System Safety Program and Risk Reduction Program
| Published date | 04 March 2020 |
| Citation | 85 FR 12826 |
| Record Number | 2020-04424 |
| Section | Rules and Regulations |
| Court | Federal Railroad Administration |
Federal Register, Volume 85 Issue 43 (Wednesday, March 4, 2020)
[Federal Register Volume 85, Number 43 (Wednesday, March 4, 2020)]
[Rules and Regulations]
[Pages 12826-12852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04424]
[[Page 12825]]
Vol. 85
Wednesday,
No. 43
March 4, 2020
Part II Department of Transportation----------------------------------------------------------------------- Federal Railroad Administration-----------------------------------------------------------------------49 CFR Parts 270 and 271System Safety Program and Risk Reduction Program; Final Rule
Federal Register / Vol. 85 , No. 43 / Wednesday, March 4, 2020 /
Rules and Regulations
[[Page 12826]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Parts 270 and 271
[Docket No. FRA-2011-0060, Notice No. 12 and FRA-2009-0038, Notice No.
8]
RIN 2130-AC73
System Safety Program and Risk Reduction Program
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: In this final rule, FRA is amending its regulations requiring
commuter and intercity passenger rail (IPR) operations to develop and
implement a system safety program (SSP) to improve the safety of their
operations. The rule clarifies that each passenger rail operation has
responsibility for ensuring compliance with the SSP final rule. FRA
also adjusts the SSP rule's compliance dates to account for FRA's prior
stay of the rule's effect and amends the rule to apply its information
protections to the Confidential Close Call Reporting System (C\3\RS)
program included in a passenger rail operation's SSP. FRA is making
conforming amendments to the Risk Reduction Program (RRP) final rule to
ensure that the RRP and SSP rules have essentially identical
consultation and information protection provisions.
DATES: This final rule is effective May 4, 2020.
ADDRESSES: Docket: For access to the docket to read background
documents, petitions for reconsideration, or comments received, go to
http://www.regulations.gov and follow the online instructions for
accessing the docket or visit the Docket Management Facility, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, Room W12-140,
Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: Larry Day, Passenger Rail Safety
Specialist, U.S. Department of Transportation, Federal Railroad
Administration, Office of Railroad Safety, Passenger Rail Division;
telephone: 909-782-0613; email: [email protected]; Elizabeth A. Gross,
Attorney Adviser, U.S. Department of Transportation, Federal Railroad
Administration, Office of Chief Counsel; telephone: 202-493-1342;
email: [email protected]; or Veronica Chittim, Attorney Adviser,
U.S. Department of Transportation, Federal Railroad Administration,
Office of Chief Counsel; telephone: 202-493-0273; email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Background
II. Discussion of Comments Received on the NPRM
A. States' Concerns
1. FRA's Statutory Authority
2. State Comments Alleged SSP Rule Imposes Burdens Without
Improving Safety
3. State Comments Alleged Requirements To Consult With Its IPR
Operators' Employees Would Interfere With State-IPR Operator
Contracts
4. Other Comments Related to States' Concerns
B. Other Topics
1. Consultation Comments
2. Information Protections
3. Submission Time
4. RRP Rule
III. FRA's Response to Comments and Amendments to Parts 270 and 271
A. FRA's Modified Approach
1. IPR Examples
2. Commuter (or Other Short-Haul) Examples
3. Summary of Amendments and Response to States' Comments
B. How FRA's Approach Responds to the States' Concerns
1. Statutory Authority Concerns
2. Burden
3. Consultation Concerns
C. Other Topics
D. Conforming Amendments to the RRP Final Rule
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Environmental Impact
E. Federalism Implications
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact
I. Background
On August 12, 2016, FRA published a final rule requiring each
commuter and intercity passenger railroad \1\ to develop and implement
an SSP. See 81 FR 53850 (Aug. 12, 2016). This final rule was required
by section 103 of the Rail Safety Improvement Act of 2008 (RSIA) (Pub.
