Risk Reduction Program

Published date18 February 2020
Citation85 FR 9262
Record Number2020-00425
SectionRules and Regulations
CourtFederal Railroad Administration
Federal Register, Volume 85 Issue 32 (Tuesday, February 18, 2020)
[Federal Register Volume 85, Number 32 (Tuesday, February 18, 2020)]
                [Rules and Regulations]
                [Pages 9262-9325]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-00425]
                [[Page 9261]]
                Vol. 85
                Tuesday,
                No. 32
                February 18, 2020
                Part IIIDepartment of Transportation-----------------------------------------------------------------------Federal Railroad Administration-----------------------------------------------------------------------49 CFR Part 271Risk Reduction Program; Final Rule
                Federal Register / Vol. 85 , No. 32 / Tuesday, February 18, 2020 /
                Rules and Regulations
                [[Page 9262]]
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                DEPARTMENT OF TRANSPORTATION
                Federal Railroad Administration
                49 CFR Part 271
                [Docket No. FRA-2009-0038, Notice No. 7]
                RIN 2130-AC11
                Risk Reduction Program
                AGENCY: Federal Railroad Administration (FRA), Department of
                Transportation (DOT).
                ACTION: Final rule.
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                SUMMARY: FRA is issuing this final rule to require each Class I freight
                railroad and each freight railroad with inadequate safety performance
                to develop and implement a Risk Reduction Program (RRP) to improve the
                safety of its operations. RRP is a comprehensive, system-oriented
                approach to safety that determines a railroad operation's level of risk
                by identifying and analyzing applicable hazards, and involves
                developing plans to mitigate, if not eliminate, that risk. Each
                railroad has flexibility to tailor an RRP to its specific railroad
                operations. Each railroad shall implement its RRP under a written RRP
                plan that FRA has reviewed and approved. Each railroad shall conduct an
                annual internal assessment of its RRP, and FRA will audit a railroad's
                RRP processes and procedures.
                DATES: This final rule is effective April 20, 2020.
                ADDRESSES: Docket: For access to the docket to read background
                documents or comments received, go to 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),
                [email protected]; or Elizabeth Gross, Attorney Adviser, U.S.
                Department of Transportation, Federal Railroad Administration, Office
                of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590
                (telephone: 202-493-1342), [email protected].
                SUPPLEMENTARY INFORMATION:
                Table of Contents for Supplementary Information
                I. Executive Summary
                 A. Statutory Authority for This Rulemaking
                 B. Summary of Major Provisions
                 C. Summary of Costs and Benefits
                II. Abbreviations
                III. Background and History
                 A. What is a Risk Reduction Program?
                 B. Summary of NPRM
                 C. Proceedings Since the NPRM
                 D. Regulatory Review
                 E. Summary of Comments
                 F. Update on Other Federal Safety Management System Programs
                IV. Statutory Background
                 A. Rail Safety Improvement Act of 2008
                 B. Related System Safety and Fatigue Management Plans
                Rulemakings
                 C. Consultation Process Requirements
                 D. Risk Reduction Information Protection
                 1. Exemption From Freedom of Information Act Disclosure
                 2. Discovery and Other Use of Risk Analysis Information in
                Litigation
                 a. The Statutory Mandate
                 b. The Final Study Report and Its Conclusions
                V. Discussion of General Comments
                 A. Information Protection
                 1. Comments Supporting the Proposed Information Protections
                 2. Comments on Final Study Report
                 3. Comments Against Any Information Protections
                 a. Comments That the Information Protections Are Unprecedented
                 b. Comments That the Information Protections Will Reduce the
                Rights of Litigants
                 c. Comments That the Information Protections Will Allow
                Railroads To Hide Safety Hazards
                 4. Comments That the RRP Final Rule Does Not Need To Limit the
                Disclosure of Evidence
                 5. Comments Requesting Preservation of State Tort Law Based
                Claims
                 6. Comments That a Judge Should Determine Information
                Admissibility
                 7. Comments Suggesting FRA Should Only Protect a Railroad's
                Hazard Analysis Form
                 8. Comments That the Information Protections Are Too Narrow
                 B. Other Topics
                 1. Transportation of Hazardous Materials
                 2. Comments on Performance-Based Rule and Flexibility
                 3. Comments on Streamlined Safety Management System (SMS)
                 4. Comments on Plan Approval
                 5. Comments on Fatigue Management Plans
                 6. Comments on the RSAC Process
                 7. Comments on the Relationship Between RRP and SSP
                 8. Comments on the Short Line Safety Institute
                 9. Comments on Other SMS Programs
                VI. Section-by-Section Analysis
                VII. Regulatory Impact and Notices
                 A. Executive Orders 12866 and 13771, Congressional Review Act,
                and DOT Regulatory Policies and Procedures
                 B. Regulatory Flexibility Act and Executive Order 13272
                 C. Federalism
                 D. International Trade Impact Assessment
                 E. Paperwork Reduction Act
                 F. Environmental Assessment
                 G. Unfunded Mandates Reform Act of 1995
                 H. Energy Impact
                I. Executive Summary
                A. Statutory Authority for This Rulemaking
                 FRA's general authority to issue rules on railroad safety is 49
                U.S.C. 20103(a), which establishes the authority of the Secretary of
                Transportation (Secretary) to promulgate regulations for every area of
                railroad safety. The Secretary has delegated such statutory
                responsibilities to the Administrator of FRA. See 49 CFR 1.89. FRA is
                issuing this rule to satisfy the statutory mandate in sections 103 and
                109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-
                432, Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156
                and 20118-20119. The Secretary delegated responsibility to carry out
                her responsibilities under RSIA sections 103 and 109, and the general
                responsibility to conduct rail safety rulemakings under 49 U.S.C.
                20103(a), to the Administrator of FRA. See 49 CFR 1.89(a) and (b).
                B. Summary of Major Provisions
                 FRA is issuing this RRP rule as part of its efforts to continually
                improve rail safety and to satisfy the statutory mandate in RSIA
                sections 103 and 109 requiring each Class I freight railroad and each
                freight railroad with inadequate safety performance to develop and
                implement an RRP.\1\ A railroad not otherwise required to comply with
                the rule may also voluntarily submit an RRP plan for FRA review and
                approval. On August 12, 2016, 81 FR 53850, FRA published a separate
                system safety program (SSP) rule implementing this mandate for commuter
                and intercity passenger railroads.
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                 \1\ FRA understands that each railroad subject to this RRP rule
                has a unique operating system, and not all railroads have the same
                amount of resources. Best practices for implementing an RRP will
                therefore differ from railroad to railroad. Accordingly, this rule
                does not establish prescriptive requirements that may be appropriate
                for one railroad but unworkable for another. Instead, the rule
                establishes general, performance-based requirements. This approach
                provides each railroad flexibility to tailor those requirements to
                its specific operations.
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                 An RRP is implemented by a written risk reduction program plan (RRP
                plan). The RRP rule sets forth various elements that a railroad's RRP
                plan must contain to properly implement an RRP. As part of its RRP
                plan, a railroad must also
                [[Page 9263]]
                describe the various procedures and processes for implementing this
                rule's requirements. This includes procedures and processes for, but
                not limited to, the following RRP components: Risk-based hazard
                management program; safety performance evaluation; safety outreach;
                technology implementation plan; RRP employee/contractor training;
                railroad employee involvement; and internal assessment.
                 The main components of an RRP are the risk-based hazard management
                program and risk-based hazard analysis. A properly implemented risk-
                based hazard management program and risk-based hazard analysis will
                identify the hazards and resulting risks on the railroad's system,
                develop methods to mitigate or eliminate (if practicable) these hazards
                and risks, and set forth a plan to implement these methods. As part of
                its RRP, a railroad will also consider various technologies that may
                mitigate or eliminate the identified hazards and risks.
                 An RRP will affect almost all facets of a railroad's operations. To
                ensure all railroad employees an RRP directly affects have an
                opportunity to provide input on the development, implementation, and
                evaluation of a railroad's RRP, the rule requires railroads to consult
                in good faith, and use their best efforts to reach agreement with, such
                employees on the RRP plan contents and any substantive amendments to
                the plan. Appendix A to the rule contains guidance on what constitutes
                good faith and best efforts.
                 An RRP can be successful only if a railroad engages in a systematic
                assessment of the hazards and resulting risks on its system. However, a
                railroad may be reluctant to reveal such hazards and risks if there is
                the possibility that such information may be used against it in a court
                proceeding for damages. Congress directed FRA to conduct a study to
                determine if it was in the public interest to withhold certain
                information, including the railroad's assessment of its safety risks
                and its statement of mitigation measures, from discovery and admission
                into evidence in proceedings for damages involving personal injury and
                wrongful death. See 49 U.S.C. 20119. Further, Congress authorized FRA,
                by delegation from the Secretary, to prescribe a rule, subject to
                notice and comment, to address the results of the study. See 49 U.S.C.
                20119(b). FRA contracted to have the study performed, and the RRP
                notice of proposed rulemaking (NPRM) addressed the study's results and
                set forth proposed protections for certain information from discovery,
                admission into evidence, or use for other purposes in a proceeding for
                damages. See 80 FR 10963-10966 (Feb. 27, 2015).
                 To minimize the information protected, information a railroad
                compiles or collects solely to plan, implement, or evaluate an RRP is
                protected from discovery, admissibility into evidence, or use for other
                purposes in a proceeding for damages involving personal injury,
                wrongful death, or property damage. The rule also preempts State
                discovery rules and sunshine laws which could be used to require the
                disclosure of protected information in such proceedings. This rule does
                not protect information a railroad compiles or collects for a purpose
                unrelated to the railroad's RRP. Under section 20119(b), the
                information protection provision is not effective until one year after
                its publication. All other provisions of this final rule will become
                effective 60 days after the date of publication.
                 Section 20118 also specifies that certain risk reduction records
                the Secretary obtains are exempt from the Freedom of Information Act
                (FOIA) public disclosure requirements. This exemption is subject to two
                exceptions for disclosure (1) necessary to enforce or carry out any
                Federal law and (2) when a record is comprised of facts otherwise
                available to the public and FRA determines disclosure would be
                consistent with the confidentiality needed for RRPs. See 49 U.S.C.
                20118. Unless an RSIA exception applies, FRA would not disclose such
                records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and 49
                CFR 7.23(c)(3). Therefore, FRA concludes railroad risk reduction
                records in FRA's possession would be exempted from mandatory disclosure
                under FOIA unless one of the two exceptions applies.
                 The rule requires a Class I railroad to submit its RRP plan to FRA
                for review no later than August 16, 2021. This submission deadline
                accounts for the statutory one-year delay before the information
                protection provision becomes effective. Similarly, the rule does not
                require railroads with inadequate safety performance (ISP railroads) or
                railroads the Surface Transportation Board (STB) either reclassifies or
                newly classifies as Class I railroads after the effective date of the
                final rule to submit RRP plans before the information protection
                provisions go into effect. An ISP railroad must submit an RRP plan
                either 180 days after receiving notice FRA determined the ISP railroad
                had inadequate safety performance or no later than August 16, 2021,
                whichever is later. A railroad the STB reclassifies or newly classifies
                as a Class I railroad must submit its RRP either no later than 90 days
                following the effective date of the classification or reclassification
                or no later than August 16, 2021, whichever is later.
                 Within 90 days of receipt of a railroad's RRP plan, FRA will review
                the plan and determine if it meets the requirements of the rule. If FRA
                determines the railroad's RRP plan does not comply with the rule, FRA
                will notify the railroad of how the plan is deficient. The railroad
                will then have 90 days to correct the deficiencies and resubmit the
                plan to FRA. Whenever a railroad amends its RRP plan, it must submit
                the amended plan to FRA for approval and provide a cover letter
                describing the amendments. (FRA approval is not required for amendments
                limited to adding or changing a name, title, address, or telephone
                number of a person, although a railroad must still file the amendment
                with FRA.) A similar approval process and timeline will apply whenever
                a railroad substantively amends its RRP.
                C. Summary of Costs and Benefits
                 The rule requires each Class I freight railroad and each ISP
                railroad to develop and implement an RRP in accordance with a written
                RRP plan approved by FRA. The rule sets forth required elements that
                must be included in a railroad's RRP. FRA estimates that the rule's
                costs for these elements include: Developing a risk-based hazard
                management program (HMP); documenting an RRP plan and any RRP plan
                amendments; consulting with directly affected employees and preparing
                consultation statements; conducting a safety performance evaluation;
                conducting safety outreach; conducting a technology analysis and
                developing a technology implementation plan; ensuring employee
                involvement; providing RRP training; retaining RRP records; and
                conducting internal assessments. FRA did not estimate the full
                incremental costs of railroads conducting additional and systematic
                hazard and risk analyses or implementing actions to mitigate identified
                hazards and risks. FRA lacks information to reliably estimate such
                costs because FRA cannot predict the level of hazards and risks on
                impacted railroads nor the means these railroads will use to mitigate
                these risks.
                 Costs begin in the first year of analysis. The below tables
                summarize the rule's total costs over a ten-year period based on Class
                I railroads having a 43-percent pre-compliance rate and ISP railroads
                having no pre-compliance, with a total cost of $40.2 million, using a
                7-percent discount rate (present value (PV), 7-percent) (Table 1) and
                $51.0
                [[Page 9264]]
                million, using a 3-percent discount rate (PV, 3-percent) (Table 2). The
                annualized costs are $5.7 million (PV, 7-percent) and $5.9 million (PV,
                3-percent).
                 Table 1--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                 PV, 7-Percent
                ----------------------------------------------------------------------------------------------------------------
                 Class I
                 Costs railroads ISP railroads All railroads
                ----------------------------------------------------------------------------------------------------------------
                Subpart A: General.............................................. .............. $7,000 $7,000
                Subpart B: RR Programs.......................................... 35,725,000 2,216,000 37,941,000
                Subpart C: RRP Plans............................................ 656,000 1,053,000 1,709,000
                Subpart D: Review and Approval of Plans......................... 2,000 7,000 9,000
                Subpart E: Internal Assessments................................. 171,000 312,000 483,000
                Subpart F: External Audits...................................... 28,000 32,000 60,000
                 -----------------------------------------------
                 Total Cost, 7% present value................................ 36,582,000 3,627,000 40,209,000
                 -----------------------------------------------
                Annualized, 7%.................................................. 5,210,000 516,000 5,726,000
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                 Table 2--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                 PV, 3-Percent
                ----------------------------------------------------------------------------------------------------------------
                 Class I
                 Costs railroads ISP railroads All railroads
                ----------------------------------------------------------------------------------------------------------------
                Subpart A: General.............................................. .............. $9,000 $9,000
                Subpart B: RR Programs.......................................... 45,156,000 3,011,000 48,167,000
                Subpart C: RRP Plans............................................ 771,000 1,329,000 2,100,000
                Subpart D: Review and Approval of Plans......................... 2,000 8,000 10,000
                Subpart E: Internal Assessments................................. 230,000 413,000 643,000
                Subpart F: External Audits...................................... 37,000 43,000 80,000
                 -----------------------------------------------
                 Total Cost, 3% present value................................ 46,197,000 4,813,000 51,000,000
                 -----------------------------------------------
                Annualized, 3%.................................................. 5,416,000 564,000 5,979,000
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                 Benefits that come from the final rule will vary from railroad to
                railroad. These benefits are based on each railroad's organizational
                structure, the ability for labor and management to collaborate, and the
                steps the railroad takes to implement hazard analysis and mitigation.
                FRA could not reliably predict the specific risks that each freight
                railroad will identify, the actions each freight railroad will take to
                mitigate such risks, or the success rate of such actions. Therefore,
                this analysis qualitatively describes benefits. Details on the
                estimated benefits of this final rule can be found in the rule's
                Regulatory Impact Analysis (RIA), which FRA has prepared and placed in
                the docket (docket no. FRA-2009-0038).\2\
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                 \2\ Document inspection and copying facilities are available at
                Room W12-140 on the ground level of the West Building, 1200 New
                Jersey Avenue SE, Washington, DC 20590. The docket for this
                rulemaking is also available online at www.regulations.gov under
                docket no. FRA-2009-0038.
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                 FRA expects that the final rule will increase the effectiveness of
                railroad hazard mitigation strategies, which will reduce the frequency
                of accidents and incidents on the general railroad system. FRA also
                expects that the final rule will result in increased employee morale
                and improved working conditions, which will improve railroad
                productivity. These benefits will result because the final rule:
                 (1) Ensures that railroads keep their RRPs current and in place;
                 (2) Improves safety culture;
                 (3) Requires ongoing employee involvement and proactive
                collaboration between labor and management; and
                 (4) Provides information protection which allows for a systematic
                risk-based hazard analysis.
                 The final rule requires each Class I railroad to have a fully
                implemented RRP within five years of the rule's effective date and
                requires the first set of ISP railroads to implement all portions of
                their RRPs within six years after the final rule's effective date.\3\
                FRA anticipates that railroads may implement some components of their
                RRP plan before the required implementation dates specified in the
                final rule. Therefore, this analysis estimates that the final rule will
                start generating benefits in the fourth year (year 2022), when Class I
                railroads will have substantially implemented their RRPs. As previously
                discussed, Class I railroads have in place existing activities related
                to the final rule's required components. The existing levels of pre-
                rule compliance reduce the size of potential benefits that follow from
                issuing the final rule.
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                 \3\ An ISP railroad should begin to realize benefits
                approximately three years after FRA approves its RRP plan, the point
                when the final rule requires the ISP railroad to have fully
                implemented its RRP. The final rule requires each ISP railroad that
                is part of the first group of ISP railroads to implement in full an
                RRP by the sixth year.
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                II. Abbreviations
                 The following abbreviations are used in this preamble and are
                collected here for the convenience of the reader:
                CFR Code of Federal Regulations
                DOT United States Department of Transportation
                FMP Fatigue Management Plan
                FOIA Freedom of Information Act
                FR Federal Register
                FRA Federal Railroad Administration
                HMP Hazard Management Program
                NPRM Notice of Proposed Rulemaking
                OST Office of the Secretary, United States Department of
                Transportation
                PTC Positive Train Control
                Pub. L. Public Law
                RRP Risk Reduction Program
                RSAC Railroad Safety Advisory Committee
                [[Page 9265]]
                RSIA Railroad Safety Improvement Act of 2008, Public Law 110-432,
                Div. A, 122 Stat. 4848
                Secretary Secretary of Transportation
                SSP System Safety Program
                U.S.C. United States Code
                III. Background and History
                A. What is a Risk Reduction Program?
                 Risk reduction is a comprehensive, system-oriented approach to
                improving safety by which an organization formally identifies and
                analyzes applicable hazards and takes action to mitigate, if not
                eliminate, the risks associated with those hazards. It provides a
                railroad with a set of decision making processes and procedures that
                can help it plan, organize, direct, and control its railroad operations
                in a way that enhances safety and promotes compliance with regulatory
                standards. As such, risk reduction is a form of safety management
                system, which is a term generally referring to a comprehensive,
                process-oriented approach to managing safety throughout an
                organization.
                 The principles and processes of risk reduction are based on safety
                management systems (SMS) developed to assure high safety performance in
                various industries, including aviation, passenger railroads, the
                nuclear industry, and other industries with the potential for
                catastrophic accidents. SMS methodologies have evolved through
                experience to include a multitude of equally important elements without
                which the organization's safety performance does not reliably improve.
                These SMS elements are typically grouped into the following larger
                descriptive categories: (1) An organization-wide safety policy; (2)
                formal methods for identifying hazards and prioritizing and mitigating
                risks associated with those hazards; (3) data collection, data
                analysis, and evaluation processes to determine the effectiveness of
                mitigation strategies and to identify emerging hazards; and (4)
                outreach, education, and promotion of an improved safety culture within
                the organization.
                B. Summary of NPRM
                 On February 27, 2015, FRA published the NPRM proposing to require
                each Class I freight railroad and each freight railroad with inadequate
                safety performance to develop and implement an RRP to improve the
                safety of their railroads operations. See 80 FR 10950. The NPRM
                proposed the following RRP components: (1) A risk-based hazard
                management program; (2) safety performance evaluation; (3) safety
                outreach; (4) technology analysis and technology implementation plan;
                (5) implementation and support training; (6) internal assessments; and
                (7) external audits. The NPRM also proposed requiring a railroad to
                submit its RRP plan to FRA for review and approval and to consult in
                good faith and use its best efforts to reach agreement with all its
                directly affected employees on the contents of the RRP plan. Finally,
                the NPRM proposed to protect certain RRP information from discovery,
                admission into evidence, or use for other purposes in a proceeding for
                damages.
                 In addition to these specific proposals, the NPRM contained a
                general background discussion of risk reduction programs and discussed
                FRA's experience with risk reduction programs, such as passenger
                railroads that have implemented system safety programs. The NPRM also
                summarized the rulemaking proceedings that occurred before NPRM
                publication, including publication of an advanced notice of proposed
                rulemaking (ANPRM) and related proceedings of the RSAC RRP Working
                Group. FRA is providing relevant updates to these discussions below.
                C. Proceedings Since the NPRM
                 The comment period for the NPRM closed on April 28, 2015. As
                several commenters requested, FRA held a public meeting on August 27,
                2015 and invited interested parties to present oral statements and to
                offer information and views on the proposed rulemaking at the hearing.
                FRA placed the transcript for the public hearing in the docket for this
                rulemaking. FRA also reopened the public comment period from July 30,
                2015 through September 10, 2015 and from September 15, 2015 through
                September 18, 2015 to accommodate the public hearing and to allow
                interested parties to submit comments in response to views and
                information provided at the public hearing.
                 On September 29, 2015, the RSAC RRP Working Group met to review and
                discuss comments received in response to both the NPRM and the public
                hearing. FRA then reopened the comment period for this rulemaking from
                October 7, 2015 through October 21, 2015 to allow interested parties to
                submit written comments in response to views or information provided at
                the RRP Working Group meeting.
                D. Regulatory Review
                 DOT has invited the public to provide input on existing rules and
                other agency actions that are good candidates for repeal, replacement,
                suspension, or modification. See 82 FR 45750 (Oct. 2, 2017). As
                appropriate, this final rule responds to comments submitted in response
                to DOT's regulatory review initiative that address railroad safety risk
                reduction programs under the RSIA.
                E. Summary of Comments
                 FRA received 80 comments in response to the NPRM, the public
                hearing, and the RRP Working Group Meeting. Some interested parties
                submitted multiple comments. FRA received comments from a variety of
                entities, including railroads, trade associations, non-profit employee
                labor organizations, State elected representatives, non-profit advocacy
                organizations, and private citizens.\4\ Various interested labor
                organizations (Labor Organizations I) jointly filed a comment in
                response to the NPRM,\5\ and a different group of labor organizations
                (Labor Organizations II) also filed a comment in response to
                information presented at the RRP Working Group meeting.\6\ Finally,
                some organizations also filed a joint comment (Group Letter).\7\
                Additionally, in response to DOT's regulatory review initiative,
                American Short Line and
                [[Page 9266]]
                Regional Railroad Association (ASLRRA) and the Virginia Railway Express
                (VRE) each submitted a comment discussing railroad safety risk
                reduction programs under the RSIA.
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                 \4\ Commenters included: Academy of Railroad Labor Attorneys;
                American Association of Justice; American Public Transportation
                Association; American Short Line and Regional Railroad Association;
                Association of American Railroads; Association of Tourist Railroads
                and Railway Museums; Bureau of Locomotive Engineers and Trainmen
                (BLET); California State Senator (3rd District) Lois Wolk;
                Chesapeake Climate Action Network; City of Portland, Oregon; DNV GL
                Oil & Gas Risk Advisory Services; Friends of the Earth;
                International Association of Sheet Metal, Air, Rail and
                Transportation Workers--Transportation Division (SMART
                Transportation Division); Mountain Watershed Association; National
                Safety Council; New Jersey Work Environment Council; North Platte
                Peer Review Team; Orion's Angels; Public Citizen Texas; Rancho Rail
                Line; State of Washington Representative (46th Legislative District)
                Jessyn Farrell; Toxics Use Reduction Institute; Transport Action
                Canada; Union Pacific Railroad; and 45 individuals.
                 \5\ These included: American Train Dispatchers Association
                (ATDA); BLET; Brotherhood of Maintenance of Way Employes Division
                (BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood
                Railway Carmen Division TCU/IAM; SMART Transportation Division; and
                Transport Workers Union of America (TWU).
                 \6\ These included: BLET; BMWED; BRS; SMART Transportation
                Division; and Transportation Communication Union (TCU).
                 \7\ Group Letter organizations were: Alliance for Justice; Bay
                Area Refinery Corridor Coalition; Blue Ridge Environmental Defense
                League; Center for Effective Government; Center for Justice and
                Democracy; Citizens Acting for Rail Safety; Citizens for a Clean
                Harbor; Crockett-Rodeo United to Defend the Environment; Benicians
                for a Safe and Healthy Community; Delaware Riverkeeper Network;
                Forest Ethics; Friends of Grays Harbor; Friends of the Earth; Idaho
                Conservation League; Milwaukee Riverkeeper; Protect All Children's
                Environment; Public Citizen; United Steelworkers; US PIRG;
                Sciencecorps; Sierra Club; The SunFlower Alliance; Yolo MoveOn; and
                Youghiogheny Riverkeeper, Mountain Watershed Association.
                ---------------------------------------------------------------------------
                 Generally, all commenters were in favor of RRP. While the comments
                contained varying suggestions on the structure and breadth of an RRP,
                most commenters agreed a properly implemented RRP would increase the
                safety of railroad operations. Many commenters, however, expressed
                concern about the FRA proposal to limit the use of some RRP information
                in legal proceedings for damages. FRA discusses this and other specific
                comments in further detail below.
                E. Update on Other Federal Safety Management System Programs
                 The RRP NPRM discussed other Federal agencies that had established
                or proposed safety management system requirements or guidance for
                regulated entities. Specifically, the NPRM discussed Federal Transit
                Administration regulations, regulations the Federal Aviation
                Administration (FAA) proposed, and guidelines the U.S. Department of
                Defense published. See 80 FR 10953 (Feb. 27, 2015). For a discussion of
                post-NPRM developments with these programs and new Federal safety
                management system initiatives please see the SSP final rule at 81 FR
                53853-53854 (Aug. 12, 2016).
                IV. Statutory Background
                A. Rail Safety Improvement Act of 2008
                 RSIA section 103(a) directs the Secretary to issue a regulation
                requiring Class I railroads, railroad carriers that provide intercity
                rail passenger or commuter rail passenger transportation (passenger
                railroads), and railroads with inadequate safety performance to
                develop, submit to the Secretary for review and approval, and implement
                a railroad safety risk reduction program. RSIA section 103(a)(4) also
                states that railroads not required to comply with this rule may
                voluntarily submit to FRA for approval an RRP plan meeting the
                requirements. Section 20156 codifies these provisions.
                 This RRP rule implements section 20156 as it applies to Class I
                freight railroads, freight railroads with inadequate safety
                performance, and voluntarily-compliant railroads. The RRP rule is a
                risk reduction program in that it requires subject railroads to assess
                and manage risk and to develop proactive hazard management methods to
                promote safety improvement. The rule contains provisions that, while
                not explicitly required by the statutory safety risk reduction program
                mandate, are necessary to properly implement the mandate and are
                consistent with the intent behind the mandate.
                B. Related System Safety and Fatigue Management Plans Rulemakings
                 This RRP final rule addresses the RSIA sections 103 and 109 RRP
                mandate for Class I freight railroads and freight railroads with
                inadequate safety performance. Two separate rulemakings address the
                mandate for passenger railroads and for Fatigue Management Plans. The
                NPRM discussed both these rulemakings and how they related to the RRP
                rulemaking. See 80 FR at 10955. FRA published an SSP final rule for
                passenger railroads on August 12, 2016. See 81 FR 53850.\8\
                ---------------------------------------------------------------------------
                 \8\ On August 30, 2019, FRA issued a final rule extending a stay
                of the SSP rule's requirements to March 4, 2020. See 84 FR 45683
                (2019). FRA issued the stay to develop its response to various
                petitions for reconsideration of the SSP final rule. Id.
                ---------------------------------------------------------------------------
                 Section 20156(d)(2) states an RRP must include a fatigue management
                plan (FMP) that meets the requirements of section 20156(f). However,
                this RRP final rule does not implement this mandate because FRA is
                addressing FMPs in a separate rulemaking. The RSAC Fatigue Management
                Plans Working Group (FMP Working Group), which completed its work in
                September 2013, submitted its recommendations to FRA for further
                consideration. FRA is currently drafting an FMP NPRM.
                 Once FRA publishes an FMP rule, FRA will consider any FMP a
                railroad develops and implements under that rule part of a railroad's
                RRP or SSP. Before FRA issues an FMP final rule, FRA will approve RRP
                plans that do not contain an FMP component, if the RRP plan meets all
                other applicable RRP requirements. A railroad may still, however, elect
                to use processes and procedures in its RRP plan to address fatigue-
                related railroad safety issues.
                C. Consultation Process Requirements
                 Section 20156(g)(1) states that a railroad required to establish a
                safety risk reduction program must ``consult with, employ good faith
                and use its best efforts to reach agreement with, all of its directly
                affected employees, including any non-profit employee labor
                organization representing a class or craft of directly affected
                employees of the railroad carrier, on the contents of the safety risk
                reduction program.'' Section 20156(g)(2) further provides that if a
                railroad and its directly affected employees ``cannot reach consensus
                on the proposed contents of the plan, then directly affected employees
                and such organizations may file a statement with the Secretary
                explaining their views on the plan on which consensus was not
                reached.'' Section 20156(g)(2) further provides that FRA must consider
                these views during review and approval of a railroad's RRP plan.
                 As proposed in the NPRM, the rule implements this mandate by
                requiring each railroad required to establish an RRP to consult with
                its directly affected employees (using good faith and best efforts) on
                the contents of its RRP plan. A railroad must also include a
                consultation statement in its submitted plan describing how it
                consulted with its employees. If a railroad and its employees cannot
                reach consensus, directly affected employees may file a statement with
                FRA describing their views on the plan.
                 Like the information protection provisions discussed below, the RRP
                and SSP rules have essentially identical provisions regarding the
                consultation process requirements because there was significant
                discussion during the SSP and RRP RSAC processes on how to implement
                section 20156(g). FRA worked with the General Passenger Safety Task
                Force's System Safety Task Group to receive input on how to address the
                consultation process, with the understanding that FRA would include the
                same language in both the SSP and RRP NPRMs for review and comment. The
                minor differences between the consultation provisions in the RRP and
                SSP rules are discussed in the section-by-section analysis for Sec.
                271.207.
                D. Risk Reduction Information Protection
                1. Exemption From Freedom of Information Act Disclosure
                 In section 20118, Congress exempted railroad safety analysis
                records from public disclosure in response to FOIA requests. Generally,
                FOIA requires a Federal agency to make most records available upon
                request, unless a record is protected from mandatory disclosure by one
                of nine exemptions. One of those exemptions, Exemption 3, applies to
                records specifically exempted from disclosure by statute if the statute
                requires the matters be withheld from the public in such a manner as to
                leave no discretion on the issue or establishes particular criteria for
                withholding or refers to particular types of matters to be withheld.
                See 5 U.S.C. 552(b)(3). See also 49 CFR 7.23(c)(3). The NPRM explains
                FRA's conclusion that section 20118 is a FOIA Exemption 3 statute and,
                therefore, exempts RRP records in FRA's possession from mandatory
                disclosure under FOIA, unless one of
                [[Page 9267]]
                the two RSIA exceptions discussed above applies. See 80 FR at 10957-
                10958. FRA did not receive any comments questioning its conclusion so
                FRA refers interested readers to the NPRM's analysis of this
                conclusion. Id.
                2. Discovery and Other Use of Risk Analysis Information in Litigation
                a. The Statutory Mandate
                 Section 20119(a) directed FRA to conduct a study to determine
                whether it is in the public interest to withhold from discovery or
                admission into evidence in a Federal or State court proceeding for
                damages involving personal injury or wrongful death against a carrier
                any information (including a railroad's analysis of its safety risks
                and its statement of the mitigation measures with which it will address
                those risks) compiled or collected for the purpose of evaluating,
                planning, or implementing a risk reduction program. Section 20119(a)
                required FRA to solicit input from railroads, railroad non-profit
                employee labor organizations, railroad accident victims and their
                families, and the general public for the study. Section 20119(b) also
                states that upon completion of the study, if in the public interest,
                FRA could prescribe a rule addressing the results of the study. Section
                20119(b) states any such rule is not effective until one year after its
                adoption.
                b. The Final Study Report and Its Conclusions
                 FRA contracted with a law firm, Baker Botts L.L.P. (Baker Botts),
                to conduct the study for FRA. Various study documents are available for
                review in public docket no. FRA-2011-0025, which interested parties can
                access online at www.regulations.gov. First, Baker Botts prepared an
                initial report identifying and evaluating other Federal safety programs
                that protect safety-related information from use in litigation. See
                Report on Federal Safety Programs and Legal Protections for Safety-
                Related Information, FRA, docket no. FRA-2011-0025-0002, April 14,
                2011. Next, as section 20119(a) requires, FRA published a Federal
                Register document seeking public comment on whether it would be in the
                public interest to protect certain railroad risk reduction information
                from use in litigation. See 76 FR 26682 (May 9, 2011). Interested
                parties may view comments received in response to this document in the
                public docket.
                 On October 21, 2011, Baker Botts produced a final report on the
                study. See Study of Existing Legal Protections for Safety-Related
                Information and Analysis of Considerations For and Against Protecting
                Railroad Safety Risk Reduction Program Information (Final Study
                Report), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The Final
                Study Report contains analyses of other Federal programs that protect
                similar safety-related information, the public comments submitted to
                the docket, and whether it would be in the public interest, including
                the interests of public safety and the legal rights of persons injured
                in railroad accidents, to protect railroad risk reduction information
                from disclosure during litigation.
                 The Final Study Report determines that substantial support exists
                for the conclusion that a rule that protects ``railroad safety risk
                information from use in civil litigation involving claims for personal
                injuries or wrongful death would serve the broader public interest.''
                Final Study Report at 63. The Final Study Report highlights that, in
                the past, with similar programs, Congress deemed it is in the public's
                interest to place statutory limitations on disclosing or using certain
                information used by the Federal Government. Id. The safety risk
                reduction programs that RSIA mandates, according to the Final Study
                Report, involve public interest considerations similar to the ones
                Congress has protected through statutory limitations, and courts have
                upheld these limitations. The Final Study Report explains that many of
                the public comments submitted to the docket agree that limiting the use
                of information collected for a safety risk reduction program mandated
                by RSIA in discovery or litigation would serve the broad public
                interest by encouraging and facilitating the timely and complete
                disclosure of safety-related information to FRA. Further, the Final
                Study Report underscores FRA's statutory duty to protect the broader
                public interest in ensuring rail safety and concludes that this public
                interest outweighs the individual interests of future litigants who may
                bring damage claims against railroads. Therefore, the Final Study
                Report concludes that
                after balancing all of the considerations that bear upon the public
                interest . . . the balance weighs in favor of adopting rules
                prohibiting the admissibility or discovery of information compiled
                or collected for FRA railroad safety risk reduction programs in a
                civil action where a plaintiff seeks damages for personal injury or
                wrongful death.
                Id. at 64.
                 In response to the Final Study Report, the RRP NPRM proposed in
                Sec. 271.11 to protect any information compiled or collected for the
                sole purpose of developing, implementing, or evaluating an RRP from
                discovery, admission into evidence, or consideration for other purposes
                in a Federal or State court proceeding for damages involving personal
                injury, wrongful death, or property damage. The NPRM clarified that the
                protected information would include a railroad's identification of
                safety hazards, analysis of safety risks, and statement of the
                mitigation measures for addressing those risks. Protected information
                could be in the form of plans, reports, documents, surveys, schedules,
                lists, data, or any other form. FRA received multiple comments in
                response to the information protections that both the SSP and RRP NPRM
                proposed and has modified its approach based on these comments. These
                changes are discussed further in the discussion of comments section and
                the corresponding section-by-section analysis.
                V. Discussion of General Comments
                 This section discusses general comments FRA received on the RRP
                NPRM relating to the proposed information protections and the overall
                nature of the proposed rule. The section-by-section analysis discusses
                all other comments as they relate to specific sections, including any
                changes to the rule text FRA made in response.
                A. Information Protection
                 FRA received numerous comments regarding the proposed information
                protections and has modified the proposed information protections based
                on both the received comments and the information protection provisions
                in the SSP final rule. As discussed in the NPRM, this RRP final rule
                contains an information protection provision substantively identical to
                the information protection provision in the SSP final rule.\9\ See 81
                FR 53900 (Aug. 12, 2016). FRA believes different RRP and SSP provisions
                governing information protection would be confusing. Further, the SSP
                and RRP RSAC processes significantly discussed how to implement the
                information protections. FRA worked with both the General Passenger
                Safety Task Force's System Safety Task Group and the RRP Working Group
                to receive input on how
                [[Page 9268]]
                the SSP and RRP rules should address information protection, with the
                understanding that both rules would likely contain the same language.
                ---------------------------------------------------------------------------
                 \9\ The minor differences between the RRP and SSP information
                protections involve the use of ``risk reduction program'' instead of
                ``system safety program'' and citations to relevant provisions in
                the RRP rule instead of provisions in the SSP rule. To correct a
                minor typo in the SSP information protection provision, the RRP
                information protection provision also uses the term ``proceeding''
                instead of ``proceedings.'' No substantive difference is intended by
                this correction.
                ---------------------------------------------------------------------------
                1. Comments Supporting the Proposed Information Protections
                 Several commenters agreed with FRA's conclusion that the proposed
                information protections are necessary, including Association of
                American Railroads (AAR), American Public Transportation Association
                (APTA), ASLRRA, Union Pacific Railroad (UP), and Labor Organizations I.
                These commenters support FRA's position that the litigation protections
                are necessary for a railroad to engage in a thorough and candid
                analysis of the hazards and resulting risks on its system. Based on
                those comments, FRA believes both railroad management and railroad
                labor generally agree an RRP final rule must have some form of
                information protections.
                2. Comments on Final Study Report
                 Several commenters questioned the neutrality and the substance of
                the Baker Botts Final Study Report. Commenters questioning the
                neutrality of Final Study Report included American Association for
                Justice (AAJ), Academy of Railroad Labor Attorneys (ARLA), Labor
                Organizations I, Labor Organizations II, and several individuals. These
                commenters provided several examples of Baker Botts' alleged bias,
                including: (1) Citations to Baker Botts' website; (2) a book by William
                G. Thomas titled Lawyering for the Railroad: Business, Law, and Power
                in the South (Louisiana State University Press, 1999), which describes
                Baker Botts' historical representation of Southern Pacific Railroad
                beginning in the later 1800s until sometime in the 1900s; (3) a Baker
                Botts associate's prior employment with Norfolk Southern Corporation;
                and (4) a website indicating that Baker Botts was involved in
                litigation related to the July 6, 2013 rail accident in Lac-
                M[eacute]gantic, Quebec. The commenters did not provide a specific
                example of Baker Botts representing a railroad in litigation involving
                claims for damages at the time of the study.
                 After evaluating these comments, FRA concludes that it complied
                with all legal requirements, including the RSIA and the Federal
                Acquisitions Regulations (FAR), in selecting Baker Botts and conducting
                the study. See section 20119 and FAR 48 CFR 9.505 through 9.505-4 and
                9.508. Further, FRA has not found any conflict or representation
                indicating that Baker Botts had a bias in favor of railroad management
                at the time of the study. For example, any involvement of Baker Botts
                in Lac-M[eacute]gantic-related litigation occurred after the firm
                completed the study in October 2011. FRA also reviewed Lawyering for
                the Railroad: Business, Law, and Power in the South. Although the book
                correctly states that Baker Botts represented Southern Pacific railroad
                beginning in the late 1800s until sometime in the 1900s, the book does
                not have an example of Baker Botts representing a railroad at the time
                of the study.
                 Baker Botts also conducted its own conflict check when submitting
                its bid in response to FRA's request for proposal (RFP) \10\ and only
                found one matter involving advice it provided to a railroad on
                environmental issues, not rail safety. Further, Baker Botts, as a law
                firm, must comply with the legal ethical standards of the appropriate
                State or risk discipline or disbarment of its attorneys.
                ---------------------------------------------------------------------------
                 \10\ FRA's RFP, Solicitation Number DTFR-53-10-R-00008, is
                available at https://www.fbo.gov/index?s=opportunity&mode=form&id=56e2462fb07daa6e45155c3be66ddf02&tab=core&tabmode=list.
                ---------------------------------------------------------------------------
                 AAJ, ARLA, and Labor Organizations II also submitted comments
                arguing that the Final Study Report did not give adequate consideration
                to the interests of railroad accident victims, their families, and the
                general public. For example, ARLA and Labor Organizations II assert the
                report only focuses on the railroads' alleged interests and why FRA
                should protect risk reduction information. FRA disagrees and believes
                the Final Study Report adequately considered the interests of railroad
                accident victims, their families, and the general public. As section
                20119(a) required, FRA solicited input for the report from railroads,
                railroad nonprofit employee labor organizations, railroad accident
                victims and their families, and the general public, including AAJ. See
                76 FR 26682 (May 9, 2011) and Letters Dated May 12, 2011, to
                Stakeholders Inviting Comments (FRA-2011-0025-0006). In response, FRA
                received 22 comments representing 25 affected entities, including
                railroads, AAJ, Public Citizen (a non-profit public interest
                organization), various railroad non-profit employee labor
                organizations, and individuals. The Final Study Report summarizes
                comments both supporting and opposing a rule that would protect risk
                reduction information. See generally Final Study Report at 37-46. The
                Final Study Report also analyzes the relevant public interest
                considerations, including considerations opposing a rule limiting
                discovery and admissibility. See generally Id. at 53-63. Specifically,
                the Final Study Report considers: (1) Victims' compensation; (2) the
                necessity of a regulation; (3) promoting railroad safety; (4) promoting
                the reporting of railroad accidents; (5) promoting open government and
                freedom of information; (6) what kinds of documents a regulation should
                protect; and (7) administrative procedure. Therefore, FRA concludes the
                Final Study Report adequately considered the public interest and the
                rights of railroad accident victims and their families.
                3. Comments Against Any Information Protections
                 Several commenters objected to including any information
                protections in the final rule. These included AAJ, ARLA, the non-profit
                organizations represented by the Group Letter, California State Senator
                Wolk, Washington State Representative Farrell, the City of Portland,
                and several individuals and other non-profit organizations.
                 Overall, the primary objections of many commenters opposed to any
                information protections are that the protections would (1) ignore the
                importance of transparency in railroad safety and (2) reduce, not
                improve, railroad safety. FRA disagrees. First, in section 20118,
                Congress specifically exempted railroad safety analysis records from
                mandatory disclosure under FOIA, indicating that Congress concluded the
                benefits of improved railroad safety outweighed the benefits of
                complete transparency in railroad safety. Second, the information
                protections will not change the information available to litigants
                today, as information currently discoverable and admissible will remain
                discoverable and admissible. Further, the information protections will
                improve railroad safety by encouraging railroads to engage in a
                systematic and honest assessment of the hazards and resulting risks on
                their systems. A railroad's risk-based Hazard Management Program (HMP)
                will not improve railroad safety if a railroad is reluctant to reveal
                risks and hazards because a litigant could use that information against
                the railroad in a court proceeding for damages.
                a. Comments That the Information Protections Are Unprecedented
                 AAJ contends the proposed information protections are
                unprecedented. While AAJ recognizes certain existing programs have
                information protections, AAJ argues those programs have two key
                features: (1) Congress directed disclosure of documents be limited, and
                (2) limited
                [[Page 9269]]
                disclosure applies predominately to documents actually submitted to a
                Federal agency. AAJ believes that the RRP information protections do
                not have either of these key features. ARLA also claims the safety-
                related statutes and regulations the Final Study Report cites only
                protect data a governmental agency holds, not a private entity such as
                a railroad. (FRA notes that not all railroads are private entities.)
                 While Congress did not set forth specific information protections
                in section 20119, Congress explicitly gave FRA authority to promulgate
                such protections. As discussed previously, section 20119(a) directs FRA
                to conduct a study to determine if certain information protections
                would be in the public interest, and Congress described the specific
                parameters of the information protections the study had to consider.
                Congress then authorized FRA to promulgate a rule, subject to notice
                and comment, which addresses the results of the study. Id. FRA has
                complied with Congress' mandate and has included information
                protections in this rule consistent with the specific parameters
                Congress described. FRA does not believe the information protections
                are invalid simply because Congress didn't promulgate specific
                protections.
                 Additionally, nothing in section 20119 limits the information
                protections to documents a railroad submits to FRA. Congress' language
                in section 20119 states that the information protections, depending on
                the results of the study, could apply to information a railroad does
                not submit to FRA. Under section 20119(a), the study must consider
                information protections that would apply to documents a railroad
                compiles and collects for ``the purpose of planning, implementing, or
                evaluating a safety risk reduction program.'' Because Congress did not
                limit the information protections only to documents a railroad submits
                to FRA, FRA has authority to protect documents a railroad possesses.
                 Further, nothing in 23 U.S.C. 409 (section 409), the statute FRA
                used as a model for the proposed information protections, or the
                Supreme Court's decision in Pierce County v. Guillen, 537 U.S. 129
                (2003) (which upheld the validity and constitutionality of section
                409),\11\ limits the information protections to documents submitted to
                the Federal Highway Administration (FHWA) as part of the Hazard
                Elimination Program. In that case, the Supreme Court did not base its
                interpretation of section 409 on whether documents were submitted to
                FHWA. Rather, the Supreme Court held the information protections
                extended to information because the Hazard Elimination Program required
                compiling or collection of that information. See Guillen, 537 U.S. at
                146. Like the statute at issue in that case, because the RSIA requires
                railroads to compile and collect information for an RRP, it is
                appropriate to protect any information the railroad compiles or
                collects for that purpose, even if the railroad never submits that
                information to FRA.
