Risk Reduction Program

 
CONTENT
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 III
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 271
Risk Reduction Program; Final Rule
Federal Register / Vol. 85 , No. 32 / Tuesday, February 18, 2020 /
Rules and Regulations
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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
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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
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                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
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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
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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
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                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
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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
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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.
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    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\
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    \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.
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    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]]
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    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.
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[[Page 9285]]
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    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.
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[[Page 9287]]
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    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.
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[[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