L. 110-432, Div. A, 122 Stat. 4883 (Oct. 16, 2008), codified at 49
U.S.C. 20156). The Secretary of Transportation delegated the authority
to conduct this rulemaking and implement the rule to the Federal
Railroad Administrator. See 49 CFR 1.89(b).
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\1\ Throughout this document, FRA uses the term ``railroad,'' as
it is defined in 49 CFR 270.5.
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On October 3, 2016, FRA received four petitions for reconsideration
(Petitions) of the final rule: (1) Certain labor organizations (Labor
Organizations) \2\ filed a joint petition (Labor Petition); (2) certain
State and local transportation departments and authorities \3\ filed a
joint petition (Joint Petition); (3) North Carolina Department of
Transportation (NCDOT) filed a separate petition; and (4) Vermont
Agency of Transportation (VTrans) filed a separate petition. The Joint,
NCDOT, and VTrans petitions are hereinafter referred to as the ``State
Petitions.''
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\2\ The Labor Organizations participating in the Labor Petition
are the: American Train Dispatchers Association (ADTA); Brotherhood
of Locomotive Engineers and Trainmen (BLET); Brotherhood of
Maintenance of Way Employes Division (BMWED); Brotherhood of
Railroad Signalmen (BRS); Brotherhood Railway Carmen Division; and
Transport Workers Union of America.
\3\ The State and local transportation departments and
authorities who filed the Joint Petition are the: Capitol Corridor
Joint Powers Authority (CCJPA); Indiana Department of Transportation
(INDOT); Northern New England Passenger Rail Authority (NNEPRA); and
San Joaquin Joint Powers Authority (SJJPA).
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Massachusetts Department of Transportation (MassDOT) filed a
comment in support of the Joint Petition on November 15, 2016. Three
other individual comments were filed, but related to the rule
generally, not the petitions.
On February 10, 2017, FRA stayed the SSP final rule's requirements
until March 21, 2017, consistent with the new Administration's guidance
issued January 20, 2017, intended to provide the Administration an
adequate opportunity to review new and pending regulations. See 82 FR
10443 (Feb. 13, 2017). FRA's review also included the Petitions. To
provide additional time for that review, FRA extended the stay until
May 22, 2017; June 5, 2017; December 4, 2017; December 4, 2018; and
then September 4, 2019. See 83 FR 63106 (Dec. 7, 2018).
On October 30, 2017, FRA met with the Passenger Safety Working
Group and the System Safety Task Group of the Railroad Safety Advisory
Committee (RSAC) to discuss the Petitions and comments received in
response to the Petitions.\4\ See FRA-2011-0060-0046.
[[Page 12827]]
This meeting allowed FRA to receive input from industry and the public
and to discuss potential paths forward to respond to the Petitions.
During the meeting, FRA made an introductory presentation and invited
discussion on the issues raised by the Labor Petition. FRA also
presented for discussion draft rule text that would respond to the
State Petitions by amending the SSP final rule to include a delegation
provision that would allow a railroad that contracts all activities
related to its passenger service to another person to designate that
person as responsible for compliance with the SSP final rule. FRA
uploaded this proposed draft rule text to the docket for this
rulemaking. See FRA-2011-0060-0045. The draft rule text specified that
any such designation did not relieve a railroad of legal responsibility
for compliance with the SSP final rule. In response to the draft rule
text, the State Petitioners indicated they would need an extended
caucus to discuss. On March 16, 2018, the Executive Committee of the
States for Passenger Rail Coalition, Inc. (SPRC) \5\ provided, and FRA
uploaded to the rulemaking docket, proposed revisions to the draft rule
text. See FRA-2011-0060-0050.FRA issued a notice of proposed rulemaking
(NPRM) on June 11, 2019, responding to the Petitions and proposing
certain amendments to the SSP final rule. See 84 FR 27215. FRA further
extended the stay to allow FRA time to review comments received on the
NPRM and to issue this final rule. See 84 FR 45683 (Aug. 30, 2019). In
addition to the comments received on the NPRM, FRA also reviewed and
considered SPRC's March 16, 2018 suggested revisions in formulating the
NPRM and this final rule.