                ---------------------------------------------------------------------------
                 \11\ For additional discussion on FRA's decision to base the RRP
                information protection provisions on section 409 and Guillen, FRA
                refers readers to the NPRM. See 80 FR 10963-10964 (Feb. 27, 2015).
                ---------------------------------------------------------------------------
                 AAJ claims that in the limited circumstances where provisions have
                protected data, the provisions have been narrowly tailored and
                construed. AAJ believes the proposed information protections are overly
                broad and inconsistent with any other government program that limits
                some disclosure of evidence.
                 FRA agrees with AAJ that the information protections must be
                narrowly tailored and construed. In Guillen, the Supreme Court
                recognized that ``statutes establishing evidentiary privileges must be
                construed narrowly because privileges impede the search for truth.''
                Guillen at 144-45. Because section 409 established a privilege, the
                Court construed it narrowly to the extent the text of the statute
                permitted. Id. at 145. FRA believes the RRP information protections are
                consistent with the Court's narrow interpretation of section 409.
                Further, FRA has tailored the RRP protections even more narrowly than
                section 409 by limiting them to information a railroad originally
                compiled or collected ``solely'' for the purpose of planning,
                implementing or evaluating an RRP, as the section-by-section analysis
                for Sec. 271.11 discusses.
                 Labor Organizations II commented that, with the exception of
                section 409, each safety law or regulation the Final Study Report cites
                allows discovery of information. FRA believes Labor Organizations II's
                characterization of the Final Study Report is inaccurate because the
                final report identifies two additional safety statutes prohibiting both
                the discoverability and the admissibility of information. The first is
                49 U.S.C. 6307(b)(2)(B)(i), which specifies reports submitted to DOT's
                Bureau of Transportation Statistics (BTS) under 49 U.S.C. 6302(b)(3)(B)
                are ``immune from legal process.'' \12\ ``Accordingly, no litigant may
                subpoena the report in discovery or obtain it through any other legal
                proceeding.'' Final Study Report at 20. The second statute is 46 U.S.C.
                6308(a), which protects from discovery marine casualty reports the U.S.
                Coast Guard creates under 46 U.S.C. 6301.\13\
                ---------------------------------------------------------------------------
                 \12\ The Final Study Report discussed a previous version of
                section 6307(b)(2)(B)(i), 49 U.S.C. 111(k)(a)(2)(B)(i), repealed in
                2012. See Pub. L. 112-141, Div. E, Title II, section 52011(c)(1),
                July 6, 2012, 126 Stat. 895. However, substantively, sections
                6307(b)(2)(B)(i) and 111(k)(a)(2)(B)(i) are identical and have the
                same ``immune from legal process'' language. Because section
                6302(b)(3)(B)(vi)(1) requires BTS to collect statistics on
                ``transportation safety across all modes and modally,'' FRA believes
                section 6307(b)(2)(B)(i) is a safety law.
                 \13\ Because marine casualty investigations identify the cause
                of accidents resulting in fatalities, FRA believes section 6308(a)
                is also a safety law.
                ---------------------------------------------------------------------------
                 Further, Labor Organizations II's argument acknowledges that
                section 409 prohibits discovery. As discussed in the NPRM, FRA believes
                section 409 is the best model for the RRP information protections
                because Congress used similar language in section 409 and section 20119
                authorizing information protection and because Guillen determined
                section 409 was constitutional. See 80 FR at 10963.
                 ARLA also commented that virtually every safety law the Final Study
                Report discussed has exceptions to the protection against disclosure
                and admissibility. FRA notes that the information protections in Sec.
                271.11 are narrowly tailored and will not provide blanket protection
                for all railroad RRP information. The rule excepts from protection
                several categories of RRP information, such as (1) information
                discoverable and admissible before publication of the RRP final rule,
                (2) information another provision of law or regulation requires the
                railroad to compile or collect, and (3) information a railroad does not
                use ``solely'' for an RRP purpose. Accordingly, FRA concludes this rule
                contains several exceptions to the information protections and is not
                inconsistent with other safety laws with exceptions to protections
                against discoverability and admission into evidence.
                b. Comments That the Information Protections Will Reduce the Rights of
                Litigants
                 AAJ argues the RRP information protections will reduce the rights
                of persons injured in railroad accidents. AAJ asserts that evidence a
                railroad knew or should have known of a hazard is key in many cases to
                prove the railroad's liability, particularly for Federal Employers'
                Liability Act cases. AAJ believes the Final Study Report concluded
                without analysis that injured people could continue to pursue legal
                remedies because access to currently discoverable documents would
                remain
                [[Page 9270]]
                discoverable. AAJ does not believe this conclusion is accurate because
                it contends the information protections may shield the documents/data
                necessary to show the railroad knew or should have known of the hazard.
                AAJ also commented that the information protections are one-sided
                because they shield the railroad from discovery, while permitting the
                railroad to obtain extensive discovery regarding a plaintiff's
                knowledge of a hazard or risk. The Chesapeake Climate Action Network
                (CCAN) expressed similar concerns.
                 FRA has drafted the RRP information protections so a plaintiff or
                defendant is no worse off than he or she would have been if the RRP
                rule never existed. This is consistent with section 409 and the Supreme
                Court's interpretation of that section. See Guillen at 146. To ensure a
                plaintiff is no worse off, Sec. 271.11(b) has certain exceptions to
                the information protections. Under Sec. 271.11(b), the information
                protections are not extended to information compiled or collected for a
                purpose other than that specifically identified in Sec. 271.11(a).
                Further, if certain information was discoverable and admissible before
                the enactment of the RRP rule, Sec. 271.11(b) ensures the information
                remains discoverable and admissible. This is true even if the railroad
                (1) continues to compile or collect that information as part of its RRP
                or (2) stops compiling or collecting that information outside the RRP
                and then begins to compile or collect that information again as part of
                its RRP. These exceptions are discussed extensively in the section-by-
                section analysis for Sec. 271.11(b). These exceptions strike a
                reasonable balance between ensuring that plaintiffs are no worse than
                they would have been if the RRP rule had not existed and encouraging
                railroads to undertake a systematic and candid assessment of the
                hazards and resulting risks on their system.
                c. Comments That the Information Protections Will Allow Railroads To
                Hide Safety Hazards
                 AAJ asserts the information protections will allow railroads to
                hide safety hazards. AAJ believes the threat of disclosure of these
                hazards creates an incentive for railroads to correct them immediately.
                AAJ points to multiple cases it believes prove railroads routinely hide
                evidence of hazards. CCAN also argues that the information protections
                would allow railroads to hide knowledge of safety problems and delay
                correcting known or suspected hazards. Labor Organizations II express a
                similar concern that the information protections would prevent
                knowledge of future risks known by railroads. Specifically, Labor
                Organizations II assert the information protections would hide risks
                uncovered by a railroad resulting from future rulemakings.
                 FRA disagrees. The purpose of the RRP is for railroads to identify
                hazards and resulting risks and to take the appropriate measures to
                mitigate or eliminate these hazards. Without the information
                protections, an RRP could result in an effort-free tool for plaintiffs
                in litigation against railroads, which would discourage railroads from
                identifying hazards and resulting risks, thus frustrating the intent
                behind section 20156. The RRP rule and information protections will
                encourage railroads to identify and address hazards. Further, if a
                railroad is already required by another law or regulation to collect
                information to show compliance with existing laws or regulations, that
                information will not be protected. Further, the information
                protections' narrow application to information that a railroad compiles
                or collects ``solely'' for an RRP purpose will not allow a railroad to
                claim that the provisions protect all information regarding risks
                relating to future technologies or rulemakings. Once a railroad uses
                such information beyond the scope of its RRP, Sec. 271.11 will not
                protect the non-RRP use of the information outside the railroad's RRP.
                For example, if the railroad gives RRP information to a contractor to
                use while performing maintenance work for the railroad, Sec. 271.11
                will not extend to the contractor's use of the information. Therefore,
                railroads will not be able to use the RRP information protections to
                hide issues of non-compliance or avoid future regulatory requirements.
                 Several commenters also expressed concern the information
                protection provisions would allow railroads to hide information related
                to the transportation of crude oil by rail. One individual specifically
                commented that the RRP final rule should require railroads to provide
                detailed crude-by-rail information.
                 The information protection provisions in this final rule explicitly
                do not protect any information that a railroad must compile or collect
                ``pursuant to any other provision of law or regulation.'' This excludes
                from protection any crude oil information a railroad must collect under
                Federal law, including (but not limited to) the Enhanced Tank Car
                Standards and Operational Controls for High-Hazard Flammable Trains
                (HHFT Final Rule) that FRA and the Pipelines and Hazardous Materials
                Safety Administration (PHMSA) jointly issued. See generally 80 FR
                26644-26750 (May 8, 2015). Further, because the HHFT Final Rule and
                other Federal regulations contain provisions requiring the provision
                and maintenance of certain hazardous material information, FRA does not
                believe that this RRP final rule should impose additional crude-by-rail
                information requirements. See e.g., DOT's Emergency Restriction/
                Prohibition Order, DOT-OST-2014-0067, May 7, 2014, available at https://www.transportation.gov/briefing-room/emergency-order.
                4. Comments That the RRP Final Rule Does Not Need To Limit the
                Disclosure of Evidence
                 AAJ contends that FRA can issue an RRP rule without limiting the
                discovery of evidence, just like FAA did in its Safety Management
                System (SMS) rulemaking.
                 FRA disagrees. A significant difference between the FRA and FAA
                programs is the scope of statutory authority Congress gave each agency
                to protect information collected or maintained as part of an SMS. The
                FAA's authority under 49 U.S.C. 44735 limits the protection of SMS
                voluntarily-submitted information (such as reports, data, or other
                information produced or collected for purposes of developing and
                implementing an SMS) to protection from FOIA disclosure by the FAA.
                Congress similarly protects risk reduction information from mandatory
                FOIA disclosure in section 20118. However, Congress gave FRA authority
                to further protect RRP information in section 20119, which directed FRA
                to conduct the study and authorized FRA to issue a regulation
                addressing the results of that study.
                 As discussed above, the Final Study Report concludes that it would
                be within FRA's authority and in the public interest for FRA to
                promulgate a regulation protecting certain risk analysis information
                held by the railroads from discovery and use in litigation. The final
                report also makes recommendations for the drafting and structuring of
                such a regulation. See Final Study Report at 63-64. Therefore, FRA
                determined the information protections in this final rule are
                consistent with the authority Congress provided in section 20119 and
                the conclusion of the Final Study Report.
                 ARLA also argues that railroads will honestly identify risks and
                mitigations without the information protections because labor unions
                will assure a railroad's compliance by participating
                [[Page 9271]]
                in the identification of risks and mitigations.
                 FRA agrees with ARLA that employee participation in the risk-based
                HMP is essential and will improve a railroad's RRP. FRA does not
                believe, however, that employee participation alone can overcome a
                railroad's reluctance to fully identify hazards and risks. Further,
                employees and labor unions may not represent the interests of the
                public or other accident victims. FRA therefore believes the
                information protections will provide important additional encouragement
                for a railroad to assess its hazards and risks.
                5. Comments Requesting Preservation of State Tort Law Based Claims
                 AAJ requests that FRA specifically preserve State tort law based
                claims. AAJ believes that because railroads must submit their RRP plans
                to FRA for approval, railroads may claim they are immune from any
                safety hazard claim or that FRA's approval of the RRP plan preempts any
                State law claim. Non-profit employee labor organizations also raised
                this concern in response to the SSP NPRM.
                 To address this issue, FRA is including Sec. 271.301(d)(4) in the
                final rule, which provides that approval of a railroad's RRP plan under
                this part does not constitute approval of the specific actions the
                railroad will implement under its RRP plan and shall not be construed
                as establishing a Federal standard regarding those specific actions.
                FRA will not approve the specific mitigation and elimination measures a
                railroad adopts to address identified hazards and risks. FRA also does
                not intend the RRP rule to preempt State standards of care regarding
                the specific risk mitigation actions a railroad will implement under
                its RRP plan. Accordingly, Sec. 271.301(d)(4) clarifies that FRA
                approval of a railroad's RRP plan is not approval of any specific
                actions a railroad implements under that RRP plan, including any
                specific mitigation and elimination measures a railroad chooses.
                6. Comments That a Judge Should Determine Information Admissibility
                 Labor Organizations II propose a compromise position where ``risk
                reduction facts would be admissible if it is determined by a judge that
                the information would be `in furtherance of the highest degree of
                safety in railroad transportation.' '' As Labor Organizations II
                explain, the phrase ``in furtherance of the highest degree of safety in
                railroad transportation'' comes from 49 U.S.C. 103(c), which is the
                safety standard Congress mandated FRA to follow in its administration
                of railroad safety.
                 FRA does not believe this suggestion would improve the proposed
                information protections. Labor Organizations II's proposal only
                addresses the admission of risk reduction information into evidence and
                does not indicate whether discovery protections are necessary. The
                suggestion also does not clarify when a judge should determine whether
                admissibility of information is in furtherance of the highest degree of
                safety in railroad transportation. As such, FRA believes the suggestion
                would lead to the type of litigation avalanche that AAJ and ARLA fear,
                where courts would have to routinely interpret the meaning of ``in
                furtherance of the highest degree of safety in railroad
                transportation.'' Labor Organizations II's suggestion is therefore too
                imprecise to implement and would lead to an increase in costly
                litigation.
                7. Comments Suggesting FRA Should Only Protect a Railroad's Hazard
                Analysis Form
                 One individual suggested that FRA narrowly draft the regulation to
                only protect a railroad's hazard analysis form from disclosure.
                 FRA declines to implement this individual's suggestion. The
                suggested approach would leave too much risk reduction information
                unprotected, resulting in inadequate information protections. For
                example, the suggested approach would not protect information a
                railroad might not include in the hazard analysis form, such as
                supporting data spreadsheets or candid discussions with employees about
                hazards and risks. The suggested approach also would not protect
                information a railroad uses to track the effectiveness of an
                implemented mitigation measure. Further, an effective RRP cannot lock
                important information in a hazard analysis form forever, as a railroad
                must use such information for other mandatory RRP components (such as
                its Safety Performance Evaluation or annual Internal Assessment).
                 Moreover, the suggested approach could encourage a railroad to
                claim protection for non-RRP information simply by placing it in a
                hazard analysis form. FRA believes, however, that information should be
                protected based on how the railroad is using the information (e.g., is
                the railroad using the information solely for RRP purposes?), not
                merely on whether or not the railroad included the information in a
                hazard analysis form.
                 Finally, protecting information beyond a railroad's hazard analysis
                is consistent with section 20119(a), which directed FRA to study
                protecting RRP information in various forms, including ``any report,
                survey, schedule, list, or data compiled or collected'' for various RRP
                purposes. The final rule also does not require a railroad to use a
                specific hazard analysis form for its RRP, so it would be unclear which
                document would be the ``hazard analysis form.'' Therefore, the
                information protections would be applied inconsistently based on which
                document was considered the ``hazard analysis form.''
                 For these reasons, FRA declines to adopt the suggested approach.
                8. Comments That the Information Protections Are Too Narrow
                 FRA received several comments arguing that the proposed information
                protections are too narrow. ASLRRA commented that FRA is not protecting
                data as Congress intended in the RSIA, asserting FRA improperly relied
                on section 409 and the Supreme Court's decision in Guillen because both
                significantly predate the RSIA. Instead, ASLRRA believes that FRA
                should only rely on the RSIA and protect ``any report, survey,
                schedule, list or data compiled or collected for the purpose of
                evaluating, planning or implementing a railroad safety risk reduction
                program . . . including a railroad carrier's analysis of its safety
                risks and its statement of the mitigation measures with which it will
                address those risks.'' According to ASLRRA, any limitations FRA imposes
                on this language are inappropriate.
                 FRA disagrees and believes it has properly limited the scope of the
                information protections. As explained above, FRA believes it correctly
                used section 409 and Guillen as models for the information protections.
                ASLRRA provided no reason, other than age, why FRA should not consider
                Guillen's analysis sound guidance for establishing RRP information
                protections.
                 FRA also believes ASLRRA mischaracterized Congress' intent in
                section 20119. Section 20119 does not directly establish parameters for
                protecting risk reduction information. Rather, it requires FRA to
                conduct a study and authorizes FRA to promulgate a rule addressing the
                results of that study. Section 20119(b) also does not mandate the scope
                of any information protections. FRA therefore concludes that the
                proposed information protections are consistent with Congress' intent
                in the RSIA to authorize FRA to decide the scope of the information
                protections.
                [[Page 9272]]
                 ASLRRA also questions FRA's explanation in the NPRM preamble that
                the information protections would extend to the Short Line Safety
                Institute (Institute) only if FRA finds the Institute is part of a
                complete RRP program. See 80 FR 10964 (Feb. 27, 2015). Specifically,
                ASLRRA asserts there is no evidence small railroads will attempt to
                obtain approval for, or operate under, inadequate programs. FRA
                supports development of the Institute. FRA does not believe, however,
                it has authority under RSIA to extend information protections to
                programs that do not fully meet the requirements of this RRP final
                rule. Section 20119(a) (emphasis added) only mandated FRA (as delegated
                by the Secretary) to study protections for information ``compiled or
                collected for the purpose of evaluating, planning, or implementing a
                railroad safety risk reduction program required under this chapter.''
                Under the rule, a complete RRP must contain several components,
                including (but not limited to) a railroad's risk-based HMP and safety
                performance evaluation. A railroad must also comply with the rule's
                requirements for RRP internal assessment and external evaluations. If
                the Institute either does not meet all the rule's requirements for a
                railroad, or is otherwise not part of a railroad's broader RRP that
                does meet the requirements, the Institute is neither a complete RRP nor
                part of a complete RRP, and the information protections may not extend
                to Institute information.
                 In a joint comment, AAR and ASLRRA (AAR/ASLRRA) commented on the
                NPRM's discussion in the preamble, which states Sec. 271.11 would only
                protect information once FRA approves a railroad's RRP plan. They
                believe that approach does not make sense and would weaken the rule's
                protections. After reviewing the NPRM's discussion, FRA agrees with
                AAR/ASLRRA that the discussion in the preamble to the proposed rule
                does not properly reflect the scope of the information protections. See
                80 FR 10952 (Feb. 27, 2015). In the preamble to the NPRM, FRA explained
                that railroads should not begin implementing an RRP plan before FRA
                approval, erroneously stating the information protections would not
                apply to information a railroad did not compile or collect for an FRA-
                approved RRP plan. FRA's intent was to explain that a railroad should
                not begin performing hazard analysis or implementing mitigation
                measures under its RRP plan before FRA approves the plan. However, FRA
                overlooked that once the information protections are in effect, but
                before FRA approves a railroad's RRP plan, a railroad could compile or
                collect information for the purpose of developing its RRP plan that
                should be protected. FRA therefore does not intend to limit the
                information protections only to information a railroad compiles or
                collected for an RRP plan FRA has already approved. Accordingly, Sec.
                271.11 protects information compiled or collected solely for the
                purpose of planning, implementing, or evaluating an RRP.
                B. Other Topics
                1. Transportation of Hazardous Materials
                 Some commenters (including Friends of the Earth, Mountain Watershed
                Association, and approximately four individuals) suggested that an RRP
                final rule should require railroads to address issues related to high-
                hazard flammable trains and routing of hazardous materials. One
                individual asserted that the RRP final rule should simply ban the
                transportation of Bakken crude oil, while another individual suggested
                constructing a tank car inspection facility on the Canadian border.
                 FRA shares the commenters' concerns regarding the safe
                transportation of large quantities of crude oil and other hazardous
                materials by rail, and DOT has taken numerous actions to reduce the
                risk to public safety and the environment posed by the movement of
                crude oil and other energy products by rail. A summary of those actions
                and more information are available online at: https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview.
                 DOT has also addressed the routing of hazardous materials by rail.
                Under 49 CFR 172.820, railroads must perform a routing analysis for
                HHFTs and other trains carrying certain explosives, material poisonous
                by inhalation, and radioactive materials. See Sec. 172.820(a). At a
                minimum, this routing analysis must consider 27 separate safety and
                security factors. See Sec. 172.820(d) and part 172, appendix D. FRA
                enforces these routing requirements under 49 CFR 209.501 and can (in
                consultation with PHMSA, the Transportation Security Administration,
                and the STB) direct a railroad to use an alternative route if the
                railroad's route selection documentation and underlying analysis are
                deficient and fail to establish that the chosen route poses the least
                overall safety and security risk. See Sec. 209.501(a) and (d).
                 Because these (and other) DOT actions address hazardous materials
                routing and the safety of transporting crude oil by rail, FRA does not
                believe the RRP final rule needs to impose additional--and potentially
                duplicative--requirements directed at these issues. Nothing in the
                final rule, however, prohibits a railroad from including HHFTs and
                hazardous materials routing in its risk-based HMP, and many railroads
                may choose to do so, particularly if they find that doing so allows
                them to more efficiently comply with both the RRP rule and the other
                DOT requirements addressing hazardous materials. A railroad including
                HHFTs and hazardous materials routing in its risk-based HMP would
                still, of course, remain subject to requirements of Federal hazardous
                materials and rail safety laws and regulations that apply independently
                of this final rule. (FRA notes that the rule's information protection
                provisions will not apply to any hazardous materials routing or safety
                information a railroad must collect under another Federal law or
                regulation.) FRA further notes that the mitigating actions a railroad
                may take to reduce the risk of any accident/incident will often be the
                same actions a railroad would take to reduce the risk of an accident/
                incident resulting in a release of hazardous materials (e.g.,
                mitigating actions taken to prevent derailments). Finally, FRA's
                approach is consistent with the RSIA, which does not specifically
                require a railroad to include HHFTs and hazardous materials routing in
                its risk analysis. See 49 U.S.C. 20156(c).
                2. Comments on Performance-Based Rule and Flexibility
                 The NPRM preamble described RRP as a performance-based rule that
                would provide a railroad flexibility to tailor RRP requirements to its
                specific operations. See 80 FR 10950-10951 (Feb. 27, 2015). As the NPRM
                preamble explains, each railroad has a unique operating system and not
                all railroads have the same amount of resources. Id. Accordingly, FRA
                did not propose to establish prescriptive requirements that may be
                appropriate for one railroad but unworkable for another. Id.
                 To clarify, the NPRM's description of RRP as a performance-based
                rule refers primarily to how a railroad identifies hazards and chooses
                strategies to mitigate risks associated with those hazards. FRA is
                requiring railroads to specify the performance standard (reduction in
                safety risk as identified in a statement defining specific, measurable
                goals of the RRP and describing clear strategies for reaching those
                goals under Sec. 271.203(c)) but is not specifying the specific
                subject areas,
                [[Page 9273]]
                processes, or tools to be used by the railroads in complying with the
                rule. The purpose of an RRP is to reduce a railroad's accidents/
                incidents, injuries, and fatalities, but the railroad has flexibility
                to identify hazards and mitigate risks in a manner best-suited to its
                unique system. FRA would not, for example, require a railroad to use a
                specific hazard analysis tool or mandate implementation of a certain
                mitigation strategy to address a risk. How a railroad prepares, adopts,
                and implements an RRP, however, is subject to minimum Federal
                standards, in that a railroad must support its RRP with an RRP plan
                that contains certain components, follow the provisions of that RRP
                plan, and ensure that it conducts an internal assessment of its RRP. In
                short, requirements for an RRP's substance are performance-based, but
                an RRP's process must meet certain minimum Federal standards.
                 Several commenters supported FRA's decision to propose a
                performance-based, flexible RRP rule. AAR/ASLRRA acknowledged the
                performance-based nature of RRP, while Amtrak commented that the final
                rule ``needs to be performance based and flexible. It should provide
                the opportunity for new creative programs rather than a prescriptive
                checklist of requirements or conditions.'' DNV-GL also noted the NPRM
                was ``to a large extent aligned with good risk management practice in
                potentially hazardous industries[,] particularly those that have
                learned the lessons of previous accidents and implemented performance-
                based regimes of safety regulation.''
                 Labor Organizations I and several non-profit organizations and
                individuals expressed concern that FRA described RRP as a performance-
                based, flexible rule. Public Citizen Texas, for example, commented that
                the proposed flexibility did not comply with the RSIA mandate.
                 The nature of SMS demands a performance-based, flexible RRP rule.
                Not every railroad will have the same hazards and risks, and different
                railroads may find different mitigation strategies equally effective
                for certain risks. Additionally, FRA notes that the RRP final rule
                reflects every RSIA requirement (except for the portions of the RSIA
                mandate the SSP final rule addresses and the FMP rulemaking will
                address). FRA therefore believes that establishing an RRP final rule
                that is performance-based and flexible reflects the outcome-oriented
                nature of SMS and meets the RSIA mandate.
                 Regarding Labor Organizations I's specific comment, FRA clarifies
                in this preamble that both the RRP and SSP rule provide railroads
                flexibility to tailor an RRP or SSP to a railroad's particular
                operations. Like the SSP rule, the RRP rule depends on a railroad's
                ability to thoroughly and candidly assess its unique hazards and risks,
                not the railroad's ability to meet certain prescriptive requirements.
                Rather, RRP requires a railroad to engage in self-analysis that a
                railroad will conduct in conjunction with the railroad's directly
                affected employees and FRA oversight. Since no two railroads'
                operations are exactly the same, no two RRPs will be exactly the same.
                Further, regardless of the amount of flexibility the RRP rule affords
                railroads, the directly affected employees, including Labor
                Organizations I, will have an opportunity to provide input and work
                with the railroads on the development of the RRP plan. FRA also added
                provisions to the final rule clarifying that a railroad must involve
                its employees in the RRP. The section-by-section analysis will
                specifically discuss these provisions further.
                3. Comments on Streamlined Safety Management System (SMS)
                 The NPRM preamble also described the proposed RRP rule as a
                streamlined version of an SMS, explaining that FRA had not included a
                number of components common to SMS to closely adhere to the RSIA
                mandate. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble
                specifically identified the following components that FRA did not
                propose: (1) Processes ensuring that safety concerns are addressed
                during the procurement process; (2) development and implementation of
                processes to manage emergencies; (3) processes and procedures for a
                railroad to manage changes that have a significant effect on railroad
                safety; (4) processes and permissions for making configuration changes
                to a railroad; and (5) safety certification prior to the initiation of
                operations or implementation of major projects. See 80 FR 10959 (Feb.
                27, 2015).
                 Generally, the non-profit organizations and individuals who
                expressed concern about the flexibility of the proposed RRP rule also
                questioned FRA's description of RRP as streamlined and asserted that
                the proposed RRP rule was less rigorous than the RSIA mandate, which
                requires a ``comprehensive and systematic'' safety management system.
                DNV-GL shared the concerns of these commenters, arguing that every
                element of a safety management system is important and that ``it is
                better to have a basic program in place for every element than to be
                excellent in some and have no program in others.'' Labor Organizations
                I also asked to better understand why FRA was not requiring the
                additional components, arguing that they would expect an RRP to contain
                the ``proven safety systems such as the items FRA identifies.''
                 FRA disagrees with the commenters that the proposed rule does not
                comply with the RSIA mandate (except for the portions of the RSIA
                mandate the SSP final rule addresses and the FMP rulemaking will
                address). As the NPRM explained, FRA proposed a streamlined version of
                a safety management system ``to adhere as closely as possible to the
                requirements of the RSIA.'' Id. The RSIA does not mandate a full SMS
                \14\ but requires railroad RRPs to contain certain components, each of
                which the RRP final rule also contains (as supplemented by the SSP and
                FMP rulemakings). The RRP final rule adequately addresses railroad
                safety hazards by following the RSIA mandate, particularly as the core
                of the program is a systematic risk-based hazard management program
                that includes a risk-based hazard analysis.
                ---------------------------------------------------------------------------
                 \14\ The NPRM explained that a full SMS would contain numerous
                components FRA was not proposing to mandate in the RRP rule, such as
                a description of the railroad management and organizational
                structure (including charts or other visual representations) or a
                description of the processes and procedures used for maintenance and
                repair of infrastructure and equipment, rules compliance and
                procedures review, workplace safety, workplace safety assurance, or
                public safety outreach. Id.
                ---------------------------------------------------------------------------
                4. Comments on Plan Approval
                 The NPRM preamble stated FRA would only approve the processes and
                procedures in a railroad's RRP plan, not the entire RRP. See 80 FR
                10977 (Feb. 27, 2015). FRA will not, for example, approve specific
                mitigation measures in a railroad's RRP plan. FRA received several
                comments from individuals and non-profit organizations urging FRA to
                approve entire RRPs, not just RRP plans. These commenters were
                concerned FRA's decision to only approve RRP plans represented a
                diminished role for FRA implementation and oversight of RRPs and did
                not comply with the RSIA mandate.
                 FRA disagrees and believes its decision to approve only RRP plans
                satisfies the RSIA mandate. Section 20156(a)(3) directs FRA to ``review
                and approve or disapprove railroad safety risk reduction program plans
                within a reasonable period of time.'' (Emphasis added.) Further, an RRP
                is an ongoing program that supports continuous safety improvement. As
                discussed in the NPRM, ``a railroad that conducts a one-time risk-based
                hazard analysis and does nothing further after addressing the
                [[Page 9274]]
                results of that analysis will not have established a compliant RRP.''
                80 FR at 10969 (Feb. 27, 2015). An RRP is not a one-time exercise. As
                such, FRA does not believe it is possible to meaningfully approve a
                railroad's entire RRP, because an RRP should be continuously moving
                forward and improving. If FRA approved a railroad's program, it would
                require a railroad to freeze an RRP at the moment of approval. That
                position is not consistent with the dynamic and changing nature of a
                successful RRP. FRA therefore is not changing the final rule to require
                FRA approval of a railroad's RRP.
                5. Comments on Fatigue Management Plans
                 The RSIA requires an RRP to include an FMP meeting certain
                requirements. The RRP NPRM did not address this mandate because FRA,
                with the assistance of industry stakeholders, is implementing it
                through the separate FMP rulemaking process.
                 Labor Organizations I commented that FRA was violating the RSIA
                mandate by failing to require FMPs in the proposed rule text and that
                ``the proposal of the FRA to provide an unknown number of years of
                additional delay is the functional equivalent of an open-ended
                waiver.'' Labor Organizations I also commented that RSIA section 108
                required FRA to promulgate a fatigue rulemaking no later than October
                2011.
                 FRA notes that RSIA section 108 applies specifically to hours-of-
                service reform, not the fatigue management programs that RSIA section
                103 mandates for RRP. See 49 U.S.C. 20156(f). As such, arguments based
                on RSIA section 108 are inapplicable to FMPs. Nevertheless, FRA is
                working to issue a proposed FMP rulemaking. As the NPRM discussed, the
                RSAC voted to establish the FMP Working Group to address the FMP
                mandate in December 2011. The FMP Working Group completed its work in
                September 2013 and submitted its recommendations to FRA. FRA is
                considering these recommendations as it develops an FMP rulemaking.
                Ultimately, any fatigue management plans that FRA requires pursuant to
                section 20156(d)(2) and (f) would be part of a railroad's overall RRP.
                FRA does not believe that it is failing to meet the RSIA mandate by
                addressing the FMP requirements in a separate rulemaking process with
                stakeholder assistance. The SSP final rule takes the same approach and
                does not include FMP requirements. See 81 FR 53856-53857 (Aug. 12,
                2016).
                6. Comments on the RSAC Process
                 FRA received comments from several individuals arguing that the
                RSAC RRP Working Group process was flawed because it did not include an
                industry risk reduction analysis expert. One commenter specifically
                noted the RSAC process did not include participation from those in
                high-risk industries, including chemical shipping industries,
                universities, and consultants. These commenters suggested that FRA
                should reopen the comment period and reconsider the proposed rule based
                on much more information from the at-risk public and public officials
                and from experts on industrial SMS.
                 FRA declines to reopen the comment period again for several
                reasons. First, FRA representatives who have participated in the APTA
                system safety program have significant experience with industry risk
                reduction programs, as explained in the SSP NPRM. See 77 FR 55375
                (Sept. 7, 2012). Railroad representatives who participated in the RSAC
                process also brought to the process experience with risk reduction
                programs. Overall, the RRP Working Group included a number of certified
                safety professionals, certified industrial hygienists, system safety
                managers, and safety directors. FRA therefore concludes that the RSAC
                RRP Working Group included ample expertise in the area of industry risk
                reduction analysis.
                 Second, FRA has provided the public--including public officials,
                private individuals, and experts on industrial SMS--ample notice and
                opportunity to participate in the RRP rulemaking process. The RSIA
                mandate first notified the public FRA must require certain railroads to
                implement railroad safety risk reduction programs. The Regulatory Plan
                and Unified Agenda of Regulatory and Deregulatory Actions (published by
                the Regulatory Information Service Center and made available to the
                public at www.Reginfo.gov) have also included the risk reduction
                rulemaking since the fall of 2009. See 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
                [[Page 9275]]
                consultation process requirements that the passenger railroads had in
                responding to the SSP NPRM. Moreover, because this final rule contains
                the same information protection provision as the SSP final rule, it
                incorporates FRA's response to all comments received on the matter in
                both the SSP and RRP rulemakings.
                8. Comments on the Short Line Safety Institute
                 ASLRRA commented that small railroad participation in the Short
                Line Safety Institute (Institute) should suffice as complete compliance
                with the requirements in the NPRM. According to ASLRRA, the Institute
                assessment process is a comprehensive review of safety practices and
                culture, which it believes is consistent with the intent of an RRP.
                ASLRRA acknowledges that a key component of an effective RRP is
                performance of a risk assessment and claims the Institute has teams of
                assessors specifically trained (using FRA-approved materials) in a
                well-documented safety assessment process. ASLRRA also claims FRA would
                fulfill the Small Business Regulatory Enforcement Fairness Act (SBREFA)
                requirement to grant special considerations to small businesses by
                accepting participation in the Institute as satisfying RRP
                requirements. In response to DOT's request for public comments on its
                regulatory review initiative, ASLRRA similarly commented that FRA
                should utilize the Institute to work with short line railroads as the
                mechanism for risk reduction within the short line industry and not
                place unnecessary and burdensome regulations on short lines. See 82 FR
                45750-45753 (Oct. 2, 2017) and DOT-OST-2017-0069-2666. The following
                discussion is FRA's response to ASLRRA's comments discussing the
                Institute for both the NPRM and DOT's regulatory reform initiative.
                 FRA supports the development of the Institute to promote the safety
                of short line and regional railroad operations. However, for Institute
                participation to constitute an RRP, the Institute would have to fully
                comply with each RRP requirement this final rule establishes, which are
                consistent with the RSIA requirements. FRA currently cannot determine
                whether the Institute will fully comply with the RSIA mandate or the
                requirements of this final rule. For example, FRA cannot determine
                whether the Institute will include certain mandated components, such as
                an RRP plan reviewed and approved by FRA, consultation with directly
                affected employees on the contents of an RRP plan, annual internal
                assessments, and a technology implementation plan. Rather, FRA believes
                it is more appropriate to make this determination when reviewing RRP
                plans under Sec. 271.301 of the final rule.
                 Further, FRA does not believe it has to accept the Institute as a
                fully-compliant RRP to comply with SBREFA or otherwise avoid placing
                unnecessary and burdensome regulations on short line and regional
                railroads. Because an RRP is scalable by design, a short line or
                regional railroad's full compliance with an RRP final rule is not
                likely to be as complex and comprehensive as it would be for a larger
                railroad. The rule will therefore not unduly burden short line and
                regional railroads. The Final Regulatory Flexibility Analysis in
                Section VII.B further discusses how FRA has considered small business
                concerns in developing the RRP final rule.
                9. Comments on Other SMS Programs
                 As both the NPRM and this preamble discuss, other Federal agencies
                have established or proposed SMS requirements, and SMS programs have
                developed to assure high safety performance in various industries,
                including aviation, passenger railroads, the nuclear industry, and
                other industries with the potential for catastrophic accidents. FRA
                received several comments urging FRA to consider other such SMS
                programs as both positive and negative models for RRP.
                 Transport Action Canada (TAC) commented that the effect of SMS in
                the Canadian railroad industry has not been positive. Specifically, TAC
                expressed concern that SMS-type programs such as RRP are ``incapable of
                assuming . . . the role of government in ensuring public safety.''
                 FRA does not believe this RRP rule will result in FRA abdicating
                its role ensuring railroad safety, as any alleged weakness of SMS
                programs in Canada does not mean SMS programs in the United States
                cannot be successful. The United States' railroad safety laws and
                regulations are different than Canada's, and the RRP rule will not
                replace or modify any of FRA's railroad safety regulations,
                responsibilities, or enforcement tools. An RRP will supplement FRA
                oversight of railroad safety, not replace it.
                 Various commenters suggested other SMS programs as models for RRP,
                such as the United States Environmental Protection Agency's (EPA) Risk
                Management Program, the Moving Ahead for Progress in the 21st Century
                Act (MAP-21) and the Federal Transit Administration (FTA) approach, and
                the Massachusetts Toxics Use Reduction Act (TURA). FRA notes that some
                of these SMS programs operate very differently from the way FRA
                exercises its railroad safety authority. For example, States have
                primary responsibility for enforcing SMS programs under MAP-21 through
                the State Safety Oversight (SSO) Program. See State Safety Oversight
                (SSO) Program, available at 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''
                [[Page 9276]]
                with ``to'' for the purpose of streamlining the regulatory language,
                FRA has not changed paragraph (a) from the NPRM. As the NPRM explained,
                the rule does not require an RRP to address every safety hazard on a
                railroad's system. For example, rather than identifying every safety
                hazard on its system, a large railroad could take a more focused and
                project-specific view of safety hazard identification. See 80 FR 10959
                (Feb. 27, 2015).
                 An individual commenter suggested FRA's RRP rule should use an
                ``All-Hazards'' approach. FRA declines to adopt this suggestion because
                the RSIA requires an RRP to address only ``railroad safety risks'' and
                Sec. 271.1(a) of the final rule accurately reflects this mandate by
                requiring RRPs to ``systematically evaluate railroad safety hazards.''
                The RSIA does not authorize RRPs that address hazards other than
                railroad safety hazards.
                 Paragraph (b) states that this part prescribes minimum Federal
                safety standards for the preparation, adoption, and implementation of
                RRPs. A railroad is not restricted from adopting and enforcing
                additional or more stringent requirements that are not inconsistent
                with the rule. FRA did not receive any comments on this paragraph and
                adopts it as proposed.
                 Paragraph (c) states that the rule protects information a railroad
                compiles or collects solely for the purpose of planning, implementing,
                or evaluating an RRP. While paragraph (c) in the proposed rule
                specified that the rule would protect information ``generated'' solely
                for developing, implementing, or evaluating an RRP, FRA has replaced
                the term ``generated'' with the phrase ``compiles or collects'' to
                promote consistency with Sec. 271.11. FRA has also replaced the term
                ``developing'' with the term ``planning'' from Sec. 271.11. FRA made
                these changes only to improve clarity and consistency between this
                section and Sec. 271.11 and not to make any substantive change in this
                part's information protections.
                 Paragraph (d) explains the final rule does not require an RRP to
                address hazards completely unrelated to railroad safety and that fall
                under the exclusive jurisdiction of another Federal agency. For
                example, an RRP is not required to address environmental hazards that
                would fall under the exclusive jurisdiction of the United States
                Environmental Protection Agency (EPA) or workplace safety hazards that
                would fall under the exclusive jurisdiction of the United States
                Department of Labor's Occupational Safety and Health Administration
                (OSHA). Paragraph (d) also explains an RRP should not address the
                safety of employees while performing inspections, tests, and
                maintenance. The only exception is where FRA has exercised its
                jurisdiction over the safety issue, as in 49 CFR part 218, subpart B,
                which establishes blue signal protection for workers. FRA will not
                approve any specific portion of an RRP plan that addresses hazards
                related to a safety issue that falls under the exclusive jurisdiction
                of another Federal agency unless FRA has exercised its jurisdiction
                over the safety issue.
                 Paragraph (d) of the NPRM proposed the same language regarding
                working conditions, but did not include the first sentence discussing
                hazards completely unrelated to railroad safety and that fall under the
                exclusive jurisdiction of another Federal agency. See 80 FR 10959 (Feb.
                27, 2015). The NPRM preamble explained that while FRA is always
                concerned with the safety of railroad employees performing their
                duties, employee safety in maintenance and servicing areas generally
                falls under OSHA's jurisdiction. Id. The NPRM similarly explained that
                FRA did not intend RRPs to address environmental hazards and risks
                unrelated to railroad safety that fall under EPA's jurisdiction. Id.
                For example, the NPRM stated FRA would not expect a railroad's RRP to
                address environmental hazards regarding particulate emissions from
                locomotives that otherwise comply with FRA's safety regulations. Id.
                 AAR/ASLRRA commented the language in proposed paragraph (d) did not
                achieve clarification and specifically suggested FRA clarify its intent
                by precisely stating that the scope of an RRP does not include matters
                within OSHA's jurisdiction. AAR/ASLRRA also stated paragraph (d) did
                not address environmental issues under EPA jurisdiction.
                 To address AAR/ASLRRA's concern regarding EPA's jurisdiction, FRA
                changed paragraph (d) in the final rule to add the first sentence
                plainly stating that an RRP is not required to address hazards
                completely unrelated to railroad safety and that fall under the
                exclusive jurisdiction of another Federal agency. The purpose of this
                language is to incorporate the NPRM's explanation that an RRP should
                not address hazards that fall exclusively under the jurisdiction of
                another Federal agency, such as EPA.
                 FRA has otherwise not changed the proposed text of paragraph (d)
                that relates to working conditions, as similar language appears in the
                SSP final rule and FRA's regulations on passenger equipment safety
                standards.\15\ See Sec. Sec. 270.103(g)(4) and 238.107(c). The purpose
                of the language is to make clear that FRA neither intends to displace
                OSHA jurisdiction with respect to employee working conditions generally
                nor specifically with respect to the maintenance, repair, and
                inspection of infrastructure and equipment directly affecting railroad
                safety. FRA does not intend to approve any specific portion of an RRP
                plan that relates exclusively to employee working conditions covered by
                OSHA. The term ``approve'' is used to make clear that any part of an
                RRP plan that relates to employee working conditions exclusively
                covered by OSHA will not be approved even if the overall plan is
                approved. Additionally, the term ``specific'' reinforces that the
                particular portion of the plan that relates to employee working
                conditions exclusively covered by OSHA will not be approved; however,
                the rest of the plan may still be approved. If there is any confusion
                whether an RRP plan covers an OSHA-regulated area, FRA is available to
                provide assistance. The preamble to the SSP final rule contains this
                same explanation regarding SSP plans and working conditions exclusively
                covered by OSHA. See 81 FR 53871 (Aug. 12, 2016).
                ---------------------------------------------------------------------------
                 \15\ While Sec. Sec. 270.103(g)(4) and 238.107(c) contain
                reference to working conditions ``as set forth in the plan,'' the
                RRP final rule does not contain this language because an RRP plan is
                not required to specifically address working conditions that arise
                in the course of conducting maintenance, repair, and inspection of
                infrastructure and equipment directly affecting railroad safety. FRA
                is also leaving the reference to FRA regulations on blue signal
                protection, which does not appear in the corresponding SSP language,
                to improve clarity. FRA does not intend this difference to indicate
                any substantive difference between the SSP and RRP language, as the
                preamble to the SSP final rule contains the same example regarding
                blue signal protection. See 81 FR 53870 (Aug. 12, 2016).
                ---------------------------------------------------------------------------
                 Overall, FRA's intent behind paragraph (d) in the NPRM and this
                final rule has not changed, and FRA has changed the language solely to
                address AAR/ASLRRA's concerns regarding clarity. The NPRM discussion of
                paragraph (d) therefore remains applicable to paragraph (d) in this
                final rule. See 80 FR 10959 (Feb. 27, 2015).
                Section 271.3--Application
                 This section sets forth application of the rule. Except for
                additional language in paragraph (c), this section is the same as in
                the NPRM. Thus, FRA is not repeating the NPRM section-by-section
                analysis for paragraphs (a) and (b) in this final rule, but refers
                interested readers to the NPRM. See 80 FR 10959-10960 (Feb. 27, 2017).
                FRA is, however, discussing comments it received
                [[Page 9277]]
                regarding tourist railroads and Class II and Class III railroads in
                response to the NPRM.
                 Paragraph (b)(2) of the NPRM proposed that the rule would not apply
                to tourist, scenic, historic, or excursion operations, whether on or
                off the general railroad system of transportation. See 80 FR 10989
                (Feb. 27, 2015). The NPRM specifically requested public comment on how
                an RRP final rule should address tourist operations that may create
                hazards for freight operations. In response, Labor Organizations I
                responded that FRA should require all railroads to account for tourist
                operations on their lines in performing the self-critical analysis and
                include such operations in the railroad's RRP. FRA agrees with Labor
                Organizations I that a railroad required to comply with this rule must
                account for tourist operations on its system. FRA has made changes
                responding to this comment in Sec. 271.101(d), which requires
                railroads to identify tourist operations that operate over the
                railroad's track (even if the tourist railroad is exempt from this
                rule) and to ensure the tourist railroad supports and participates in
                the railroad's RRP. The section-by-section analysis for Sec.
                271.101(d) discusses these changes further.
                 In this final rule, FRA added a paragraph (c) that includes
                language from the SSP final rule. See Sec. 270.107(a)(2). This
                language clarifies that if a railroad contracts out significant
                portions of its operations, the contractor and the contractor's
                employees performing the railroad's operations are considered directly
                affected employees for this rule's purposes, including the consultation
                process and employee involvement requirements in Sec. Sec. 271.113 and
                271.207, discussed below. This language is necessary to address how
                directly affected employee consultation and involvement will be handled
                when a railroad contracts out significant portions of its operations to
                other entities. Contractors and contractor employees will only be
                considered directly affected employees when the contracts are ongoing
                and involve significant aspects of the railroad's operations. For
                example, if a railroad contracts out maintenance of its locomotive and
                rail cars to another entity, it is vital for the employees who are
                performing this maintenance to be involved in that railroad's RRP and
                have the opportunity to provide their valuable input on the RRP plan.
