270.107(a)(2). This language clarifies that if a railroad contracts out significant portions of its operations, the contractor and the contractor's employees performing the railroad's operations are considered directly affected employees for this rule's purposes, including the consultation process and employee involvement requirements in §§ 271.113 and 271.207, discussed below. This language is necessary to address how directly affected employee consultation and involvement will be handled when a railroad contracts out significant portions of its operations to other entities. Contractors and contractor employees will only be considered directly affected employees when the contracts are ongoing and involve significant aspects of the railroad's operations. For example, if a railroad contracts out maintenance of its locomotive and rail cars to another entity, it is vital for the employees who are performing this maintenance to be involved in that railroad's RRP and have the opportunity to provide their valuable input on the RRP plan. Another example would be if a railroad contracts out the actual operations of its railroad to another entity. In such cases, the contracted entity and its employees operating trains on behalf of the railroad would certainly need to be part of the consultation process and otherwise involved in the railroad's RRP. If a railroad is unsure whether a contracted entity and its employees are directly affected employees for purposes of this part, FRA encourages the railroad and other interested stakeholders to contact FRA for guidance. The Association of Tourist Railroads and Railway Museums (ATRRM) commented it supported FRA's proposed approach for tourist railroads. ATRRM commented an RRP was poorly suited to a small tourist railroad, but agreed with FRA's approach to tourist railroads that conduct their own freight operations, or which operate on RRP host railroads. ATRRM correctly understood FRA's position, and the changes made in § 271.101(d) are consistent with this position. FRA received approximately four comments from individuals arguing that FRA should expand the scope of the RRP final rule to Class II and Class III railroads. FRA declines to incorporate this recommendation for two principle reasons. First, applying the RRP final rule to Class II and Class III railroads would go beyond the RSIA mandate and increase the number of RRP plans submitted for FRA review. FRA would therefore need more time to review all submitted plans, as well as more time to conduct external reviews of RRPs. This would divert FRA resources away from Class I railroads, which have more complex operations than Class II and Class III railroads, and ISP railroads, which FRA will have determined demonstrate inadequate safety. Adhering to the RSIA mandate, which only directs FRA to require compliance from Class I railroads, passenger railroads, and railroads with inadequate safety performance, therefore represents the best and most efficient use of FRA resources. Second, the methodology for identifying railroads with inadequate safety performance will require certain Class II and Class III railroads to comply with the RRP rule. FRA also notes that Class II and III freight railroads may voluntarily comply with the final rule. Section 271.5—Definitions This section contains definitions clarifying the meaning of important terms used in the rule. FRA worded the definitions carefully to minimize potential misinterpretation of the rule. Commenters on the NPRM did not have significant issues with the proposed definitions, except for a few comments FRA received on the proposed definitions of “hazard” and “safety culture,” discussed below. FRA also made changes discussed below to the definitions of “accident/incident” and “pilot project.” For definitions that did not receive any comment and have not been changed, FRA is not repeating the NPRM's section-by-section analysis in this final rule but refers interested readers to the NPRM's discussion. See 80 FR 10960-10962 (Feb. 27, 2015). The NPRM preamble stated FRA was proposing an “accident/incident” definition identical to the definition contained in FRA's accident/incident reporting regulations at 49 CFR part 225. See 80 FR 10960 (Feb. 27, 2015). However, the proposed definition did not match the part 225 definition exactly, because it did not include occupational illnesses. See 49 CFR 225.5. This inconsistency was merely an oversight. To correct this inconsistency and to ensure future conformity with the part 225 definition and any amendments thereto, FRA has changed the final rule's definition to simply cross-reference the part 225 definition. The NPRM proposed to define “hazard” as any real or potential condition that can cause injury, illness, or death; damage to or loss of a system, equipment, or property; or damage to the environment. See 80 FR 10989 (Feb. 27, 2015). In response, AAR/ASLRRA commented the definition of hazard did not help clarify the proposed jurisdiction statement in § 271.1(d). AAR/ASLRRA also claimed the definition places conditions that do not impact human safety or property damage squarely within the definition of hazard. As discussed above, FRA has made changes to § 271.1(d) to clarify an RRP does not have to address safety issues that are completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency, such as EPA. This does not mean, however, an RRP should not address railroad safety hazards that could result in damage to the environment, such as a derailment that could result in a hazardous materials release. See also 80 FR 10959 (Feb. 27, 2015). As § 271.1(a) provides, an RRP is required to address “railroad safety hazards.” The final rule adopts the NPRM's definition for “hazard” unchanged. The NPRM proposed to define “pilot project” as a limited scope project used to determine whether quantitative proof suggests that a particular system or mitigation strategy has potential to succeed on a full-scale basis. See 80 FR 10989-10990 (Feb. 27, 2015). FRA modified this definition to replace the word “proof” with the phrase “evaluation and analysis.” FRA made this change to avoid implying that a railroad had to meet an established quantitative threshold as proof that a pilot project has potential to succeed. FRA did not intend to establish a quantitative proof threshold, and believes “evaluation and analysis” more accurately describes the purpose of a pilot project. FRA also modified this definition slightly by changing “potential to succeed on a full-scale basis” to “potential for full-scale success.” The purpose of this change is only to streamline the language, and FRA does not intend any substantive change. The NPRM proposed defining “safety culture” as the shared values, actions, and behaviors that demonstrate a commitment to safety over competing goals and demands. This definition is the same in the final rule and was also included in the SSP rule. See § 270.5 and 81 FR 53863-53864 (Aug. 12, 2016). As the NPRM explained, FRA based the definition on a research paper published by the DOT Safety Council. See 80 FR 10962 (Feb. 27, 2015). The DOT Safety Council developed this definition after extensive review of definitions used in a wide range of industries and organizations over the past two decades. Id. See also U.S. Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., “Safety Culture: A Significant Influence on Safety in Transportation,” 2-3 (2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. The NPRM also acknowledged the proposed definition was different than the definition that the RRP Working Group recommended. Specifically, FRA noted that some participants during RRP Working Group discussion expressed concern that the language “over competing goals and demands” would require a railroad to make safety the ultimate priority to the exclusion of all other concerns, without providing flexibility for a railroad to balance the concerns of profit and efficiency. The NPRM explained FRA selected the proposed definition because it was important to use a definition the DOT Safety Council formulated. See 80 FR 10962 (Feb. 27, 2015). The definition also would not require a railroad to prioritize absolute safety over competing goals and demands ( i.e., it would not require a railroad to have a perfect safety culture). Rather, FRA explained that the proposed definition merely expressed how a railroad should evaluate safety culture by measuring the extent to which a railroad emphasizes safety over competing goals and demands. Id. AAR/ASLRRA responded to this discussion by commenting there was no doubt that the proposed definition requires “a commitment to safety over competing goals and demands,” because that is what the definition says. AAR/ASLRRA further suggested that if FRA's intent was to measure the extent to which a railroad emphasizes safety over competing goals and demands, that language should be included. FRA declines to change the proposed “safety culture” definition as suggested because doing so would eliminate the benefits of having a general definition the DOT Safety Council developed and approved. There is value in establishing a shared understanding of safety culture that can be applied across many contexts, and developing a common understanding of the elements that comprise a strong safety culture can help DOT agencies have a better basis for improving safety programs, policies, and strategies. See U.S. Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., “Safety Culture: A Significant Influence on Safety in Transportation,” 2 (2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. As explained in the NPRM, FRA also disagrees with AAR/ASLRRA and believes the definition does not require railroads to “absolutely and necessarily” demonstrate a commitment to safety over competing goals and demands but only describe how certain shared values, actions, and behaviors demonstrate such a commitment. Rather, the rule requires that a railroad design its RRP to promote and support a positive safety culture (§ 271.101(a)), develop processes for identifying and analyzing its safety culture (§ 271.105(a)), and include in its RRP plan a statement describing the railroad's safety culture and how it promotes improvements to its safety culture (§ 271.203(b)(1) and (2)). 16 FRA believes these provisions generally require a railroad to define its own safety culture and develop processes for analyzing and improving it. Nowhere does the RRP final rule require a railroad to establish a safety culture that a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-00425. Public record. Not legal advice.