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\4\ Attendees at the October 30, 2017, meeting included
representatives from the following organizations: ADS System Safety
Consulting, LLC; American Association of State Highway and
Transportation Officials; American Public Transportation Association
(APTA); American Short Line and Regional Railroad Association; ATDA;
Association of American Railroads (AAR); BLET; BMWED; BRS; CCJPA;
The Fertilizer Institute; Gannett Fleming Transit and Rail Systems;
International Brotherhood of Electrical Workers; Metropolitan
Transportation Authority; National Railroad Passenger Corporation
(Amtrak); National Transportation Safety Board (NTSB); NCDOT;
NNEPRA; San Joaquin Regional Rail Commission (SJRRC)/Altamont
Corridor Express; Sheet Metal, Air, Rail, and Transportation Workers
(SMART-TD); and United States Department of Transportation--
Transportation Safety Institute.
\5\ SPRC's website indicates it is an ``alliance of State and
Regional Transportation Officials,'' and each State Petitioner
appears to be an SPRC member. See https://www.s4prc.org/state-programs (last accessed Aug. 13, 2019).
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Accordingly, this rule revises part 270 in response to the
Petitions, as well as the comments received on the June 2019 NPRM,
which are discussed below. FRA also adjusts the rule's compliance dates
to account for FRA's stay of the rule's effect and amends the rule to
specify that its information protections apply to C\3\RS programs
included in a passenger rail operation's SSP. This rule also amends
part 271 to ensure that the RRP and SSP rules have essentially
identical consultation and information protection provisions.
II. Discussion of Comments Received on the NPRM
The NPRM solicited written comments from the public under the
Administrative Procedure Act (5 U.S.C. 553). By the close of the
comment period on August 12, 2019, FRA received fourteen comments,
including comments from AAR; Amtrak; APTA; CCJPA jointly with INDOT,
Los Angeles-San Diego-San Luis Obispo Rail Corridor Agency, and SJJPA
(CCJPA Joint Comment); Connecticut Department of Transportation
(CTDOT); Massachusetts Bay Transportation Authority (MBTA); MassDOT;
NCDOT; NNEPRA jointly with the State of Maine Department of
Transportation (MEDOT); SPRC; VTrans; and Washington State Department
of Transportation (WSDOT). FRA also received two general comments from
members of the public. FRA grouped these comments into two categories:
(A) States' Concerns and (B) Other Topics (Consultation Comments,
Information Protections, Submission Time, and RRP Rule).
A. States' Concerns
The CCJPA Joint Comment and SPRC's submission contained essentially
identical comments (hereinafter, State Comments). See FRA-2011-0060-
0031 and FRA-2009-0038-0106. These State Comments reiterated many
arguments the States have raised with FRA previously on this topic.
Generally, MassDOT, NCDOT, NNEPRA/MEDOT, VTrans, and WSDOT concurred
with the State Comments. These individual State comments included
context for the particular rail services provided (for example, NNEPRA/
MEDOT explained its ``Downeaster'' service) and emphasized the apparent
lack of control and operational role of the State in the IPR service.
Specifically, the State Comments argued that: (1) FRA would exceed
its statutory authority to impose SSP requirements on States; (2) the
SSP rule would impose substantial burdens on States without improving
safety; and (3) States should not be required to consult with their IPR
operators' employees. Therefore, the State Comments requested that FRA
modify the SSP rule to exclude a State that provides financial support
for, but does not operate, IPR service; to exclude a State that owns a
railroad or railroad equipment, but does not operate a railroad or
railroad equipment; and to remove from the definition in Sec. 270.5,
``Railroad,'' the words ``whether directly or by contracting out
operation of the railroad to another person.'' See SPRC at 15; CCJPA at
17; VTrans at 6. The State Comments also contended that FRA's proposed
delegation provision in Sec. 270.7(c) was insufficient relief because
the State would retain the burden of compliance.