                Another example would be if a railroad contracts out the actual
                operations of its railroad to another entity. In such cases, the
                contracted entity and its employees operating trains on behalf of the
                railroad would certainly need to be part of the consultation process
                and otherwise involved in the railroad's RRP. If a railroad is unsure
                whether a contracted entity and its employees are directly affected
                employees for purposes of this part, FRA encourages the railroad and
                other interested stakeholders to contact FRA for guidance.
                 The Association of Tourist Railroads and Railway Museums (ATRRM)
                commented it supported FRA's proposed approach for tourist railroads.
                ATRRM commented an RRP was poorly suited to a small tourist railroad,
                but agreed with FRA's approach to tourist railroads that conduct their
                own freight operations, or which operate on RRP host railroads. ATRRM
                correctly understood FRA's position, and the changes made in Sec.
                271.101(d) are consistent with this position.
                 FRA received approximately four comments from individuals arguing
                that FRA should expand the scope of the RRP final rule to Class II and
                Class III railroads. FRA declines to incorporate this recommendation
                for two principle reasons. First, applying the RRP final rule to Class
                II and Class III railroads would go beyond the RSIA mandate and
                increase the number of RRP plans submitted for FRA review. FRA would
                therefore need more time to review all submitted plans, as well as more
                time to conduct external reviews of RRPs. This would divert FRA
                resources away from Class I railroads, which have more complex
                operations than Class II and Class III railroads, and ISP railroads,
                which FRA will have determined demonstrate inadequate safety. Adhering
                to the RSIA mandate, which only directs FRA to require compliance from
                Class I railroads, passenger railroads, and railroads with inadequate
                safety performance, therefore represents the best and most efficient
                use of FRA resources. Second, the methodology for identifying railroads
                with inadequate safety performance will require certain Class II and
                Class III railroads to comply with the RRP rule. FRA also notes that
                Class II and III freight railroads may voluntarily comply with the
                final rule.
                Section 271.5--Definitions
                 This section contains definitions clarifying the meaning of
                important terms used in the rule. FRA worded the definitions carefully
                to minimize potential misinterpretation of the rule. Commenters on the
                NPRM did not have significant issues with the proposed definitions,
                except for a few comments FRA received on the proposed definitions of
                ``hazard'' and ``safety culture,'' discussed below. FRA also made
                changes discussed below to the definitions of ``accident/incident'' and
                ``pilot project.'' For definitions that did not receive any comment and
                have not been changed, FRA is not repeating the NPRM's section-by-
                section analysis in this final rule but refers interested readers to
                the NPRM's discussion. See 80 FR 10960-10962 (Feb. 27, 2015).
                 The NPRM preamble stated FRA was proposing an ``accident/incident''
                definition identical to the definition contained in FRA's accident/
                incident reporting regulations at 49 CFR part 225. See 80 FR 10960
                (Feb. 27, 2015). However, the proposed definition did not match the
                part 225 definition exactly, because it did not include occupational
                illnesses. See 49 CFR 225.5. This inconsistency was merely an
                oversight. To correct this inconsistency and to ensure future
                conformity with the part 225 definition and any amendments thereto, FRA
                has changed the final rule's definition to simply cross-reference the
                part 225 definition.
                 The NPRM proposed to define ``hazard'' as any real or potential
                condition that can cause injury, illness, or death; damage to or loss
                of a system, equipment, or property; or damage to the environment. See
                80 FR 10989 (Feb. 27, 2015). In response, AAR/ASLRRA commented the
                definition of hazard did not help clarify the proposed jurisdiction
                statement in Sec. 271.1(d). AAR/ASLRRA also claimed the definition
                places conditions that do not impact human safety or property damage
                squarely within the definition of hazard. As discussed above, FRA has
                made changes to Sec. 271.1(d) to clarify an RRP does not have to
                address safety issues that are completely unrelated to railroad safety
                and that fall under the exclusive jurisdiction of another Federal
                agency, such as EPA. This does not mean, however, an RRP should not
                address railroad safety hazards that could result in damage to the
                environment, such as a derailment that could result in a hazardous
                materials release. See also 80 FR 10959 (Feb. 27, 2015). As Sec.
                271.1(a) provides, an RRP is required to address ``railroad safety
                hazards.'' The final rule adopts the NPRM's definition for ``hazard''
                unchanged.
                 The NPRM proposed to define ``pilot project'' as a limited scope
                project used to determine whether quantitative proof suggests that a
                particular system or mitigation strategy has potential to succeed on a
                full-scale basis. See 80 FR 10989-10990 (Feb. 27, 2015). FRA modified
                this definition to replace the word ``proof'' with the phrase
                ``evaluation and analysis.'' FRA made this change to avoid implying
                that a
                [[Page 9278]]
                railroad had to meet an established quantitative threshold as proof
                that a pilot project has potential to succeed. FRA did not intend to
                establish a quantitative proof threshold, and believes ``evaluation and
                analysis'' more accurately describes the purpose of a pilot project.
                FRA also modified this definition slightly by changing ``potential to
                succeed on a full-scale basis'' to ``potential for full-scale
                success.'' The purpose of this change is only to streamline the
                language, and FRA does not intend any substantive change.
                 The NPRM proposed defining ``safety culture'' as the shared values,
                actions, and behaviors that demonstrate a commitment to safety over
                competing goals and demands. This definition is the same in the final
                rule and was also included in the SSP rule. See Sec. 270.5 and 81 FR
                53863-53864 (Aug. 12, 2016). As the NPRM explained, FRA based the
                definition on a research paper published by the DOT Safety Council. See
                80 FR 10962 (Feb. 27, 2015). The DOT Safety Council developed this
                definition after extensive review of definitions used in a wide range
                of industries and organizations over the past two decades. Id. See also
                U.S. Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety
                Culture: A Significant Influence on Safety in Transportation,'' 2-3
                (2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. The NPRM also acknowledged the
                proposed definition was different than the definition that the RRP
                Working Group recommended. Specifically, FRA noted that some
                participants during RRP Working Group discussion expressed concern that
                the language ``over competing goals and demands'' would require a
                railroad to make safety the ultimate priority to the exclusion of all
                other concerns, without providing flexibility for a railroad to balance
                the concerns of profit and efficiency. The NPRM explained FRA selected
                the proposed definition because it was important to use a definition
                the DOT Safety Council formulated. See 80 FR 10962 (Feb. 27, 2015). The
                definition also would not require a railroad to prioritize absolute
                safety over competing goals and demands (i.e., it would not require a
                railroad to have a perfect safety culture). Rather, FRA explained that
                the proposed definition merely expressed how a railroad should evaluate
                safety culture by measuring the extent to which a railroad emphasizes
                safety over competing goals and demands. Id.
                 AAR/ASLRRA responded to this discussion by commenting there was no
                doubt that the proposed definition requires ``a commitment to safety
                over competing goals and demands,'' because that is what the definition
                says. AAR/ASLRRA further suggested that if FRA's intent was to measure
                the extent to which a railroad emphasizes safety over competing goals
                and demands, that language should be included. FRA declines to change
                the proposed ``safety culture'' definition as suggested because doing
                so would eliminate the benefits of having a general definition the DOT
                Safety Council developed and approved. There is value in establishing a
                shared understanding of safety culture that can be applied across many
                contexts, and developing a common understanding of the elements that
                comprise a strong safety culture can help DOT agencies have a better
                basis for improving safety programs, policies, and strategies. See U.S.
                Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety
                Culture: A Significant Influence on Safety in Transportation,'' 2
                (2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. As explained in the NPRM, FRA also
                disagrees with AAR/ASLRRA and believes the definition does not require
                railroads to ``absolutely and necessarily'' demonstrate a commitment to
                safety over competing goals and demands but only describe how certain
                shared values, actions, and behaviors demonstrate such a commitment.
                Rather, the rule requires that a railroad design its RRP to promote and
                support a positive safety culture (Sec. 271.101(a)), develop processes
                for identifying and analyzing its safety culture (Sec. 271.105(a)),
                and include in its RRP plan a statement describing the railroad's
                safety culture and how it promotes improvements to its safety culture
                (Sec. 271.203(b)(1) and (2)).\16\ FRA believes these provisions
                generally require a railroad to define its own safety culture and
                develop processes for analyzing and improving it. Nowhere does the RRP
                final rule require a railroad to establish a safety culture that
                absolutely prioritizes safety. For these reasons, FRA believes the
                definition for safety culture is appropriate.
                ---------------------------------------------------------------------------
                 \16\ The SSP rule contains similar requirements related to
                safety culture. See Sec. 271.101(b) (``A railroad's system safety
                program shall be designed so that it promotes and supports a
                positive safety culture at the railroad.''), Sec. 271.103(b)
                (``This policy statement shall . . . [d]escribe the . . . safety
                culture of the railroad''), and Sec. 271.103(t) (``A railroad shall
                set forth a statement in its SSP plan that describes how it measures
                the success of its safety culture. . . .'').
                ---------------------------------------------------------------------------
                Section 271.7--Reserved
                 The NPRM proposed to include a provision on waivers in Sec. 271.7,
                explaining that 49 CFR part 211 generally contains rules governing the
                FRA waiver process. See 80 FR 10990 (Feb. 27, 2015). ASLRRA commented
                suggesting that ``it is best to have a single waiver rule to reduce
                confusion and increase familiarity with proper waiver procedures.'' FRA
                agrees with ASLRRA on this issue and finds that the NPRM's proposed
                provision on waivers is unnecessary because part 211 already contains
                the rules governing the FRA waiver process. The provision would have
                therefore served only as a cross-reference to part 211 and not have had
                any independent legal effect. The SSP final rule also does not contain
                its own provision on waivers. See 81 FR 53864 (Aug. 12, 2016). FRA has
                therefore not included a provision on waivers in this RRP final rule
                although FRA is reserving this section in case FRA decides to add such
                a provision in the future.
                Section 271.9--Penalties and Responsibility for Compliance
                 This section contains provisions regarding penalties and the
                responsibility for compliance. Except for the change discussed below,
                FRA adopts this section from the NPRM unchanged. Therefore, FRA refers
                interested readers to the NPRM discussion. See 80 FR 10962 (Feb. 27,
                2015).
                 This section in the NPRM proposed a civil penalty of at least $650
                and not more than $25,000 per violation, except for a penalty not to
                exceed $105,000 that may be assessed for a grossly negligent violation
                or a pattern of repeated violations has created an imminent hazard of
                death or injury to individuals, or has caused death or injury. Id.
                Since the NPRM was published in 2015, DOT has issued a final rule, in
                accordance with the Federal Civil Penalties Inflation Adjustment Act of
                1990 (FCPIAA), as amended by the Federal Civil Penalties Inflation
                Adjustment Act Improvements Act of 2015 (2015 Act),\17\ that provides
                the 2018 inflation adjustment to civil penalty amounts that may be
                imposed for violations of certain DOT regulations. See 83 FR 60732
                (Nov. 27, 2018). To avoid the need to update this section every time
                the civil penalty amounts are adjusted for inflation, FRA has changed
                this section by replacing references to specific penalty amounts with
                general references to the minimum civil monetary penalty, ordinary
                maximum civil monetary penalty, and aggravated maximum civil monetary
                penalty. FRA has also added language to
                [[Page 9279]]
                this section referring readers to 49 CFR part 209, appendix A, where
                FRA will continue to specify statutorily provided civil penalty amounts
                updated for inflation.
                ---------------------------------------------------------------------------
                 \17\ The FCPIAA and the 2015 Act require federal agencies to
                adjust minimum and maximum civil penalty amounts for inflation to
                preserve their deterrent impact. See 83 FR 60732 (Nov. 27, 2018).
                ---------------------------------------------------------------------------
                 While this section in the NPRM noted the final rule would include a
                schedule of civil penalties, FRA has decided to provide such a schedule
                on its website instead of as an appendix to the final rule. FRA
                therefore changed the final sentence of paragraph (a) in this section
                to direct readers to the FRA's website for a schedule of civil
                penalties.
                 This penalty schedule will reflect the requirements of the final
                rule. Because such penalty schedules are statements of agency policy,
                notice and comment are not required before their issuance, and FRA did
                not propose a penalty schedule in the NPRM. See 5 U.S.C. 553(b)(3)(A).
                Nevertheless, FRA invited comment on what a final penalty schedule
                should contain. See 80 FR 10978 (Feb. 27, 2015). However, FRA did not
                receive any comments other than Labor Organizations I's comment the
                NPRM did not include a proposed penalty for violation of the Sec.
                271.207 requirements to consult with directly affected railroad
                employees using good faith and best efforts. The penalty schedule on
                FRA's website will include guideline penalty amounts for violations of
                various requirements in Sec. 271.207.
                Section 271.11--Discovery and Admission as Evidence of Certain
                Information
                 As discussed in the Statutory Background (Section IV.D), the Final
                Study Report concluded that it is in the public interest to protect
                certain information generated by railroads from discovery or admission
                into evidence in litigation. Section 20119(b) provides FRA the
                authority to promulgate a regulation if FRA determines that it is in
                the public interest, including public safety and the legal rights of
                persons injured in railroad accidents, to prescribe a rule addressing
                the results of the Study.
                 This section establishes protections based on the Final Study
                Report for information a railroad compiles or collects solely for RRP
                purposes in Federal or State court proceedings for damages involving
                personal injury, wrongful death, or property damage. These protections
                are narrow and apply only to information generated solely for a
                railroad's RRP, aiming to ensure that a litigant will not be better or
                worse off than if the protections had never existed. FRA intends these
                protections to be strictly construed.
                 In Sections IV.D and V.A of this preamble's discussion, FRA
                explains the statutory background of this section, general comments on
                the NPRM's proposed information protections, and FRA's response to
                those comments. This section-by-section analysis will not revisit the
                general issues and comments FRA discussed above, but will focus on
                responding to specific comments on the proposed rule text and
                explaining the final rule. The language of this section is also
                substantively identical to the language promulgated by the SSP final
                rule in Sec. 270.105. See 81 FR 53900 (Aug. 12, 2016). The preamble to
                the SSP final rule contains a significant discussion on the
                protections' background. Id. at 53878-53879.
                 Under Sec. 271.11(a) there are certain circumstances in which
                information will not be subject to discovery, admitted into evidence,
                or considered for other purposes in a Federal or State court proceeding
                for damages involving personal injury, wrongful death, or property
                damage. This information may not be used in such litigation when it is
                compiled or collected solely for the purpose of planning, implementing,
                or evaluating an RRP. Section 271.11(a) applies to information whether
                or not it is also in the Federal Government's possession.
                 FRA reformatted paragraph (a) for clarity from the NPRM. Paragraph
                (a) is divided into paragraphs (a)(1) and (2) after new introductory
                text. The formatting change does not, however, result in any
                substantive change to the paragraphs (a)(1) and (2). The new
                introductory text of paragraph (a) contains language implementing the
                section 20119(b) provision preventing the protections from becoming
                effective until one year after the adoption of the RRP rule.
                 Paragraph (a)(1) describes what may be considered ``information''
                for the purposes of this section. Section 20119(a) identifies reports,
                surveys, schedules, lists, and data as the forms of information that
                FRA must consider in its study. However, FRA does not view the RSIA's
                list as limiting the forms of information that a rule may protect based
                on the study. In the statute, Congress directed FRA to consider the
                need for protecting information that includes a railroad's analysis of
                its safety risks and its statement of the mitigation measures to
                address those risks. Id. While the railroad is not required to provide
                in the RRP plan that it submits to FRA the results of the risk-based
                hazard analysis and the specific elimination or mitigation measures it
                will implement, the railroad may have a specific plan within its RRP
                that does contain this information. Therefore, to adequately protect
                this type of information, the term ``plan'' is included in the
                definition of ``information'' to cover a railroad's submitted RRP plan
                and any elimination or mitigation plans the railroad otherwise develops
                within its RRP. FRA also deems it necessary to include ``documents'' in
                this provision to maintain consistency and properly effectuate
                Congress' directive in section 20119.
                 This paragraph does not protect all information that is part of an
                RRP; these protections will extend only to information that is compiled
                or collected after February 17, 2021 solely for purpose of planning,
                implementing, or evaluating a risk reduction program. The term
                ``compiled or collected'' comes directly from section 20119(a). The
                term ``compiled'' refers to information that was generated by the
                railroad for the purposes of an RRP; whereas the term ``collected''
                refers to information that was not necessarily generated for the
                purposes of the RRP, but was assembled in a collection for use by the
                RRP. It is important to note for collections, only the collection
                assembled for RRP purposes is protected; however, each separate piece
                of information that was not originally generated for use by the RRP
                remains subject to discovery and admission into evidence subject to any
                other applicable provision of law or regulation. For example, if a
                railroad originally collected or generated information for a non-RRP
                use, the rule does not protect that original non-RRP information, even
                if the railroad afterwards collects the information for protected RRP
                purposes. The rule would protect, however, the assembled collection of
                that information for RRP purposes.
                 In response to the SSP NPRM, APTA commented the rule text does not
                adequately explain the use of the term ``solely'' in the text of the
                regulation. See 81 FR 53879 (Aug. 12, 2016). APTA proposed that FRA
                either use a more appropriate term such as ``primarily'' or
                ``initially'' or that FRA define ``solely'' in the rule text, not just
                in the preamble. Id. FRA agrees. The use of the term ``solely'' is
                deliberate, and it is important that the term is understood as used
                within the four corners of the regulation. Therefore, FRA has included
                paragraph (a)(2), which defines the term ``solely,'' in both this rule
                and the Sec. 270.105 of SSP final rule. See 81 FR 53900 (Aug. 12,
                2016).
                 The term ``solely'' is intended to narrow circumstances in which
                the information will be protected. The use of the term ``solely'' means
                that the original purpose of compiling or collecting the information
                was
                [[Page 9280]]
                exclusively for the railroad's RRP. A railroad cannot compile or
                collect information for one purpose and then try to use paragraph (a)
                to protect that information because it uses that information for its
                RRP as well. The railroad's original and singular purpose for compiling
                or collecting the information must be for planning, implementing, or
                evaluating its RRP in order for the protections to be extended to that
                information. The term ``solely'' also means that a railroad must
                continue to use the information only for its RRP. If a railroad
                subsequently uses, for any other purpose, information the railroad
                initially compiled or collected for its RRP, paragraph (a) does not
                protect that information to the extent the railroad uses it for the
                non-RRP purpose. The use of that information within the railroad's RRP,
                however, will remain protected. If another provision of law or
                regulation requires the railroad to collect the information, the
                protections of paragraph (a) do not extend to that information because
                the railroad is not compiling or collecting the information solely for
                the purpose of planning, implementing, or evaluating an RRP. For
                example, 49 CFR 234.313 requires railroads to retain records regarding
                emergency notification system (ENS) reports of unsafe conditions at
                highway-rail grade crossings. Those individual records are not
                protected by Sec. 271.11. However, if as part of its risk-based hazard
                analysis a railroad collects several of its Sec. 234.313 reports from
                a specific time period for the sole purpose of determining if there are
                any hazards at highway-rail grade crossings, this collection will be
                protected as used in the RRP. If the railroad decides to use the
                collection for another purpose other than in its RRP, such as
                submitting it to an ENS maintenance contractor for routine maintenance,
                the protections do not extend to that non-RRP use.
                 APTA commented that the term ``sole purpose,'' because it is ill-
                defined and railroads use safety data to make many decisions, would
                effectively nullify this section's protections. APTA specifically
                recommended that FRA remove the phrase ``sole purpose,'' arguing that
                ``if a railroad is creating and using data for safety, it should be
                protected.'' APTA claims that it will ``not be difficult for
                plaintiffs' counsel to find any other use safety data has been used
                for,'' as railroads use safety data to make procurement, personnel, and
                other decisions on a routine basis. FRA is declining to implement this
                suggestion for several reasons. First, as discussed above, FRA has
                concluded this section should not protect information a railroad takes
                from its RRP to use for other purposes, and APTA's suggestion would
                allow a railroad to obtain protection for all safety information simply
                by incorporating it into a railroad's RRP. Second, FRA's changes to the
                information protections in Sec. 271.11(a)(2) clarify that even if a
                railroad uses RRP information for other purposes, such as procurement
                or personnel decisions, the use of that information within the
                railroad's RRP remains protected. Finally, APTA's suggestion would
                create a discrepancy between the RRP and SSP final rules, and FRA's
                intent has always been to ensure the information protection provisions
                of both rules are consistent.
                 A railroad must compile or collect the information solely for the
                purpose of planning, implementing, or evaluating an RRP. The three
                terms--planning, implementing, or evaluating--come directly from
                section 20119(a). These terms cover the necessary uses of the
                information compiled or collected solely for the RRP. To properly plan
                and develop an RRP, a railroad will need to determine the proper
                processes and procedures to identify hazards, the resulting risks, and
                elimination or mitigation measures to address those hazards and risks.
                This planning will involve gathering information about the various
                analysis tools and processes best suited for that particular railroad's
                operations. This type of information is essential to the risk-based
                hazard analysis and is information that a railroad does not necessarily
                already have. In order for the railroad to plan its RRP, the
                protections are extended to the RRP planning stage. The NPRM used the
                term ``developing'' instead of ``planning''; however, to remain
                consistent with section 20119(a), FRA has determined that the term
                ``planning'' is more appropriate.
                 Based on the information generated by the risk-based hazard
                analysis, the railroad will implement measures to eliminate or mitigate
                the hazards and risks identified. To properly implement these measures,
                the railroad will need the information regarding the hazards and risks
                on the railroad's system identified during the development stage.
                Therefore, the protection of this information extends to the
                implementation stage.
                 The protections do not apply to information regarding mitigations
                that the railroad implements. Rather, Sec. 271.11 protects the
                railroad's statement of mitigation measures, which could include
                various proposed and alternate mitigations for a specific hazard, that
                address the hazards identified by the risk-based hazard analysis.
                Additionally, Sec. 271.11 protects the underlying risk analysis
                information that the implemented mitigation measure addresses. For
                example, if a railroad builds a structure to address a risk identified
                by the risk-based hazard analysis, this section does not protect the
                information regarding that structure (e.g., blueprints, contracts,
                permits, etc.). This section does protect, however, the underlying
                risk-based hazard analysis that identified the hazard and any statement
                of mitigations that included the structure.
                 The protections also do not apply to any hazards, risks, or
                mitigations that fall under the exclusive jurisdiction of another
                Federal agency. If FRA does not have jurisdiction over a hazard, risk,
                or mitigation, then the protections under this paragraph cannot cover
                that hazard, risk, or mitigation.
                 The railroad must also evaluate whether the measures it implements
                to mitigate or eliminate the hazards and risks identified by the risk-
                based hazard analysis are effective. To do so, it will need to review
                the information developed by the risk-based hazard analysis and the
                methods used to implement the elimination/mitigation measures. This
                section protects the use of this information in the evaluation of the
                railroad's RRP.
                 The information covered by this section shall not be subject to
                discovery, admitted into evidence, or considered for other purposes in
                a Federal or State court proceeding that involves a claim for damages
                involving personal injury, wrongful death, or property damage. The
                first two situations come from section 20119(a); however, FRA
                determined that for the protections to be effective they must also
                apply to any other situation where a litigant might try to use the
                information in a Federal or State court proceeding that involves a
                claim for damages involving personal injury, wrongful death, or
                property damage. For example, this section prohibits a litigant from
                admitting into evidence a railroad's risk-based hazard analysis.
                Nonetheless, without the additional language: ``or considered for other
                purposes,'' a litigant could use the railroad's risk-based hazard
                analysis for the purpose of refreshing the recollection of a witness or
                an expert witness could use the analysis to support an opinion. The
                additional language ensures that the protected information remains out
                of such a proceeding completely. The protections would be ineffective
                if a litigant were able to use the information in the proceeding for
                another purpose. To encourage railroads to perform the necessary
                vigorous risk analysis and to
                [[Page 9281]]
                implement truly effective elimination or mitigation measures, the
                protections must extend to any use in a proceeding.
                 This section applies to Federal or State court proceedings that
                involve a claim for damages involving personal injury, wrongful death,
                or property damage. This means, for example, if a proceeding has a
                claim for personal injury and a claim for property damage, the
                protections extend to that entire proceeding; therefore, a litigant
                cannot use any of the information protected by this section as it
                applies to either the personal injury or property damage claim. Section
                20119(a) required the study to consider proceedings that involve a
                claim for damages involving personal injury or wrongful death; however,
                to effectuate Congress' intent behind section 20156, that railroads
                engage in a systematic and candid hazard analysis and develop
                meaningful mitigation measures, FRA has determined that it is necessary
                for the protections to extend to proceedings that involve a claim
                solely for property damage. The typical railroad accident resulting in
                injury or death also involves some form of property damage. Without
                extending the protection to proceedings that involve a claim for
                property damage, a litigant could bring two separate claims arising
                from the same incident in two separate proceedings, the first for
                property damages and the second one for personal injury or wrongful
                death, and be able to conduct discovery regarding the railroad's risk
                analysis and to introduce this analysis in the property damage
                proceeding but not in the personal injury or wrongful death proceeding.
                This would mean that a railroad's risk analysis could be used against
                the railroad in a proceeding for damages. If this were the case, a
                railroad would be hesitant to engage in a systematic and candid hazard
                analysis and develop meaningful elimination or mitigation measures.
                Such an approach would be nonsensical and would completely frustrate
                Congress' intent in providing FRA the ability to protect that
                information which is necessary to ensure that railroads perform open
                and complete risk assessments and select and implement appropriate
                mitigation measures. Therefore, to be consistent with Congressional
                intent behind section 20156, FRA is extending the protections in
                paragraph (a) to proceedings that involve a claim for property damage.
                Further, RSAC recommended in the context of the SSP rulemaking that FRA
                extend the protections in this way to proceedings that involve a claim
                for property damage. See 81 FR 53881 (Aug. 12, 2016).
                 Paragraph (b) ensures the protections in paragraph (a) do not
                extend to information compiled or collected for a purpose other than
                specifically identified in paragraph (a). This type of information
                shall continue to be discoverable, admissible into evidence, or
                considered for other purposes if it was before the date the protections
                take effect. The types of information that will not receive the
                protections paragraph (a) provides include: (1) Information compiled or
                collected on or before February 17, 2021; (2) information compiled or
                collected on or before February 17, 2021 and continues to be compiled
                or collected, even if used to plan, implement, or evaluate a railroad's
                SSP; or (3) information compiled or collected after February 17, 2021
                for a purpose other than specifically identified in paragraph (a) of
                this section. Paragraph (b) affirms FRA's meaning for the term
                ``solely'' in paragraph (a)--that a railroad may not compile or collect
                information for a different purpose and then expect to use paragraph
                (a) to protect that information just because the information is also
                used in its RRP. In such cases the information is unprotected and will
                continue to be unprotected.
                 Examples of the types of information that paragraph (b) applies to
                may be records related to prior accidents/incidents and reports
                prepared in the normal course of railroad business (such as inspection
                reports). Generally, this type of information is often discoverable,
                may be admissible in Federal and State proceedings, and should remain
                discoverable and admissible where it is relevant and not unduly
                prejudicial to a party after the implementation of this part. However,
                FRA recognizes that evidentiary decisions are based on the facts of
                each particular case; therefore, FRA does not intend this to be a
                definitive and authoritative list. Rather, FRA merely provides these as
                examples of the types of information that paragraph (a) is not intended
                to protect after the implementation of this part.
                 Under paragraph (b)(2), if a railroad compiled or collected certain
                information that was subject to discovery, admissibility, or
                consideration for other purposes before the protections take effect and
                the railroad continues to collect the same type of information pursuant
                to its RRP required by this part, that information will not be
                protected by paragraph (a) of this section. For example, before this
                section takes effect and all else being equal, a litigant that would
                have been able to have admitted into evidence certain information the
                railroad compiled will still be able to have that type of information
                admitted after this section takes effect even if the railroad compiles
                the information pursuant to this rule. The protections are designed to
                apply only when the original purpose for the generation of the
                information was for an RRP required by this part. The original purpose
                of the generation of the information for the RRP-like programs that
                existed before the RRP rule would be for an RRP required by this part;
                therefore, such information is not protected by paragraph (a).
                 While objecting to any information protections whatsoever, AAJ also
                commented that any protections FRA does promulgate ``should be clear
                and not result in satellite litigation.'' AAJ is particularly concerned
                that the information protections would increase litigation and
                litigation costs by generating litigation over which information the
                rule protects or does not protect. AAJ therefore recommends that FRA
                should ``require all applicable railroads [to] report all classes of
                documents that would remain discoverable.'' ARLA, Labor Organizations
                I, and Labor Organizations II similarly urged FRA to reduce litigation
                costs by including a list of documents currently available for use in
                litigation in the final rule. Labor Organizations I and Labor
                Organizations II also asked FRA to include a list of examples of
                information currently discoverable and admissible. AAJ, ARLA, Labor
                Organizations I, and Labor Organizations II all provided FRA examples
                of such a list either in comments or during the RRP Working Group
                process.
                 As discussed, FRA changed the proposed information protection to
                include a definition of ``solely'' that further clarifies what
                information Sec. 271.11 protects and does not protect. FRA does not,
                however, believe that AAJ's proposal to require all railroads to report
                documents that remain discoverable or include lists of discoverable
                information as other commenters suggested would be effective. First,
                the suggested approach does not account for future information
                railroads will compile or collect the information for non-RRP purposes,
                which Sec. 271.11 will not protect. Railroads also cannot predict what
                future statutes or regulations will require them to collect
                information. Such reports or lists, therefore, would fail to include
                vast swathes of future information that should be discoverable.
                Further, courts are responsible for determining which documents are
                [[Page 9282]]
                discoverable under the applicable rules of discovery and evidence, not
                railroads. In addition, the commenters have not suggested how FRA would
                ensure a railroad accurately reported which documents would remain
                discoverable or how FRA would update lists. FRA therefore declines to
                require railroads to report documents that will remain discoverable and
                declines to publish lists of discoverable documents.
                 This section is not intended to replace any other protections
                provided by law or regulation. Accordingly, paragraph (c) states the
                protections in this section will not affect or abridge in any way any
                other protection of information provided by another provision of law or
                regulation. Any such provision of law or regulation shall apply
                independently of the protections provided by this section. While the
                NPRM did not propose this provision, FRA believes this language should
                be non-controversial. The SSP final rule also contains the same
                language. See 81 FR 53882 (Aug. 12, 2016).
                 Paragraph (d) clarifies that a litigant cannot rely on State
                discovery rules, evidentiary rules, or sunshine laws to require the
                disclosure of information protected by paragraph (a) in a Federal or
                State court proceeding for damages involving personal injury, wrongful
                death, or property damage. This is the same language that proposed
                paragraph (c) in the NPRM contained. Because FRA did not receive any
                comments on this proposal, FRA refers readers to the NPRM's discussion.
                See 80 FR 10966 (Feb. 27, 2015).
                 Paragraph (e) contains new language clarifying that Sec. 271.11
                does not protect information during civil or criminal law enforcement
                proceedings. For example, Sec. 271.11 would not apply to a civil or
                criminal action brought to enforce Federal railroad safety laws, or
                proceedings such as a civil action brought by the Department of Justice
                under the Clean Water Act to address a discharge of pollutants into
                waters of the United States following a rail accident. Because
                paragraph (a) of this section plainly states that the information
                protections apply to ``Federal or State court proceeding for damages
                involving personal injury, wrongful death, or property damage,'' FRA
                believes a court would not find that the protections apply to a civil
                or criminal enforcement case. Nevertheless, to help ensure no attempt
                is made to rely on the rule's information protections in a civil or
                criminal enforcement proceeding, paragraph (e) explicitly states that
                Sec. 271.11 does not apply to civil or criminal enforcement actions.
                FRA plans to similarly clarify the information protection provision in
                Sec. 270.105 of the SSP rule, which also apply only to Federal or
                State court proceedings for damages involving personal injury, wrongful
                death, or property damage.
                 The NPRM proposed that FRA might extend the information protections
                in an SSP final rule to the RRP final rule. The effect of this approval
                would have been that the protections for the RRP final rule would be
                applicable one year after publication of the SSP final rule. FRA sought
                comment on this proposal, and AAR/ASLRRA commented in support. AAJ,
                however, objected to FRA's proposal to use the information protection
                provisions in the SSP final rule to protect RRP information. AAJ stated
                FRA's proposal would ``prematurely curtail the rights of rail accident
                victims'' and ``cut short the full regulatory process on the Risk
                Reduction Rule.'' Instead, AAJ suggests FRA should stay the effective
                date for the SSP final rule until the RRP final rule goes into effect.
                 Upon further consideration, FRA determined this final rule should
                implement the information protections for RRPs, not the SSP final rule.
                Section 20119(b) (emphasis added) states ``Any such rule prescribed
                pursuant to this subsection shall not become effective until 1 year
                after its adoption.'' Thus, FRA concluded the RSIA requires each rule
                implementing information protections to have its own independent
                implementation timeline. FRA believes this approach is a better and
                more reasonable interpretation of Congressional intent in section
                20119(b). Further, the modified approach ensures FRA has complied with
                notice and comment procedures of the Administrative Procedure Act for
                both the RRP and SSP rulemakings.
                Section 271.13--Determination of Inadequate Safety Performance
                 This section describes how FRA will determine which railroads must
                comply with this rule because they have inadequate safety performance.
                This section explains that FRA's analysis has two phases: A
                statistically-based quantitative analysis phase and then a qualitative
                assessment phase. Only railroads identified as possibly having
                inadequate safety performance in the quantitative analysis will
                continue to the qualitative assessment, as discussed further below.
                 The RSIA directs FRA to require railroads with inadequate safety
                performance (as determined by FRA) to develop and implement an RRP. See
                49 U.S.C. 20156(a)(1). Before publishing the NPRM, FRA discussed
                potential definitions of inadequate safety performance during RSAC
                Working Group meetings and conference calls. Based on these
                discussions, which explored various ASLRRA concerns, FRA developed a
                methodology to determine inadequate safety performance. FRA received
                tentative agreement from the RRP Working Group on this methodology, but
                did not seek consensus.
                 The RRP NPRM proposed a two-phase annual process FRA would use to
                determine if a railroad's safety performance was inadequate. The
                proposed process would evaluate only railroads not already complying
                with an SSP or RRP rule, including voluntarily-compliant railroads.
                 For the first phase of the process, FRA proposed conducting a
                statistical quantitative analysis to determine a railroad's safety
                performance index. This quantitative analysis would use railroad data
                maintained by FRA from the three full calendar years before the
                analysis. As proposed, the quantitative analysis would utilize the
                following four factors: (1) On-duty employee fatalities; (2) FRA
                reportable on duty employee injury/illness rate; (3) FRA reportable
                accident/incident rate; and (4) FRA violation rate. The proposed
                quantitative analysis would specifically identify railroads that either
                had a fatality or were at or above the 95th percentile in at least two
                of the three other factors.
                 For the second phase of the process, FRA proposed performing a
                qualitative assessment of railroads that the quantitative analysis
                identified as warranting further review. FRA proposed notifying a
                railroad identified for the qualitative assessment and providing it an
                opportunity to comment and submit documentation supporting any claim
                that it has adequate safety performance. FRA also proposed requiring an
                identified railroad to inform its employees of the FRA notification so
                that the employees could submit confidential comments on the matter
                directly to FRA. FRA's qualitative analysis would then consider
                comments from the railroad and the railroad's employees, as well as any
                other pertinent evidence, in determining the railroad's safety
                performance. Following the qualitative assessment, FRA would inform an
                identified railroad whether or not it must comply with the RRP rule.
                 As an initial matter, FRA notes the language in this section in the
                final rule uses the present tense, while the proposed rule used future
                tense. This change does not affect the substance of this section.
                [[Page 9283]]
                 The National Safety Council (NSC) commented that programs like RRP
                are ``essential safety tools for all companies, irrespective of past
                safety performance.'' NSC claims that railroads that wait to implement
                an RRP until identified with inadequate safety performance are ``weak
                links in the system'' and that creating an inadequate safety
                performance threshold for smaller railroads will make RRP compliance
                punitive, rather than a ``safety best practice that benefits all
                railroads and is part of normal planning and operations.'' NSC suggests
                that all railroads should be encouraged to implement RRPs, and that FRA
                should determine which railroads' safety performance warrants
                additional regulatory oversight.
                 FRA agrees with NSC that encouraging all railroads to implement
                risk reduction programs is important. As mandated by section
                20156(a)(4), and as proposed in the NPRM, this final rule allows
                railroads to voluntarily comply. This final rule's information
                protection provisions will also encourage voluntary RRP compliance by
                ensuring that information a railroad compiles or collects solely for
                RRP purposes is not discoverable or admissible in certain litigation
                proceedings. While this final rule encourages voluntary compliance, FRA
                must fulfill the clear RSIA mandate to require RRP compliance for
                railroads with inadequate safety performance, as determined by FRA. FRA
                therefore concludes that this final rule encourages voluntary
                compliance while also meeting the RSIA mandate to require compliance
                for railroads demonstrating inadequate safety performance.
                 In response to both the NPRM and DOT's regulatory review
                initiative, ASLRRA expressed concern that the methodology proposed in
                the NPRM for identifying railroads with inadequate safety performance
                would result in a disproportionate number of the smallest railroads
                being selected simply because they have a lower number of employees. To
                assess this concern, FRA conducted several analyses of data from FRA's
                Rail Accident/Incident Reporting System (RAIRS), the system that would
                provide the data for determining which railroads demonstrate inadequate
                safety performance. To approximate the NPRM's proposed methodology, FRA
                conducted the analyses for the 3-year period from 2016 through 2018,
                the latest years for which a full 12 months' data were available at the
                time of the analysis.
                 As part of the first analysis, FRA identified all Class II and
                Class III railroads the NPRM's methodology would analyze for inadequate
                safety performance (all Class II and III railroads that would be
                subject to the rule; a total of 745 railroads). For these railroads,
                FRA used data from 2016 through 2018 to calculate: (1) The average
                total train miles operated, and (2) average total employee hours. FRA
                then calculated the same averages for the 11 railroads within the group
                of 745 that reported an employee fatality and the other 734 railroads
                that did not report an employee fatality during that same time period.
                As Table 3 shows, between 2016 and 2018, the entire pool of 745 Class
                II and Class III railroads reported an average of 213,466 total train
                miles operated and 168,476 employee labor hours. The 11 railroads
                reporting an employee fatality had substantially higher averages, with
                3,147,087 train miles operated and 2,081,274 employee hours, while the
                734 railroads without an employee fatality reported an average of
                169,501 total train miles operated, and 139,810 employee labor hours,
                which is substantially below the overall averages for the entire
                population of 745 railroads.
                 Table 3--Operational Data of Class II and Class III Freight Railroads Between 2016 and 2018
                ----------------------------------------------------------------------------------------------------------------
                 Average
                 Number of Average train employee
                 railroads miles hours
                ----------------------------------------------------------------------------------------------------------------
                Railroads on which employee fatalities occurred................. 11 3,147,087 2,081,274
                Railroads without employee fatalities........................... 734 169,501 139,810
                All............................................................. 745 213,466 168,476
                ----------------------------------------------------------------------------------------------------------------
                 Figure 1 contains a histogram showing the distribution of Class II
                and Class III railroads by reported employee labor hours between 2016
                and 2018. Each tick mark along the x-axis represents a range of
                employee hours. The bar heights along the y-axis illustrate the number
                of railroads that reported employee labor hours within a given range of
                employee hours. Figure 1 demonstrates that the vast majority of Class
                II and III railroads report approximately 100,000 annual employee labor
                hours.
                [[Page 9284]]
                [GRAPHIC] [TIFF OMITTED] TR18FE20.047
                 Figures 2 and 3 show the distribution of Class II and Class III
                railroads by train miles reported between 2016 and 2018. (FRA has
                broken this data into 2 separate charts to ensure legibility). The
                number of train miles reported during this period ranged from zero to
                about 15 million. As with Figure 1, the bar heights along the y-axis in
                Figures 2 and 3 indicate how many railroads reported train miles in the
                ranges along the x-axis. Figures 2 and 3 demonstrate that the vast
                majority of Class II and Class III railroads reported 100,000 train
                miles or less between 2016 and 2018.
                BILLING CODE 4910-06-P
                [[Page 9285]]
                [GRAPHIC] [TIFF OMITTED] TR18FE20.048
                BILLING CODE 4910-06-C
                 The data presented in Table 1, as well as the illustrations in
                Figures 1, 2, and 3, strongly suggest that the overall averages for
                Class II and Class III railroads are influenced by a small number of
                larger Class II or Class III railroads.
                 As a second analysis, FRA used the NPRM's quantitative analysis
                methodology to evaluate the 734 Class II and III railroads that did not
                report an employee fatality. FRA excluded the 11 railroads that
                reported an employee fatality from this analysis because the NPRM's
                quantitative analysis would automatically advance them to the
                qualitative assessment. See 80 FR 10967 (Feb 27, 2015). Using the
                NPRM's quantitative analysis methodology, FRA identified railroads for
                further analysis (i.e., identified railroads for qualitative
                assessment) and found that these railroads reported an average 24,645
                [[Page 9286]]
                total train miles and 43,040 employee hours between 2016 and 2018. See
                Table 4. These averages are substantially lower than averages for both
                the entire pool of Class II and Class III railroads (see Table 3) and
                the pool of railroads not reporting an employee fatality. FRA believes
                that the population of railroads selected for further analysis should,
                with respect to size, resemble the overall population from which they
                were drawn. The fact that the railroads selected by the NPRM's
                methodology are so different from the overall population of Class II
                and Class III railroads indicates that the NPRM's quantitative analysis
                potentially over-identified smaller railroads for the qualitative
                assessment.
                 Despite the numbers above, FRA considered the possibility that the
                NPRM's quantitative analysis fairly identified smaller Class II and
                Class III railroads as possibly demonstrating inadequate safety
                performance. Accordingly, FRA conducted a third analysis to test this
                possibility. In this analysis, FRA compared the number of railroads
                selected under the NPRM's proposed quantitative analyses methodology
                with the number of railroads reporting accidents but no fatalities (the
                majority of railroads selected using the NPRM methodology were included
                in part because of their accident rates). As Table 4 shows, the
                population of all railroads on which a nonfatal train equipment
                accident/incident occurred reported an average of 390,091 total train
                miles and an average of 348,824 employee labor hours between 2016 and
                2018. This suggests that the railroads with inadequate safety
                performance should not only be the smaller railroads. For example,
                assuming a full-time employee works 2080 hours per year, the railroads
                selected for qualitative assessment using the NPRM's methodology
                averaged 7 employees each, while the railroads experiencing a nonfatal
                train equipment accident/incident between 2016 and 2018 had an
                estimated 56 employees on average. Based on this result, FRA shares
                ASLRRA's concern that the proposed methodology would over-select the
                smallest railroads.
                 Table 4--Comparison of Data for Railroads Identified by the NPRM's Quantitative Analysis (Excluding Those With
                 at Least One Fatal Accident Between 2016-2018) and Data for All Class II and Class III Freight Railroads on
                 Which Nonfatal Train Accidents/Incidents Occurred
                ----------------------------------------------------------------------------------------------------------------
                 Average
                 Class II and Class III railroads, 2016-2018 Number of Average train employee
                 railroads miles hours
                ----------------------------------------------------------------------------------------------------------------
                Railroads selected under the NPRM-proposed method............... 12 24,645 43,040
                Railroads with nonfatal train accidents/incidents............... 204 390,091 348,824
                ----------------------------------------------------------------------------------------------------------------
                 Therefore, as explained below, FRA has changed the quantitative
                analysis methodology to avoid over-selecting the smallest railroads for
                the qualitative assessment. Applying the changed methodology to RAIRS
                data, railroads identified for quantitative assessment on average
                reported 106,520 train miles operated and 258,881 employee hours from
                2016 through 2018. These averages are much closer to the averages for
                the entire pool of Class II and III freight railroads that the
                quantitative analysis will initially evaluate. As Figures 4 and 5 show,
                10 out of 12 railroads identified for qualitative assessment using the
                NPRM's quantitative analysis reported under 50,000 total train miles,
                but only 4 out of 15 railroads identified using the final rule's
                quantitative analysis methodology reported under 50,000 total train
                miles operated.
                BILLING CODE 4910-06-P
                [[Page 9287]]
                [GRAPHIC] [TIFF OMITTED] TR18FE20.049
                [GRAPHIC] [TIFF OMITTED] TR18FE20.050
                BILLING CODE 4910-06-C
                 These numbers suggest that the changed quantitative analysis method
                is less likely to identify railroads for qualitative analysis that are
                statistical outliers or aberrations due solely to their small size. FRA
                discusses the specific changes it has made to the rule text to reflect
                the new methodology (and other changes) in the section-by-section
                analysis below. For clarity, FRA is discussing each provision of this
                important section, even where FRA did not change certain provisions
                from the NPRM.
                 Paragraph (a) describes FRA's methodology as a two-phase annual
                analysis, comprised of both a quantitative analysis and a qualitative
                assessment. This analysis will not include railroads excluded under
                Sec. 271.3(b) (e.g., commuter or intercity passenger railroads that
                are subject to FRA SSP requirements), railroads otherwise required to
                comply with this rule (i.e., Class I railroads and railroads previously
                determined to have inadequate safety performance under this section),
                railroads that voluntarily comply with this rule under proposed
                [[Page 9288]]
                Sec. 271.15, and new railroads that have reported accident/incident
                data to FRA for fewer than three years. However, paragraph (a)(2)
                states FRA will include new railroads formed through an amalgamation of
                operations (for example, railroads formed through consolidations,
                mergers, or acquisitions of control) in the analysis using the combined
                accident/incident data of the pre-amalgamation entities.
                 Paragraph (b) describes the quantitative analysis, which makes a
                threshold identification of railroads that might have inadequate safety
                performance. This paragraph includes a preliminary selection FRA has
                added to the quantitative analysis to both address ASLRRA's concern
                that the NPRM's proposed methodology would over-select the smallest
                railroads and to filter out railroads with small enough operations that
                the rate-based analysis would lack statistical stability. This
                preliminary selection will help avoid over-selecting the smallest
                railroads by utilizing the absolute number (rather than rates) of two
                factors regarding a railroad's safety performance; FRA selected the
                specific factors in response to comments from the ASLRRA during RSAC
                discussions. Addition of the preliminary selection resulted in FRA
                reorganizing several paragraph (b) NPRM provisions. Paragraph (b)(1)
                specifies the quantitative analysis will be statistically-based and
                include each railroad within the scope of the analysis using historical
                safety data FRA maintains for the three most recent full calendar
                years. The quantitative analysis will include both the added
                preliminary selection and a rate-based analysis, and only railroads the
                preliminary selection identifies will proceed to the rate-based
                analysis.
                 Paragraph (b)(1)(i) describes the preliminary selection FRA has
                added to the quantitative analysis. The first factor for the
                preliminary selection, in paragraph (b)(1)(i)(A), is a railroad's
                number of worker on duty fatalities during the 3-year period,
                determined using Worker on Duty--Railroad Employee (Class A), Worker on
                Duty--Contractor (Class F), and Worker on Duty--Volunteer (Class H)
                information reported on FRA Form 6180.55 under FRA's accident/incident
                reporting regulations in part 225.
                 The second factor for the preliminary selection, in paragraph
                (b)(1)(i)(B), is a railroad's number of FRA reportable worker on duty
                injuries/illnesses during the 3-year period, calculated using ``Worker
                on Duty--Railroad Employee'', Worker on Duty--Contractor (Class F), and
                Worker on Duty--Volunteer (Class H) information reported on FRA Form
                6180.55 under FRA's accident/incident reporting regulations in part
                225, added to a railroad's number of FRA reportable rail equipment
                accidents/incidents during the 3-year period, using information
                reported on FRA Form 6180.54.
                 For railroads with operations large enough for rates to be
                statistically stable, FRA believes that using rates enables a fair
                comparison between operations that might otherwise be very different in
                size. As paragraph (b)(1) explains, FRA will perform the next rate-
                based analysis only on railroads the preliminary selection identifies.
                The rate-based analysis will incorporate three factors regarding a
                railroad's safety performance. The first factor, described in paragraph
                (b)(1)(ii)(A) (proposed paragraph (b)(1)(i) in the NPRM), is a
                railroad's number of on-duty employee fatalities during the 3-year
                period, using Worker on Duty--Railroad Employee (Class A) Worker on
                Duty--Contractor (Class F), and Worker on Duty--Volunteer (Class H)
                information reported on FRA Form 6180.55 under FRA's accident/incident
                reporting regulations in part 225.
                 The second factor, described in paragraph (b)(1)(ii)(B) (proposed
                paragraph (b)(1)(ii) in the NPRM), is a railroad's FRA Worker on Duty
                injury/illness rate, calculated using Worker on Duty--Railroad Employee
                (Class A) Worker on Duty--Contractor (Class F), and Worker on Duty--
                Volunteer (Class H) information reported on Form 6180.55 under FRA's
                accident/incident reporting regulations in part 225. FRA will calculate
                this rate using the following formula:
                Injury/Illness Rate = (Total FRA Reportable Worker on Duty Injuries +
                Total FRA Reportable Worker on Duty Illnesses over a 3-year Period) /
                (Total Employee Hours over a 3-year Period/200,000)
                This calculation gives the rate of employee injuries and illnesses per
                200,000 employee hours calculated over a 3-year period.
                 In the NPRM, the calculation for this factor specified ``Total FRA
                Reportable On Duty Employee Occupational Illnesses over a 3-year
                period'' (emphasis added). FRA is removing the term ``occupational''
                from the calculation in the final rule because part 225 does not always
                use the term ``occupational illness.'' For example, Form 6180.55 is
                titled ``Railroad Injury and Illness Summary.'' For clarity, FRA is
                phrasing the requirement in terms of illnesses a railroad must report
                using Form 6180.55. This change does not affect the substance of this
                provision.
                 Additionally, while the NPRM proposed also using information
                reported on Form 6180.55a (which a railroad must file for each
                reportable injury or illness) for both the first and second factors of
                the quantitative analysis, FRA decided the summary information reported
                on Form 6180.55 is sufficient for these calculations. This change also
                does not affect the substance of this provision.
                 AAR/ASLRRA (jointly) and ASLRRA (independently) commented that
                fatalities and injuries should only count if they relate to the
                operation of a railroad (i.e., not natural causes, suicides, etc.).
                AAR/ASLRRA also commented that few Class III railroads approach the
                200,000-person-hour denominator in the employee injuries and
                occupational illnesses calculation, which can skew results. While FRA
                generally agrees fatalities that do not relate to railroad operations
                are not necessarily indicative of inadequate safety performance, the
                quantitative analysis in paragraph (b) is merely a threshold
                determination and cannot account for every mitigating circumstance. As
                such, the qualitative assessment paragraph (c) establishes (discussed
                below) gives a railroad (and railroad employees) the opportunity to
                provide any such mitigating information regarding the railroad's number
                of fatalities, and FRA will consider that information when making its
                final determination. Regarding AAR/ASLRRA's concern that the 200,000-
                person-hour denominator would skew results for small railroads,
                although FRA does not agree that a scaling factor alone induces
                sampling bias, FRA does agree that the results of the quantitative
                analysis presented in the NPRM did over-select the smallest railroads.
                FRA therefore added the preliminary selection to the quantitative
                analysis to avoid over-selecting the smallest railroads, as discussed
                above.
                 The third factor, described in paragraph (b)(1)(ii)(C) (proposed
                paragraph (b)(1)(iii) in the NPRM), is a railroad's FRA reportable rail
                equipment accident/incident rate, calculated using information reported
                on FRA Form 6180.54 and Form 6180.55. FRA will calculate this rate
                using the following formula:
                Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail
                Equipment Accidents/Incidents over a 3-year Period / (Total Train Miles
                over a 3-year Period/1,000,000)
                 This calculation gives the rate of rail equipment accidents/
                incidents per
                [[Page 9289]]
                1,000,000 train miles calculated over a 3-year period.
                 Paragraph (b)(1)(iv) of the NPRM proposed a fourth factor for the
                rate-based analysis: A railroad's FRA violation rate, calculated using
                FRA's field inspector data system. AAR/ASLRRA and ASLRRA commented that
                the proposed violation rate factor was meaningless because many
                violations relate to records or are dropped by FRA due to mitigating
                circumstances or failure to adequately document the violation. In
                response to DOT's regulatory review initiative, ASLRRA also commented
                that including violations, which are at an inspector's discretion,
                could be utilized to ensure a short line's inclusion. FRA's analysis
                suggests that a very small number of railroads were selected for
                qualitative assessment because of violation rates, and that removing
                this factor would likely not materially affect the number of railroads
                that are determined to have inadequate safety performance. Given the
                commenters' concerns and the negligible effect of removing this factor,
                in this final rule, FRA is not including a railroad's FRA violation
                rate as a factor in the rate-based analysis. To the extent a railroad's
                FRA violations may indicate inadequate safety performance, FRA will
                consider them as ``other pertinent information'' during the qualitative
                assessment, as discussed below in the section-by-section analysis for
                paragraph (c)(2) of this section.
                 Paragraph (b)(2)(i) states the preliminary selection will identify
                a railroad for rate-based analysis if the railroad meets at least one
                of two conditions. The first condition is when a railroad has one or
                more fatalities. FRA considers an on duty employee fatality a strong
                indication of inadequate safety performance. If a railroad has at least
                one fatality within the 3-year period of the quantitative analysis, FRA
                will examine that railroad further in the rate-based analysis.
                 The second condition is when a railroad was at or above the 90th
                percentile in the factor described in paragraph (b)(1)(i)(B) of this
                section (e.g., the sum of a railroad's FRA injury/illness count and its
                FRA accident/incident count). For example, if the scope of data
                includes a set of 100 railroads, FRA would identify the railroads with
                the ten highest total injury/illness and accident/incident count.
                 For railroads that advance to the rate-based analysis from the
                preliminary selection, the rate-based analysis will identify railroads
                as possibly having inadequate safety performance based on the factors
                described in paragraph (b)(2)(ii). Paragraph (b)(2)(ii) (proposed
                paragraph (b)(2) in the NPRM) states the rate-based analysis will
                identify a railroad as possibly having inadequate safety performance if
                at least one of two conditions is met. The first condition, described
                in paragraph (b)(2)(ii)(A), is when a railroad has one or more
                fatalities. As stated above regarding the preliminary selection, FRA
                considers an on-duty employee fatality a strong indication of
                inadequate safety performance. If a railroad has at least one fatality
                within the 3-year period of the quantitative analysis, FRA will examine
                that railroad further in the qualitative assessment.
                 AAR/ASLRRA commented paragraph (b)(2)(i) in the NPRM stated the
                quantitative analysis would identify a railroad if the ``railroad has
                one or more fatalities,'' without reference to the 3-year period.
                Corresponding paragraph (b)(2)(ii)(A) in the final rule clarifies that
                the rate-based analysis will identify a railroad if it has one or more
                fatalities ``as calculated in paragraph (b)(1)(ii)(A).'' Because
                paragraph (b)(1)(ii)(A) specifically references the 3-year period, the
                final rule clarifies the 3-year period applies when identifying
                railroads with one or more fatalities.
                 The second condition, described in paragraph (b)(2)(ii)(B), is when
                a railroad is at or above the 90th percentile in either of the factors
                described in paragraphs (b)(1)(ii)(B) and (C) of this section (e.g., a
                railroad's injury/illness rate, or FRA accident/incident rate). FRA
                will examine further those railroads identified in one or more of these
                factors in the qualitative assessment. Paragraph (b)(2)(ii) in the NPRM
                proposed that the quantitative analysis would identify for further
                analysis railroads at the 95th percentile in at least two of three
                factors. (The third factor was a railroad's FRA violation rate, which
                FRA has removed from the rate-based analysis as discussed above.) The
                NPRM explained that this percentile would identify approximately 42
                railroads over a five-year period, and that FRA considered this a
                reasonable pool of railroads to examine further in the qualitative
                assessment. See 80 FR 10967 (Feb. 2015). While FRA still believes this
                is a reasonable number of railroads to examine in the qualitative
                analysis, the addition of the preliminary selection to the ISP
                determination process will reduce the number of railroads considered in
                the rated-based analysis. The removal of a railroad's FRA violation
                rate from consideration will also reduce the number of factors
                considered when identifying railroads for the qualitative assessment.
                To obtain a similar pool of railroads for the qualitative analysis
                under the final rule, FRA has therefore changed the second condition of
                the rate-based analysis to the 90th percentile of railroads in either
                of the two remaining factors. Preliminary analyses estimate FRA's
                approach will identify approximately 40-45 railroads over a five-year
                period,\18\ which is consistent with FRA's position in the NPRM that 43
                potential railroads are a reasonable pool to examine further in the
                qualitative analysis.
                ---------------------------------------------------------------------------
                 \18\ FRA's analysis estimated that approximately eight to nine
                railroads would be identified each year.
                ---------------------------------------------------------------------------
                 AAR/ASLRRA commented that when FRA determines whether it should
                subject a railroad to a qualitative analysis, the two conditions should
                be causally-related, and not two completely unrelated measurements.
                Specifically, AAR/ASLRRA commented that the conditions related to
                employee casualties and reportable accident/incident data should be
                related to railroad operations. Issues regarding causation, however,
                will be part of the qualitative analysis. FRA has therefore not made
                any changes in response to this comment.
                 An individual commented supporting a previous individual comment
                submitted in response to the ANPRM, asserting a ``key metric for
                deciding if a non-Class I railroad has an `inadequate safety record' .
                . . should be whether it transports the most dangerous hazmat cargoes
                through urban areas or sensitive environmental areas.'' The New Jersey
                Work Environment Council's comment shared this concern.
                 FRA does not believe that simply transporting dangerous hazardous
                materials through urban or sensitive environmental areas is a valid
                metric for determining whether a railroad has inadequate safety
                performance. Such operations only indicate a railroad's specific
                hazards and risks, and do not indicate whether a railroad is safely
                performing such operations. FRA's quantitative analysis will identify
                such railroads, however, if they have a worker on-duty fatality or a
                high number and rate of FRA reportable accidents/incidents, FRA
                reportable illnesses/injuries, and FRA violations (as calculated by the
                rule's methodology). Once the quantitative analysis identifies such a
                railroad, FRA can review factors such as the shipment of dangerous
                hazardous materials through urban or sensitive environmental areas as
                part of the qualitative analysis. For example, FRA has data regarding
                shippers of
                [[Page 9290]]
                hazardous materials, commodity flows, and other GIS-related data that
                can be considered in the qualitative analysis. Additionally, the HHFT
                Final Rule establishes requirements regarding the routing of certain
                hazardous materials. FRA therefore concludes this final rule should not
                consider imposing an additional regulatory requirement upon railroads
                simply based on whether a railroad transports dangerous hazardous
                materials through urban or sensitive environmental areas.
                 To summarize, the below flow chart illustrates how the quantitative
                analysis will identify railroads for the qualitative assessment.
                [GRAPHIC] [TIFF OMITTED] TR18FE20.051
                 Paragraph (c) describes FRA's qualitative assessment of railroads
                the quantitative analysis identifies as possibly having inadequate
                safety performance. FRA made several non-substantive changes in this
                paragraph to replace passive voice with active voice. During the
                qualitative assessment, FRA will consider documentation from the
                railroad, comments from the railroad's employees, and any other
                pertinent information. This input will help FRA determine whether the
                quantitative analysis accurately identified a problem with the
                railroad's safety performance. Essentially, the qualitative assessment
                serves as a safety valve that helps FRA avoid determining a railroad
                demonstrates ISP merely because of one or more statistical outliers in
                FRA's data.
                 Paragraph (c)(1) states FRA will provide initial written
                notification to railroads identified in the threshold quantitative
                analysis as possibly having inadequate safety performance. Paragraph
                (c)(1)(i) further specifies that a notified railroad must inform its
                employees of FRA's notice within 15 days of receiving notification. A
                railroad must post this employee notification at all locations where a
                railroad reasonably expects its employees to report for work and have
                an opportunity to observe the notice. The railroad must continuously
                display the notice until 45 days following FRA's initial notice. A
                railroad must use other means to notify employees who do not have a
                regular on duty point to report for work, consistent with the
                railroad's standard practice for communicating with employees. Such a
                notification could take place by email, for example. The notification
                must inform employees that they may submit confidential comments to FRA
                regarding the railroad's safety performance, and must contain
                instructions for doing so. Any such employee comments must be submitted
                within 45 days of FRA's initial notice. FRA changed this
                [[Page 9291]]
                paragraph from the NPRM to add additional language specifying the
                railroad must also inform employees they must file any comments with
                the FRA Associate Administrator for Railroad Safety and Chief Safety
                Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
                 Likewise, paragraph (c)(1)(ii) provides railroads 45 days from
                FRA's initial notice to provide FRA documentation supporting any claim
                the railroad does not have inadequate safety performance. For example,
                if a fatality on railroad property was determined to be due to natural
                causes (such as cardiac arrest), or if an accident/incident was due to
                an act of God, the railroad's chief safety officer could provide a
                signed letter attesting to the facts and explaining why FRA should not
                find the railroad has inadequate safety performance. A railroad could
                also submit information regarding any extenuating circumstances of an
                incident or the severity of an injury (for example, a bee sting may not
                be as serious a safety concern as a broken bone, depending on the
                circumstances), or evidence that the railroad has already taken steps
                that effectively address a problem that led to the railroad being
                identified as possibly demonstrating inadequate safety performance.
                Further, although FRA has removed a railroad's FRA violation rate from
                the rated-based analysis, FRA may consider violations during the
                qualitative assessment (see below discussion of paragraph (c)(2)). FRA
                therefore still encourages a railroad to submit information regarding
                its FRA violations for consideration during the qualitative assessment.
                For example, FRA will consider explanations regarding FRA-issued
                violations and any mitigating action the railroad has taken to remedy
                the violations. FRA adopts this provision unchanged from the NPRM.
                 Paragraph (c)(2) describes the qualitative assessment of railroads
                the quantitative analysis identified. During the qualitative
                assessment, FRA will consider information a railroad or its employees
                provide under paragraph (c)(1) of this section and any other pertinent
                information. Even though FRA is removing a railroad's FRA violation
                rate from consideration in the quantitative analysis in response to
                concerns from AAR and ASLRRA (as discussed above), FRA does not agree
                with AAR and ASLRRA's contention that violations are ``meaningless''
                when determining whether a railroad has inadequate safety performance.
                For example, frequent or severe violations of safety regulations can be
                an important indicator of a railroad's overall safety culture. This
                could be especially true in situations where FRA has issued the
                violations only after other attempts to correct the railroad's repeated
                non-compliance (e.g., by issuing notices of defects or other written or
                verbal notices of non-compliance) have failed. Similarly, FRA also
                issues violations for one-time instances of non-compliance that are
                particularly egregious from a railroad safety perspective (e.g.,
                interference with a grade crossing system that results in an activation
                failure). In determining whether a railroad demonstrates inadequate
                safety performance, FRA considers it essential to consider violations
                to the extent they indicate either a poor safety culture or a one-time
                instance of non-compliance that is egregious or critical to safety. FRA
                is therefore adding language to paragraph (c)(2) clarifying that FRA
                may consider violations during the qualitative assessment.
                 FRA may communicate with the railroad during the qualitative
                assessment to clarify its understanding of any information the railroad
                submitted. Based upon the qualitative assessment, FRA will make a final
                determination regarding whether a railroad has inadequate safety
                performance no later than 90 days following FRA's initial notice to the
                railroad. Except for the added language regarding violations, FRA
                adopts this provision unchanged from the NPRM.
                 Paragraph (d) states FRA will provide a final notification to each
                railroad given an initial notification under paragraph (c) of this
                section, informing the railroad whether FRA has found it has inadequate
                safety performance. FRA has made a minor, non-substantive change to the
                NPRM's language to make the first sentence of this paragraph easier to
                read. Additionally, proposed paragraph (d) contained language
                addressing ISP railroad compliance, which FRA has moved to paragraph
                (e) of this section for organizational purposes. Consequently, there
                are non-substantive organizational changes to paragraph (e).
                 Paragraph (e)(1) contains language from proposed paragraph (d) of
                the NPRM, stating that an ISP railroad must develop and implement an
                RRP meeting the requirements of this rule and must submit an RRP plan
                meeting the filing and timing requirements of Sec. 271.301. FRA has
                made minor changes to this language to streamline its content and avoid
                needlessly repeating the requirements of Sec. 271.301. These changes
                do not affect the substance of the requirement.
                 Paragraph (e)(2) contains language from proposed paragraph (e) and
                states a railroad with inadequate safety performance must comply with
                the requirements of this rule for at least five years from the date FRA
                approves the railroad's RRP plan. FRA has made minor, non-substantive
                changes to streamline this language. As the NPRM explained, a five-year
                compliance period provides the minimum time necessary for an RRP to
                improve a railroad's safety performance. See 80 FR 10968 (Feb. 27,
                2015). FRA expects a railroad with inadequate safety performance will
                take 36 months (3 years) following FRA plan approval to fully implement
                its RRP under Sec. 271.225(a).\19\ FRA does not expect an RRP, in
                itself, to improve a railroad's safety performance during this three-
                year implementation period, as a railroad will need this time to
                conduct a risk-based hazard analysis, prioritize risks, and develop
                mitigation strategies. A railroad will then begin applying mitigation
                strategies when it fully implements its RRP after three years. Once a
                railroad fully implements its RRP and begins applying mitigation
                strategies, the RRP will have at least two years to improve the
                railroad's safety performance by implementing mitigation measures and
                tracking their success. FRA bases this belief on an evaluation of an
                FRA Confidential Close Call Reporting System (C\3\RS) demonstration
                site showing that C\3\RS generated safety improvements two-and-a-half
                years after the railroad implemented the program.\20\ See Ranney, J.
                and Raslear, T., ``Derailments decrease at a C\3\RS site at midterm,''
                FRA Research Results: RR12-04, April 2012, available at http://www.fra.dot.gov/eLib/details/L03582. The five-year compliance period
                therefore gives a railroad three years to fully implement its RRP and
                two years for a fully-implemented RRP to generate safety improvements.
                The two-year period after full implementation also provides FRA at
                least one opportunity
                [[Page 9292]]
                to conduct an external audit of the railroad's fully-implemented RRP
                and to provide the railroad written results. FRA concludes, therefore,
                that the five-year compliance period is necessary to determine whether
                a railroad's fully-implemented RRP is generating safety improvements
                that are sustainable. FRA adopts this paragraph unchanged from the
                NPRM.
                ---------------------------------------------------------------------------
                 \19\ FRA considered requiring a railroad with inadequate safety
                performance to comply with this rule for two years after submitting
                a notice to FRA demonstrating it had fully implemented its RRP. FRA
                concludes, however, that such a notice would impose an additional
                paperwork and cost burden on both the railroad and FRA. Rather, FRA
                believes most railroads will take three years to fully implement an
                RRP as Sec. 271.225(a) allows.
                 \20\ Specifically, the evaluation found the following safety
                improvements at the C\3\RS demonstration site: (1) A 31-percent
                increase in the number of cars moved between incidents; (2) improved
                labor-management relations and employee engagement (i.e., an
                improved safety culture); and (3) a reduction in discipline cases.
                See Ranney, J. and Raslear, T., ``Derailments decrease at a C3RS
                site at midterm,'' FRA Research Results: RR12-04, April 2012,
                available at http://www.fra.dot.gov/eLib/details/L03582.
                ---------------------------------------------------------------------------
                 FRA is adding language in paragraph (f) establishing an appeals
                process for railroads that FRA determines demonstrate inadequate safety
                performance. AAR/ASLRRA commented urging FRA to establish an appeals
                process for railroads that the proposed methodology identifies as
                having inadequate safety performance. AAR/ASLRRA noted that other FRA
                regulations include such a process (e.g., part 240--Qualification and
                Certification of Locomotive Engineers and part 242--Qualification and
                Certification of Conductors), and FRA has acknowledged such processes
                are fair and successful. AAR/ASLRRA specifically suggested that the
                process should ``allow neutral persons to review and provide a
                determination, which would enhance objectivity.'' AAR/ASLRRA did not
                provide a specific suggestion indicating who should be the ``neutral
                persons.''
                 FRA agrees including an appeals process for railroads determined to
                have inadequate safety performance would be fair. FRA therefore changed
                Sec. 271.13 to add a process allowing railroads to petition the FRA
                Administrator for reconsideration of inadequate safety performance
                determinations under 49 CFR 211.7(b)(1), 211.56, and 211.59, which are
                procedures to appeal various FRA actions to the Administrator (e.g.,
                Railroad Safety Board decisions regarding petitions for waiver of
                safety rules under 49 CFR part 211, subpart C). These procedures are
                well-established and should be familiar to the railroad industry.
                 Providing a direct appeal to the Administrator is appropriate
                because FRA will have already created a record of the inadequate safety
                performance determination as part of the quantitative and qualitative
                analysis. This record will also include comments and documentation
                railroads and railroad employees have submitted to FRA as part of the
                qualitative assessment.\21\ After reviewing the record, the
                Administrator may either affirm, modify, or revoke the determination.
                Using existing procedures for appealing inadequate safety performance
                determinations reduces both uncertainty and unnecessary duplication.
                ---------------------------------------------------------------------------
                 \21\ Because AAR/ASLRRA's comment specifically referenced the
                appeals processes of parts 240 and 242 (which govern locomotive
                engineer and conductor certification), FRA notes that the record
                created during the inadequate safety performance analysis parallels
                the record created during an administrative hearing under Sec. Sec.
                240.409 and 242.509. FRA does not believe it is necessary to
                establish a board similar to the Operating Crew Review Board (OCRB)
                to review these determinations before an appeal to the
                Administrator, as the OCRB only reviews railroad certification
                decisions under parts 240 and 242 and does not act in a fact-finding
                capacity. Unlike with locomotive engineer and conductor
                certification proceedings, there will be no railroad determination
                in the RRP context for such a board to review. FRA also believes
                incorporating too many layers of appeal would unduly slow down the
                inadequate safety performance determination process.
                ---------------------------------------------------------------------------
                 Paragraph (f)(1) states that a railroad wishing to appeal a final
                written ISP determination must file a petition for reconsideration with
                the Administrator. Paragraph (f)(1)(A) states a railroad must file the
                petition no later than 30 days after the date the railroad receives
                FRA's final written notice under paragraph (d) of this section, and
                paragraph (f)(1)(B) states a railroad must comply with the procedures
                in Sec. Sec. 211.7(b)(1) and 211.57. Paragraph (f)(2) states FRA will
                process petitions under Sec. 211.59.
                 Because FRA is including an appeals process in paragraph (f) of the
                final rule, FRA has moved proposed paragraph (f) from the NPRM to
                paragraph (g) in this final rule. At the end of the five-year period,
                paragraph (g) provides that the railroad may petition FRA for approval
                to discontinue compliance with this rule, and FRA will process the
                petition using the procedures for waivers in 49 CFR 211.41. While the
                NPRM merely referenced the waiver provisions of part 211 in general,
                FRA is specifying Sec. 211.41 in the final rule to clarify that the
                railroad must follow the procedures for waivers of safety rules (and
                not other petition processes in part 211, such as petitioning for a
                rulemaking in Sec. 211.11). Further, while the NPRM did not specify
                how FRA would process the petition, FRA also changed this language to
                clarify that FRA will process the petition under Sec. 211.41. As a
                result, FRA also removed language in the NPRM stating that FRA will
                notify a railroad in writing whether or not the railroad must continue
                compliance with the rule. This language is unnecessary because Sec.
                211.41 contains provisions regarding what notification FRA must provide
                a railroad. Upon receiving a petition, FRA will evaluate the railroad's
                safety performance to determine whether the railroad's RRP has resulted
                in significant safety improvements, and whether these measured
                improvements are likely to be sustainable in the long term. FRA's
                evaluation will include a quantitative analysis as described in
                paragraph (b). FRA has added language to this paragraph clarifying that
                FRA will not automatically grant a petition to discontinue compliance
                if the quantitative analysis results do not meet the identification
                thresholds described for moving on to the qualitative analysis
                (although FRA would certainly consider such results). For all
                petitions, FRA will also examine qualitative factors and review
                information from FRA RRP audits and other relevant sources. This
                approach ensures that a railroad is not granted permission to
                discontinue compliance when its safety record has not substantively
                improved, but, rather, the rest of the railroad industry has become
                statistically less safe, thereby making the ISP railroad appear only
                comparatively safer. In such a scenario, FRA believes it will be
                appropriate to effectively increase the pool of ISP railroads by
                requiring continued compliance for ISP railroads that have not
                substantively improved their safety performance. While ASLRRA commented
                in response to DOT's regulatory review initiative that there was no
                performance benchmark for removal from mandatory ISP compliance, FRA
                believes that this approach--combining a new ISP analysis with an
                evaluation of whether the ISP railroad's RRP has generated long-term,
                sustainable safety benefits--provides a sufficient benchmark for
                judging whether an ISP railroad must continue RRP compliance.
                 Analysis of the railroad's safety performance to decide whether FRA
                should grant its petition will depend on the unique characteristics of
                the railroad and its RRP. Therefore, it is not possible to enumerate
                the types of data FRA will examine to evaluate a petition to
                discontinue compliance. In general, FRA will look at information it
                needs to determine whether there are real and lasting changes to the
                operational safety and organizational safety culture. The Safety Board
                will use staff recommendations and other information it deems necessary
                to make a final determination about whether granting a petition is in
                the interest of public safety. After completing the evaluation, FRA
                will notify the railroad in writing whether it will be required to
                continue compliance with this part. FRA will encourage a railroad to
                continue its RRP voluntarily even if FRA grants its petition to
                discontinue compliance with this part. If a railroad decides to
                continue its RRP after FRA grants its petition to discontinue
                compliance, FRA will consider the railroad a
                [[Page 9293]]
                voluntarily-compliant railroad under Sec. 271.15. This will continue
                application of Sec. 271.11 to protect information the railroad
                continues to compile or collect under its voluntary RRP from discovery
                and admission as evidence in litigation. If a railroad decides not to
                continue with a voluntarily-compliant RRP meeting the requirements of
                this part, information it compiled or collected under the RRP will
                remain protected under Sec. 271.11. However, Sec. 271.11 will not
                protect any new information compiled or collected after the railroad
                discontinues its RRP.
                Section 271.15--Voluntary Compliance
                 The RSIA provides that railroads not required to establish a
                railroad safety risk reduction program may nevertheless voluntarily
                submit for FRA approval a plan meeting the requirements of the statute.
                See 49 U.S.C. 20156(a)(4). Section 271.15(a) implements this language
                by permitting a railroad not otherwise subject to the rule to
                voluntarily comply by establishing and fully implementing an RRP that
                meets the requirements of the rule. While this paragraph in the NPRM
                said a voluntarily-compliant railroad ``could be subject to civil
                penalties for failing to comply with the requirements of this part,''
                FRA is rephrasing this sentence and changing ``could'' to ``is'' in the
                final rule to make this language consistent with other provisions in
                FRA regulations discussing civil penalties (See e.g., Sec. 271.9 of
                this final rule). This change does not affect the substance of this
                paragraph. Because FRA otherwise adopts paragraph (a) unchanged from
                the NPRM, FRA is not repeating the NPRM's section-by-section analysis
                here but refers interested readers to the NPRM's discussion. See 80 FR
                10969 (Feb. 27, 2015).
                 Paragraph (b) specifies that a voluntarily-compliant railroad must
                comply with this rule's requirements for a minimum period of five
                years, running from the date on which FRA approves the railroad's RRP
                plan. As with ISP railroads, the rule therefore provides a voluntarily-
                compliant railroad three years to fully implement an RRP under Sec.
                271.225(a) and two years following full implementation to realize RRP-
                related safety improvements. Further, as the NPRM and the above
                section-by-section analysis for Sec. 271.13(e)(2) explain, a five-year
                period provides the minimum amount of time necessary for an RRP to have
                a substantive effect on a railroad's safety performance. See 80 FR
                10969 (Feb. 27, 2015).
                 AAR/ASLRRA and ASLRRA both commented that a five-year compliance
                period was unnecessary and that FRA should require railroads to
                voluntarily comply only for two years, asserting small railroads can
                make changes quickly and efficiently. As explained above, a minimum
                five-year compliance period appropriately provides a voluntarily-
                compliant railroad three years to fully implement its RRP and two years
                following full implementation to realize safety improvements. Further,
                because there is a wide range of size among Class II and Class III
                railroads, FRA does not believe all voluntarily compliant railroads
                will be able to establish an RRP and achieve safety improvements in two
                years.\22\
                ---------------------------------------------------------------------------
                 \22\ FRA also notes that the STB classifies railroads based on
                revenue, not system size or complexity. See 49 CFR 1201.1-1.
                Further, revenue alone may not be an adequate indicator of how
                quickly a railroad could implement an RRP.
                ---------------------------------------------------------------------------
                 An RRP is also an ongoing commitment to safety, not a program a
                railroad temporarily implements to address a specific problem and then
                abandons once the problem is fixed. Such an approach would make RRP
                another reactive program, instead of a proactive approach to improving
                railroad safety. Moreover, a railroad that volunteers to comply with
                the RRP rule, knowing such compliance must last five years, is making
                an important demonstration of that safety commitment. If a voluntarily-
                compliant railroad concludes that an RRP has either achieved the
                railroad's safety goals or is not producing safety benefits before the
                end of the five-year compliance period, the railroad could petition FRA
                for a waiver from this rule's requirements under part 211, subpart C's
                procedures for requesting waivers of safety rules.
                 The five-year compliance period also helps prevent situations in
                which a railroad will voluntarily comply for a few months or years only
                to selectively take advantage of this rule's information protections,
                abandoning the program once the railroad has achieved its information
                protection goals. If a railroad wishes to have this rule's information
                protection benefits, the railroad should earnestly commit to complying
                for a minimum of five years, which gives the railroad three years to
                fully implement its RRP and two years to realize safety improvements
                following full implementation.
                 Finally, FRA will expend agency time and resources in approving a
                voluntarily-compliant railroad's RRP plan and auditing the railroad's
                RRP. In return, FRA expects a voluntarily-compliant railroad to commit
                to complying with this rule for five years. Otherwise, FRA could expend
                agency resources for limited or even non-existent safety benefits.
                 Conversely, Labor Organizations I argued that FRA should require
                voluntarily-compliant railroads to comply with the rule permanently. A
                permanent compliance approach, however, could disincentivize voluntary
                compliance to the extent that no (or very few) railroads would ever
                volunteer. FRA therefore declines to require permanent, voluntary
                compliance.
                 The NPRM also requested public comment on whether FRA should allow
                railroads to voluntarily comply with an SSP final rule instead of an
                RRP final rule. No commenters responded to FRA's questions, and FRA is
                not including a voluntary SSP compliance provision in this final rule.
                FRA concludes that any such provision would properly belong in the SSP
                rule, not the RRP rule.
                 Paragraph (c) in the NPRM proposed that a voluntarily-compliant
                railroad could petition FRA to discontinue compliance with the rule
                after the minimum five-year compliance period. ASLRRA commented that
                the requirement to comply should terminate automatically, unless FRA
                determines otherwise. After reassessing proposed paragraph (c), FRA is
                concerned that the proposed approach would disincentivize voluntary
                compliance by making it more difficult for a voluntarily-compliant
                railroad to leave the program once it joins. Paragraph (c) of the final
                rule therefore provides that a voluntarily-compliant railroad may
                discontinue mandatory compliance with this rule after the five-year
                period by providing written notice to the FRA Associate Administrator
                for Railroad Safety and Chief Safety Officer. This approach will not
                negatively impact safety, because FRA will add the former voluntarily-
                compliant railroad to the pool of railroads FRA annually analyzes for
                inadequate safety performance. Some inefficiencies may occur if a
                former voluntarily-compliant railroad dismantles its RRP, but then must
                recreate the program if FRA determines that the railroad demonstrates
                inadequate safety performance. However, this scenario is unlikely for
                several reasons. First, the rule's information protections will be an
                incentive for a railroad to continue compliance, as the protections
                will not apply to information that a railroad compiles or collects for
                non-RRP purposes. This incentive will lower the number of voluntarily-
                compliant railroads that decide to discontinue mandatory compliance.
                Second, a voluntarily-compliant railroad will not discontinue
                compliance if it reasonably
                [[Page 9294]]
                believes FRA will thereafter determine that the railroad demonstrates
                inadequate safety performance because, if FRA then found the railroad
                had inadequate safety performance, the railroad could discontinue
                compliance only if FRA granted its petition to discontinue under Sec.
                271.13(g). Finally, FRA believes many voluntarily-compliant railroads
                will comply indefinitely with the RRP rule because they will realize
                the safety benefits an RRP generates. Once a voluntarily-compliant
                railroad implements an RRP and begins to realize its safety benefits,
                it is unlikely the railroad would dismantle its program.
                 Paragraph (d) provides that the information protection provisions
                of Sec. 271.11 apply to information a voluntarily-compliant railroad
                compiles or collects under a voluntarily-compliant RRP meeting the
                requirements of this rule. As discussed in the section-by-section
                analysis for Sec. 271.11, voluntary risk reduction programs (for
                example, programs generated as part of a Short Line Safety Institute)
                must fully comply with this rule for the information generated to be
                protected from discovery and use as evidence in litigation. FRA changed
                this provision from the NPRM to include a reference to Sec.
                271.301(b)(4)(ii), discussed further below, which provides that the
                Sec. 271.11 information protections will apply to a voluntarily-
                compliant railroad starting on the day the railroad notifies FRA it
                intends to file an RRP plan for review and approval. FRA also modified
                this provision by removing the word ``only,'' which could have implied
                that Sec. 271.11 applied only to voluntarily-compliant railroads.
                 ASLRRA generally commented that ``FRA has proposed requirements
                designed to limit the number of railroads that comply voluntarily. The
                ASLRRA submits that any requirement to limit the number of small
                railroads that comply voluntarily is antithetical to the letter and
                spirit of the RSIA.'' ASLRRA's comment is unclear to FRA, as FRA does
                not believe Sec. 271.15 establishes requirements to limit the number
                of railroads that comply voluntarily. To the extent ASLRRA's comment
                means the five-year compliance period would disincentivize voluntary
                participation, FRA refers to the above discussion of why FRA believes
                this compliance period is necessary. FRA also believes that this rule's
                information protections provide a reasonable incentive for voluntarily-
                compliant railroads, even with the five-year compliance period.
                Subpart B--Risk Reduction Program Requirements
                 Subpart B contains the basic RRP elements the rule requires. The
                rule provides a railroad significant flexibility in developing and
                implementing an RRP.
                Section 271.101--Risk Reduction Programs
                 Section 271.101 contains general RRP requirements. Paragraph (a)
                requires railroads to establish and fully implement an RRP meeting the
                requirements of this rule. Except for the minor changes discussed
                below, FRA adopts paragraph (a) unchanged from the NPRM. FRA therefore
                refers interested readers to the NPRM's discussion. See 80 FR 10969
                (Feb. 27, 2015).
                 As proposed in the NPRM, the third sentence of paragraph (a)
                stated, ``An RRP is not a one-time exercise, but an ongoing program
                that supports continuous safety improvement.'' FRA has removed the
                phrase ``not a one-time exercise, but'' in the final rule, so the
                sentence now reads, ``An RRP is an ongoing program that supports
                continuous safety improvement.'' This change does not affect the
                substantive meaning of the sentence (which is to indicate the ongoing
                nature of an RRP) and was made solely to streamline the regulatory
                language.
                 FRA also changed paragraph (a) to include a sentence clarifying
                that a railroad must design its RRP to promote and support a positive
                safety culture at the railroad. Although the NPRM did not propose this
                specific language, FRA believes promoting a positive safety culture is
                intrinsic to SMS programs like RRP, and improving a railroad's safety
                culture was extensively discussed in the NPRM. See id. at 10952, 10953,
                10968, 10971, and 10973. A railroad must also identify and analyze its
                safety culture under Sec. 271.105(a), describe its safety philosophy
                and safety culture under Sec. 271.203(b)(1), and describe how it
                promotes improvements to its safety culture under Sec. 271.203(b)(2).
                The added language reflects that an important component of an RRP is an
                improved safety culture. Further, the SSP NPRM proposed identical
                language, which is included in the SSP rule, and FRA is including this
                language in paragraph (a) to promote consistency between the two rules.
                See 77 FR 55403 (Sept. 7, 2012) and 81 FR 53878, 53897 (Aug. 12, 2016).
                FRA inadvertently omitted including this language in the RRP NPRM.
                 Paragraphs (a)(1) through (5) list necessary components that an RRP
                must contain, including: (1) A risk-based hazard management program
                (described in Sec. 271.103); (2) a safety performance evaluation
                component (described in Sec. 271.105); (3) a safety outreach component
                (described in Sec. 271.107); (4) a technology analysis and technology
                implementation plan (described in Sec. 271.109); and (5) RRP
                implementation and support training (described in Sec. 271.111). FRA
                adopts these paragraphs unchanged from the NPRM.
                 Paragraph (a)(6) references a component the NPRM did not
                specifically include: Involvement of railroad employees in the
                establishment and implementation of an RRP under Sec. 271.113. The
                section-by-section analysis for Sec. 271.113 discusses the substance
                of this additional component in detail.
                 Paragraph (b) requires a railroad to support its RRP with an FRA-
                approved RRP plan meeting subpart C requirements. FRA adopts paragraph
                (b) unchanged from the NPRM. Proposed paragraph (c) of the NPRM
                addressed railroads subject to the RRP rule that host passenger train
                service for passenger railroads subject to the requirements of the SSP
                rule. Under Sec. 270.103(a)(2) of the SSP rule, a passenger railroad
                must communicate with each host railroad to coordinate the portions of
                its SSP plan applicable to the host railroad. See 81 FR 53897 (Aug. 12,
                2016). Paragraph (c) of the NPRM proposed requiring a host railroad, as
                part of its RRP, to participate in this communication and coordination
                with the passenger railroad.
                 APTA commented that proposed paragraph (c) ``aspires to
                communication and cooperation, but provides no framework for
                accomplishing either and no standard by which to measure either.'' FRA
                does not agree that this provision requires additional framework or
                standards. Because no two arrangements between a passenger railroad and
                a host railroad will be the same, a passenger railroad and host
                railroad should have the flexibility to communicate and cooperate in
                the manner best suited to their particular operations. However, FRA
                made minor changes to proposed paragraph (c) for clarity. FRA also
                designated proposed paragraph (c) as paragraph (c)(1). FRA does not
                intend these changes to affect the substance of the provision.
                 In response to DOT's regulatory review initiative, VRE commented
                expressing concern that it may be subject to enforcement action if,
                despite attempting in good faith to communicate with its host railroads
                (which include CSX Transportation,
                [[Page 9295]]
                Norfolk Southern Corporation, and Amtrak) as the SSP rule requires, its
                host railroads did not cooperate in producing data or other information
                necessary for VRE's SSP. See DOT-OST-2017-0069-2405. Paragraph (c)
                addresses VRE's concern, as it specifically requires an RRP railroad to
                communicate and coordinate with a tenant SSP railroad as required by
                the SSP final rule. A host RRP railroad that does not participate in
                this communication and coordination could then be subject to FRA
                enforcement action under the RRP final rule.
                 FRA also added a paragraph (c)(2) to the final rule, requiring a
                host railroad to incorporate its communication and coordination with
                the SSP railroad into its own RRP. This language ensures a railroad's
                SSP communication is not completely isolated from the railroad's own
                RRP. Because RRP and SSP are systemic programs intended to promote
                analysis and proactive mitigation measures, communication and
                coordination between a railroad's RRP and SSP activities will improve
                railroad safety.
                 In paragraph (d) of the NPRM, FRA proposed requiring a railroad to
                ensure persons utilizing or performing a significant safety-related
                service on its behalf support and participate in the railroad's RRP.
                The NPRM identified such persons as host railroads, contract operators,
                shared track/corridor operators, or other contractors. AAR/ASLRRA
                commented that the term ``utilize'' could mean anyone interested in
                railroad safety, including passengers and the general public. Although
                AAR/ASLRRA indicated they were not concerned with the substance of the
                provision, they recommended that FRA remove the term ``utilize.''
                 FRA agrees with AAR/ASLRRA that paragraph (d) should not be
                interpreted to require a railroad to ensure passengers or the general
                public support and participate in the railroad's RRP as persons
                ``utilizing'' significant safety-related services. FRA's intent was to
                address persons who utilize a railroad's significant safety-related
                services on a routine or systemic basis to conduct railroad operations,
                such as a passenger railroad that operates over an RRP railroad's track
                and utilizes its dispatching service. FRA has, therefore, changed the
                language of this provision to clarify its requirements and reflect
                FRA's original intent. Paragraph (d) of the final rule first references
                Sec. 271.205(a)(3), which requires a railroad's RRP plan to identify
                persons that enter into a contractual relationship with the railroad to
                either perform significant safety-related services on the railroad's
                behalf or to utilize significant safety-related services the railroad
                provides for railroad operations purposes. The changed language then
                clarifies the term ``utilize'' in two ways.
                 First, the relationship between the railroad and the person
                utilizing its significant safety-related services must be contractual.
                This language ensures there is a formalized agreement between the
                railroad and the person regarding the significant safety-related
                service. With the formalized agreement, the duties of the contractor
                will be clear and, therefore, the extent to which they are performing
                or utilizing significant safety-related services of the railroad will
                be clear as well. This language clarifies that this section does not
                require a railroad to ensure the general public (or any other entity
                with only an interest in the safe operation of a railroad as a matter
                of due course (for example, schools or residents located near an RRP
                railroad's track)) supports and participates in the railroad's RRP.
                 Second, the final rule's language clarifies that the person must be
                utilizing the railroad's significant safety-related services to conduct
                railroad operations. For example, if a railroad contracts with a
                company to perform bridge maintenance, that company provides a
                significant safety-related service to the railroad on behalf of the
                railroad. If during the bridge maintenance the company uses the
                railroad's roadway worker protection, that company is then also
                utilizing a significant safety-related service (roadway worker
                protection) provided by the railroad. A railroad does not have to
                identify persons providing or utilizing significant safety-related
                services for purposes unrelated to railroad operations, such as
                railroad passengers or motor vehicle drivers who benefit from a
                highway-rail grade crossing warning system. The SSP final rule contains
                similar language in Sec. 270.103(d)(2). See 81 FR 53897 (Aug. 12,
                2016).
                 FRA also added language clarifying that a railroad must identify
                such a person even if the person is not otherwise required to comply
                with this rule (for example, a tourist railroad that operates over an
                RRP railroad's track). The final sentence of paragraph (d) is also
                essentially the same as the NPRM, and requires a railroad to ensure the
                identified persons support and participate in the railroad's RRP.
                Section 271.103--Risk-Based Hazard Management Program
                 Except for changing a reference to Sec. 271.301(b) in the proposed
                rule to Sec. 271.301(d) to account for organizational changes in Sec.
                271.301, FRA adopts this section, which contains the requirements for
                each risk-based hazard management program (HMP), unchanged from the
                NPRM. FRA is therefore not repeating the NPRM's section-by-section
                analysis in this final rule, but refers interested readers to the
                NPRM's discussion. See 80 FR 10970-10971 (Feb. 27, 2015). FRA is,
                however, discussing comments it received in response to the proposed
                requirements of this section, although FRA is not making changes in
                response.
                 AAR/ASLRRA commented on proposed paragraph (b). As proposed under
                paragraph (b), a railroad must conduct a risk-based hazard analysis as
                part of its risk-based HMP and specified that, at a minimum, a risk-
                based hazard analysis must address the following components of a
                railroad's system: Infrastructure; equipment; employee levels and work
                schedules; operating rules and practices; management structure;
                employee training; and other areas impacting railroad safety that are
                not covered by railroad safety laws or regulations or other Federal
                laws or regulations. AAR/ASLRRA commented that FRA should omit the
                reference to employee levels and work schedules because FRA carved
                fatigue management plans out for treatment in the separate FMP
                rulemaking. Thus, they conclude this language is not appropriate and
                should be removed.
                 FRA disagrees with AAR/ASLRRA because the language ``employee
                levels and work schedules'' may encompass issues unrelated to fatigue
                the FMP rulemaking will not address. For example, whether a railroad
                has a sufficient number of track inspectors for a certain territory may
                involve a question of employee levels, but not necessarily fatigue.
                 As proposed under paragraph (c) of the NPRM, a railroad must design
                and implement mitigation strategies that improve safety as part of its
                risk-based HMP, although the NPRM also clarified it was not defining a
                level or risk that railroad's risk-based HMP must target. See 80 FR
                10971 (Feb. 27, 2015). FRA observed, however, that FRA's Passenger
                Equipment Safety Standards require passenger railroads, when procuring
                new passenger cars and locomotives, to ensure fire considerations and
                features in the equipment design reduce the risk of personal injury
                caused by fire to an acceptable level using a formal safety methodology
                such as MIL-STD-882. See 80 FR 10971 (Feb. 27, 2015) (citing 49 CFR
                238.103(c)). FRA also noted passenger railroads operating Tier II
                passenger equipment must eliminate or
                [[Page 9296]]
                reduce risks posed by identified hazards to an acceptable level. See
                Id. (citing 49 CFR 238.603(a)(3)). FRA specifically requested comment
                on whether a final RRP rule should define levels of risks a railroad's
                risk-based HMP must target. Id.
                 Only AAR/ASLRRA commented in response, urging FRA not to define
                levels of risk railroads should target.\23\ In support, AAR/ASLRRA
                distinguished the two part 238 provisions FRA cited from the proposed
                RRP rule, observing that the part 238 provisions involve risks
                associated with equipment design or operation, not risks associated
                with an entire railroad system. AAR/ASLRRA therefore observed it is not
                clear how the level of railroad-wide risk could be determined, given
                the number of component hazards and risks involved. AAR/ASLRRA also
                noted the cited part 238 provisions require reduction of risk to an
                acceptable level and refer to the methodology in MIL-STD-882, which
                requires reduction of risk to the lowest acceptable level within the
                constraints of cost, schedule, and performance, arguing these
                provisions themselves do not define acceptable or unacceptable levels
                of risk, but rather exhort actors to reduce risk to the lowest
                acceptable level, all things considered. AAR/ASLRRA assert that any
                additional requirement defining risk levels or resembling MIL-STD-882
                would only add process, not substance. Having considered these
                comments, FRA clarifies that neither Sec. 271.103 nor any other
                section in this final rule defines a level of risk a railroad should
                target.
                ---------------------------------------------------------------------------
                 \23\ AAR/ASLRRA's comment indicated that they were responding to
                proposed Sec. 271.103(e). Because the NPRM did not contain a Sec.
                271.103(e), however, FRA assumes that AAR/ASLRRA's comment was in
                response to proposed paragraph (c) and FRA's solicitation of public
                comment.
                ---------------------------------------------------------------------------
                 An individual also commented generally that an RRP final rule
                should require fitness-for-duty standards and railroads must do more to
                monitor and prevent human performance lapses leading to train
                collisions and derailments. The individual suggested that instead of
                using inward-facing cameras to monitor and enforce rules, railroads
                should utilize inward-facing cameras with facial monitoring software to
                apply train brakes when operating personnel are falling asleep or
                otherwise inattentive. FRA declines to incorporate these suggestions
                because they address specific mitigations measures for specific
                railroad safety risks, and therefore are inappropriate for the process-
                oriented, performance-based nature of this final rule.
                Section 271.105--Safety Performance Evaluation
                 This section contains requirements for safety performance
                evaluations. Safety performance evaluation is a necessary part of a
                railroad's RRP because it determines whether the RRP is effectively
                reducing risk. It also monitors the railroad's system to identify
                emerging or new risks. The following are examples of changes to a
                railroad's system that may constitute a new or emerging risk: (1) A
                change in operating rules; (2) implementation of new technology, or (3)
                a reduction in crew staffing levels. Safety performance evaluation is
                essential for ensuring that a railroad's RRP is an ongoing process, and
                not merely a one-time exercise.
                 Except for paragraph (a) and a minor editorial change in paragraph
                (c), discussed below, FRA adopts this section unchanged from the NPRM.
                FRA is therefore not repeating the NPRM's section-by-section analysis
                in this final rule and refers interested readers to the NPRM's
                discussion. See 80 FR 10971 (Feb. 27, 2015). FRA also discusses
                comments it received in response to proposed paragraph (b)(5), but
                makes no changes based on those comments.
                 In addition to requiring a railroad to develop and maintain ongoing
                processes and systems for evaluating the safety performance of the
                railroad's system, paragraph (a) in the NPRM proposed requiring a
                railroad to develop and maintain processes and systems for measuring
                its safety culture. AAR/ASLRRA commented in response that section 20156
                does not require a railroad to measure its safety culture as FRA
                proposed in this section and in Sec. 271.213, discussed below. They
                argued the RSIA did not require a railroad to measure safety culture
                because it is hard to do so effectively and reliably, and culture can
                be described and evaluated, but not be meaningfully quantified.
                According to AAR/ASLRRA, each railroad is different, and their cultures
                and the ways those cultures present in the workplace are different.
                Further, as an RRP matures, they argued the approach each railroad
                takes to assessing its safety culture may change. AAR/ASLRRA
                specifically suggested that FRA should leave to each railroad the
                decisions regarding how to evaluate, assess, and support its safety
                culture without prescribing generation of measurement data.
                 Contrary to AAR/ASLRRA's comment, FRA did not intend proposed
                paragraph (a) to require a specific data-driven and quantifiable
                measurement of a railroad's safety culture. As the NPRM explained, a
                railroad could measure its safety culture by surveying employees and
                management to establish an initial baseline safety culture, and then
                comparing the initial baseline to subsequent surveys. See 80 FR 10971
                (Feb. 27, 2015). The NPRM further clarified FRA would give a railroad
                substantial flexibility to decide which safety culture measurement best
                fit the organization--for example, a survey or other instrument that
                has been validated and proven to correlate with safety outcomes (i.e.,
                the survey or other instrument has been studied to determine whether it
                reliably and repeatedly measures what it intends to measure). FRA's
                primary concern would be to ensure the selected measurement provided a
                way to demonstrate that an improvement in the safety culture would
                reliably lead to a corresponding improvement in safety. Id. This
                approach gives a railroad sufficient flexibility to measure its safety
                culture in a manner that works best for the railroad, as AAR/ASLRRA
                urge.
                 In response to AAR/ASLRRA's comment, instead of the term
                ``measuring,'' this section of the final rule uses the phrase
                ``identifying and analyzing,'' which comes directly from section
                20156(c) of the statutory mandate. A railroad will still have the
                flexibility to decide how to identify and analyze its safety culture if
                the tools the railroad uses provide a way to connect improvements in
                safety culture to corresponding improvement in safety.
                 Labor Organizations I also commented on how a railroad could
                measure safety culture. Referencing the FAA and ``Weick and
                Sutcliffe,'' Labor Organizations I noted that traits of a health safety
                culture can be identified within High Reliability Organizations. Labor
                Organizations I urged FRA to establish criteria mandating that railroad
                RRPs adhere to standards proven in other industries where the
                principles of safety are the same despite operational or other
                differences.
                 FRA is not adopting specific standards regarding how a railroad
                must identify and analyze its railroad safety culture. Although various
                such standards exist, FRA is unaware of a universal standard for safety
                culture this final rule could adopt. Further, the final rule contains a
                DOT-wide definition of safety culture, discussed in the section-by-
                section analysis for Sec. 270.5, which provides substance for the
                meaning of safety culture. Even if there was a universal safety culture
                standard fitting every railroad that FRA could mandate, doing so would
                codify today's safety culture standards into the rule, requiring an
                amendment process every
                [[Page 9297]]
                time such standards advanced or progressed. FRA anticipates the
                understanding of safety culture will change as time progresses and does
                not want to restrict railroads to using today's standards for
                tomorrow's analysis. FRA is therefore declining to mandate specific
                safety culture standards in the final rule, but is instead implementing
                an approach where a railroad must describe in its RRP plan how it will
                identify and analyze its safety culture, noted above.
                 Paragraph (b)(5) in the NPRM proposed that one of the sources a
                railroad must establish to monitor safety performance is a reporting
                system through which employees can report safety concerns (including,
                but not limited to, hazards, issues, occurrences, and incidents) and
                propose safety solutions and improvements. The NPRM explained this
                would not require a railroad to establish an extensive program like
                FRA's C\3\RS, although FRA specifically requested public comment
                elsewhere in the NPRM on the extent to which programs like C\3\RS might
                be useful to develop an RRP or as a component of an RRP. See 80 FR
                10954 and 10971 (Feb. 27, 2015). Labor Organizations I commented in
                response that the confidentiality component of C\3\RS programs may make
                them difficult to contain within the confines of an RRP. Specifically,
                Labor Organizations I urged separation between RRP and C\3\RS because
                they believe C\3\RS confidentiality is incompatible with the level of
                description necessary to conform to this paragraph's requirements.
                Labor Organizations I also specifically commented that C\3\RS programs
                should not simply be re-branded to comply with the RRP requirements.
                 FRA both disagrees and agrees with Labor Organization I's comment.
                FRA disagrees with Labor Organization I because a railroad could
                incorporate a C\3\RS program into its RRP. FRA also disagrees with
                Labor Organizations I that the confidentiality associated with C\3\RS
                programs may not be compatible with the description needed for this
                requirement. Even though C\3\RS reports are de-identified to remove
                information that may identify the reporter or other employees involved,
                sufficient information will likely still be included to allow a
                railroad to analyze the general risks and hazards presented by the
                report. Further, if a railroad wanted to obtain more information, it
                could establish a second reporting system to supplement C\3\RS for
                employees who are not concerned about maintaining confidentiality. FRA
                agrees with Labor Organizations I, however, that a railroad cannot
                comply with an RRP final rule simply by re-branding a C\3\RS program as
                an RRP. While C\3\RS can be part of an RRP, a railroad must go further
                to meet the requirements of this final rule.
                 An individual also commented generally that FRA should require all
                railroads to implement a C\3\RS program as part of their RRPs. FRA is
                not implementing this suggestion because it is not in the voluntary
                spirit of the C\3\RS program. An effective C\3\RS depends on the trust
                and voluntary participation of all parties--qualities that would lose
                their meaning if FRA mandated C\3\RS for all RRP railroads.
                 The final change FRA made to this section is replacing the phrase
                ``For the purpose of assessing'' with the phrase ``To assess'' in
                paragraph (c). FRA made this change to streamline paragraph (c) and
                does not intend to affect its meaning.
                Section 271.107--Safety Outreach
                 FRA adopts this section, with requirements on the safety outreach
                component of an RRP, unchanged from the NPRM. FRA is therefore not
                repeating the NPRM's section-by-section analysis in this final rule,
                but refers interested readers to the NPRM's discussion. See 80 FR
                10971-10972 (Feb. 27, 2015).
                Section 271.109--Technology Analysis and Technology Implementation Plan
                 This section implements the RSIA requirement that an RRP include a
                technology analysis and a technology implementation plan. See 49 U.S.C.
                20156(e). Except for a PTC deadline revision discussed below and
                changing an incorrect reference in the proposed rule from Sec.
                271.13(e) to Sec. 271.13(d), FRA adopts this section unchanged from
                the NPRM, but is addressing comments received in response to this
                section in the NPRM. FRA is therefore not repeating the NPRM's section-
                by-section analysis in this final rule but refers interested readers to
                the NPRM's discussion. See 80 FR 10972 (Feb. 27, 2015).
                 Paragraph (b) in the NPRM proposed requiring a railroad to conduct
                a technology analysis evaluating current, new, or novel technologies
                that may mitigate or eliminate hazards and the resulting risks
                identified through the risk-based hazard management program. At a
                minimum, proposed paragraph (b) stated a technology analysis must
                consider processor-based technologies, PTC systems, electronically-
                controlled pneumatic (ECP) brakes, rail integrity inspection systems,
                rail integrity warning systems, switch position monitors and
                indicators, trespasser prevention technology, and highway-rail grade
                crossing warning and protection technology.
                 AAR/ASLRRA commented in response that FRA should not require a
                railroad to address PTC systems and ECP brakes, asserting that other
                rulemakings performed a cost/benefit analysis for PTC and ECP brakes.
                AAR/ASLRRA argued that requiring railroads to perform the same analyses
                again as part of complying with the rule would be meaningless and
                inappropriate.
                 Because the RSIA mandates this requirement, FRA is promulgating
                paragraph (b) unchanged. In addition, this section requires a railroad
                to only evaluate the safety impact, feasibility, and costs and benefits
                of PTC systems and ECP brakes, and does not necessarily require
                implementation. This analysis will differ from railroad to railroad,
                and therefore is not directly comparable to FRA's cost/benefit analysis
                in other rulemakings.
                 Paragraph (d) provides that, except as required by 49 CFR part 236,
                subpart I (Positive Train Control Systems), if a railroad decides to
                implement a PTC system as part of its technology implementation plan,
                the railroad shall set forth and comply with a schedule for
                implementation of the PTC system consistent with the deadlines in the
                Positive Train Control Enforcement and Implementation Act of 2015
                (PTCEI Act), Public Law 114-73, 129 Stat. 576-82 (Oct. 29, 2015), and
                49 CFR 236.1005(b)(7). The NPRM proposed that the railroad would have
                to implement the PTC system by December 31, 2018, which was consistent
                with 49 U.S.C. 20156(e)(4)(B). However, Congress subsequently passed
                the PTCEI Act, and FRA has changed paragraph (d) to reflect the changes
                to PTC implementation deadlines set forth in the Act. This paragraph
                does not, in itself, require a railroad to implement a PTC system. In
                the NPRM, FRA sought comment on whether a railroad electing to
                implement a PTC system would find it difficult to meet the December 31,
                2018 implementation deadline. If so, FRA invited comment as to what
                measures could be taken to assist a railroad struggling to meet the
                deadline and achieve the safety purposes of the statute. FRA received
                two comments in response to this request. AAR/ASLRRA commented that the
                2018 deadline is unrealistic even for the Class I railroads. Labor
                Organizations I and an individual commented that FRA should not extend
                the 2018 deadline.\24\
                ---------------------------------------------------------------------------
                 \24\ Labor Organizations I identified a December 31, 2015 PTC
                deadline. As both the NPRM and section 20156(e)(4)(B) state that the
                deadline is December 31, 2018, FRA assumes that Labor Organizations
                I intended to reference the 2018 deadline, and that reference to a
                2015 deadline was an unintended mistake.
                ---------------------------------------------------------------------------
                [[Page 9298]]
                 FRA recognizes the challenges associated with implementing a PTC
                system; however, FRA also recognizes that PTC is a technology that a
                railroad may seek to implement to eliminate or mitigate hazards and the
                resulting risks. Therefore, the regulation provides railroads the
                flexibility to decide whether they want to implement a PTC system as
                part of their technology analysis and implementation plan; if they do
                so, they must comply with an implementation schedule consistent with
                the deadlines in the PTCEI Act. The SSP final rule establishes the same
                deadline in Sec. 270.103(r)(5). See 81 FR 53877 (Aug. 12, 2016).
                Section 271.111--Implementation and Support Training
                 This section requires a railroad to provide RRP training to each
                employee who has significant responsibility for implementing and
                supporting the railroad's RRP. Except for changes made to clarify
                paragraphs (a) and (b) discussed below, FRA adopts this section
                unchanged from the NPRM but is addressing comments received in response
                to this section in the NPRM. FRA is therefore not repeating the NPRM's
                section-by-section analysis in this final rule but refers interested
                readers to the NPRM's discussion. See 80 FR 10972-10973 (Feb. 27,
                2015).
                 Proposed paragraph (a) specified the employees a railroad must
                train includes an employee of any person a railroad's RRP plan
                identified under Sec. 271.205(a)(3) when that employee has significant
                responsibility for implementing and supporting the railroad's RRP. See
                80 FR 10972 (Feb. 27, 2015). For reasons explained in the section-by-
                section analysis for Sec. 271.101(d) above, FRA changed this provision
                to clarify which employees a railroad must identify under Sec.
                271.205(a)(3). FRA does not intend these changes to affect the
                substance of the proposed rule.
                 Proposed paragraph (b) specified a railroad must keep a record of
                training conducted under this section and update that record as
                necessary. FRA has included language in this paragraph of the final
                rule clarifying a railroad must make these records available for
                inspection and copying upon request to FRA or State railroad safety
                inspectors.
                 AAR/ASLRRA commented the proposed training requirement is an
                unnecessary and inappropriate overreach that belies the performance-
                based approach to rulemaking FRA claims the proposed rule effects. AAR/
                ASLRRA agreed with FRA's statement in the NPRM that the training
                requirement would apply to personnel not involved in operational duties
                and not directing or supervising those who do have such duties.
                However, AAR/ASLRRA asserted it would require a railroad to train
                employees including the chief safety officer of the railroad, and his
                or her direct reports and requiring employees at that level to submit
                to training implies they do not know or care how to do their jobs. AAR/
                ASLRRA suggest that if railroads determine effective implementation of
                their RRP would be aided by training certain employees, the content and
                timing of such training is a matter appropriately left to the
                railroads.
                 Conversely, Labor Organizations I commented the NPRM proposed
                highly limited requirements for railroads to train their employees to
                understand and participate in the RRP process. They argue there needs
                to be continued vigilant attention to risk reduction throughout the
                workforce to ensure there is full understanding of the dynamics of the
                issues in the workplace. Labor Organizations I suggested FRA should
                consider broadening the scope of the proposed training.
                 FRA is implementing the proposed training requirement in this final
                rule substantively unchanged, without adding additional requirements.
                FRA disagrees with AAR/ASLRRA that this training is unnecessary, as
                railroad employees, including high-level employees, may not know how to
                implement an RRP that complies with the specific requirements of this
                final rule, even if the employees are otherwise familiar with safety
                risk reduction programs. FRA also disagrees with Labor Organizations I
                that the final rule should expand the scope of the training.
                Section 271.113--Involvement of Railroad Employees
                 This section requires a railroad's RRP to involve the railroad's
                directly affected employees in the establishment and implementation of
                an RRP.
                 Paragraph (b) explains how a railroad should involve its directly
                affected employees, clarifying that a railroad must have a process for
                involving railroad employees when identifying hazards, developing and
                implementing mitigation strategies, conducting internal annual
                assessments, or otherwise performing actions required by this part. A
                railroad could involve its directly affected employees by including
                appropriate labor representatives or other employees on hazard
                management teams and by employee involvement in conducting RRP
                outreach.
                 While the NPRM did not specifically propose this component,
                employee involvement is an important component of a successful RRP. As
                the NPRM stated, an RRP encourages a railroad and its employees to work
                together to proactively identify hazards and to jointly determine what
                action to take to mitigate or eliminate the associated risks. See 80 FR
                10950 (Feb. 27, 2015). While the NPRM contained provisions addressing
                railroad-employee consultation on the contents of a railroad's RRP
                plan, it did not specify that a railroad must involve its directly
                affected employees in subsequent implementation of its RRP plan.
                Nonetheless, FRA did not intend that a railroad could comply with the
                RRP plan consultation process requirements in Sec. 271.207 and then
                not involve its directly affected employees in any aspect of its RRP
                once FRA approves the plan. FRA does not believe that is consistent
                either with the collaborative and proactive nature of risk reduction or
                Congress' intent in requiring railroads to consult with directly
                affected employees on the contents of the railroad's RRP plan. FRA is
                therefore expressly including this section in the final rule. FRA is
                characterizing this requirement as employee ``involvement'' instead of
                ``consultation'' to avoid confusion between this section and the
                requirements for RRP plan consultation in Sec. 271.207. These are
                distinct concepts because this section's involvement requirement will
                last through the duration of the railroad's RRP, while the Sec.
                271.207 plan consultation process requirement is satisfied when a
                railroad uses good faith and best efforts to consult with its directly
                affect employees on its RRP plan and when FRA approves the railroad's
                submitted plan.
                 FRA further believes this involvement requirement will improve
                employee engagement in the railroad's RRP, thereby improving employee
                performance, safety culture, and railroad safety. See generally Wojick,
                Tom, Case: Engagement, Safety & Quality in Chemical Manufacturing, Oct.
                29, 2013, available at http://www.6seconds.org/2013/10/29/case-engagement-safety-quality/. Additionally, this requirement will lead to
                improvements in employee psychology and behavior, which are important
                components of safety culture. See generally Arendt, Don, Federal
                Aviation Administration, A Model of Organizational Culture, Dec. 2008,
                [[Page 9299]]
                available at http://www.faa.gov/about/initiatives/sms/reference_library/links/media/organizational_culture_model.pdf.
                Subpart C--Risk Reduction Program Plan Requirements
                 Subpart C contains requirements for RRP plans.
                Section 271.201--General
                 This section requires a railroad to adopt and implement its RRP
                through a written RRP plan FRA has reviewed and approved under the
                requirements of subpart D. Because FRA adopts this provision unchanged
                from the NPRM, FRA is not repeating the NPRM's section-by-section
                analysis here but refers interested readers to the NPRM's discussion.
                See 80 FR 10973 (Feb. 27, 2015).
                Section 271.203--Policy, Purpose and Scope, and Goals
                 This section contains requirements for policy, purpose and scope,
                and goals statements for an RRP plan. Except for moving a provision the
                NPRM proposed in paragraph (b)(4) to Sec. 271.205(a)(4), as discussed
                below, this section remains unchanged. FRA is therefore not repeating
                the NPRM's section-by-section analysis here but refers interested
                readers to the NPRM's discussion. See 80 FR 10973-10974 (Feb. 25,
                2017). FRA is otherwise addressing a comment received in response to
                this section in the NPRM, but is making no changes in response.
                 Paragraph (a) in the NPRM proposed requiring an RRP plan to include
                a policy statement endorsing the railroad's RRP signed by the chief
                official of the railroad (e.g., Chief Executive Officer). AAR/ASLRRA
                commented FRA should require the railroad's Chief Safety Officer to
                sign the policy statement, as the RRP Working Group had proposed. AAR/
                ASLRRA further argued the proposed requirement also departs from
                section 20156(b), which specifies the chief official responsible for
                safety shall certify the contents of the program are accurate and the
                railroad will implement the contents of the plan. AAR/ASLRRA also
                asserted the chief official for safety will be more familiar with the
                details of the RRP than the chief official of the railroad and
                therefore is the more appropriate person to sign the policy statement.
                 FRA has not departed from the RSIA requirements because Sec.
                271.301(c)(1) of the final rule requires the railroad's chief official
                for safety to sign the RRP plan and certify the contents of the RRP
                plan are accurate and the railroad will implement the contents of the
                plan. This substantively mirrors the language in section 20156(b).
                Paragraph (a) of this section, however, requires the chief official at
                the railroad to sign the RRP policy statement, not the entire RRP plan.
                Prior experience with effective risk management programs has
                demonstrated to FRA how important the active involvement of the highest
                railroad officials is to improving safety and safety culture.
                Therefore, FRA determined the chief official at the railroad must sign
                the RRP policy statement.
                 Paragraph (b)(4) in the NPRM proposed requiring an RRP plan's
                purpose and scope statement to describe how any person that utilizes or
                provides significant safety-related services to a railroad (including
                host railroads, contract operators, shared track/corridor operators, or
                their contractors) will support and participate in the railroad's RRP.
                Upon review of the NPRM, FRA believes this provision belongs more
                appropriately in the Sec. 271.205 requirements regarding an RRP plan's
                system description. FRA has therefore moved this provision to Sec.
                271.205(a)(4), and the section-by-section analysis for that section
                will discuss this provision further.
                Section 271.205--System Description
                 This section requires an RRP plan to include a statement describing
                the characteristics of the railroad system. Except for changes made to
                clarify paragraph (a)(3) and language moved from Sec. 271.203(b)(4) to
                paragraph (a)(4) of this section, discussed below, FRA adopts this
                section unchanged from the NPRM. FRA is therefore not repeating the
                NPRM's section-by-section analysis in this final rule but refers
                interested readers to the NPRM's discussion. See 80 FR 10974 (Feb. 27,
                2015). FRA did not receive any comments in response to this section.
                 Paragraph (a)(3) in the NPRM proposed requiring an RRP plan's
                system description to identify all persons that utilize or perform
                significant safety-related services on the railroad's behalf (including
                entities such as host railroads, contract operations, shared track/
                corridor operators, or other contractors). FRA modified paragraph
                (a)(3) to clarify its requirements and refers readers to the
                explanation of those changes in the section-by-section analysis for
                Sec. 271.101(d). FRA does not intend these changes to affect the
                substance of the rule.
                 FRA is also adding a paragraph (a)(4) to this section that contains
                language from Sec. 271.203(b)(4) in the NPRM, which proposed requiring
                an RRP plan to include a purpose and scope statement describing how any
                person that utilizes or provides significant safety-related services to
                a railroad (including host railroads, contract operators, shared track/
                corridor operators, or other contractors) will support and participate
                in the railroad's RRP. Because this section requires a railroad's RRP
                plan to identify such persons as part of its system description, FRA
                concluded the requirement to describe how such persons will support and
                participate in the railroad's RRP fits better in this section. FRA's
                changes are for clarity only. Paragraph (a)(4) requires an RRP plan's
                system description to describe how the railroad will ensure any person
                identified under paragraph (a)(3) of this section will support and
                participate in the railroad's RRP. As an example, paragraph (a)(4)
                states the system description must describe the extent to which such
                persons will, as part of the railroad's RRP, help identify hazards,
                develop and implement mitigation strategies, conduct internal annual
                assessments, or otherwise perform actions this part requires.
                Section 271.207--Consultation Requirements
                 Section 271.207 implements section 20156(g)(1), which states a
                railroad required to establish an RRP must consult with, employ good
                faith, and use its best efforts to reach agreement with, all its
                directly affected employees, including any non-profit employee labor
                organization representing a class or craft of directly affected
                employees of the railroad carrier, on the contents of the RRP plan.
                This section also implements section 20156(g)(2), which further
                provides that if a railroad carrier and its directly affected
                employees, including any nonprofit employee labor organization
                representing a class or craft of directly affected employees of the
                railroad carrier, cannot reach consensus on the proposed contents of
                the RRP plan, then directly affected employees and such organizations
                may file a statement explaining their views on the plan on which
                consensus was not reached. See 49 U.S.C. 20156(g)(2). The RSIA requires
                FRA to consider these views during review and approval of a railroad's
                RRP plan. Id.
                 FRA made several changes to this section from the NPRM. These
                changes respond to comments received, conform this rule to the SSP
                final rule, and renumber certain paragraphs for better organization.
                For clarity, FRA is briefly discussing each provision of this section,
                even provisions FRA adopts unchanged from the NPRM. To promote
                consistency with the SSP final rule,
                [[Page 9300]]
                FRA has changed the title of this section from ``consultation process
                description'' to ``consultation requirements.'' See 49 CFR 270.107.
                This discussion also notes minor differences between the consultation
                provisions in the RRP and SSP rules.
                 Paragraph (a)(1) implements section 20156(g)(1) by requiring a
                railroad to consult with its directly affected employees on the
                contents of its RRP plan, including any non-profit employee labor
                organization representing a class or craft of the railroad's directly
                affected employees. As part of that consultation, a railroad must
                utilize good faith and best efforts to reach agreement with its
                directly affected employees on the contents of its plan. FRA has not
                changed this language from the NPRM.
                 Paragraph (a)(2) specifies a railroad that consults with a non-
                profit employee labor organization is considered to have consulted with
                the directly affected employees that organization represents.
                 Paragraph (b) states a railroad must have a preliminary meeting
                with its directly affected employees to discuss how the consultation
                process will proceed. While the NPRM did not include this language, FRA
                added it merely as an introductory clause for the subsequent
                requirements in paragraphs (b)(1) through (4), discussed below, which
                were all included in proposed paragraphs (a)(3) through (6) of the
                NPRM. FRA believes including the preliminary meeting requirements in a
                separate paragraph (b) improves the organization and clarity of this
                section.
                 Some commenters to the corresponding consultation provision of the
                SSP NPRM appeared to believe this preliminary meeting must discuss the
                substance of the RRP plan. To rectify this misunderstanding, FRA is
                adding language in paragraph (b) specifying a railroad is not required
                to discuss the substance of an RRP plan during this preliminary
                meeting. Rather, the preliminary meeting may be administrative in
                nature so all parties understand the consultation process and may
                engage in substantive discussions as soon as possible after the Sec.
                271.11 protections become applicable. The preliminary meeting is also
                an opportunity for the railroad to educate directly affected employees
                on risk reduction and how it may affect them. The SSP final rule
                incorporates substantively identical language. See 81 FR 53883 and
                53900 (Aug. 12, 2016).
                 Paragraphs (b)(1) through (3) contain the deadlines Class I
                railroads, ISP railroads, and railroads that STB reclassifies or newly
                classifies as Class I railroads must meet to hold the preliminary
                meeting with their directly affected employees. FRA merely renumbered
                these provisions from paragraphs (a)(3) through (5) of the NPRM to
                paragraphs (b)(1) through (3) in this final rule. This reorganization
                does not affect the substance of these paragraphs. FRA refers
                interested readers to the NPRM discussion of paragraphs (a)(3) through
                (5) for additional information. See 80 FR 10975 (Feb. 27, 2015).
                 Paragraph (a)(6) of the NPRM, stating a voluntarily-compliant
                railroad must also consult with its directly affected employees using
                good faith and best efforts, is in paragraph (b)(4) of the final rule.
                Paragraph (a)(6) also proposed, however, that because there is no
                deadline for a voluntarily-compliant railroad to file an RRP plan with
                FRA, there would also be no requirement for a voluntarily-compliant
                railroad to meet with its directly affected employees within a certain
                timeframe. Because FRA decided to include a notification and filing
                deadline for voluntarily-compliant railroads in Sec. 271.301(b)(4)(i),
                discussed below, FRA is adding language in paragraph (b)(4) that
                applies to voluntarily-compliant railroads the same consultation
                deadlines for ISP railroads and railroads that STB reclassifies or
                newly classifies as Class I railroads.
                 Labor Organizations I commented that this section requires railroad
                management and labor to have only one, non-substantive administrative
                meeting. To correct any implication that this is the only meeting a
                railroad must hold to comply with all the consultation process
                requirements of this section, FRA added language to paragraph (b)(5)
                clarifying the mandatory preliminary meeting does not constitute full
                compliance with the consultation process requirements of this section.
                Although the NPRM did not include this language, it does not impose any
                additional substantive requirement. The SSP rule does not contain this
                provision because a similar comment was not received in response to the
                SSP NPRM. FRA does not intend this to indicate a substantive difference
                between the consultation requirements of the SSP and RRP rules.
                 Paragraph (a)(7) of the NPRM, which directed readers to appendix B
                for additional guidance on how a railroad can comply with the
                consultation process requirements of this section, is paragraph (c) of
                the final rule. FRA renumbered this paragraph for better organization
                and clarity and changed it to direct readers to appendix A instead of
                appendix B (for reasons discussed in the section-by-section analysis
                for appendices A and B). FRA discusses appendix A later in this
                preamble.
                 Paragraph (d) of the final rule, requiring a railroad to submit,
                together with its RRP plan, a consultation statement, was paragraph (b)
                in the NPRM. The consultation statement must contain specific
                information described in paragraphs (d)(1) through (3) of this final
                rule, which were renumbered from paragraphs (b)(1), (2), and (4) in the
                NPRM. Paragraph (d)(1), which requires a consultation statement to
                describe the process a railroad uses to consult with its directly
                affected employees, is unchanged from paragraph (b)(1) of the NPRM.
                 If the railroad cannot reach agreement with its directly affected
                employees on the contents of its RRP plan, paragraph (d)(2) requires
                the consultation statement to identify any areas of non-agreement and
                provide the railroad's explanation for why it believed agreement was
                not reached. FRA made a minor editorial change to paragraph (d)(2) to
                be consistent with the SSP final rule by changing the phrase ``was not
                able to'' to ``could not.'' See 81 FR 53901 (Aug. 12, 2016). This
                change does not affect the substance of this provision. Additionally,
                while the NPRM used the term ``disagreement,'' FRA changed this to
                ``non-agreement'' in the final rule to conform more closely with the
                statutory language in section 20156(g)(1). Although the SSP rule uses
                ``disagreement'' instead of ``non-agreement,'' FRA does not intend this
                to indicate a substantive difference between the consultation
                requirements of the SSP and RRP rules.
                 Paragraph (b)(3) of the NPRM proposed that if the RRP plan would
                affect a provision of a collective bargaining agreement between the
                railroad and a non-profit employee labor organization, the consultation
                statement must identify that provision and explain how the railroad's
                RRP plan would affect it. In response to the NPRM, AAR/ASLRRA commented
                this provision went too far because collective bargaining is a matter
                between railroads and their employees beyond FRA's jurisdiction. FRA
                agrees and is not including this provision in the final rule.
                 Under paragraph (d)(3) of the final rule, proposed as paragraph
                (b)(4) of the NPRM, the consultation statement must include a service
                list of the names and contact information for the international/
                national president of any non-profit employee labor organization
                representing directly affected employees and any directly affected
                employee not represented by a non-profit employee labor organization
                who significantly
                [[Page 9301]]
                participated in the consultation process. FRA did not make any
                substantive changes to this provision but FRA made the following
                editorial changes to promote consistency with the SSP final rule and to
                improve clarity. Although the first sentence in the NPRM addressed both
                international/national presidents of any non-profit employee labor
                organization and individual directly affected employees, FRA separated
                this requirement into two separate sentences and made additional
                changes to clarify a railroad must include only a directly affected
                employee who significantly participated in the consultation process on
                the service list if that employee participated independent of a non-
                profit employee labor organization. FRA also modified the second to the
                last sentence of paragraph (d)(3) to add a reference to the plan
                submission requirements of Sec. 271.301 and to clarify that a railroad
                must simultaneously provide its RRP plan and consultation statement to
                individuals the service list identifies. These changes do not affect
                the substance of this paragraph.\25\
                ---------------------------------------------------------------------------
                 \25\ FRA notes that paragraph (d)(3) in the RRP final rule
                contains two provisions not in the SSP rule. The first provision
                states that if an international/national president did not
                participate in the consultation process, the service list must
                include information for the designated representative who
                participated on his or her behalf, and the second states that a
                railroad may send documents to individuals on the service list via
                electronic means or other service means reasonably calculated to
                succeed. The RRP NPRM proposed these provisions (see 80 FR 10994
                (Feb. 27, 2015)), and their non-inclusion in the SSP final rule was
                an oversight.
                ---------------------------------------------------------------------------
                 Under paragraph (e)(1) of the final rule, proposed as paragraph
                (c)(1) in the NPRM, if a railroad and its directly affected employees
                cannot reach agreement on the proposed contents of an RRP plan, then a
                directly affected employee may file a statement with the FRA Associate
                Administrator for Railroad Safety and Chief Safety Officer explaining
                his or her views on the plan on which agreement was not reached. See 49
                U.S.C. 20156(g)(2). Except for correcting a typo in the proposed rule
                (replacing ``then directly affected employees'' with ``the directly
                affected employees'') and specifically identifying the address for the
                FRA Associate Administrator for Railroad Safety and Chief Safety
                Officer, FRA has not changed this paragraph from the NPRM. The above
                changes do not affect the substance of this paragraph.
                 Paragraph (e)(2) of the final rule, proposed as paragraph (c)(2) in
                the NPRM, specifies that a railroad's directly affected employees have
                30 days following the railroad's submission of its proposed RRP plan to
                submit the statement described in paragraph (e)(1) of this section.
                While the NPRM proposed giving directly affected employees 60 days to
                submit their statement, FRA believes that 30 days is more appropriate.
                This decision takes into account that paragraph (b)(3) ensures directly
                affected employees are provided the RRP plan and the consultation
                statement at the same time the railroad provides these documents to FRA
                for review. Moreover, under Sec. 271.301(d) of the final rule
                (discussed below), FRA will review an RRP plan within 90 days of
                receipt. As a result, if the directly affected employees had 60 days to
                submit a statement when agreement on the RRP plan was not reached, FRA
                would have only 30 days to consider the directly affected employees'
                view while reviewing the RRP plan. Thirty days would not be enough time
                to ensure that FRA sufficiently considered the directly affected
                employees' views during the RRP review process. Finally, the deadline
                is identical to the deadline for directly affected employee statements
                in Sec. 271.107(c)(2), which was also changed from a proposed 60-day
                deadline in the SSP NPRM. See 81 FR 53886 (Aug. 12, 2016). To further
                promote consistency with the SSP final rule, FRA has also removed a
                reference in proposed paragraph (c)(2) to Sec. 271.301(a)(4). See 49
                CFR 271.107(c)(2).
                 In the preamble to the NPRM, FRA explained that it would help a
                railroad develop its RRP. The preamble to the SSP NPRM expressed a
                similar intent. Labor Organizations I commented expressing concern that
                this preamble language indicates that FRA will work exclusively with
                the railroads, precluding the involvement of any other interested
                party. Labor Organizations I fear that this would substitute FRA for
                the directly affected employees in the statutorily-mandated
                consultation role.
                 This was not FRA's intent in the preamble discussion. Rather, FRA
                meant to communicate that FRA would be available to provide guidance to
                the railroads on the various aspects of the rule, not that there would
                be an exclusive partnership between FRA and the railroads to develop
                RRPs. FRA guidance to railroads will not replace Labor Organizations I
                or any directly affected employee in the consultation role. Under the
                consultation process required by Sec. 271.207, a railroad must use
                good faith and best efforts to reach agreement with directly affected
                employees on the railroad's RRP plan. While the section-by-section
                analysis discusses ``good faith'' and ``best efforts'' further, a
                railroad will not be able to meet these standards merely by submitting
                the required consultation statement. Directly affected railroad
                employees will therefore always have an opportunity to provide input on
                the railroad's RRP plan, regardless of guidance FRA provides the
                railroad on developing an RRP plan.
                 Labor Organizations I also argue that FRA improperly classified the
                process under section 20156(g) as one of consultation. Rather, Labor
                Organizations I believe that section 20156(g) requires a railroad to
                negotiate or bargain with directly affected employees in accordance
                with the legal authority of the Railway Labor Act, as amended.
                 FRA disagrees. Nothing in section 20156(g) requires a railroad to
                negotiate or bargain with directly affected employees on the contents
                of an RRP plan. Rather, section 20156(g) requires a railroad to
                ``consult with, employ good faith and use [its] best efforts to reach
                agreement with'' directly affected employees (including Labor
                Organizations I). Throughout SSP and RRP RSAC meetings, FRA referred to
                this process as one of consultation, not negotiation or bargaining. The
                NPRM proposed text contained language identical to language in section
                20156(g), and FRA does not believe that this language requires a
                process of negotiation or bargaining consistent with the Railway Labor
                Act. Requiring a process of negotiation or bargaining would therefore
                be beyond the scope of FRA's authority in section 20156(g).
                 Labor Organizations I also expressed concern that various estimates
                regarding employee involvement and the consultation process in the
                Regulatory Impact Analysis and the Paperwork Reduction Act analysis
                were too low. Labor Organizations I claim the estimated time periods
                were too short and would result in an inconsequential amount of time
                for consultation on the contents of the plan. FRA notes that the time
                periods in the analyses were only estimates and that the analyses
                requested comment on these estimates. See 80 FR 10988 and Regulatory
                Impact Analysis, at ii (Feb. 27, 2015). While Labor Organizations I did
                not provide suggested estimates that they believe are more appropriate,
                FRA has changed the final rule to add Sec. 271.113 (discussed above),
                which requires a railroad to involve its directly affected employees in
                the establishment and implementation of an RRP. FRA has also updated
                its estimates of the time RRP safety outreach is expected to take,
                required under Sec. 271.107 of the final
                [[Page 9302]]
                rule, from 15 minutes to 60 minutes per employee.\26\
                ---------------------------------------------------------------------------
                 \26\ For additional discussion, see Section 4.1., Consultation:
                Time Needed to Consult (Economic Impact) and Timeline, of the
                Regulatory Impact Analysis accompanying this final rule.
                ---------------------------------------------------------------------------
                 Labor Organizations I also expressed concern that the NPRM did not
                contain a penalty schedule or otherwise propose a mechanism for
                enforcing the consultation process requirements. Labor Organizations I
                specifically suggested that the DOT Secretary and the President of the
                United States ``publish an Executive Order supplementing enforcement of
                [section] 103 by providing for suspension and cancellation of federal
                payments and benefits to contracting railroads similar to Sec. 7 of
                E.O. 13,496, . . . codified at 29 CFR [ ] 471.14.''
                 Regarding the lack of a penalty schedule, FRA typically does not
                include penalty schedules in an NPRM. Section 271.9(a) of this final
                rule, however, refers readers to FRA's website for a penalty schedule.
                Because a penalty schedule is a statement of agency policy, FRA was not
                required to provide notice and comment before its issuance. See 5
                U.S.C. 553(b)(3)(A). FRA also notes that none of its enforcement
                authority is supplemented by a Presidential executive order. FRA
                concludes, therefore, that an executive order is not necessary to
                enforce the RRP requirements, even assuming that the President
                concluded that such an executive order would be legal and appropriate.
                Section 271.209--Consultation on Amendments
                 This section describes the consultation process requirements for
                amendments to a railroad's RRP plan. Except for replacing an incorrect
                reference to ``system safety program'' with the correct ``RRP plan''
                and replacing the incorrect term ``paragraph'' with ``section,'' FRA
                adopts this section unchanged from the NPRM. FRA is therefore not
                repeating the NPRM's section-by-section analysis in this final rule,
                but refers interested readers to the NPRM's discussion. See 80 FR 10976
                (Feb. 27, 2015). FRA did not receive any comments on this section.
                Section 271.211--Risk-Based Hazard Management Program Process
                 This section requires an RRP plan to describe the railroad's
                process for conducting a risk-based HMP. Because FRA received no
                comments and adopts this section unchanged from the NPRM (except for
                editorial changes in paragraph (c) to standardize its approach with
                paragraph (b) and to clarify that the section's requirements are
                minimal requirements), FRA is not repeating the NPRM's section-by-
                section analysis in this final rule, but refers interested readers to
                the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
                Section 271.213--Safety Performance Evaluation Process
                 This section requires an RRP plan to describe the railroad's
                processes for identifying and analyzing its safety culture under Sec.
                271.105, monitoring safety performance under Sec. 271.105(b), and
                conducting safety assessments under Sec. 271.105(c). While this
                section proposed requiring an RRP plan to describe a railroad's
                processes for ``measuring'' safety culture in the NPRM, FRA replaced
                the term ``measuring'' with the phrase ``identifying and analyzing''
                for reasons discussed in the above section-by-section analysis for
                Sec. 271.105. FRA otherwise adopts this section unchanged from the
                NPRM. See 80 FR 10976 (Feb. 27, 2015).
                Section 271.215--Safety Outreach Process
                 This section requires an RRP plan to describe a railroad's
                processes for communicating safety information to railroad personnel
                and management under Sec. 271.107. FRA received no comments and adopts
                this section unchanged from the NPRM, except for exchanging the word
                ``process'' with ``processes.'' FRA is therefore not repeating the
                NPRM's section-by-section analysis in this final rule, but refers
                interested readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27,
                2015).
                Section 271.217--Technology Implementation Plan Process
                 This section requires an RRP plan to describe a railroad's
                processes for conducting a technology analysis pursuant to Sec.
                271.109(b) and for developing a technology implementation plan pursuant
                to Sec. 271.109(c). FRA received no comments and adopts this section
                unchanged from the NPRM. FRA is therefore not repeating the NPRM's
                section-by-section analysis in this final rule, but refers interested
                readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
                Section 271.219--Implementation and Support Training Plan
                 This section requires an RRP plan to contain a training plan
                describing the railroad's processes for training, under Sec. 271.111,
                employees with significant responsibility for implementing and
                supporting the RRP. Paragraph (a) in the NPRM specified these employees
                must include persons a railroad identifies under Sec. 271.205(a)(3) as
                utilizing or performing significant safety-related services on the
                railroad's behalf. For reasons explained in the section-by-section
                analysis for Sec. 271.101(d) above, FRA clarified the requirements of
                this provision. The modified language states that the employees must
                include employees that a railroad identifies under Sec. 271.205(a)(3)
                as performing on the railroad's behalf significant safety-related
                services or utilizing safety-related services provided by the railroad
                for railroad operations purposes. FRA has not otherwise changed
                paragraph (a) of this section.
                 Paragraph (b) in the NPRM proposed requiring the training plan to
                describe the content and frequency of the RRP training for each
                position or job function a railroad identifies under Sec.
                271.223(b)(3) as having significant responsibilities for implementing
                the RRP. FRA modified the proposed language in two ways. First, FRA
                changed the Sec. 271.223(b)(3) reference to Sec. 271.225(b)(3) due to
                FRA's inclusion of a new Sec. 271.221 in the final rule, discussed
                below, which resulted in the renumbering of subsequent sections in
                subpart C of the final rule. AAR/ASLRRA also commented there was some
                inconsistency in the NPRM because it discusses the training requirement
                as a one-time event, but also mentions training frequency. FRA has
                addressed this inconsistency by not including the term ``frequency'' in
                this section, unlike the proposed language. AAR/ASLRRA are correct that
                the term is not necessary because the training is a one-time event. FRA
                has not otherwise changed paragraph (b) of this section.
                Section 271.221--Involvement of Railroad Employees Process
                 This section requires an RRP plan to describe the railroad's
                processes for involving railroad employees in the establishment and
                implementation of an RRP under Sec. 271.113. For reasons discussed in
                the section-by-section analysis for Sec. 271.113 above, FRA did not
                specifically propose this requirement in the NPRM, but is including it
                in the final rule to clarify a railroad must involve its employees in
                the RRP.
                 This section in the NPRM contained RRP plan requirements for a
                railroad's internal assessment process in the NPRM. To accommodate this
                RRP plan involvement requirement, FRA moved the internal assessment
                process
                [[Page 9303]]
                requirements to Sec. 271.223 and renumbered the rest of subpart C
                accordingly.
                Section 271.223--Internal Assessment Process
                 Paragraph (a) of this section, proposed as Sec. 271.221 in the
                NPRM, requires an RRP plan to describe a railroad's processes for
                conducting an internal assessment of its RRP under proposed subpart E.
                Paragraph (b) is reserved. FRA did not receive any comments on this
                section and, except for moving it to this section in the final rule,
                adopts this section unchanged from the NPRM. FRA is therefore not
                repeating the NPRM's section-by-section analysis in this final rule,
                but refers interested readers to the NPRM's discussion. See 80 FR
                10976-10977 (Feb. 27, 2015).
                Section 271.225--RRP Implementation Plan
                 Paragraph (a) of this section, proposed as Sec. 271.223 in the
                NPRM, requires an RRP plan to describe how the railroad will implement
                its RRP. Except for editorial changes in paragraph (a) and (b)(3),
                discussed below, FRA adopts this section unchanged from the NPRM. These
                changes do not affect the substance of this section and FRA did not
                receive any comments on this section. FRA is therefore not repeating
                the NPRM's entire section-by-section analysis in this final rule, but
                refers interested readers to the NPRM's discussion. See 80 FR 10977
                (Feb. 27, 2015).
                 FRA modified paragraph (a) to change language in the second
                sentence from passive to active voice, clarifying that the railroad
                must fully implement the entire RRP within 36 months of FRA's approval
                of the plan.
                 For reasons explained in the section-by-section analysis for Sec.
                271.101(d), above, FRA modified the language of paragraph (b)(3) to
                clarify its requirements. Paragraph (b)(3) requires a railroad's
                implementation plan to describe the roles and responsibilities of each
                position or job function with significant responsibility for
                implementing the railroad's RRP. Paragraph (b)(3) that this includes
                positions held by contractors that either perform significant safety-
                related services on the railroad's behalf or utilize significant
                safety-related services the railroad provides.
                Subpart D--Review, Approval, and Retention of Risk Reduction Program
                Plans
                 The RSIA requires a railroad to submit its RRP, including any of
                the required plans, to the FRA Administrator (as delegate of the
                Secretary) for review and approval. See 49 U.S.C. 20156(a)(1)(B).
                Subpart D, Review, Approval, and Retention of System Safety Program
                Plans, contains requirements addressing this mandate.
                Section 271.301--Filing and Approval
                 This section contains requirements for the filing of an RRP plan
                and FRA's approval process. While FRA did not receive any comments on
                this section, FRA modified this section from the NPRM as discussed
                below. For background discussion on provisions that FRA has not
                changed, FRA refers readers to the NPRM's discussion. See 80 FR 10977-
                10978 (Feb. 27, 2015).
                 Paragraph (a) generally requires a railroad to submit a copy of its
                RRP plan to the FRA Associate Administrator for Railroad Safety and
                Chief Safety Officer. Paragraph (a) of the NPRM also contained the RRP
                plan submission deadlines for Class I railroads, railroads with
                inadequate safety performance, railroads that the STB classifies or
                newly classifies as a Class I railroad, and voluntarily compliant
                railroads. For organizational clarity, FRA moved these deadlines to
                paragraph (b) and made each deadline separate paragraphs (b)(1) through
                (4). FRA is further modifying the deadline for ISP railroads in
                paragraph (b)(2). While the NPRM proposed requiring an ISP railroad to
                provide FRA an RRP plan no later than 90 days after receiving final
                notification from FRA under Sec. 271.13, FRA is extending this
                timeline to 180 days in the final rule to account for the petition
                process FRA is including in Sec. 271.13(f). Paragraphs (a)(1) through
                (4) of the NPRM also contained certain requirements for the RRP plan,
                which FRA moved to paragraph (c) in the final rule. These
                organizational changes resulted in the renumbering of the other
                paragraphs in this section but do not affect the substance of the rule.
                 While the NPRM proposed that a voluntarily-compliant railroad could
                submit an RRP plan to FRA for review and approval at any time, FRA
                concluded the proposed approach is vague. FRA based its conclusion on
                the fact that it leaves uncertainty about when a voluntarily-compliant
                railroad begins to compile and collect information solely for RRP
                purposes such that the rule's information protection provisions would
                apply. Paragraph (b)(4)(i) of the final rule therefore states a
                voluntarily-compliant railroad must provide FRA written notice of its
                intent to submit an RRP plan for FRA's review and approval. Under
                paragraph (b)(4)(ii), the date FRA receives the written notice or
                February 18, 2021, whichever is later, is the date the voluntarily-
                compliant railroad may begin to compile or collect information solely
                for the purpose of planning, implementing, or evaluating an RRP under
                the information protection provisions of Sec. 271.11. To ensure a
                voluntarily-compliant railroad does indeed submit an RRP plan for FRA's
                review and approval once the railroad begins compiling or collecting
                information solely for RRP purposes, paragraph (b)(4)(iii) states a
                voluntarily-compliant railroad must submit its RRP plan for review and
                approval no later than 180 days after FRA receives the railroad's
                written notice. This is the same amount of time an ISP railroad has to
                submit its RRP plan under paragraph (b)(2).
                 Paragraphs (c)(1) through (4), proposed as paragraphs (a)(1)
                through (4) of the NPRM, require a railroad to provide certain
                additional information as part of its submission. Aside from the
                reorganization, FRA did not make any changes to the language in
                paragraphs (c)(1) and (2). For reasons explained by the section-by-
                section analysis for Sec. 271.101(d), above, FRA changed paragraph
                (c)(3) to clarify its requirements. Paragraph (c)(3) requires a
                railroad's RRP plan to include the contact information for the senior
                representatives of any person that has entered into a contractual
                relationship with the railroad to either perform significant safety-
                related services on the railroad's behalf or to utilize significant
                safety-related services the railroad provides for railroad operations.
                This includes the senior representatives of host railroads, contract
                operators, shared track/corridor operators, and other contractors. This
                change does not affect the substance of this provision.
                 Paragraph (c)(4), proposed as paragraph (a)(4) in the NPRM,
                requires a railroad to submit a statement describing how it consulted
                with its directly affected employees on the contents of its RRP plan
                under Sec. 271.207(d). This paragraph also reminds directly affected
                employees that they have 30 days following the railroad's submission of
                its proposed RRP plan to file a statement under Sec. 271.207(e)(2).
                FRA has made three changes to these requirements from the NPRM. First,
                this paragraph referenced Sec. 271.207(b) and (c) in the NPRM, and FRA
                changed these references to Sec. 271.207(d) and (e)(2) to reflect
                organizational changes to Sec. 271.207. For plain language purposes,
                FRA also changed the phrase ``in accordance with'' to ``under.'' These
                changes do not affect the substance of this requirement. Finally, while
                the NPRM proposed
                [[Page 9304]]
                providing directly affected employees 60 days to submit a statement
                following a railroad's submission of its RRP plan, FRA believes 30 days
                is more appropriate. The section-by-section analysis for Sec.
                271.207(e)(2) explains why FRA has made this change.
                 Paragraph (d), proposed as paragraph (b) in the NPRM, explains how
                FRA will approve a railroad's RRP plan. Except for updating references
                to reflect organizational changes in Sec. 271.207, making a non-
                substantive editorial change in paragraph (d)(1), extending a deadline
                in paragraph (d)(3), and adding minor provisions in paragraphs (d)(3)
                and (4), FRA adopts this paragraph unchanged from the NPRM. In
                paragraph (d)(1), FRA changed the language ``prior to the commencement
                of railroad operations'' to ``before the start of railroad operations''
                for plain language purposes. Under paragraph (d)(3), when a railroad
                receives notification that FRA has not approved its plan and notice of
                the specific points in which the plan is deficient, the railroad has 90
                days to correct all of the deficiencies identified and resubmit the
                plan to FRA. Both the SSP NPRM and the RRP NPRM proposed giving a
                railroad 60 days to correct identified deficiencies, but FRA received
                comments in response to the SSP NPRM expressing concern that 60 days
                was not a sufficient amount of time for a railroad to address the
                deficient points of an SSP plan. See 81 FR 53888 (Aug. 12, 2016) and 80
                FR 10995 (Feb. 27, 2015). The SSP final rule addressed this concern by
                extending the deadline to 90 days, and this final rule does the same to
                keep the rules consistent. See 49 CFR 270.201(b)(3) and 81 FR 53888
                (Aug. 12, 2016). FRA has also modified paragraph (d)(3) to include
                language indicating that FRA will review a corrected RRP plan within 60
                days of receipt.
                 FRA has modified paragraph (d)(4) to include language stating FRA's
                approval of a railroad's RRP plan does not constitute approval of the
                specific actions the railroad will implement under its RRP plan and
                shall not be construed as establishing a Federal standard regarding
                those specific actions. Section V.A.5 of the preamble, above, explains
                that FRA has added this language to specifically preserve State claims.
                 Paragraph (e), proposed as paragraph (c) in the NPRM, specifies
                that all documents required to be submitted to FRA under this part may
                be submitted electronically under the procedures in appendix B to this
                part. Other than the reorganization and directing readers to appendix B
                instead of appendix C, as proposed in the NPRM (for reasons discussed
                in the section-by-section analysis for appendix B), FRA adopts this
                provision unchanged from the NPRM.
                Section 271.303--Amendments
                 This section addresses the process a railroad must follow whenever
                it amends its FRA-approved RRP plan, regardless of whether the
                amendments are substantive or non-substantive. Except for additional
                language FRA added to paragraph (a) and clarifying changes in
                paragraphs (b) and (c), discussed below, FRA adopts this section
                unchanged from the NPRM. FRA also did not receive any comments on this
                section. For discussion on provisions FRA has not changed, FRA refers
                interested readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27,
                2015).
                 Paragraph (a) in the NPRM stated that for substantive amendments, a
                railroad must follow the process in its RRP plan under Sec. 271.209
                for consulting with its directly affected employees. In the final rule,
                FRA renumbered this provision paragraph (a)(1) and added language
                clarifying that a railroad must also submit a consultation statement to
                FRA. FRA also added language in paragraph (a)(2) specifying that if a
                railroad and its directly affected employees cannot reach agreement on
                the proposed contents of a substantive amendment, the directly affected
                employees may file a statement with FRA under Sec. 271.207(e)(1)
                procedures. Paragraph (a)(2) gives directly affected employees 15 days
                following the railroad's submission of the proposed amendment to submit
                a statement. Fifteen days is sufficient time for the statement because
                issues associated with amending an RRP plan are likely to be less
                complex than issues associated with initially developing a new RRP
                plan. FRA is including this provision because FRA believes a railroad
                substantively amending its RRP plan must follow all the consultation
                process requirements that apply when a railroad is initially developing
                a plan. A railroad cannot either evade consultation process
                requirements or deprive directly affected employees of the opportunity
                to submit a statement to FRA by substantively amending an RRP plan FRA
                already approved. This paragraph does not apply to non-substantive
                amendments (e.g., amendments updating names and addresses of railroad
                personnel). If a railroad is uncertain whether a proposed amendment is
                substantive or non-substantive, it should contact FRA for guidance.
                 Paragraph (b) contains requirements for filing an RRP plan
                amendment. The only change FRA made to this paragraph was to replace
                ``prior to'' with ``before'' for plain language purposes.
                 Paragraph (c) describes how FRA will review and approve a
                railroad's proposed amendment. Paragraph (c)(1) in the NPRM stated that
                FRA will review an amendment within 45 days of receipt and then notify
                the primary contact person of the railroad whether FRA approves the
                proposed amendment. FRA made non-substantive editorial changes to this
                provision to improve clarity and change passive voice to active voice.
                FRA also added language in paragraphs (c)(1) and (2) clarifying that
                FRA will also provide this notification to each individual identified
                in the service list accompanying the consultation statement under Sec.
                271.303(a)(1). Once again, FRA added this language to ensure the
                process for approving substantive amendments is the same as the process
                for initially approving a railroad's RRP plan. FRA adopts paragraph
                (c)(3) unchanged from the NPRM. See 80 FR 10978 (Feb. 27, 2015).
                Section 271.305--Reopened Review
                 This section provides that, for cause stated, FRA may reopen review
                of an RRP plan or amendment (in whole or in part) after approval of the
                plan or amendment. While this section of the NPRM stated that FRA may
                ``reopen consideration'' of an RRP plan or amendment, FRA has replaced
                this phrase with ``reopen review'' because ``review'' is the term used
                in the section title and elsewhere in the final rule to describe FRA's
                role in approving an RRP plan. The determination of whether to reopen
                review is solely within FRA's discretion on a case-by-case basis. As an
                example, the NPRM explained that FRA could reopen review if it
                determines the railroad has not been complying with its plan/amendment
                or if FRA obtains information that was not available when FRA
                originally approved the plan or amendment.
                 In response to this section in the NPRM, AAR/ASLRRA commented the
                phrase ``for cause stated'' was unlimited and this section was
                unacceptably vague. FRA does not believe this provision needs
                additional specificity. FRA further notes that reopening an RRP plan
                for review does not necessarily mean the plan does not comply with the
                final rule. FRA will work with a railroad and its directly affected
                employees if it reopens review to ensure the railroad and employees
                understand and can address FRA's cause stated.
                [[Page 9305]]
                Section 271.307--Retention of RRP Plans
                 This section contains requirements for railroads to retain their
                RRP plans. Except for adding language in paragraph (b) clarifying that
                a railroad must also make a copy of any subsequent amendment to an RRP
                plan available for inspection and copying (in addition to the plan
                itself), FRA adopts this section unchanged from the NPRM. FRA also did
                not receive any comments on this section so it is therefore not
                repeating the NPRM's section-by-section analysis, but refers interested
                readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27, 2015).
                Subpart E--Internal Assessments
                 To help ensure an RRP is properly implemented and effective, a
                railroad must evaluate its program annually. Subpart E contains the
                railroad requirements to conduct an internal assessment of its RRP. FRA
                did not receive any comments on this subpart. Except for updating
                references in the NPRM to reflect organizational changes in the final
                rule \27\ and the minor changes discussed below for Sec. Sec. 271.403
                and 271.405, FRA adopts this subpart unchanged from the NPRM. FRA is
                therefore not repeating the NPRM's section-by-section analysis in this
                final rule, but refers interested readers to the NPRM's discussion. See
                80 FR 10978-10979 (Feb. 27, 2015).
                ---------------------------------------------------------------------------
                 \27\ To reflect organizational changes in the final rule, FRA
                changed a reference in Sec. 271.401(a) from Sec. 271.301(b) to
                Sec. 271.301(d) and a reference in Sec. 271.401(b)(1) from Sec.
                271.223(b) to Sec. 271.225(b).
                ---------------------------------------------------------------------------
                Section 271.403--Internal Assessment Improvement Plans
                 Paragraph (b)(2) in this section of the NPRM stated that a
                railroad's improvement plan must describe recommended improvements,
                ``including any necessary revisions or updates to the RRP plan which
                would be made through the amendment process. . . .'' FRA believes the
                term ``necessary'' is vague, and therefore changed this language in the
                final rule to read, ``including any proposed revisions or updates to
                the RRP plan the railroad expects to make through the amendment process
                . . . .'' The changed language also clarifies that these are amendments
                the railroad expects to make. FRA does not intend these changes to
                change the substance of this paragraph.
                Section 271.405--Internal Assessment Reports
                 FRA has made changes to paragraph (b)(3) of this section to conform
                its language with the changes FRA has made to Sec. 271.403(b)(2),
                discussed above.
                Subpart F--External Audits
                 This subpart explains FRA's process for conducting audits of the
                railroad's RRP and establishes requirements for the actions a railroad
                must take in response to FRA's audits. FRA's audits will focus on
                reviewing the railroad's RRP process and ensuring that the railroad is
                following the processes and procedures described in its FRA-approved
                RRP plan. FRA did not receive any comments on this subpart and except
                for a modification to Sec. 271.501 discussed below, adopts it
                unchanged from the NPRM. FRA is therefore not repeating the NPRM's
                section-by-section analysis in this final rule, but refers interested
                readers to the NPRM's discussion. See 80 FR 10979 (Feb. 27, 2015).
                Section 271.501--External Audits
                 This section in the NPRM generally stated FRA would cause external
                audits to be conducted. FRA has modified this section to clarify that a
                railroad must make documentation kept pursuant to its RRP plan
                available to FRA or State railroad safety inspectors for copying and
                inspection.
                Appendix A to Part 271--Federal Railroad Administration Guidance on the
                Risk Reduction Program Consultation Process
                 As proposed in the NPRM, FRA intended appendix A to contain a
                schedule of civil penalties for use in connection with this final rule.
                However, FRA has decided to provide such a schedule on its website
                instead of as an appendix to the final rule. Please see the discussion
                of Sec. 271.9, Penalties and responsibility for compliance, in the
                section-by-section analysis for further details.
                 FRA is therefore moving appendix B, as proposed in the NPRM, to
                appendix A in the final rule. Appendix A contains guidance on complying
                with Sec. 271.207, which states that a railroad must in good faith
                consult with, and use its best efforts to reach agreement with, all of
                its directly affected employees on the contents of the RRP plan. The
                appendix begins with a general discussion of the terms ``good faith''
                and ``best efforts,'' explaining they are separate terms and each has a
                specific and distinct meaning. For example, the good faith obligation
                is concerned with a railroad's state of mind during the consultation
                process, and the best efforts obligation is concerned with the specific
                efforts a railroad makes to try to reach agreement with its directly
                affected employees. The appendix also explains that FRA will determine
                a railroad's compliance with the Sec. 271.207 requirements on a case-
                by-case basis and explains that FRA may disapprove a plan if a railroad
                fails to consult with its directly affected employees in good faith and
                use best efforts.
                 Further, the appendix contains specific guidance on the process a
                railroad may use to consult with its directly affected employees. This
                guidance does not establish prescriptive requirements a railroad must
                comply with, but provides a road map as an example of how a railroad
                may conduct the consultation process. The guidance also distinguishes
                between employees who are represented by a non-profit employee labor
                organization and employees who are not, as the processes a railroad may
                use to consult with represented and non-represented employees could
                differ significantly. Overall, however, the appendix stresses there are
                many ways a railroad may choose to consult with its directly affected
                employees to comply with the rule. Therefore, it is important to
                maintain a flexible approach to the Sec. 271.207 consultation process
                requirements, so a railroad and its directly affected employees may
                consult in the manner best suited to their specific circumstances.
                Appendix B to Part 271--Procedures for Submission of RRP Plans and
                Statements From Directly Affected Employees
                 Appendix B in the NPRM proposed guidance on complying with the
                consultation process requirements, and has been moved to appendix A in
                the final rule for reasons discussed above. FRA is therefore moving
                appendix C, as proposed in the NPRM, to appendix B in the final rule.
                Appendix B provides railroads and directly affected employees the
                option to file RRP plans or consultation statements electronically. The
                NPRM requested comment regarding whether FRA should allow electronic
                submission of RRP materials. FRA did not receive any comments against
                electronic submission and, therefore, is including this appendix
                unchanged in the final rule.
                 FRA will create a secure document submission site and will need
                basic information from railroads or directly affected employees before
                setting up a user's account. To provide secure access, FRA will also
                need information on the railroad's points of contact. FRA anticipates
                it will be able to approve or disapprove all or part of a program and
                generate automated notifications by
                [[Page 9306]]
                email to a railroad's points of contact. Thus, each point of contact
                must understand that by providing any email addresses, the railroad is
                consenting to receive approval and disapproval notices from FRA by
                email. Railroads that allow notice from FRA by email benefit from
                receiving such notices quickly and efficiently.
                 Railroads that choose to submit printed materials to FRA must
                deliver them directly to the specified address. Some railroads may
                choose to deliver a CD, DVD, or other electronic storage format to FRA
                rather than requesting access to upload the documents directly to the
                secure electronic database. Although that is an acceptable method of
                submission, FRA encourages each railroad to utilize the electronic
                submission capabilities of the system. If FRA cannot read the type of
                electronic storage format sent, FRA will reject the submission.
                VII. Regulatory Impact and Notices
                A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT
                Regulatory Policies and Procedures
                 This rule is a significant regulatory action within the meaning of
                Executive Order 12866 (E.O. 12866) and DOT policies and procedures. See
                44 FR 11034 (Feb. 26, 1979). FRA made this determination by finding
                that, although the economic effects of this regulatory action would not
                exceed the $100 million annual threshold defined by E.O. 12866, the
                rule is significant because of the substantial public interest in
                transportation safety. Pursuant to the Congressional Review Act (5
                U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs
                designated this rule as not a `major rule', as defined by 5 U.S.C.
                804(2). Additionally, this final rule is considered an E.O. 13771
                regulatory action. Details on the estimated costs of this final rule
                can be found in the rule's RIA, which FRA has prepared and placed in
                the docket (docket no. FRA-2009-0038). The RIA details estimated costs
                the railroads regulated by the rule are likely to incur over a ten-year
                period.
                 FRA did not estimate the full incremental costs of railroads
                conducting additional and systematic hazard and risk analyses or
                implementing actions to mitigate identified hazards and risks. FRA
                lacks information to reliably estimate such costs because FRA does not
                know the specific level of hazards and risks on impacted railroads or
                the means railroads will use to mitigate these risks. FRA nevertheless
                expects railroads will implement the most cost-effective mitigations to
                eliminate or mitigate hazards, and the rule does not require railroads
                to implement mitigations that would result in net costs. As such, FRA
                expects that a railroad will only implement mitigation efforts that are
                net beneficial to the railroad.
                 The below tables summarize the rule's total costs over a ten-year
                period based on Class I railroads having a 43-percent pre-compliance
                rate and ISP railroads having no pre-compliance, with a total cost of
                $40.2 million, using a 7-percent discount rate (PV), 7-percent) (Table
                5) and $51.0 million, using a 3-percent discount rate (PV, 3-percent)
                (Table 6). The annualized costs are $5.7 million (PV, 7-percent) and
                $5.9 million (PV, 3-percent).
                 Table 5--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                 PV, 7-Percent
                ----------------------------------------------------------------------------------------------------------------
                 Class I
                 Costs railroads ISP railroads All railroads
                ----------------------------------------------------------------------------------------------------------------
                Subpart A: General.............................................. .............. $7,000 $7,000
                Subpart B: RR Programs.......................................... $35,725,000 2,216,000 37,941,000
                Subpart C: RRP Plans............................................ 656,000 1,053,000 1,709,000
                Subpart D: Review and Approval of Plans......................... 2,000 7,000 9,000
                Subpart E: Internal Assessments................................. 171,000 312,000 483,000
                Subpart F: External Audits...................................... 28,000 32,000 60,000
                 -----------------------------------------------
                 Total Cost.................................................. 36,582,000 3,627,000 40,209,000
                 -----------------------------------------------
                Annualized...................................................... 5,210,000 516,000 5,726,000
                ----------------------------------------------------------------------------------------------------------------
                 Table 6--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                 PV, 3-Percent
                ----------------------------------------------------------------------------------------------------------------
                 Class I
                 Costs railroads ISP railroads All railroads
                ----------------------------------------------------------------------------------------------------------------
                Subpart A: General.............................................. .............. $9,000 $9,000
                Subpart B: RR Programs.......................................... $45,156,000 3,011,000 48,167,000
                Subpart C: RRP Plans............................................ 771,000 1,329,000 2,100,000
                Subpart D: Review and Approval of Plans......................... 2,000 8,000 10,000
                Subpart E: Internal Assessments................................. 230,000 413,000 643,000
                Subpart F: External Audits...................................... 37,000 43,000 80,000
                 -----------------------------------------------
                 Total Cost, 3% present value................................ 46,197,000 4,813,000 51,000,000
                 -----------------------------------------------
                Annualized, 3%.................................................. 5,416,000 564,000 5,979,000
                ----------------------------------------------------------------------------------------------------------------
                 The final rule will require each Class I and ISP railroad to create
                and implement an RRP. As part of an ongoing process, the final rule
                will require each railroad and its employees to collaboratively
                identify, rank, and address safety hazards. FRA concludes that the
                final rule will result in each affected railroad creating a systematic
                [[Page 9307]]
                approach to safety that achieves benefits from inter-department
                coordination similar to the type of benefits observed through the FRA-
                sponsored C\3\RS program.\28\ FRA expects that the final rule will
                improve the effectiveness of a railroad's hazard mitigation efforts,
                which will result in the primary benefit of decreasing the frequency of
                accidents/incidents. Other benefits that will come from promulgating
                the rule include reduced railroad and non-railroad property damage,
                railroad and highway travel delays, cleanup costs, employee
                absenteeism, and emergency response costs, among others. Lastly, FRA
                expects that the final rule will increase railroad productivity and
                profitability, due to substantially better employee morale, improved
                working conditions, and a more effective allocation of hazard safety
                mitigation resources.
                ---------------------------------------------------------------------------
                 \28\ See U.S. Department of Transportation, Federal Railroad
                Administration, ``Continued Improvement at One C3RS Site'', June
                2015, available at https://rosap.ntl.bts.gov/view/dot/12204/dot_12204_DS1.pdf (Accessed December 10, 2018).
                ---------------------------------------------------------------------------
                 Benefits that come from the final rule will vary from railroad to
                railroad. These benefits are based on each railroad's organizational
                structure, the ability for labor and management to collaborate, and the
                steps the railroad takes to implement hazard analysis and mitigation.
                FRA could not reliably predict the specific risks that each freight
                railroad will identify, the actions each freight railroad will take to
                mitigate such risks, or the success rate of such actions. Details on
                the estimated benefits of this final rule can be found in the rule's
                RIA, which FRA has prepared and placed in the docket (docket no. FRA-
                2009-0038).
                 FRA expects that the final rule will increase the effectiveness of
                railroad hazard mitigation strategies, which will reduce the frequency
                of accidents and incidents on the general railroad system. FRA also
                expects that the final rule will result in increased employee morale
                and improved working conditions, which will improve railroad
                productivity. These benefits will result because the final rule:
                 1. Ensures that railroads keep their RRP current and in place;
                 2. Improves safety culture;
                 3. Requires ongoing employee involvement and proactive
                collaboration between labor and management; and
                 4. Provides information protection, which allows for a systematic
                risk-based hazard analysis.
                 The final rule requires each Class I railroad to have a fully
                implemented RRP within five years of the rule's effective date and
                requires the first set of ISP railroads to implement all portions of
                their RRPs within six years after the final rule's effective date.\29\
                FRA anticipates that railroads may implement some components of their
                RRP plan before the required implementation dates specified in the
                final rule. Therefore, this analysis estimates that the final rule will
                start generating benefits in the fourth year (year 2022), when Class I
                railroads will have substantially implemented their RRPs. As previously
                discussed, Class I railroads have in place existing activities related
                to the final rule's required components. The existing levels of pre-
                rule compliance reduce the size of potential benefits that follow from
                issuing the final rule.
                ---------------------------------------------------------------------------
                 \29\ An ISP railroad should begin to realize benefits
                approximately three years after FRA approves its RRP plan, the point
                when the final rule requires the ISP railroad to have fully
                implemented its RRP. The final rule requires each ISP railroad that
                is part of the first group of ISP railroads to implement in full an
                RRP by the sixth year.
                ---------------------------------------------------------------------------
                B. Regulatory Flexibility Act and Executive Order 13272
                 The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
                Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
                review of proposed and final rules to assess their impacts on small
                entities. An agency must prepare a Final Regulatory Flexibility
                Analysis (FRFA) unless it determines and certifies that a rule, if
                promulgated, would not have a significant economic impact on a
                substantial number of small entities. FRA is publishing this FRFA to
                describe the potential impact of the final rule on small businesses.
                1. Statement of Need for, and Objectives of, the Rule
                 FRA is requiring each Class I freight railroad and ISP freight
                railroad to develop and implement an RRP, a structured program with
                proactive processes and procedures a railroad develops and implements
                to identify and eliminate or mitigate hazards and the resulting risks
                on its system. An RRP works by encouraging a railroad and its employees
                to proactively collaborate to identify hazards and determine what, if
                any, action to take to eliminate or mitigate the resulting risks. The
                rule provides each railroad with a substantial amount of flexibility to
                establish an RRP based on its specific operations. FRA is issuing the
                RRP rule as part of its efforts to continuously improve rail safety and
                to satisfy in part the statutory mandate in sections 103 and 109 of the
                RSIA.
                 The rule is intended to focus on increased safety, care, and
                protection of railroad employees, customers, and the general public.
                The rule will also help ensure railroads provide a safer workplace
                environment for their employees. Conformance and compliance with the
                rule, rather than a voluntary system, will better facilitate and ensure
                industry-wide efforts, resulting in measurable improvement in the
                performance and quality of safety management processes.
                 Even though FRA has issued safety regulations and guidance that
                address many aspects of railroad operations, there are gaps in safety
                and hazards. Risks may arise from these gaps. RRPs will provide
                railroads with the tools to systematically and continuously evaluate
                their systems to identify the gaps in safety and eliminate or mitigate
                the hazards and risks that result from these gaps.
                 The rule responds to the Congressional mandate in section 103 of
                the RSIA, which provides that FRA, by delegation from the Secretary,
                shall require each Class I railroad and ISP railroad to establish a
                railroad safety risk reduction program. See 49 U.S.C. 20156(a)(1).\30\
                The rule also conforms to section 109 of the RSIA, which directs FRA,
                by delegation from the Secretary, to conduct a study to determine if it
                is in the public interest to withhold certain information, including a
                railroad's assessment of its safety risks and its statement of
                mitigation measures, from discovery and admission into evidence in
                proceedings for damages involving personal injury and wrongful death.
                Section 109 authorizes FRA, by delegation from the Secretary, to
                prescribe a rule, subject to notice and comment, to address the results
                of the study. See 49 U.S.C. 20119.
                ---------------------------------------------------------------------------
                 \30\ While the RSIA also directs FRA to require passenger
                railroads to establish railroad safety risk reduction programs, FRA
                has published a separate SSP rule that addresses the passenger
                railroad mandate. See 81 FR 53850 (Aug. 12, 2016).
                ---------------------------------------------------------------------------
                 The RSIA requirements explain the congressionally mandated need for
                action. Under 49 U.S.C. 20103(a), ``[t]he Secretary of Transportation,
                as necessary, shall prescribe regulations and issue orders for every
                area of railroad safety supplementing laws and regulations in effect on
                October 16, 1970.'' The Secretary's responsibility under this provision
                and the balance of the railroad safety laws has been delegated to the
                FRA Administrator under 49 CFR 1.89.
                [[Page 9308]]
                2. Summary of Significant Issues Raised by Public Comments, Summary of
                Assessment of Such Issues, and Statement of Any Changes in Rule as
                Result of Such Comments
                 There is an extensive section, above, discussing comments. This
                section discusses comments particularly applicable to small railroads.
                 ISP Determination: ASLRRA expressed concern that FRA's proposed
                methodology for identifying ISP railroads would select a
                disproportionate number of the smallest railroads. To assess this
                concern, FRA conducted several analyses of data from FRA's RAIRS, the
                system that would provide FRA data for the inadequate safety
                performance methodology. To approximate the proposed methodology, FRA
                conducted the analyses for the three-year period from 2012 through
                2014, the latest years for which a full 12 months' data were available
                at the time of the analysis.
                 The first analysis identified and evaluated all railroads the
                proposed methodology would analyze for inadequate safety performance
                (i.e., Class II and III freight railroads that operate on the general
                system). On average, these railroads reported about 231,000 total train
                miles operated and 200,000 employee hours between 2012 and 2014.
                 FRA then used the proposed methodology for identifying ISP
                railroads to evaluate Class II and III railroads for inadequate safety
                performance. Railroads determined to have inadequate safety performance
                reported, on average, 32,000 total train miles operated and 35,000
                employee hours between 2012 and 2014. These averages are substantially
                lower than averages for the entire pool of Class II and III railroads
                the proposed methodology would evaluate. Based on this result, FRA
                shares ASLRRA's concern that the proposed methodology would over-select
                the smallest railroads.
                 FRA has therefore changed the proposed methodology to include a
                preliminary selection in the quantitative analysis phase. This
                preliminary selection will help avoid over-selecting the smallest
                railroads by utilizing the absolute number (rather than rates) of two
                factors regarding a railroad's safety performance. FRA has applied this
                methodology to RAIRS data. On average, railroads identified as having
                inadequate safety performance reported 146,000 train miles operated and
                165,000 employee hours from 2012 through 2014. These averages are much
                closer to the averages for the entire pool of Class II and III freight
                railroads that the methodology will initially evaluate.
                 Appeal of FRA's ISP Determination: AAR/ASLRRA commented urging FRA
                to establish an appeals process for railroads that the methodology
                identifies as having inadequate safety performance. FRA agrees
                including an appeals process for railroads determined to have
                inadequate safety performance is fair. In the final rule, FRA therefore
                added a process for railroads to petition the FRA Administrator for
                reconsideration of inadequate safety performance determinations under
                existing procedures to appeal to the Administrator (e.g., procedures
                regarding petitions for waiver of safety rules under 49 CFR part 211,
                subpart C). These procedures are well-established and should be
                familiar to the railroad industry.
                 Information Protection: While small railroad commenters favored
                information protection, FRA received several comments arguing the
                proposed information protections are too narrow. ASLRRA commented FRA
                improperly relied on section 409 and the Supreme Court's decision in
                Guillen, and therefore FRA is not protecting data as Congress intended
                in the RSIA. ASLRRA also questions FRA's explanation in the NPRM
                preamble that the information protections would only extend to the
                Short Line Safety Institute (Institute) if FRA finds the Institute is
                part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). As
                Section V.A.8 explains above, FRA disagrees with these comments and
                believes it has properly limited the scope of the information
                protections, the protections are consistent with Congress' intent in
                the RSIA, and FRA lacks authority under RSIA to extend information
                protections to programs that do not fully meet the requirements of this
                RRP final rule.
                 AAR/ASLRRA also commented on the NPRM preamble statement that Sec.
                271.11 would only protect information once FRA approves a railroad's
                RRP plan. They believe that approach does not make sense and weakens
                the rule's proposed protections. As Section V.A.8 explains above, FRA
                agrees with AAR/ASLRRA and does not intend to limit the information
                protections only to information a railroad compiles or collects for an
                RRP plan FRA has already approved.
                 Performance-based rule and flexibility: As Section V.B.2 explains
                above, the NPRM described RRP as a performance-based rule that would
                not establish prescriptive requirements that may be appropriate for one
                railroad but unworkable for another. Several commenters supported FRA's
                decision to propose a performance-based, flexible RRP rule, and AAR/
                ASLRRA acknowledged the performance-based nature of RRP. The
                performance-based nature of the RRP final rule gives a smaller railroad
                the flexibility to tailor the rule's requirements to its specific
                operations and amount of resources.
                 Short Line Safety Institute: As Section V.B.8 explains above,
                ASLRRA commented that small railroad participation in the Institute
                should suffice as complete compliance with the requirements in the
                NPRM. ASLRRA also claims FRA would fulfill the SBREFA requirement to
                grant special considerations to small businesses by accepting
                participation in the Institute as satisfying RRP requirements. FRA
                currently cannot determine, however, whether the Institute will fully
                comply with the RSIA mandate or the requirements of this final rule.
                Rather, FRA believes it is more appropriate to make this determination
                when reviewing RRP plans under Sec. 271.301 of the final rule. FRA
                also notes that the final rule will not unduly burden short line and
                regional railroads because of its scalability and flexibility.
                3. The Response of the Agency to Any Comments Filed by the Chief
                Counsel for Advocacy of the Small Business Administration
                 FRA did not receive any comments from the Chief Counsel for
                Advocacy of the Small Business Administration.
                4. Description and Estimate of Number of Small Entities to Which the
                Final Rule Applies
                 ``Small entity'' is defined in 5 U.S.C. 601 as a small business
                concern that is independently owned and operated, and is not dominant
                in its field of operation. The U.S. Small Business Administration (SBA)
                has authority to regulate issues related to small businesses, and
                stipulates in its size standards that a ``small entity'' in the
                railroad industry is a for profit ``line-haul railroad'' that has fewer
                than 1,500 employees, a ``short line railroad'' with fewer than 500
                employees, or a ``commuter rail system'' with annual receipts of less
                than 15 million dollars. See ``Size Eligibility Provisions and
                Standards,'' 13 CFR part 121, subpart A. Additionally, 5 U.S.C. 601(5)
                defines as ``small entities'' governments of cities, counties, towns,
                townships, villages, school districts, or special districts with
                populations less than 50,000.
                 Federal agencies may adopt their own size standards for small
                entities in consultation with SBA and in conjunction with public
                comment.
                [[Page 9309]]
                Under that authority, FRA published a final statement of agency policy
                formally establishing ``small entities'' or ``small businesses'' as
                railroads, contractors, and hazardous materials shippers that meet the
                revenue requirements of a Class III railroad under 49 CFR 1201.1-1,
                which is $20 million or less in inflation-adjusted annual revenues, and
                commuter railroads or small governmental jurisdictions that serve
                populations of 50,000 or less. See 68 FR 24891 (May 9, 2003) (codified
                at 49 CFR part 209, appendix C). The $20 million limit is based on the
                STB's revenue threshold for a Class III railroad carrier. Railroad
                revenue is adjusted for inflation by applying a revenue deflator
                formula in accordance with 49 CFR 1201.1-1. FRA is using this
                definition for the final rule. For other entities, the same dollar
                limit in revenues governs whether a railroad, contractor, or other
                respondent is a small entity.
                Railroads
                 In the universe of railroads that potentially have to comply with
                the final rule, there are 7 Class I railroads, 11 Class II railroads (1
                of which is classified as a passenger railroad that will be excepted
                from the final rule), and 735 Class III freight railroads. Out of the
                735 Class III freight railroads, the final rule excepts railroads not
                on the general system and tourist railroads, leaving approximately 600
                Class III railroads as small entities that may be subject to the
                requirements of the final rule.\31\
                ---------------------------------------------------------------------------
                 \31\ Total number of Class III railroads potentially impacted =
                735 Class III railroads-43 Class III railroads not on the general
                system-93 Class III railroads that are tourist railroads = 599 Class
                III railroads.
                ---------------------------------------------------------------------------
                 To identify Class II and Class III railroads that must comply with
                the final rule because they demonstrate inadequate safety performance,
                FRA will annually conduct a two-phase analysis. The first phase is a
                statistically-based quantitative analysis of fatalities, FRA-reportable
                injuries/illnesses, FRA-reportable accidents/incidents, and FRA safety
                violations; and the second phase is a qualitative assessment that
                includes input from affected railroads and their employees. See Sec.
                271.13 of the final rule for a full description of FRA's process for
                determining inadequate safety performance.
                 Because FRA's initial inadequate safety performance analysis will
                occur at least one year after the RRP final rule goes into effect, it
                is impossible for FRA to know how many Class III railroads will be
                required to comply. FRA reviewed a 3-year rolling average of safety
                data to test the selection process. This analysis accounted for the
                types of information that railroads and employees could present to FRA
                during the qualitative review process. Such information could serve to
                refute the quantitative analysis' identification of a railroad as
                demonstrating inadequate safety performance. Based on this analysis,
                FRA expects to identify approximately 10 Class II and Class III freight
                railroads that demonstrate inadequate safety performance in year 2 of
                the 10-year period of the analysis. In each subsequent year, FRA
                expects to identify five additional ISP railroads. Therefore, by year
                10, FRA will have identified approximately 50 ISP railroads.
                 FRA expects the number of ISP railroads will reach a maximum of 50
                railroads by year 10, at which point the number of ISP railroads should
                flatten out or decline. In estimating the maximum number of ISP
                railroads, FRA considered the following factors: (1) Industry-wide
                safety performance improvement; (2) in year 7 of the analysis, some ISP
                railroads will seek and receive relief from being in the program after
                complying for 5 years; (3) the size of the railroad pool being examined
                for inadequate safety performance would shrink as more railroads are
                required to comply with part 271; and (4) those railroads not
                identified as being an ISP railroad will observe the positive behaviors
                and results of ISP railroads and will embrace the better safety
                practices without having a formal RRP program.
                 For purposes of this FRFA, FRA expects that each ISP will be a
                Class III railroad (small railroad).
                Contractors
                 Some railroads use contractors to perform many different functions
                on their railroads. For some of these railroads, contractors perform
                safety-related functions, such as operating trains. For assessing the
                impact of an RRP, contractors fall into two groups: Larger contractors
                that perform a primary operating or maintenance function for the
                railroads, and smaller contractors that perform ancillary functions to
                the primary operations. Larger contractors are typically employed by
                sizable private companies or part of an international conglomerate.
                Smaller contractors may perform such duties as brush clearing or
                painting facilities.
                 Safety-related policies, work rules, guidelines, and regulations
                are imparted to the small contractors today as part of their
                contractual obligations and qualification to work on the Class I
                freight railroads, and potentially to work for ISP railroads. FRA sees
                minimal additional burden to imparting the same type of information
                under each railroad's RRP. A very small administrative burden may
                result.
                 Under the final rule, contractors (small or large) that provide
                significant safety-related services are expected to have minimal burden
                under the rule. For example, while the final rule requires the railroad
                to involve the persons that provide significant safety-related services
                in the railroad's RRP, it doesn't require the entity to do any
                training. Thus, any burden imposed on contractors would be indirect or
                considered in the contract with the pertinent railroad or both.
                5. Description of the Projected Reporting, Recordkeeping, and Other
                Compliance Requirements of the Rule, Including Estimate of Small
                Entities Regulated by Rule
                 The rule will require an ISP railroad to develop and implement an
                RRP under a written RRP plan FRA has reviewed and approved. There are
                several reporting, recordkeeping, and compliance costs associated with
                the final rule. FRA believes that the added burden of recordkeeping is
                marginal due to the final rule requirements.
                 The total 10-year cost of this final rule is $40.2 million (PV, 7%)
                and $51.0 million (PV, 3%), of which FRA estimates $3.6 million (PV,
                7%) and $4.5 million (PV, 3%) or less will be attributable to small
                entities. Based on FRA's RIA, which has been placed in the docket, the
                average Class III ISP railroad will incur an average burden per year.
                If, for example, ISP railroads comply with the final rule for an
                average of eight years, then the total cost will be approximately
                $143,000 (PV, 7%) and $168,000 (PV, 3%) per ISP railroad.
                 However, due to the small number of small railroads that are
                estimated to be impacted by this final rule, the cost per railroad
                could be found to be significant. For a thorough presentation of cost
                estimates, please refer to the RIA, which has been placed in the docket
                for this rulemaking.
                 The following section outlines the potential additional burden on
                small railroads for each subpart of the final rule.
                 Subpart A--General
                 The policy, purpose, and definitions outlined in subpart A, alone,
                will not impose a significant burden on small railroads. However, there
                is the small requirement for notifying employees of
                [[Page 9310]]
                the railroad that FRA's quantitative analysis has found that the
                railroad may demonstrate inadequate safety performance. This subpart of
                the final rule will impose less than 1 percent of the total burden for
                small entities.
                 Subpart B--Risk Reduction Program Requirements
                 Subpart B of the final rule will have a proportional effect
                directly related to the size and complexity of a railroad and will
                impose approximately 60 percent of the total burden for small entities.
                Generally, this subpart describes what a railroad must develop and
                include in its RRP. For example, it requires the development of a risk-
                based HMP (which includes a risk-based hazard analysis and the design
                and implementation of mitigation strategies), safety performance
                evaluation, and technology implementation plans.
                 Because of the scalable nature of the final rule, the requirements
                of an RRP will be much less complex for a small railroad than they will
                be for a Class I railroad. Additionally, several characteristics of
                small railroads should also limit the number and types of hazards for
                the RRP to address. These characteristics include the concentrated
                geography of operation in a small area, the short distance of
                operation, and a non-fragmented and non-diffused work force (in other
                words, most employees of a small railroad are in one place). RRP
                requirements such as technology implementation plans should also not be
                burdensome. This is because small railroads are very limited in the
                resources they can allocate for new technologies. FRA expects that
                small railroads will rely on tried-and-true technologies that have been
                thoroughly tested elsewhere.
                 Subpart C--Risk Reduction Program Plan Requirements
                 Subpart C of the final rule will have a proportional effect
                directly related to the size and complexity of a railroad. This subpart
                of the final rule contains the requirements for RRP plans and will
                impose approximately 29 percent of the total burden for small entities.
                For example, it requires a plan statement on each RRP element mandated
                in subpart B and plan statements related to safety policy and goals, a
                system description, the consultation process, and an RRP implementation
                plan. This subpart of the final rule is primarily the paperwork or
                written plan that supports the processes and programs in the RRP.
                 Subpart D--Review, Approval, and Retention of Risk Reduction
                Program Plans
                 Subpart D of the final rule will impose less than 1 percent of the
                total burden for small entities. The final requirements of this subpart
                are for the submission to FRA for review and approval of the initial
                RRP plan and any amendments thereto. Since only 10 small railroads are
                expected to submit RRP plans for approval in year two, and
                approximately 5 small railroads are expected to submit RRP plans each
                year thereafter, this subpart should have a very small economic impact.
                 Subpart E--Internal Assessments
                 Subpart E of the final rule will impose approximately 9 percent of
                the total burden for small entities. This burden is for the ongoing
                cost of small railroads to perform an internal assessment and report on
                internal audits on an annual basis. As noted above, initially very few
                small railroads will be performing these internal assessments, which
                will serve to minimize the economic impact on small railroads.
                 Subpart F--External Audits
                 Subpart F of the final rule will impose approximately 1 percent of
                the total burden for small entities. This burden is for the ongoing
                cost of small railroads to host an external audit by FRA or its
                designees on a periodic basis. This includes the burden to produce an
                improvement plan addressing any instances of deficiencies or
                noncompliance FRA identified during the audit. FRA does not expect more
                than five of these small railroads to receive an external audit in any
                given year.
                Market and Competition Considerations
                 The railroad industry has several significant barriers to entry,
                such as the need to own or otherwise obtain access to rights-of-way and
                the high capital expenditure needed to purchase a fleet, as well as
                track and equipment. Furthermore, the small railroads under
                consideration will potentially be competing only with the trucking
                industry and typically deal with the transport of commodities or goods
                that are not truck-friendly. Thus, while this final rule will have an
                economic impact on Class I freight railroads and ISP railroads, it
                should not have an impact on the competitive position of small
                railroads.
                 For the entire railroad industry over a 10-year period, FRA
                estimates the total cost for the rule will be $40.2 million (PV, 7-
                percent), or $51.0 million (PV, 3-percent).\32\ Based on information
                currently available, FRA estimates that Class II and Class III
                railroads will bear 9 percent of the total railroad costs associated
                with implementing the rule.
                ---------------------------------------------------------------------------
                 \32\ FRA's estimates follow Office of Management and Budget
                (OMB) guidance in OMB Circular A-94 to use real discount rates of 7-
                and 3-percent for regulatory analysis.
                ---------------------------------------------------------------------------
                6. Description of Steps Taken To Minimize Significant Adverse Economic
                Impact on Small Entities
                 As discussed above, FRA estimates ISP railroads will incur
                approximately 9 percent of the total cost of this final rule. Based on
                FRA's RIA, the average ISP railroad will incur an average burden of
                approximately $18,000 (PV, 7-percent) and $21,000 (PV, 3-percent) per
                year. If ISP railroads complied with the RRP final rule for an average
                of eight years, then the average total cost will be approximately
                $144,000 (PV, 7-percent) and $168,000 (PV, 3-percent) per ISP railroad.
                 FRA has taken several steps to minimize the final rule's burden on
                small entities. For example, several provisions in the final rule
                respond directly to comments on the NPRM raising small entity concerns.
                Specifically, FRA modified the methodology for identifying ISP
                railroads to avoid over-selecting the smallest railroads and included a
                process in the final rule allowing railroads to appeal an ISP
                determination to the FRA Administrator. Additional steps FRA has taken
                include developing and promulgating a performance-based final rule,
                helping to create the Institute (which will help any small railroad
                comply with this rule), and providing information protections.
                 FRA also intends to aid railroads, including small entities, in the
                development of the RRPs, starting at the planning phase and continuing
                through the implementation phase. The final rule is also scalable by
                design. Therefore, a short line or regional railroad can likely
                maintain full compliance with the final rule with an RRP that is not
                likely to have the complexity and comprehensiveness of an RRP for a
                larger railroad. FRA will aid railroads so that the scope and content
                of their RRPs are proportionate to their size and the nature of their
                operation. All these actions benefit small railroads and will help them
                comply with the final rule. Lastly, as a result of addressing the
                safety issues that led FRA to determine the railroad demonstrated
                inadequate safety performance, FRA believes an RRP will help an ISP
                railroad more effectively
                [[Page 9311]]
                allocate resources, while also reducing the frequency of accidents. For
                small entities, FRA estimates the monetized value of gains will be
                equal to or greater than the final rule's burden.
                 In the Initial Regulatory Flexibility Analysis, FRA stated it had
                not determined whether the proposed rule would have a significant
                economic impact on a substantial number of small entities. See 80 FR
                10982 (Feb. 27, 2015). FRA remains uncertain whether the rule may have
                a significant impact on affected entities, or whether the number of
                small entities FRA expects to be impacted, a maximum of 50 out of
                approximately 600, is a substantial number of small entities.
                Therefore, FRA is not certifying that the rule will not have a
                significant impact on a substantial number of small entities.
                 In compliance with SBREFA, FRA is developing a compliance guide to
                assist small entities in complying with the rule. FRA is placing this
                guide in the public docket for this rulemaking.
                 Overall, FRA has taken reasonable measures to ensure the rule's
                impact is commensurate with business size, and FRA will aid small
                railroad compliance.
                C. Federalism
                 Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
                requires FRA to develop an accountable process to ensure ``meaningful
                and timely input by State and local officials in the development of
                regulatory policies that have federalism implications.'' ``Policies
                that have federalism implications'' are defined in the Executive order
                to include regulations that have ``substantial direct effects on the
                States, on the relationship between the national government and the
                States, or on the distribution of power and responsibilities among the
                various levels of government.'' Under Executive Order 13132, the agency
                may not issue a regulation with federalism implications that imposes
                substantial direct compliance costs and that is not required by
                statute, unless the Federal Government provides the funds necessary to
                pay the direct compliance costs incurred by State and local governments
                or the agency consults with State and local government officials early
                in the process of developing the regulation. Where a regulation has
                federalism implications and preempts State law, the agency seeks to
                consult with State and local officials in the process of developing the
                regulation.
                 FRA analyzed this final rule under the principles and criteria in
                Executive Order 13132. FRA has determined this rule does not have
                substantial direct effects on the States, on the relationship between
                the National Government and the States, or on the distribution of power
                and responsibilities among the various levels of government. In
                addition, FRA has determined this rule does not impose substantial
                direct compliance costs on State and local governments. Therefore, the
                consultation and funding requirements of Executive Order 13132 do not
                apply.
                 This rule adds part 271, Risk Reduction Program. FRA notes that
                this part could have preemptive effect by the operation of law under a
                provision of the former Federal Railroad Safety Act of 1970, repealed
                and re-codified at 49 U.S.C. 20106 (section 20106). Section 20106
                provides that States may not adopt or continue in effect any law,
                regulation, or order related to railroad safety or security that covers
                the subject matter of a regulation prescribed or order issued by the
                Secretary of Transportation (with respect to railroad safety matters)
                or the Secretary of Homeland Security (with respect to railroad
                security matters), except when the State law, regulation, or order
                qualifies under the ``essentially local safety or security hazard''
                exception to section 20106. FRA has determined that certain State laws
                may be preempted by this part. Section 271.11(d) in the final rule
                specifically addresses the preemption of State discovery rules and
                sunshine laws to the extent those laws would require disclosure of
                information protected by Sec. 271.11 in a Federal or State court
                proceeding for damages involving personal injury, wrongful death, or
                property damage. The preemption of State discovery rules and sunshine
                laws is discussed further in the section-by-section analysis of Sec.
                271.11(d). In addition, as previously discussed, section 20119(b)
                authorizes FRA to issue a rule governing the discovery and use of risk
                analysis information in litigation.
                 In sum, FRA has analyzed this rule under the principles and
                criteria in Executive Order 13132. As explained above, FRA has
                determined this rule has minimal federalism implications. Accordingly,
                FRA has determined that preparation of a federalism summary impact
                statement for this rule is not required.
                D. International Trade Impact Assessment
                 The Trade Agreements Act of 1979 prohibits Federal agencies from
                engaging in any standards or related activities that create unnecessary
                obstacles to the foreign commerce of the United States. Legitimate
                domestic objectives, such as safety, are not considered unnecessary
                obstacles. The act requires consideration of international standards
                and, where appropriate, that they be the basis for U.S. standards. This
                rule is purely domestic in nature and is not expected to affect trade
                opportunities for U.S. firms doing business overseas or for foreign
                firms doing business in the United States.
                E. Paperwork Reduction Act
                 FRA is submitting the information collection requirements in this
                rule to the Office of Management and Budget (OMB) for approval under
                the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The
                sections that contain information collection requirements are duly
                designated and the estimated time to fulfill each requirement is as
                follows:
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 Total annual
                 Average time per Total annual dollar cost
                 CFR section/subject \33\ Respondent universe Total annual responses response burden hours equivalent
                 \34\
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                271.13--Determination of 15 railroads................. 5 notices.................... 3 hours................ 15 $1,018
                 inadequate safety performance
                 (ISP)--Notice to employees of
                 possible ISP identification by
                 FRA.
                 --Employee confidential 125 employees................ 5 comments................... 30 minutes............. 2.5 170
                 comments to FRA regarding RR
                 possible ISP identification.
                 --RR Documentation to FRA 15 railroads................. 5 documents.................. 8 hours................ 40 2,715
                 refuting possible ISP
                 identification.
                 ----------------------------------------------------------------------------------------------------------------------
                271.101(a)--Risk Reduction This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
                 Programs (RRPs)--Class I
                 railroads.
                 ----------------------------------------------------------------------------------------------------------------------
                271.103--RRP hazard management 7 railroads.................. 2.333 HMPs analyses.......... 3,360 hours............ 7,839 532,111
                 program (HMPs).
                271.105--RRP safety performance 7 railroads.................. 2.333 SPEs evaluation........ 147 hours.............. 343 23,283
                 evaluation (SPEs): Survey/
                 evaluation.
                [[Page 9312]]
                
                 7 railroads.................. 2.333 assessments............ 1,060 hours............ 2,473 167,867
                271.107--Safety Outreach-- 7 railroads.................. 44,333 communications........ 1 hour................. 44,333 2,379,352
                 communications/reports.
                 7 railroads.................. 28 communications............ 30 minutes............. 14 950
                271.109--Technology analysis and 7 railroads.................. 2.333 reports................ 10 hours............... 23.3 1,582
                 technology implementation plans.
                271.111--RRP implementation 7 railroads.................. 1,400 records of trained 3 minutes.............. 70 4,752
                 training--programs/tr. employees/ employees.
                 rcds.
                271.101(c)--Communication by 7 railroads.................. 40 communications/ 2 hours................ 80 5,430
                 Class I RRs that host passenger consultations.
                 train service with RRs subject
                 to FRA System Safety Program
                 Requirements.
                 --(d)--Identification/ 7 railroads.................. 212 communications/ 1 hour................. 212 14,391
                 communication w/entities consultations.
                 performing/utilizing
                 significant safety-related
                 services--Class I RRs.
                 --RR Identification/further 7 railroads.................. 1,488 communications/ 1 hour................. 1,488 101,005
                 communication with consultations.
                 contractors performing/
                 utilizing significant safety
                 related services--Class I
                 RRs.
                 ----------------------------------------------------------------------------------------------------------------------
                271.101(a)--Risk Reduction This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
                 Programs (RRPs)--ISP railroads.
                 ----------------------------------------------------------------------------------------------------------------------
                271.103--RRP hazard management 15 railroads................. 5 HMPs....................... 240 hours.............. 1,200 81,456
                 program (HMPs).
                271.105--RRP safety performance 15 railroads................. 5 surveys.................... 14.73 hours............ 74 5,023
                 evaluation (SPEs): Survey/
                 evaluation.
                 15 railroads................. 5 SPEs....................... 51.1 hours............. 256 17,377
                271.107--Safety Outreach-- 15 railroads................. 5 communications............. 1 hour................. 5 268
                 communications/reports.
                 15 railroads................. 5 reports.................... 3 hours................ 15 1,018
                271.109--Technology analysis and 15 railroads................. 5 plans...................... 5 hours................ 25 1,697
                 technology implementation plans.
                271.111--RRP implementation 15 railroads................. 50 records of trained 3 minutes.............. 2.5 170
                 training--programs/tr. employees/ employees.
                 rcds.
                271.101(d)--ISPs--Identification/ 15 railroads................. 5 communications/ 2 hours................ 10 679
                 communication w/entities consultations.
                 performing significant safety-
                 related services.
                271.201/203--Written risk 7 railroads.................. 2.333 RRP plans.............. 461 hours.............. 1,075 72,971
                 reduction program plans (RRP
                 plans)--Adoption and
                 implementation of RRP plans--
                 Class I.
                 --Written RRP plans--ISP RRs. 15 railroads................. 5 RRP plans.................. 96 hours............... 480 32,582
                271.207--RR Good faith 7 railroads.................. 2.333 consults............... 8 hours................ 19 1,290
                 consultation w/directly affected
                 employees--Class I RRs.
                 --RR Notification to non- 7 railroads.................. 1 notification............... 3 hours................ 3 204
                 represented employees of
                 consultation meeting--Class
                 I RRs.
                 --RR Good faith consultations/ 15 railroads................. 5 consults/notices........... 20 hours............... 100 6,788
                 notices: ISP RRs.
                 (d)--Submission of detailed 7 railroads.................. 2.333 consultation statements 200 hours.............. 467 31,700
                 consultation statement along
                 w/RRP plan by Class I RRs.
                 --Submission of detailed 15 railroads................. 5 consultation statements.... 40 hours............... 200 13,576
                 consultation statement along
                 w/RRP plan by ISPs.
                 --Copy of RRP plan/ 22 railroads................. 380 plan copies.............. 2 minutes.............. 12.7 862
                 consultation statement to 22 railroads................. 380 consultation statements.. 2 minutes.............. 12.7 862
                 service list individuals--
                 Class I RRs + ISP RRs.
                 --Statements from directly 10 labor organizations....... 3 statements................. 6 hours................ 18 1,222
                 affected employees--Class I
                 RRs.
                 --Statements from directly 15 railroads................. 12 statements................ 1 hour................. 12 815
                 affected employees--ISP RRs.
                271.301--Filing of RRP plan w/ 7 railroads.................. 2.333 filed plans............ 2 hours................ 5 339
                 FRA--Class I RRs.
                 --Filing of RRP plan w/FRA-- 15 railroads................. 5 filed plans................ 2 hours................ 10 679
                 ISP RRs.
                 --Class I RR corrected RRP 7 railroads.................. 1 RRP plan................... 2 hours................ 2 136
                 plan.
                 --FRA requested Class I RR 7 railroads.................. 1 consult/statement.......... 3 hours................ 3 204
                 consultation with directly
                 affected employees regarding
                 substantive corrections/
                 changes to RRP plan.
                 --ISP RR corrected RRP plan.. 15 railroads................. 1 RRP plan................... 2 hours................ 2 136
                 --FRA requested ISP RR 15 railroads................. 1 consult/statement.......... 1 hour................. 1 68
                 further consultation with
                 directly affected employees
                 regarding substantive
                 amendment to RRP plan.
                271.303--Amendments consultation 22 railroads (Class I + ISP). 2 consults................... 1 hour................. 2 136
                 w/directly affected employees on
                 substantive amendments to RRP
                 plan--Class I RRs and ISP RRs.
                 --Employee statement to FRA 22 railroads (Class I + ISP). 2 employee statements........ 30 minutes............. 1 68
                 on RR RRP plan substantive
                 amendment where agreement
                 could not be reached.
                 --Filed amended RRP plan-- 7 railroads.................. 1 plan....................... 6 hours................ 6 407
                 Class I RRs.
                 --Filed amended RRP plan--ISP 15 railroads................. 1 plan....................... 1 hour................. 1 68
                 RRs.
                271.307--Retention of RRP plans-- 22 railroads (Class I + ISP). 22 plan copies............... 10 minutes............. 4 272
                 Copies of RRP Plan/Amendments by
                 RR at system/division
                 headquarters--Class I and ISP
                 RRs.
                217.401/403--Annual internal 7 railroads.................. 2.333 assessments/improvement 120 hours.............. 280 19,006
                 assessment/improvement plans-- plans.
                 Class I RRs.
                 --Annual internal assessment/ 15 railroads................. 5 assessments/improvement 32 hours............... 160 10,861
                 improvement plans--ISP RRs. plans.
                271.405--Internal assessment 7 railroads.................. 2.333 reports................ 8 hours................ 19 1,290
                 report copy to FRA--Class I RRs.
                 --Internal assessment report 15 railroads................. 5 reports.................... 2 hours................ 10 679
                 copy to FRA--ISP RRs.
                [[Page 9313]]
                
                Appendix B--Request by FRA for 7 railroads.................. 3 documents.................. 40 hours............... 120 8,146
                 additional information/documents
                 to determine whether railroad
                 has met good faith and best
                 efforts consultation
                 requirements of section 271.207.
                 --Further railroad 7 railroads.................. 1 consult.................... 8 hours................ 8 543
                 consultation w/employees
                 after determination by FRA
                 that railroad did not use
                 good faith/best efforts.
                 --Meeting to discuss 7 railroads.................. 7 meetings/consults.......... 2 hours................ 14 950
                 administrative details of
                 consultation process during
                 the time between initial
                 meeting and applicability
                 date--Class I RRs.
                 --Meeting to discuss 15 railroads................. 7 meetings/consults.......... 1 hour................. 7 475
                 administrative details of
                 consultation process during
                 the time between initial
                 meeting and applicability
                 date--ISP RRs.
                 --Notification to non- 15 railroads................. 600 notices.................. 15 minutes............. 150 10,182
                 represented employees of
                 good faith consultation
                 process--ISP RRs.
                 --Draft RRP plan proposal to 15 railroads................. 20 proposals/copies.......... 2 hours................ 40 2,715
                 employees--ISP RRs.
                 --Employee comments on RRP 2,000 employees.............. 60 comments.................. 1 hour................. 60 4,073
                 plan draft proposal.
                 ----------------------------------------------------------------------------------------------------------------------
                 Totals................... 22 railroads................. 49,148 responses............. N/A.................... 61,825 3,566,619
                --------------------------------------------------------------------------------------------------------------------------------------------------------
                 All estimates include the time for reviewing instructions,
                searching existing data sources, gathering or maintaining the needed
                data, and reviewing the information.
                ---------------------------------------------------------------------------
                 \33\ Information collection requests relating to petitions and
                audits will occur outside of this information collection request
                timeframe. Also, because Sec. 271.113 requires a railroad to
                involve directly affected employees in establishing or implementing
                an RRP (e.g., when identifying hazards, conducting internal
                assessments, or otherwise performing activities required under part
                271), the burdens associated with Sec. 271.113 are covered under
                the other burdens associated with subparts B and E of part 271.
                 \34\ The dollar equivalent cost is derived from the Surface
                Transportation Board's Full Year Wage A&B data series using the
                appropriate employee group hourly wage rate that includes 75-percent
                overhead charges.
                ---------------------------------------------------------------------------
                 For information or a copy of the paperwork package submitted to
                OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer,
                Office of Railroad Safety, Federal Railroad Administration, at 202-493-
                0440 or Ms. Kimberly Toone, Information Collection Clearance Officer,
                Office of Information Technology, Federal Railroad Administration, at
                202-493-6132.
                 Organizations and individuals desiring to submit comments on the
                collection of information requirements should direct them to Ms. Hodan
                Wells or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
                Jersey Avenue SE, 3rd Floor, Washington, DC 20590. Comments may also be
                submitted via email to Ms. Wells at [email protected] or Ms. Toone at
                [email protected].
                 OMB must make a decision concerning the collection of information
                requirements contained in this rule between 30 and 60 days after
                publication of this document in the Federal Register. Therefore, a
                comment to OMB is best assured of having its full effect if OMB
                receives it within 30 days of publication. FRA did not receive any OMB
                or public comments on the information collection requirements contained
                in the NPRM.
                 FRA is not authorized to impose a penalty on persons for violating
                information collection requirements that do not display a current OMB
                control number, if required. The current OMB control number is 2130-
                0610.
                F. Environmental Assessment
                 FRA has evaluated this rule under its ``Procedures for Considering
                Environmental Impacts'' (FRA's Procedures) (64 FR 28545, May 26, 1999)
                as required by the National Environmental Policy Act (42 U.S.C. 4321 et
                seq.), other environmental statutes, Executive Orders, and related
                regulatory requirements. FRA has determined this rule is not a major
                FRA action (requiring the preparation of an environmental impact
                statement or environmental assessment) because it is categorically
                excluded from detailed environmental review pursuant to section
                4(c)(20) of FRA's Procedures. 64 FR 28547, 28548.
                 Consistent with section 4(c) and (e) of FRA's Procedures, FRA also
                concluded that no extraordinary circumstances exist with respect to
                this regulation that might trigger the need for a more detailed
                environmental review. As a result, FRA finds this rule is not a major
                Federal action significantly affecting the quality of the human
                environment.
                G. Unfunded Mandates Reform Act of 1995
                 Under section 201 of the Unfunded Mandates Reform Act of 1995 (Pub.
                L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise
                prohibited by law, assess the effects of Federal regulatory actions on
                State, local, and tribal governments, and the private sector (other
                than to the extent that such regulations incorporate requirements
                specifically set forth in law).'' Section 202 of the Act (2 U.S.C.
                1532) further requires each agency to prepare a comprehensive written
                statement for any proposed or final rule that includes a Federal
                mandate that may result in the expenditure by State, local, and tribal
                governments, in the aggregate, or by the private sector, of
                $100,000,000 or more (adjusted annually for inflation) in any 1
                year.\35\
                ---------------------------------------------------------------------------
                 \35\ See U.S. Department of Transportation, ``Guidance--
                Threshold of Significant Regulatory Actions under the Unfunded
                Mandates Reform Act of 1995,'' April 4, 2016, https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0, as
                accessed July 26, 2018.
                ---------------------------------------------------------------------------
                 This final rule will not result in such an expenditure, and thus
                preparation of such a statement is not required.
                H. Energy Impact
                 Executive Order 13211 requires Federal agencies to prepare a
                Statement of Energy Effects for any ``significant energy action.'' 66
                FR 28355 (May 22, 2001). FRA evaluated this final rule in accordance
                with Executive Order 13211, and determined that this regulatory action
                is not a ``significant energy action'' within the meaning of the
                Executive Order.
                 Executive Order 13783, ``Promoting Energy Independence and Economic
                Growth,'' requires Federal agencies to review regulations to determine
                whether they potentially burden the development or use of domestically
                produced energy resources, with particular attention to oil, natural
                gas, coal, and nuclear energy resources. See 82 FR 16093 (Mar. 31,
                2017). FRA determined this final rule will not burden the development
                or use of domestically produced energy sources.
                [[Page 9314]]
                Under the Executive Order, a ``significant energy action'' is defined
                as any action by an agency (normally published in the Federal Register)
                that promulgates, or is expected to lead to the promulgation of, a
                final rule or regulation (including a notice of inquiry, advance notice
                of proposed rulemaking, and notice of proposed rulemaking) that (1)(i)
                is a significant regulatory action under E.O. 12866 or any successor
                order and (ii) is likely to have a significant adverse effect on the
                supply, distribution, or use of energy; or (2) is designated by the
                Administrator of the Office of Information and Regulatory Affairs as a
                significant energy action. FRA has evaluated this rule under Executive
                Order 13211 and determined this rule will not have a significant
                adverse effect on the supply, distribution, or use of energy.
                Consequently, FRA has determined that this regulatory action is not a
                ``significant energy action'' under the Executive Order 13211.
                List of Subjects in 49 CFR Part 271
                 Penalties, Railroad safety, Reporting and recordkeeping
                requirements, Risk reduction.
                The Rule
                0
                In consideration of the foregoing, FRA adds part 271 to chapter II,
                subtitle B of title 49, Code of Federal Regulations, to read as
                follows:
                PART 271--RISK REDUCTION PROGRAM
                Subpart A--General
                Sec.
                271.1 Purpose and scope.
                271.3 Application.
                271.5 Definitions.
                271.7 [Reserved]
                271.9 Penalties and responsibility for compliance.
                271.11 Discovery and admission as evidence of certain information.
                271.13 Determination of inadequate safety performance.
                271.15 Voluntary compliance.
                Subpart B--Risk Reduction Program Requirements
                271.101 Risk reduction programs.
                271.103 Risk-based hazard management program.
                271.105 Safety performance evaluation.
                271.107 Safety outreach.
                271.109 Technology analysis and technology implementation plan.
                271.111 Implementation and support training.
                271.113 Involvement of railroad employees.
                Subpart C--Risk Reduction Program Plan Requirements
                271.201 General.
                271.203 Policy, purpose and scope, and goals.
                271.205 System description.
                271.207 Consultation requirements.
                271.209 Consultation on amendments.
                271.211 Risk-based hazard management program process.
                271.213 Safety performance evaluation process.
                271.215 Safety outreach process.
                271.217 Technology implementation plan process.
                271.219 Implementation and support training plan.
                271.221 Involvement of railroad employees process.
                271.223 Internal assessment process.
                271.225 RRP implementation plan.
                Subpart D--Review, Approval, and Retention of Risk Reduction Program
                Plans
                271.301 Filing and approval.
                271.303 Amendments.
                271.305 Reopened review.
                271.307 Retention of RRP plans.
                Subpart E--Internal Assessments
                271.401 Annual internal assessments.
                271.403 Internal assessment improvement plans.
                271.405 Internal assessment reports.
                Subpart F--External Audits
                271.501 External audits.
                271.503 External audit improvement plans.
                Appendix A to Part 271--Federal Railroad Administration Guidance on
                the Risk Reduction Program Consultation Process
                Appendix B to Part 271--Procedures for Submission of RRP Plans and
                Statements From Directly Affected Employees
                 Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
                21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.
                Subpart A--General
                Sec. 271.1 Purpose and scope.
                 (a) The purpose of this part is to improve railroad safety through
                structured, proactive processes and procedures developed and
                implemented by railroads. Each railroad subject to this part must
                establish a Risk Reduction Program (RRP) that systematically evaluates
                railroad safety hazards on its system and manages the risks associated
                with those hazards to reduce the number and rates of railroad
                accidents/incidents, injuries, and fatalities.
                 (b) This part prescribes minimum Federal safety standards for the
                preparation, adoption, and implementation of RRPs. This part does not
                restrict railroads from adopting and enforcing additional or more
                stringent requirements not inconsistent with this part.
                 (c) This part prescribes the protection of information a railroad
                compiles or collects solely for the purpose of planning, implementing,
                or evaluating an RRP under this part.
                 (d) This part does not require an RRP to address hazards completely
                unrelated to railroad safety and that fall under the exclusive
                jurisdiction of another Federal agency. Additionally, an RRP required
                by this part is not intended to address and should not address the
                safety of employees while performing inspections, tests, and
                maintenance, except where FRA has already addressed workplace safety
                issues, such as blue signal protection in part 218 of this chapter. FRA
                does not intend to approve any specific portion of an RRP plan that
                relates exclusively to employee working conditions.
                Sec. 271.3 Application.
                 (a) Except as provided in paragraph (b) of this section, this part
                applies to--
                 (1) Class I railroads;
                 (2) Railroads determined to have inadequate safety performance
                pursuant to Sec. 271.13; and
                 (3) Railroads that voluntarily comply with the requirements of this
                part pursuant to Sec. 271.15.
                 (b) This part does not apply to:
                 (1) Rapid transit operations in an urban area that are not
                connected to the general railroad system of transportation;
                 (2) Tourist, scenic, historic, or excursion operations, whether on
                or off the general railroad system of transportation;
                 (3) Operation of private cars, including business/office cars and
                circus trains;
                 (4) Railroads that operate only on track inside an installation
                that is not part of the general railroad system of transportation
                (i.e., plant railroads, as defined in Sec. 271.5); and
                 (5) Commuter or intercity passenger railroads that are subject to
                Federal system safety program requirements contained in part 270 of
                this chapter.
                 (c) If a railroad contracts out significant portions of its
                operations, the contractor and the contractor's employees performing
                the railroad's operations shall be considered directly affected
                employees for purposes of this part.
                Sec. 271.5 Definitions.
                 As used in this part only--
                 Accident/incident means an ``accident/incident'' as defined in
                Sec. 225.5 of this chapter.
                 Administrator means the Administrator of the Federal Railroad
                Administration or the Administrator's delegate.
                 FRA means the Federal Railroad Administration.
                 FRA Associate Administrator means the Associate Administrator for
                Railroad
                [[Page 9315]]
                Safety and Chief Safety Officer, Federal Railroad Administration, or
                the Associate Administrator's delegate.
                 Fully implemented means that all elements of an RRP as described in
                the RRP plan are established and applied to the safety management of
                the railroad.
                 Hazard means any real or potential condition that can cause injury,
                illness, or death; damage to or loss of a system, equipment, or
                property; or damage to the environment.
                 Inadequate safety performance means safety performance that FRA has
                determined to be inadequate based on the criteria described in Sec.
                271.13.
                 Mitigation strategy means an action or program intended to reduce
                or eliminate the risk associated with a hazard.
                 Person means an entity of any type covered under 1 U.S.C. 1,
                including, but not limited to, the following: A railroad; a manager,
                supervisor, official, or other employee or agent of a railroad; any
                owner, manufacturer, lessor, or lessee of railroad equipment, track, or
                facilities; any independent contractor or subcontractor providing goods
                or services to a railroad; and any employee of such owner,
                manufacturer, lessor, lessee, or independent contractor or
                subcontractor.
                 Pilot project means a limited scope project used to determine
                whether quantitative evaluation and analysis suggests that a particular
                system or mitigation strategy has potential to succeed on a full-scale
                basis.
                 Plant railroad means a plant or installation that owns or leases a
                locomotive, uses that locomotive to switch cars throughout the plant or
                installation, and is moving goods solely for use in the facility's own
                industrial processes. The plant or installation could include track
                immediately adjacent to the plant or installation if the plant railroad
                leases the track from the general system railroad and the lease
                provides for (and actual practice entails) the exclusive use of that
                trackage by the plant railroad and the general system railroad for
                purposes of moving only cars shipped to or from the plant. A plant or
                installation that operates a locomotive to switch or move cars for
                other entities, even if solely within the confines of the plant or
                installation, rather than for its own purposes or industrial processes,
                is not considered a plant railroad because the performance of such
                activity makes the operation part of the general railroad system of
                transportation.
                 Positive train control system means a system designed to prevent
                train-to-train collisions, overspeed derailments, incursions into
                established work zone limits, and the movement of a train through a
                switch left in the wrong position, as described in subpart I of part
                236 of this chapter.
                 Railroad means:
                 (1) Any form of non-highway ground transportation that runs on
                rails or electromagnetic guideways, including:
                 (i) Commuter or other short-haul rail passenger service in a
                metropolitan or suburban area and commuter railroad service that was
                operated by the Consolidated Rail Corporation on January 1, 1979; and
                 (ii) High speed ground transportation systems that connect
                metropolitan areas, without regard to whether those systems use new
                technologies not associated with traditional railroads, but does not
                include rapid transit operations in an urban area that are not
                connected to the general railroad system of transportation; and
                 (2) A person or organization that provides railroad transportation,
                whether directly or by contracting out operation of the railroad to
                another person.
                 Risk means the combination of the probability (or frequency of
                occurrence) and the consequence (or severity) of a hazard.
                 Risk-based HMP means a risk-based hazard management program (HMP).
                 Risk reduction means the formal, top-down, organization-wide
                approach to managing safety risk and assuring the effectiveness of
                safety risk mitigation strategies. It includes systematic procedures,
                practices, and policies for the management of safety risk.
                 RRP means a Risk Reduction Program.
                 RRP plan means a Risk Reduction Program plan.
                 Safety culture means the shared values, actions, and behaviors that
                demonstrate a commitment to safety over competing goals and demands.
                 Safety performance means a realized or actual safety accomplishment
                relative to stated safety objectives.
                 Safety outreach means the communication of safety information to
                support the implementation of an RRP throughout a railroad.
                 Senior management means personnel at the highest level of a
                railroad's management who are responsible for making major policy
                decisions and long-term business plans regarding the operation of the
                railroad.
                 STB means the Surface Transportation Board of the United States.
                 Tourist, scenic, historic, or excursion operations means railroad
                operations that carry passengers, often using antiquated equipment,
                with the conveyance of the passengers to a particular destination not
                being the principal purpose. Train movements of new passenger equipment
                for demonstration purposes are not tourist, scenic, historic, or
                excursion operations.
                Sec. 271.7 [Reserved]
                Sec. 271.9 Penalties and responsibility for compliance.
                 (a) Any person that violates any requirement of this part or causes
                the violation of any such requirement is subject to a civil penalty of
                at least the minimum civil monetary penalty and not more than the
                ordinary maximum civil monetary penalty per violation, except that:
                Penalties may be assessed against individuals only for willful
                violations, and, where a grossly negligent violation or a pattern of
                repeated violations has created an imminent hazard of death or injury
                to individuals, or has caused death or injury, a penalty not to exceed
                the aggravated maximum civil monetary penalty per violation may be
                assessed. See 49 CFR part 209, appendix A. Each day a violation
                continues shall constitute a separate offense. Any person that
                knowingly and willfully falsifies a record or report required by this
                part may be subject to criminal penalties under 49 U.S.C. 21311. See
                FRA's website at www.fra.dot.gov for a statement of agency civil
                penalty policy.
                 (b) Although the requirements of this part are stated in terms of
                the duty of a railroad, when any person, including a contractor or
                subcontractor to a railroad, performs any function covered by this
                part, that person (whether or not a railroad) shall perform that
                function in accordance with this part.
                Sec. 271.11 Discovery and admission as evidence of certain
                information.
                 (a) Protected information. Any information compiled or collected
                after February 17, 2021 solely for the purpose of planning,
                implementing, or evaluating a risk reduction program under this part
                shall not be subject to discovery, admitted into evidence, or
                considered for other purposes in a Federal or State court proceeding
                for damages involving personal injury, wrongful death, or property
                damage. For purposes of this section--
                 (1) ``Information'' includes plans, reports, documents, surveys,
                schedules, lists, or data, and specifically includes a railroad's
                analysis of its safety risks under Sec. 271.103(b) and a railroad's
                statement of mitigation measures under Sec. 271.103(c); and
                 (2) ``Solely'' means that a railroad originally compiled or
                collected the information for the exclusive purpose of planning,
                implementing, or evaluating a risk reduction program under this part.
                [[Page 9316]]
                Information compiled or collected for any other purpose is not
                protected, even if the railroad also uses that information for a risk
                reduction program. ``Solely'' also means a railroad continues to use
                that information only for its risk reduction program. If a railroad
                subsequently uses for any other purpose information that was initially
                compiled or collected for a risk reduction program, this section does
                not protect that information to the extent that it is used for the non-
                risk reduction program purpose. The use of that information within the
                railroad's risk reduction program, however, remains protected. This
                section does not protect information that is required to be compiled or
                collected pursuant to any other provision of law or regulation.
                 (b) Non-protected information. This section does not affect the
                discovery, admissibility, or consideration for other purposes in a
                Federal or State court proceeding for damages involving personal
                injury, wrongful death, or property damage of information compiled or
                collected for a purpose other than that specifically identified in
                paragraph (a) of this section. Such information shall continue to be
                discoverable, admissible, or considered for other purposes in a Federal
                or State court proceeding for damages involving personal injury,
                wrongful death, or property damage if it was discoverable, admissible,
                or considered for other purposes in a Federal or State court proceeding
                for damages involving personal injury, wrongful death, or property
                damage on or before February 17, 2021. Specifically, the types of
                information not affected by this section include:
                 (1) Information compiled or collected on or before February 17,
                2021;
                 (2) Information compiled or collected on or before February 17,
                2021 and that continues to be compiled or collected, even if used to
                plan, implement, or evaluate a railroad's risk reduction program; or
                 (3) Information that is compiled or collected after February 17,
                2021, and is compiled or collected for a purpose other than that
                identified in paragraph (a) of this section.
                 (c) Information protected by other law or regulation. Nothing in
                this section shall affect or abridge in any way any other protection of
                information provided by another provision of law or regulation. Any
                such provision of law or regulation applies independently of the
                protections provided by this section.
                 (d) Preemption. To the extent that State discovery rules and
                sunshine laws would require disclosure of information protected by this
                section in a Federal or State court proceeding for damages involving
                personal injury, wrongful death, or property damage, those rules and
                laws are preempted.
                 (e) Enforcement. This section does not apply to civil or criminal
                law enforcement proceedings.
                Sec. 271.13 Determination of inadequate safety performance.
                 (a) General. (1) This section describes FRA's methodology for
                determining which railroads shall establish an RRP because they have
                inadequate safety performance. FRA's methodology consists of a two-
                phase annual analysis, comprised of both a quantitative analysis and
                qualitative assessment. FRA's methodology analyzes all railroads except
                for:
                 (i) Railroads excluded from this part under Sec. 271.3(b);
                 (ii) Railroads already required to comply with this part;
                 (iii) Railroads that are voluntarily complying with this part under
                Sec. 271.15; and
                 (iv) Except as provided in paragraph (a)(2) of this section, new
                start-up railroads that have reported accident/incident data to FRA
                pursuant to part 225 of this chapter for fewer than three years.
                 (2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads
                formed through amalgamation of operations (for example, railroads
                formed through consolidations, mergers, or acquisitions of control) are
                included in the analysis using the combined data of the pre-
                amalgamation entities.
                 (b) Quantitative analysis--(1) Methodology. The first phase of
                FRA's annual analysis is a statistically-based quantitative analysis of
                each railroad within the scope of the analysis, using historical safety
                data maintained by FRA for the three most recent full calendar years.
                The purpose of the quantitative analysis is to make a threshold
                identification of railroads that possibly have inadequate safety
                performance. The quantitative analysis consists of a preliminary
                selection and a rate-based analysis. Only railroads that the
                preliminary selection identifies will proceed to the rate-based
                analysis.
                 (i) The preliminary selection calculates the following values:
                 (A) A railroad's number of worker on duty fatalities during the 3-
                year period, calculated using ``Worker on Duty-Railroad Employee (Class
                A),'' ``Worker on Duty-Contractor (Class F),'' and ``Worker on Duty-
                Volunteer (Class H)'' information reported on FRA Form 6180.55 pursuant
                to FRA's accident/incident reporting regulations in part 225 of this
                chapter; and
                 (B) The sum total of a railroad's number of worker on duty
                injuries/illnesses during the 3-year period (calculated using ``Worker
                on Duty-Railroad Employee (Class A),'' ``Worker on Duty-Contractor
                (Class F),'' and ``Worker on Duty-Volunteer (Class H)'' information
                reported on FRA Form 6180.55 pursuant to FRA's accident/incident
                reporting regulations in part 225 of this chapter) added to the number
                of rail equipment accidents/incidents during the 3-year period
                (calculated using information reported on FRA Forms 6180.54 and 6180.55
                pursuant to FRA's accident/incident reporting regulations in part 225
                of this chapter).
                 (ii) For railroads that the preliminary selection identifies, as
                described in paragraph (b)(2)(i) of this section, the rate-based
                analysis calculates the following three factors:
                 (A) A railroad's number of worker on duty fatalities during the 3-
                year period, calculated using ``Worker on Duty-Railroad Employee (Class
                A),'' ``Worker on Duty-Contractor (Class F),'' and ``Worker on Duty-
                Volunteer (Class H)'' information reported on FRA Form 6180.55 pursuant
                to FRA's accident/incident reporting regulations in part 225 of this
                chapter;
                 (B) A railroad's on duty employee injury/illness rate, calculated
                using ``Worker on Duty-Railroad Employee (Class A),'' ``Worker on Duty-
                Contractor (Class F),'' and ``Worker on Duty-Volunteer (Class H)''
                information reported on FRA Form 6180.55 pursuant to FRA's accident/
                incident reporting regulations in part 225 of this chapter. FRA
                calculates this rate using the following formula, which gives the rate
                of employee injuries/illnesses per 200,000 employee hours over a 3-year
                period:
                Injury/Illness Rate = (Total FRA Reportable Worker On Duty Injuries +
                Total FRA Reportable On Duty Employee Illnesses over a 3-year Period)/
                (Total Employee Hours over a 3-year Period/200,000); and
                 (C) A railroad's rail equipment accident/incident rate, calculated
                using information reported on FRA Forms 6180.54 and 6180.55 pursuant to
                FRA's accident/incident reporting regulations in part 225 of this
                chapter. FRA calculates this rate using the following formula, which
                gives the rate of rail equipment accidents/incidents per 1,000,000
                train miles operated over a 3-year period:
                Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail
                Equipment Accidents/Incidents over a 3-year Period/(Total Train
                [[Page 9317]]
                Miles over a 3-year Period/1,000,000)
                 (2) Identification. (i) The preliminary selection phase of the
                quantitative analysis identifies railroads for further analysis in the
                rate-based analysis if at least one of the following two conditions
                exist within the scope and timeframe of the analysis:
                 (A) A railroad has one or more worker on duty fatalities as
                calculated in paragraph (b)(1)(i)(A) of this section; or
                 (B) A railroad is at or above the 90th percentile for the sum total
                of worker on duty injuries/illnesses and rail equipment accidents/
                incidents, as calculated in paragraph (b)(1)(i)(B) of this section.
                 (ii) For railroads identified in the preliminary selection, the
                rate-based analysis identifies railroads as possibly having inadequate
                safety performance if at least one of the following two conditions
                exists within the scope and time frame of the analysis:
                 (A) A railroad has one or more worker on duty fatalities as
                calculated in paragraph (b)(1)(ii)(A) of this section; or
                 (B) A railroad is at or above the 90th percentile of railroads
                identified in the preliminary selection in either of the factors
                described in paragraphs (b)(1)(ii)(B) and (C) of this section.
                 (c) Qualitative assessment. The second phase of FRA's analysis is a
                qualitative assessment of railroads identified in the quantitative
                analysis as possibly having inadequate safety performance.
                 (1) Notification and railroad/employee comment. FRA will notify a
                railroad in writing if FRA conducts a qualitative assessment of the
                railroad because the quantitative analysis identified the railroad as
                possibly having inadequate safety performance.
                 (i) No later than 15 days after receiving FRA's written notice, a
                railroad shall notify its employees of FRA's written notice. The
                railroad shall post this employee notification at all locations where
                the railroad reasonably expects its employees to report and to have an
                opportunity to observe the notice. The railroad shall post and
                continuously display the employee notification until 45 days after
                FRA's initial written notice. The railroad shall notify employees who
                do not have a regular on-duty point for reporting to work by other
                means, under the railroad's standard practice for communicating with
                employees. The notification shall inform railroad employees that they
                may confidentially submit comments to FRA regarding the railroad's
                safety performance and that employees shall file any such comments with
                the FRA Associate Administrator for Railroad Safety and Chief Safety
                Officer, 1200 New Jersey Avenue SE, Washington, DC 20590 no later than
                45 days following FRA's initial written notice.
                 (ii) No later than 45 days after receiving FRA's written notice, a
                railroad may provide FRA documentation supporting any claims that the
                railroad does not have inadequate safety performance.
                 (2) Methodology. No later than 90 days after providing the initial
                notice to a railroad identified by the quantitative analysis, FRA will
                conduct a qualitative assessment of the identified railroad and make a
                final determination regarding whether it has inadequate safety
                performance. The qualitative assessment will consider any documentation
                provided by the railroad, comments submitted by railroad employees, and
                any other pertinent information, including information regarding
                violations FRA has issued against the railroad.
                 (d) Final notification. For each railroad that FRA provides an
                initial written notice, FRA will provide a final written notice
                informing the railroad whether or not FRA determines that the railroad
                has demonstrated inadequate safety performance.
                 (e) Compliance. (1) A railroad with inadequate safety performance
                shall develop and implement an RRP meeting the requirements of this
                part and submit an RRP plan meeting the filing and timing requirements
                in Sec. 271.301.
                 (2) A railroad with inadequate safety performance must comply with
                the requirements of this part for a minimum of five years from the date
                FRA approves the railroad's RRP plan under subpart D of this part.
                 (f) Petition for reconsideration of inadequate safety performance
                determination. (1) To appeal a final written notice under paragraph (d)
                of this section, a railroad shall file a petition for reconsideration
                with the Administrator. To file a petition, the railroad must:
                 (i) File the petition no later than 30 days after the date the
                railroad receives FRA's final written notice under paragraph (d) of
                this section informing the railroad that it has demonstrated inadequate
                safety performance; and
                 (ii) File the petition in accordance with the procedures in
                Sec. Sec. 211.7(b)(1) and 211.57 of this chapter.
                 (2) FRA will process petitions under Sec. 211.59 of this chapter.
                 (g) Petition to discontinue compliance with this part. After the
                five-year compliance period, the railroad may petition FRA for approval
                to discontinue compliance with this part. A railroad shall file a
                petition, and FRA will process the petition, under the procedures
                contained in Sec. 211.41 of this chapter. When processing a petition,
                FRA will reevaluate the railroad's safety performance to determine
                whether the railroad's RRP has resulted in significant and sustained
                safety improvements, and whether these measured improvements are likely
                sustainable in the long term. FRA's evaluation will include a
                quantitative analysis as described in paragraph (b) of this section,
                although FRA will not automatically grant a petition to discontinue
                compliance if the quantitative analysis results do not meet the
                identification thresholds described in paragraph (b)(2) of this
                section. For all petitions under this section, FRA will also examine
                qualitative factors and review information from FRA RRP audits and
                other relevant sources.
                Sec. 271.15 Voluntary compliance.
                 (a) General. A railroad not otherwise subject to this part may
                voluntarily comply by establishing and fully implementing an RRP
                meeting the requirements of this part. A voluntary RRP shall be
                supported by an RRP plan that has been submitted to FRA for approval
                pursuant to the requirements of subpart D of this part. After FRA has
                approved its RRP plan, a voluntarily-compliant railroad that fails to
                comply with the requirements of this part is subject to civil penalties
                or other FRA enforcement action.
                 (b) Duration. A voluntarily-compliant railroad will be required to
                comply with the requirements of this part for a minimum period of five
                years, running from the date on which FRA approves the railroad's plan
                pursuant to subpart D of this part.
                 (c) Notification to discontinue compliance. After this five-year
                period, a voluntarily-compliant railroad may discontinue compliance
                with this part by providing written notice to the FRA Associate
                Administrator for Railroad Safety and Chief Safety Officer, 1200 New
                Jersey Avenue SE, Washington, DC 20590.
                 (d) Discovery and admission as evidence of certain information. The
                information protection provisions in Sec. 271.11 apply to information
                compiled or collected pursuant to a voluntary RRP that is conducted in
                accordance with the requirements of this part and as provided by Sec.
                271.301(b)(4)(ii).
                [[Page 9318]]
                Subpart B--Risk Reduction Program Requirements
                Sec. 271.101 Risk reduction programs.
                 (a) Program required. Each railroad shall establish and fully
                implement an RRP meeting the requirements of this part. An RRP shall
                systematically evaluate railroad safety hazards on a railroad's system
                and manage the resulting risks to reduce the number and rates of
                railroad accidents/incidents, injuries, and fatalities. An RRP is an
                ongoing program that supports continuous safety improvement. A railroad
                shall design its RRP so that it promotes and supports a positive safety
                culture at the railroad. An RRP shall include the following:
                 (1) A risk-based hazard management program, as described in Sec.
                271.103;
                 (2) A safety performance evaluation component, as described in
                Sec. 271.105;
                 (3) A safety outreach component, as described in Sec. 271.107;
                 (4) A technology analysis and technology implementation plan, as
                described in Sec. 271.109;
                 (5) RRP implementation and support training, as described in Sec.
                271.111; and
                 (6) Involvement of railroad employees in the establishment and
                implementation of an RRP, as described in Sec. 271.113.
                 (b) RRP plans. A railroad's RRP shall be supported by an FRA-
                approved RRP plan meeting the requirements of subpart C of this part.
                 (c) Host railroads and system safety programs. (1) If a railroad
                subject to this part (RRP railroad) hosts passenger train service for a
                railroad subject to the system safety program requirements in part 270
                of this title (system safety program (SSP) railroad), the RRP railroad
                shall communicate with the SSP railroad to coordinate the portions of
                the system safety program applicable to the RRP railroad hosting the
                passenger train service.
                 (2) The RRP railroad shall incorporate its communication and
                coordination with the SSP railroad into its own RRP.
                 (d) Persons that perform or utilize significant safety-related
                services. Under Sec. 271.205(a)(3), a railroad's RRP plan shall
                identify persons that enter into a contractual relationship with the
                railroad to either perform significant safety-related services on the
                railroad's behalf or to utilize significant safety-related services
                provided by the railroad for railroad operations purposes. For example,
                a railroad's RRP plan shall identify entities such as host railroads,
                contract operators, shared track/corridor operators, or other
                contractors utilizing or performing significant safety-related
                services. A railroad shall identify such persons even if the persons
                are not required to comply with this part (e.g., a railroad shall
                identify a tourist railroad that operates over the railroad's track
                even though the tourist railroad is exempt from this rule under Sec.
                271.3(b)(2)). A railroad shall ensure persons performing or utilizing
                significant safety-related services support and participate in its RRP.
                Sec. 271.103 Risk-based hazard management program.
                 (a) General. (1) An RRP shall include an integrated, system-wide,
                and ongoing risk-based HMP that proactively identifies hazards and
                mitigates the risks resulting from those hazards.
                 (2) A risk-based HMP shall be fully implemented (i.e., activities
                initiated) within 36 months after FRA approves a railroad's RRP plan
                pursuant to Sec. 271.301(d).
                 (b) Risk-based hazard analysis. As part of its risk-based HMP, a
                railroad shall conduct a risk-based hazard analysis that addresses, at
                a minimum, the following aspects of a railroad's system:
                Infrastructure; equipment; employee levels and work schedules;
                operating rules and practices; management structure; employee training;
                and other areas impacting railroad safety that are not covered by
                railroad safety laws or regulations or other Federal laws or
                regulations. A railroad shall make the results of its risk-based hazard
                analysis available to FRA upon request. At a minimum, a risk-based
                hazard analysis shall:
                 (1) Identify hazards by analyzing:
                 (i) Aspects of the railroad's system, including any operational
                changes, system extensions, or system modifications; and
                 (ii) Accidents/incidents, injuries, fatalities, and other known
                indicators of hazards;
                 (2) Calculate risk by determining and analyzing the likelihood and
                severity of potential events associated with identified risk-based
                hazards; and
                 (3) Compare and prioritize the identified risks for mitigation
                purposes.
                 (c) Mitigation strategies. (1) As part of its risk-based HMP, a
                railroad shall design and implement mitigation strategies that improve
                safety by:
                 (i) Mitigating or eliminating aspects of a railroad's system that
                increase risks identified in the risk-based hazard analysis; and
                 (ii) Enhancing aspects of a railroad's system that decrease risks
                identified in the risk-based hazard analysis.
                 (2) A railroad may use pilot projects, including pilot projects
                conducted by other railroads, to determine whether quantitative data
                suggests that a particular mitigation strategy has potential to succeed
                on a full-scale basis.
                Sec. 271.105 Safety performance evaluation.
                 (a) General. As part of its RRP, a railroad shall develop and
                maintain ongoing processes and systems for evaluating the safety
                performance of its system and identifying and analyzing its safety
                culture. A railroad's safety performance evaluation shall consist of
                both a safety monitoring and a safety assessment component.
                 (b) Safety monitoring. A railroad shall monitor the safety
                performance of its system by, at a minimum, establishing processes and
                systems to acquire safety data and information from the following
                sources:
                 (1) Continuous monitoring of operational processes and systems
                (including any operational changes, system extensions, or system
                modifications);
                 (2) Periodic monitoring of the operational environment to detect
                changes that may generate new hazards;
                 (3) Investigations of accidents/incidents, injuries, fatalities,
                and other known indicators of hazards;
                 (4) Investigations of reports regarding potential non-compliance
                with Federal railroad safety laws or regulations, railroad operating
                rules and practices, or mitigation strategies established by the
                railroad; and
                 (5) A reporting system through which employees can report safety
                concerns (including, but not limited to, hazards, issues, occurrences,
                and incidents) and propose safety solutions and improvements.
                 (c) Safety assessment. To assess the need for changes to a
                railroad's mitigation strategies or overall RRP, a railroad shall
                establish processes to analyze the data and information collected
                pursuant to paragraph (b) of this section (as well as any other
                relevant data regarding its operations, products, and services). At a
                minimum, this assessment shall:
                 (1) Evaluate the overall effectiveness of the railroad's RRP in
                reducing the number and rates of railroad accidents/incidents,
                injuries, and fatalities;
                 (2) Evaluate the effectiveness of the railroad's RRP in meeting the
                goals described by its RRP plan (see Sec. 271.203(c));
                 (3) Evaluate the effectiveness of risk mitigations in reducing the
                risk associated with an identified hazard. Any hazards associated with
                ineffective mitigation strategies shall be reevaluated through the
                railroad's risk-based HMP, as described in Sec. 271.103; and
                [[Page 9319]]
                 (4) Identify new, potential, or previously unknown hazards, which
                shall then be evaluated by the railroad's risk-based HMP, as described
                in Sec. 271.103.
                Sec. 271.107 Safety outreach.
                 (a) Outreach. An RRP shall include a safety outreach component that
                communicates RRP safety information to railroad personnel (including
                contractors) as that information is relevant to their positions. At a
                minimum, a safety outreach program shall:
                 (1) Convey safety-critical information;
                 (2) Explain why RRP-related safety actions are taken; and
                 (3) Explain why safety procedures are introduced or changed.
                 (b) Reporting to management. The status of risk-based HMP
                activities shall be reported to railroad senior management on an
                ongoing basis.
                Sec. 271.109 Technology analysis and technology implementation plan.
                 (a) General. As part of its RRP, a Class I railroad shall conduct a
                technology analysis and develop and adopt a technology implementation
                plan no later than February 17, 2023. A railroad with inadequate safety
                performance shall conduct a technology analysis and develop and adopt a
                technology implementation plan no later than three years after
                receiving final written notification from FRA to comply with this part,
                pursuant to Sec. 271.13(d), or no later than February 17, 2023,
                whichever is later. A railroad that the STB reclassifies or newly
                classifies as a Class I railroad shall conduct a technology analysis
                and develop and adopt a technology implementation plan no later than
                three years following the effective date of the classification or
                reclassification or no later than April 18, 2023, whichever is later. A
                voluntarily-compliant railroad shall conduct a technology analysis and
                develop and adopt a technology implementation plan no later than three
                years after FRA approves the railroad's RRP plan.
                 (b) Technology analysis. A technology analysis shall evaluate
                current, new, or novel technologies that may mitigate or eliminate
                hazards and the resulting risks identified through the risk-based HMP.
                The railroad shall analyze the safety impact, feasibility, and costs
                and benefits of implementing technologies that will mitigate or
                eliminate hazards and the resulting risks. At a minimum, the
                technologies a railroad shall consider as part of its technology
                analysis are: Processor-based technologies, positive train control
                systems, electronically-controlled pneumatic brakes, rail integrity
                inspection systems, rail integrity warning systems, switch position
                monitors and indicators, trespasser prevention technology, and highway-
                rail grade crossing warning and protection technology.
                 (c) Technology implementation plan. A railroad shall develop, and
                periodically update as necessary, a technology implementation plan that
                contains a prioritized implementation schedule describing the
                railroad's plan for development, adoption, implementation, maintenance,
                and use of current, new, or novel technologies on its system over a 10-
                year period to reduce safety risks identified in the railroad's risk-
                based HMP.
                 (d) Positive train control. Except as required by subpart I of part
                236 of this chapter, if a railroad decides to implement positive train
                control systems as part of its technology analysis and implementation
                plan, the railroad shall set forth and comply with a schedule for
                implementation of the positive train control system consistent with the
                deadlines in the Positive Train Control Enforcement and Implementation
                Act of 2015, Public Law 114-73, 129 Stat. 576-82 (Oct. 29, 2015), and
                49 CFR 236.1005(b)(7).
                Sec. 271.111 Implementation and support training.
                 (a) A railroad shall provide RRP training to each employee,
                including an employee of any person identified by the railroad's RRP
                plan pursuant to Sec. 271.205(a)(3) as performing significant safety-
                related services on the railroad's behalf or utilizing significant
                safety-related services provided by the railroad, who has significant
                responsibility for implementing and supporting the railroad's RRP. This
                training shall help ensure that all personnel with significant
                responsibility for implementing and supporting the RRP understand the
                goals of the program, are familiar with the elements of the railroad's
                program, and have the requisite knowledge and skills to fulfill their
                responsibilities under the program.
                 (b) A railroad shall keep a record of training conducted under this
                section and update that record as necessary. A railroad shall make
                training records available for inspection and copying upon the request
                of representatives of FRA or States participating under part 212 of
                this chapter.
                 (c) Training under this section may include, but is not limited to,
                interactive computer-based training, video conferencing, or formal
                classroom training.
                Sec. 271.113 Involvement of railroad employees.
                 (a) An RRP shall involve a railroad's directly affected employees
                in the establishment and implementation of the RRP.
                 (b) For example, a railroad must have a process for involving
                directly affected employees when identifying hazards, developing and
                implementing mitigation strategies, conducting internal annual
                assessments, or otherwise performing actions required by this part.
                Subpart C--Risk Reduction Program Plan Requirements
                Sec. 271.201 General.
                 A railroad shall adopt and implement its RRP through a written RRP
                plan containing the elements described in this subpart. A railroad's
                RRP plan shall be approved by FRA according to the requirements
                contained in subpart D of this part.
                Sec. 271.203 Policy, purpose and scope, and goals.
                 (a) Policy statement. An RRP plan shall contain a policy statement
                endorsing the railroad's RRP. This statement shall be signed by the
                chief official at the railroad (e.g., chief executive officer).
                 (b) Purpose and scope. An RRP plan shall contain a statement
                describing the purpose and scope of the railroad's RRP. This purpose
                and scope statement shall describe:
                 (1) The railroad's safety philosophy and safety culture;
                 (2) How the railroad promotes improvements to its safety culture;
                and
                 (3) The roles and responsibilities of railroad personnel (including
                management) within the railroad's RRP.
                 (c) Goals. An RRP plan shall contain a statement that defines the
                specific goals of the RRP and describes clear strategies for reaching
                those goals. These goals shall be long-term, meaningful, measurable,
                and focused on the mitigation of risks arising from identified safety
                hazards.
                Sec. 271.205 System description.
                 (a) An RRP plan shall contain a description of the characteristics
                of the railroad's system. At a minimum, the system description shall:
                 (1) Support the identification of hazards by establishing a basic
                understanding of the scope of the railroad's system;
                 (2) Include components briefly describing the railroad's history,
                operations, scope of service, maintenance, physical plant, and system
                requirements;
                [[Page 9320]]
                 (3) Identify all persons that enter into a contractual relationship
                with the railroad to either perform significant safety-related services
                on the railroad's behalf or to utilize significant safety-related
                services provided by the railroad for railroad operations purposes. For
                example, a railroad's RRP plan shall identify entities such as host
                railroads, contract operators, shared track/corridor operators, or
                other contractors utilizing or performing significant safety-related
                services. A railroad shall identify such persons even if the persons
                are not required to comply with this part (e.g., a railroad shall
                identify a tourist railroad that operates over the railroad's track
                even though the tourist railroad is exempt from this part pursuant to
                Sec. 271.3(b)(2)); and
                 (4) Describe how the railroad will ensure that any persons
                identified pursuant to paragraph (a)(3) of this section will support
                and participate in the railroad's RRP. For example, the system
                description shall describe the extent to which such persons will, as
                part of the railroad's RRP, assist in identifying hazards, developing
                and implementing mitigation strategies, conducting internal annual
                assessments, or otherwise performing actions required by this part.
                 (b) [Reserved]
                 Sec. 271.207 Consultation requirements.
                 (a) General duty. (1) Each railroad required to establish an RRP
                under this part shall in good faith consult with, and use its best
                efforts to reach agreement with, all of its directly affected
                employees, including any non-profit labor organization representing a
                class or craft of directly affected employees, on the contents of the
                RRP plan.
                 (2) A railroad that consults with a non-profit employee labor
                organization is considered to have consulted with the directly affected
                employees represented by that organization.
                 (b) Preliminary meeting. A railroad shall have a preliminary
                meeting with its directly affected employees to discuss how the
                consultation process will proceed. A railroad is not required to
                discuss the substance of an RRP plan during this preliminary meeting.
                 (1) A Class I railroad shall meet no later than October 15, 2020
                with its directly affected employees to discuss the consultation
                process. The Class I railroad shall notify the directly affected
                employees of this meeting no less than 60 days before it is scheduled.
                 (2) A railroad determined to have inadequate safety performance
                shall meet no later than 30 days following FRA's notification with its
                directly affected employees to discuss the consultation process. The
                inadequate safety performance railroad shall notify the directly
                affected employees of this meeting no less than 15 days before it is
                scheduled.
                 (3) A railroad that the STB reclassifies or newly classifies as a
                Class I railroad shall meet with its directly affected employees to
                discuss the consultation process no later than 30 days following the
                effective date of the classification or reclassification. The
                reclassified or newly classified Class I railroad shall notify the
                directly affected employees of this meeting no less than 15 days before
                it is scheduled.
                 (4) A voluntarily-compliant railroad that files a notification with
                FRA of its intent to file an RRP plan under Sec. 271.301(b)(4)(i)
                shall meet with its directly affected employees to discuss the
                consultation process no later than 30 days following the date that the
                railroad filed the notification. The voluntarily-compliant railroad
                shall notify the directly affected employees of this meeting no less
                than 15 days before it is scheduled.
                 (5) Compliance with the mandatory preliminary meeting requirements
                of this paragraph (b) does not constitute full compliance with the
                consultation requirements of this section.
                 (c) Guidance. Appendix A to this part contains guidance on how a
                railroad could comply with the requirements of this section.
                 (d) Railroad consultation statements. A railroad required to submit
                an RRP plan under Sec. 271.301 shall also submit, together with that
                plan, a consultation statement that includes the following information:
                 (1) A detailed description of the process the railroad utilized to
                consult with its directly affected employees;
                 (2) If the railroad could not reach agreement with its directly
                affected employees on the contents of its RRP plan, identification of
                any known areas of non-agreement and an explanation why it believes
                agreement was not reached; and
                 (3) A service list containing the names and contact information for
                each international/national president of any non-profit employee labor
                organization representing a class or craft of the railroad's directly
                affected employees. The service list must also contain the name and
                contact information for any directly affected employee who
                significantly participated in the consultation process independently of
                a non-profit employee labor organization. If an international/national
                president did not participate in the consultation process, the service
                list shall also contain the name and contact information for a
                designated representative who participated on his or her behalf. When a
                railroad submits its RRP plan and consultation statement to FRA under
                Sec. 271.301, it shall also simultaneously send a copy of these
                documents to all individuals identified in the service list. A railroad
                may send the documents to the identified individuals via electronic
                means or other service means reasonably calculated to succeed.
                 (e) Statements from directly affected employees. (1) If a railroad
                and its directly affected employees cannot reach agreement on the
                proposed contents of an RRP plan, the directly affected employees may
                file a statement explaining their views on the plan on which agreement
                was not reached with the FRA Associate Administrator for Railroad
                Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington,
                DC 20590. The FRA Associate Administrator shall consider any such views
                during the plan review and approval process.
                 (2) A railroad's directly affected employees have 30 days following
                the railroad's submission of a proposed RRP plan to submit the
                statement described in paragraph (e)(1) of this section.
                Sec. 271.209 Consultation on amendments.
                 A railroad's RRP plan shall include a description of the process
                the railroad will use to consult with its directly affected employees
                on any subsequent substantive amendments to the railroad's RRP plan.
                The requirements of this section do not apply to non-substantive
                amendments (e.g., amendments that update names and addresses of
                railroad personnel).
                Sec. 271.211 Risk-based hazard management program process.
                 (a) Risk-based hazard analysis. An RRP plan shall describe the
                railroad's method for conducting its risk-based hazard analysis
                pursuant to Sec. 271.103(b). At a minimum, the description shall
                specify:
                 (1) The processes the railroad will use to identify hazards and the
                risks associated with those hazards;
                 (2) The sources the railroad will use to support the ongoing
                identification of hazards and the risks associated with those hazards;
                and
                 (3) The processes the railroad will use to compare and prioritize
                identified risks for mitigation purposes.
                 (b) Mitigation strategies. An RRP plan shall describe the
                railroad's processes for designing and implementing mitigation
                strategies pursuant to Sec. 271.103(c). At a minimum, the
                [[Page 9321]]
                description shall specify the railroad's processes for:
                 (1) Identifying and selecting mitigation strategies; and
                 (2) Monitoring an identified hazard through the mitigation of the
                risk associated with that hazard.
                Sec. 271.213 Safety performance evaluation process.
                 An RRP plan shall describe a railroad's processes for identifying
                and analyzing its safety culture pursuant to Sec. 271.105(a),
                monitoring safety performance pursuant to Sec. 271.105(b), and
                conducting safety assessments pursuant to Sec. 271.105(c).
                Sec. 271.215 Safety outreach process.
                 An RRP plan shall describe a railroad's processes for communicating
                safety information to railroad personnel and management pursuant to
                Sec. 271.107.
                Sec. 271.217 Technology implementation plan process.
                 (a) An RRP plan shall contain a description of the railroad's
                processes for:
                 (1) Conducting a technology analysis pursuant to Sec. 271.109(b);
                and
                 (2) Developing a technology implementation plan pursuant to Sec.
                271.109(c).
                 (b) [Reserved]
                Sec. 271.219 Implementation and support training plan.
                 (a) An RRP plan shall contain a training plan describing the
                railroad's processes, pursuant to Sec. 271.111, for training employees
                with significant responsibility for implementing and supporting the RRP
                (including employees of a person identified pursuant to Sec.
                271.205(a)(3) as performing significant safety-related services on the
                railroad's behalf or utilizing significant safety-related services
                provided by the railroad for railroad operations purposes who have
                significant responsibility for implementing and supporting the
                railroad's RRP).
                 (b) The training plan shall describe the content of the RRP
                training for each position or job function identified pursuant to Sec.
                271.225(b)(3) as having significant responsibilities for implementing
                the RRP.
                Sec. 271.221 Involvement of railroad employees process.
                 An RRP plan shall contain a description of the railroad's processes
                for involving railroad employees in the establishment and
                implementation of an RRP pursuant to Sec. 271.113. If a railroad
                contracts out significant portions of its operations, the contractor
                and the contractor's employees performing the railroad's operations
                shall be considered employees for the purposes of this section.
                Sec. 271.223 Internal assessment process.
                 (a) An RRP plan shall describe the railroad's processes for
                conducting an internal assessment of its RRP pursuant to subpart E of
                this part. At a minimum, this description shall contain the railroad's
                processes used to:
                 (1) Conduct an internal assessment of its RRP;
                 (2) Internally report the results of its internal assessment to
                railroad senior management; and
                 (3) Develop improvement plans, including developing and monitoring
                recommended improvements (including any necessary revisions or updates
                to the RRP plan) for fully implementing the railroad's RRP, complying
                with the implemented elements of the RRP plan, or achieving the goals
                identified in the railroad's RRP plan pursuant to Sec. 271.203(c).
                 (b) [Reserved]
                Sec. 271.225 RRP implementation plan.
                 (a) An RRP plan shall describe how the railroad will implement its
                RRP. A railroad may implement its RRP in stages, so long as the
                railroad fully implements the entire RRP within 36 months of FRA's
                approval of the plan.
                 (b) At a minimum, a railroad's implementation plan shall:
                 (1) Cover the entire implementation period;
                 (2) Contain a timeline describing when certain implementation
                milestones will be achieved. Implementation milestones shall be
                specific and measurable;
                 (3) Describe the roles and responsibilities of each position or job
                function that has significant responsibility for implementing the
                railroad's RRP or any changes to the railroad's RRP (including any such
                positions or job functions held by a person that enters into a
                contractual relationship with the railroad to either perform
                significant safety-related services on the railroad's behalf or to
                utilize significant safety-related services provided by the railroad
                for railroad operations purposes); and
                 (4) Describe how significant changes to the RRP may be made.
                Subpart D--Review, Approval, and Retention of Risk Reduction
                Program Plans
                Sec. 271.301 Filing and approval.
                 (a) Filing. A railroad shall submit one copy of its RRP plan to the
                FRA Associate Administrator for Railroad Safety and Chief Safety
                Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
                 (b) Filing timeline. (1) A Class I railroad shall submit its RRP
                plan no later than August 16, 2021.
                 (2) A railroad with inadequate safety performance shall submit its
                RRP plan no later than 180 days after receiving final written
                notification from FRA that it shall comply with this part, pursuant to
                Sec. 271.13(d), or no later than August 16, 2021, whichever is later.
                 (3) A railroad that the STB reclassifies or newly classifies as a
                Class I railroad shall submit its RRP plan no later than 90 days
                following the effective date of the classification or reclassification
                or no later than August 16, 2021, whichever is later.
                 (4)(i) Before submitting an RRP plan for FRA's review and approval,
                a voluntarily-compliant railroad shall notify FRA of its intent to
                submit an RRP plan by providing written notice to the FRA Associate
                Administrator for Railroad Safety and Chief Safety Officer, 1200 New
                Jersey Avenue SE, Washington, DC 20590.
                 (ii) The date that FRA receives a voluntarily-compliant railroad's
                written notice or February 18, 2021, whichever is later, serves as the
                date on which the voluntarily-compliant railroad may start compiling or
                collecting information solely for the purpose of planning,
                implementing, or evaluating a risk reduction program, as described by
                Sec. 271.11.
                 (iii) A voluntarily-compliant railroad shall submit its RRP plan no
                later than 180 days after FRA receives written notice that the
                voluntarily-compliant railroad intends to submit an RRP plan for review
                and approval.
                 (c) RRP plan requirements. An RRP plan submitted by a railroad
                shall include:
                 (1) The signature, name, title, address, and telephone number of
                the chief official responsible for safety and who bears the primary
                managerial authority for implementing the submitting railroad's safety
                policy. By signing, this chief official is certifying that the contents
                of the RRP plan are accurate and that the railroad will implement the
                contents of the program as approved by FRA;
                 (2) The contact information for the primary person responsible for
                managing the RRP;
                 (3) The contact information for the senior representatives of any
                person that the railroad has determined has entered into a contractual
                relationship with the railroad to either perform significant safety-
                related services on the railroad's
                [[Page 9322]]
                behalf or to utilize significant safety-related services provided by
                the railroad for railroad operations purposes (including host
                railroads, contract operators, shared track/corridor operators, and
                other contractors); and
                 (4) As required by Sec. 271.207(d), a statement describing how it
                consulted with its directly affected employees on the contents of its
                RRP plan. Directly affected employees have 30 days following the
                railroad's submission of its proposed RRP plan to file a statement
                under Sec. 271.207(e)(2).
                 (d) Approval. (1) Within 90 days of receipt of an RRP plan, or
                within 90 days of receipt of each RRP plan submitted before the start
                of railroad operations, FRA will review the proposed RRP plan to
                determine if it sufficiently addresses the required elements. This
                review will also consider any statement submitted by directly affected
                employees pursuant to Sec. 271.207(e).
                 (2) FRA will notify the primary contact person of the submitting
                railroad in writing whether FRA has approved the proposed plan and, if
                not approved, the specific points in which the RRP plan is deficient.
                FRA will also provide this notification to each individual identified
                in the service list accompanying the consultation statement required
                under Sec. 271.207(d).
                 (3) If FRA does not approve an RRP plan, the submitting railroad
                shall amend the proposed plan to correct all identified deficiencies
                and shall provide FRA a corrected copy no later than 90 days following
                receipt of FRA's written notice that the submitted plan was not
                approved. If FRA determines that the necessary corrections are
                substantively significant, it will direct the railroad to consult
                further with its directly affected employees regarding the corrections.
                If the corrections are substantively significant, a railroad will also
                be required to include an updated consultation statement, along with
                its resubmitted plan, pursuant to Sec. 271.207(d). Directly affected
                employees will also have 30 days following the railroad's resubmission
                of its proposed RRP plan to file a statement addressing the
                substantively significant changes under Sec. 271.207(e). Within 60
                days of receipt of a corrected RRP plan, FRA will review the corrected
                RRP plan to determine if it sufficiently addresses the identified
                deficiencies.
                 (4) Approval of a railroad's RRP plan under this part does not
                constitute approval of the specific actions the railroad will implement
                under its RRP plan and shall not be construed as establishing a Federal
                standard regarding those specific actions.
                 (e) Electronic submission. All documents required to be submitted
                to FRA under this part may be submitted electronically pursuant to the
                procedures in appendix B to this part.
                Sec. 271.303 Amendments.
                 (a) Consultation requirements. (1) For substantive amendments, a
                railroad shall follow the process, described in its RRP plan pursuant
                to Sec. 271.209, for consulting with its directly affected employees
                and submitting a consultation statement to FRA. The requirements of
                this paragraph (a)(1) do not apply to non-substantive amendments (e.g.,
                amendments that update names and addresses of railroad personnel).
                 (2) If a railroad and its directly affected employees cannot reach
                agreement on the proposed contents of a substantive amendment, the
                directly affected employees may file a statement with FRA under the
                procedures in Sec. 271.207(e)(1). A railroad's directly affected
                employees have 15 days following the railroad's submission of a
                proposed amendment to submit the statement described in this paragraph.
                 (b) Filing. (1) A railroad shall submit any amendment(s) to its
                approved RRP plan to FRA's Associate Administrator not less than 60
                days before the proposed effective date of the amendment(s). The
                railroad shall file the amendment(s) with a cover letter outlining the
                proposed change(s) to the approved RRP plan.
                 (2) If the proposed amendment is limited to adding or changing a
                name, title, address, or telephone number of a person, FRA approval is
                not required under the process of this section, although the railroad
                shall still file the amended RRP plan with FRA's Associate
                Administrator for Railroad Safety and Chief Safety Officer. These
                proposed amendments may be implemented by the railroad upon filing with
                FRA. All other proposed amendments must comply with the formal approval
                process described by this section.
                 (c) Review. (1) FRA will review a proposed amendment to an RRP plan
                within 45 days of receipt. FRA will then notify the primary contact
                person of the railroad regarding whether FRA has approved the proposed
                amendment. FRA will also provide this notification to each individual
                identified in the service list accompanying the consultation statement
                required under paragraph (a)(1) of this section. If not approved, FRA
                will inform the railroad and the individuals identified in the service
                list of the specific points in which the proposed amendment is
                deficient.
                 (2) If FRA has not notified the railroad and the individuals
                identified in the service list by the proposed effective date of the
                amendment whether the amendment has been approved or not, the railroad
                may implement the amendment, subject to FRA's decision.
                 (3) If a proposed RRP plan amendment is not approved by FRA, no
                later than 60 days following the receipt of FRA's written notice, the
                railroad shall either provide FRA a corrected copy of the amendment
                that addresses all deficiencies noted by FRA or notice that the
                railroad is retracting the amendment.
                Sec. 271.305 Reopened review.
                 Following approval of an RRP plan or an amendment to such a plan,
                FRA may reopen review of the plan or amendment, in whole or in part,
                for cause stated.
                Sec. 271.307 Retention of RRP plans.
                 (a) Railroads. A railroad shall retain at its system and division
                headquarters one copy of its RRP plan and each subsequent amendment to
                that plan. A railroad may comply with this requirement by making an
                electronic copy available.
                 (b) Inspection and copying. A railroad shall make a copy of the RRP
                plan and each subsequent amendment available to representatives of FRA
                or States participating under part 212 of this chapter for inspection
                and copying during normal business hours.
                Subpart E--Internal Assessments
                Sec. 271.401 Annual internal assessments.
                 (a) Beginning with the first calendar year after the calendar year
                in which FRA approves a railroad's RRP plan pursuant to Sec.
                271.301(d), the railroad shall annually (i.e., once every calendar
                year) conduct an internal assessment of its RRP.
                 (b) The internal assessment shall determine the extent to which the
                railroad has:
                 (1) Achieved the implementation milestones described in its RRP
                plan pursuant to Sec. 271.225(b);
                 (2) Complied with the implemented elements of the approved RRP
                plan;
                 (3) Achieved the goals described in its RRP plan pursuant to Sec.
                271.203(c);
                 (4) Implemented previous internal assessment improvement plans
                pursuant to Sec. 271.403; and
                 (5) Implemented previous external audit improvement plans pursuant
                to Sec. 271.503.
                 (c) A railroad shall ensure that the results of its internal
                assessments are
                [[Page 9323]]
                internally reported to railroad senior management.
                Sec. 271.403 Internal assessment improvement plans.
                 (a) Within 30 days of completing its internal assessment, a
                railroad shall develop an improvement plan that addresses the findings
                of its internal assessment.
                 (b) At a minimum, a railroad's improvement plan shall:
                 (1) Describe recommended improvements (including any proposed
                revisions or updates to the RRP plan the railroad expects to make
                through the amendment process described in Sec. 271.303) that address
                the findings of the internal assessment for fully implementing the
                railroad's RRP, complying with the implemented elements of the RRP
                plan, achieving the goals identified in the railroad's RRP plan
                pursuant to Sec. 271.203(c), and implementing previous internal
                assessment improvement plans and external audit improvement plans;
                 (2) Identify by position title the individual who is responsible
                for carrying out the recommended improvements;
                 (3) Contain a timeline describing when specific and measurable
                milestones for implementing the recommended improvements will be
                achieved; and
                 (4) Specify processes for monitoring the implementation and
                evaluating the effectiveness of the recommended improvements.
                Sec. 271.405 Internal assessment reports.
                 (a) Within 60 days of completing its internal assessment, a
                railroad shall submit a copy of an internal assessment report to the
                FRA Associate Administrator for Railroad Safety and Chief Safety
                Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.
                 (b) This report shall be signed by the railroad's chief official
                responsible for safety and who bears primary managerial authority for
                implementing the railroad's safety policy. The report shall include:
                 (1) A description of the railroad's internal assessment;
                 (2) The findings of the internal assessment;
                 (3) A specific description of the recommended improvements
                contained in the railroad's internal assessment improvement plan,
                including any proposed amendments the railroad intends to make to the
                railroad's RRP plan pursuant to Sec. 271.303; and
                 (4) The status of the recommended improvements contained in the
                railroad's internal assessment improvement plan and any outstanding
                recommended improvements from previous internal assessment improvement
                plans.
                 Subpart F--External Audits
                Sec. 271.501 External audits.
                 FRA will conduct (or cause to be conducted) external audits of a
                railroad's RRP. Each audit shall evaluate the railroad's compliance
                with the elements of its RRP required by this part. A railroad shall
                make documentation kept pursuant to its RRP plan available for
                inspection and copying by representatives of FRA or States
                participating under part 212 of this chapter upon request. FRA will
                provide a railroad written notice of the audit results.
                Sec. 271.503 External audit improvement plans.
                 (a) Submission. Within 60 days of receiving FRA's written notice of
                the audit results, if necessary, a railroad shall submit for approval
                an improvement plan addressing any instances of deficiency or non-
                compliance found in the audit to the FRA Associate Administrator for
                Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE,
                Washington, DC 20590.
                 (b) Requirements. At a minimum, an improvement plan shall:
                 (1) Describe the improvements the railroad will implement to
                address the audit findings;
                 (2) Identify by position title the individual(s) responsible for
                carrying out the improvements necessary to address the audit findings;
                and
                 (3) Contain a timeline describing when milestones for implementing
                the recommended improvements will be achieved. These implementation
                milestones shall be specific and measurable.
                 (c) Approval. If FRA does not approve the railroad's improvement
                plan, FRA will notify the railroad of the plan's specific deficiencies.
                The railroad shall amend the proposed plan to correct the identified
                deficiencies and provide FRA a corrected copy no later than 30 days
                following receipt of FRA's notice that the proposed plan was not
                approved.
                 (d) Status reports. Upon the request of the FRA Associate
                Administrator, a railroad shall provide FRA for review a status report
                on the implementation of the improvements contained in the improvement
                plan.
                Appendix A to Part 271--Federal Railroad Administration Guidance on the
                Risk Reduction Program Consultation Process
                 A railroad required to develop a risk reduction program (RRP)
                under this part shall in good faith consult with and use its best
                efforts to reach agreement with its directly affected employees on
                the contents of the RRP plan. See Sec. 271.207(a)(1). This appendix
                discusses the meaning of the terms ``good faith'' and ``best
                efforts,'' and provides non-mandatory guidance on how a railroad may
                comply with the requirement to consult with directly affected
                employees on the contents of its RRP plan. Guidance is provided for
                employees who are represented by a non-profit employee labor
                organization and employees who are not represented by any such
                organization.
                I. The Meaning of ``Good Faith'' and ``Best Efforts''
                 ``Good faith'' and ``best efforts'' are not interchangeable
                terms representing a vague standard for the Sec. 271.207
                consultation process. Rather, each term has a specific and distinct
                meaning. When consulting with directly affected employees,
                therefore, a railroad shall independently meet the standards for
                both the good faith and best efforts obligations. A railroad that
                does not meet the standard for one or the other will not be in
                compliance with the consultation requirements of Sec. 271.207.
                 The good faith obligation requires a railroad to consult with
                employees in a manner that is honest, fair, and reasonable, and to
                genuinely pursue agreement on the contents of an RRP plan. If a
                railroad consults with its employees merely in a perfunctory manner,
                without genuinely pursuing agreement, it will not have met the good
                faith requirement. For example, a lack of good faith may be found if
                a railroad's directly affected employees express concerns with
                certain parts of the railroad's RRP plan, and the railroad neither
                addresses those concerns in further consultation nor attempts to
                address those concerns by making changes to the RRP plan.
                 On the other hand, ``best efforts'' establishes a higher
                standard than that imposed by the good faith obligation, and
                describes the diligent attempts that a railroad shall pursue to
                reach agreement with its employees on the contents of its RRP plan.
                While the good faith obligation is concerned with the railroad's
                state of mind during the consultation process, the best efforts
                obligation is concerned with the specific efforts made by the
                railroad in an attempt to reach agreement. This would include
                considerations such as whether a railroad had held sufficient
                meetings with its employees to address or make an attempt to address
                any concerns raised by the employees, or whether the railroad had
                made an effort to respond to feedback provided by employees during
                the consultation process. For example, a railroad would not meet the
                best efforts obligation if it did not initiate the consultation
                process in a timely manner, and thereby failed to provide employees
                sufficient time to engage in the consultation
                [[Page 9324]]
                process. A railroad would also likely not meet the best efforts
                obligation if it presented employees with an RRP plan and only
                permitted the employees to express agreement or disagreement on the
                plan (assuming that the employees had not previously indicated that
                such a consultation would be acceptable). A railroad may, however,
                wish to hold off substantive consultations regarding the contents of
                its RRP plan until one year after publication of the rule to ensure
                that information generated as part of the process is protected from
                discovery and admissibility into evidence under Sec. 271.11.
                Generally, best efforts are measured by the measures that a
                reasonable person in the same circumstances and of the same nature
                as the acting party would take. Therefore, the standard imposed by
                the best efforts obligation may vary with different railroads,
                depending on a railroad's size, resources, and number of employees.
                 When reviewing RRP plans, FRA will determine on a case-by-case
                basis whether a railroad has met its Sec. 271.207 good faith and
                best efforts obligations. This determination will be based upon the
                consultation statement submitted by the railroad pursuant to Sec.
                271.207(b) and any statements submitted by employees pursuant to
                Sec. 271.207(c). If FRA finds that these statements do not provide
                sufficient information to determine whether a railroad used good
                faith and best efforts to reach agreement, FRA may investigate
                further and contact the railroad or its employees to request
                additional information. (FRA also expects a railroad's directly
                affected employees to utilize good faith and best efforts when
                negotiating on the contents of an RRP plan. If FRA's review and
                investigation of the statements submitted by the railroad under
                Sec. 271.207(b) and the directly affected employees under Sec.
                271.207(c) reveal that the directly affected employees did not
                utilize good faith and best efforts, FRA could consider this as part
                of its approval process.)
                 If FRA determines that a railroad did not use good faith and
                best efforts, FRA may disapprove the RRP plan submitted by the
                railroad and direct the railroad to comply with the consultation
                requirements of Sec. 271.207. Pursuant to Sec. 271.301(b)(3), if
                FRA does not approve the RRP plan, the railroad will have 90 days,
                following receipt of FRA's written notice that the plan was not
                approved, to correct any deficiency identified. In such cases, the
                identified deficiency would be that the railroad did not use good
                faith and best efforts to consult and reach agreement with its
                directly affected employees. If a railroad then does not submit to
                FRA within 90 days an RRP plan meeting the consultation requirements
                of Sec. 271.207, the railroad could be subject to penalties for
                failure to comply with Sec. 271.301(b)(3).
                 II. Guidance on How a Railroad May Consult With Directly Affected
                Employees
                 Because the standard imposed by the best efforts obligation will
                vary depending upon the railroad, there may be countless ways for
                various railroads to comply with the consultation requirements of
                Sec. 271.207. Therefore, it is important to maintain a flexible
                approach to the Sec. 271.207 consultation requirements, to give a
                railroad and its directly affected employees the freedom to consult
                in a manner best suited to their specific circumstances.
                 FRA is nevertheless providing guidance in this appendix as to
                how a railroad may proceed when consulting (utilizing good faith and
                best efforts) with employees in an attempt to reach agreement on the
                contents of an RRP plan. This guidance may be useful as a starting
                point for railroads that are uncertain about how to comply with the
                Sec. 271.207 consultation requirements. This guidance distinguishes
                between employees who are represented by a non-profit employee labor
                organization and employees who are not, as the processes a railroad
                may use to consult with represented and non-represented employees
                could differ significantly.
                 This guidance does not establish prescriptive requirements with
                which a railroad shall comply, but merely outlines a consultation
                process a railroad may choose to follow. A railroad's consultation
                statement could indicate that the railroad followed the guidance in
                this appendix as evidence that it utilized good faith and best
                efforts to reach agreement with its employees on the contents of an
                RRP plan.
                (a) Employees Represented by a Non-Profit Employee Labor
                Organization
                 As provided in Sec. 271.207(b)(1), a railroad consulting with
                the representatives of a non-profit employee labor organization on
                the contents of an RRP plan will be considered to have consulted
                with the directly affected employees represented by that
                organization.
                 A railroad may utilize the following process as a roadmap for
                using good faith and best efforts when consulting with represented
                employees in an attempt to reach agreement on the contents of an RRP
                plan.
                 (1) Pursuant to Sec. 271.207(b)(1), a railroad must meet with
                representatives from a non-profit employee labor organization
                (representing a class or craft of the railroad's directly affected
                employees) within 240 days from February 18, 2020 to begin the
                process of consulting on the contents of the railroad's RRP plan. A
                railroad must provide notice at least 60 days before the scheduled
                meeting.
                 (2) During the time between the initial meeting and the
                applicability date of Sec. 271.11, the parties may meet to discuss
                administrative details of the consultation process as necessary.
                 (3) Within 60 days after February 17, 2021, a railroad should
                have a meeting with the representatives of the directly affected
                employees to discuss substantive issues with the RRP plan.
                 (4) Within 180 days after February 17, 2021 or as otherwise
                provided by Sec. 271.301(b), a railroad would file its RRP plan
                with FRA.
                 (5) As provided by Sec. 271.207(e), if agreement on the
                contents of an RRP plan could not be reached, a labor organization
                (representing a class or craft of the railroad's directly affected
                employees) may file a statement with the FRA Associate Administrator
                for Railroad Safety and Chief Safety Officer explaining its views on
                the plan on which agreement was not reached.
                (b) Employees Who Are Not Represented by a Non-Profit Employee
                Labor Organization
                 FRA recognizes that some (or all) of a railroad's directly
                affected employees may not be represented by a non-profit employee
                labor organization. For such non-represented employees, the
                consultation process described for represented employees may not be
                appropriate or sufficient. For example, a railroad with non-
                represented employees should make a concerted effort to ensure that
                its non-represented employees are aware that they are able to
                participate in the development of the railroad's RRP plan. FRA
                therefore is providing the following guidance regarding how a
                railroad may utilize good faith and best efforts when consulting
                with non-represented employees on the contents of its RRP plan.
                 (1) Within 120 days from February 18, 2020, a railroad may
                notify non-represented employees that--
                 (A) The railroad is required to consult in good faith with, and
                use its best efforts to reach agreement with, all directly affected
                employees on the proposed contents of its RRP plan;
                 (B) Non-represented employees are invited to participate in the
                consultation process (and include instructions on how to engage in
                this process); and
                 (C) If a railroad is unable to reach agreement with its directly
                affected employees on the contents of the proposed RRP plan, an
                employee may file a statement with the FRA Associate Administrator
                for Railroad Safety and Chief Safety Officer explaining his or her
                views on the plan on which agreement was not reached.
                 (2) This initial notification (and all subsequent
                communications, as necessary or appropriate) could be provided to
                non-represented employees in the following ways:
                 (A) Electronically, such as by email or an announcement on the
                railroad's website;
                 (B) By posting the notification in a location easily accessible
                and visible to non-represented employees; or
                 (C) By providing all non-represented employees a hard copy of
                the notification.
                 A railroad could use any or all of these methods of
                communication, so long as the notification complies with the
                railroad's obligation to utilize best efforts in the consultation
                process.
                 (3) Following the initial notification (and before submitting
                its RRP plan to FRA), a railroad should provide non-represented
                employees a draft proposal of its RRP plan. This draft proposal
                should solicit additional input from non-represented employees, and
                the railroad should provide non-represented employees 60 days to
                submit comments to the railroad on the draft.
                 (4) Following this 60-day comment period and any changes to the
                draft RRP plan made as a result, the railroad should submit the
                proposed RRP plan to FRA, as required by this part.
                 (5) As provided by Sec. 271.207(e), if agreement on the
                contents of an RRP plan cannot be reached, then a non-represented
                employee may file a statement with the FRA Associate Administrator
                for Railroad Safety and Chief Safety Officer explaining his or her
                [[Page 9325]]
                views on the plan on which agreement was not reached.
                Appendix B to Part 271--Procedures for Submission of RRP Plans and
                Statements From Directly Affected Employees
                 This appendix establishes procedures for the submission of a
                railroad's RRP plan and statements by directly affected employees
                consistent with the requirements of this part.
                Submission by a Railroad and Directly Affected Employees
                 (a) As provided for in Sec. 271.101, each railroad must
                establish and fully implement an RRP that continually and
                systematically evaluates railroad safety hazards on its system and
                manages the resulting risks to reduce the number and rates of
                railroad accidents, incidents, injuries, and fatalities. The RRP
                shall be fully implemented and supported by a written RRP plan. Each
                railroad must submit its RRP plan to FRA for approval as provided
                for in Sec. 271.201.
                 (b) As provided for in Sec. 271.207(e), if a railroad and its
                directly affected employees cannot come to agreement on the proposed
                contents of the railroad's RRP plan, the directly affected employees
                have 30 days following the railroad's submission of its proposed RRP
                plan to submit a statement to the FRA Associate Administrator for
                Railroad Safety and Chief Safety Officer explaining the directly
                affected employees' views on the plan on which agreement was not
                reached.
                 (c) The railroad's and directly affected employees' submissions
                shall be sent to the Associate Administrator for Railroad Safety and
                Chief Safety Officer, FRA. The mailing address for FRA is 1200 New
                Jersey Avenue SE, Washington, DC 20590. When a railroad submits its
                RRP plan and consultation statement to FRA pursuant to Sec.
                271.301, it must also simultaneously send a copy of these documents
                to all individuals identified in the service list pursuant to Sec.
                271.207(d)(3).
                 (d) Each railroad and directly affected employee is authorized
                to file by electronic means any submissions required under this
                part. Before any person files a submission electronically, the
                person shall provide the FRA Associate Administrator for Railroad
                Safety and Chief Safety Officer with the following information in
                writing:
                 (1) The name of the railroad or directly affected employee(s);
                 (2) The names of two individuals, including job titles, who will
                be the railroad's or directly affected employees' points of contact
                and will be the only individuals allowed access to FRA's secure
                document submission site;
                 (3) The mailing addresses for the railroad's or directly
                affected employees' points of contact;
                 (4) The railroad's system or main headquarters address located
                in the United States;
                 (5) The email addresses for the railroad's or directly affected
                employees' points of contact; and
                 (6) The daytime telephone numbers for the railroad's or directly
                affected employees' points of contact.
                 (e) A request for electronic submission or FRA review of written
                materials shall be addressed to the FRA Associate Administrator for
                Railroad Safety and Chief Safety Officer, Federal Railroad
                Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
                Upon receipt of a request for electronic submission that contains
                the information listed above, FRA will then contact the requestor
                with instructions for electronically submitting its program or
                statement. A railroad that electronically submits an initial RRP
                plan or new portions or revisions to an approved program required by
                this part shall be considered to have provided its consent to
                receive approval or disapproval notices from FRA by email. FRA may
                electronically store any materials required by this part regardless
                of whether the railroad that submits the materials does so by
                delivering the written materials to the Associate Administrator and
                opts not to submit the materials electronically. A railroad that
                opts not to submit the materials required by this part
                electronically, but provides one or more email addresses in its
                submission, shall be considered to have provided its consent to
                receive approval or disapproval notices from FRA by email or mail.
                 Issued in Washington, DC.
                Ronald L. Batory,
                Administrator, Federal Railroad Administration.
                [FR Doc. 2020-00425 Filed 2-14-20; 8:45 am]
                BILLING CODE 4910-06-P
                

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