1. FRA's Statutory Authority
The State Comments alleged FRA lacks statutory authority to require
States that provide funding for IPR service to comply with the SSP rule
requirements. See SPRC at 3; CCJPA at 5. Further, the State Comments
argued that neither the Passenger Rail Investment and Improvement Act
of 2008 (PRIIA) (Pub. L. 110-432, Div. B (Oct. 16, 2008)) nor the RSIA
reflected a Congressional ``intent to include States as IPR providers
with responsibility for anything more than service funding.'' See SPRC
at 3, 4; CCJPA at 3; VTrans at 11. Instead, the State Comments
suggested any safety responsibility belongs only to the IPR operator.
See SPRC at 3; CCJPA at 3. Moreover, the State Comments urged FRA to
``remove from State financial sponsors the responsibility for
compliance with FRA's safety regulations unless a State elects to
assume that responsibility on its own.'' SPRC at 5; CCJPA at 5.
Specifically, the State Comments contended that a ``State'' cannot
be a ``railroad carrier'' under 49 U.S.C. 20102(3). See SPRC at 5;
CCJPA at 6. The State Comments explained that the definition of
``person'' in 1 U.S.C. 1, includes ``corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies, as well as individuals,'' but does not specifically include
the word ``State.'' See SPRC at 5-6; CCJPA at 6. The State Comments
argued that a ``State'' therefore cannot be a ``person,'' and by
extension, a ``State'' cannot be a ``person providing railroad
transportation'' under the definition of ``railroad carrier'' in 49
U.S.C. 20102(3). See SPRC at 5-6; CCJPA at 5-6. To support its
argument, the State Comments indicated that Congress in PRIIA did not
include ``States'' in the definition of ``Persons'' generally, and when
Congress wanted to include ``States'' as ``persons,'' it explicitly
said so, citing to 49 U.S.C. 1139(g)(1), in PRIIA, concerning accident
investigations. See SPRC at 6; CCJPA at 6.
MassDOT, NNEPRA/MEDOT, and VTrans additionally commented that
Surface Transportation Board (STB) precedent allows States to maintain
an STB status as a ``non-carrier'' when a State acquires track, right-
of-way, and related physical assets. MassDOT explained that ``ownership
of railroad
[[Page 12828]]
assets does not necessarily confer upon the asset owner rail carrier
status.'' See MassDOT at 2. NNEPRA/MEDOT stated that NNEPRA does not
provide railroad transportation, but rather pays Amtrak the difference
between service costs and revenues to operate the Downeaster service.
See NNEPRA/MEDOT at 4. VTrans noted that it already delegates
responsibility to railroad carriers through long-term contractual
relationships. See VTrans at 3. VTrans contended State ownership of
railroad property leased to a railroad carrier does not make the State
a railroad carrier for the Interstate Commerce Act, the Federal
Employers Liability Act, and the Railway Labor Act. See VTrans at 7-8.
Further, VTrans argued that State financial support for Amtrak
services, such as that required by PRIIA section 209, should not
trigger the SSP rule's applicability. VTrans at 11.
The State Comments, NCDOT, and NNEPRA/MEDOT commented that some
State statutes prohibit States from owning or operating a railroad.
See, e.g., SPRC at 9; CCJPA at 9; NCDOT at 2; NNEPRA/MEDOT at 4. As
such, the States argued, requiring States to comply with the SSP rule
would require States to seek statutory authority to engage in rail
operations, or it would prevent them from underwriting the service at
all. See SPRC at 9; CCJPA at 9.
Finally, the State Comments argued FRA expanded the definition of
``railroad'' in part 270 without authority to include entities that
``contract [ ] out operation of the railroad to another person.'' See
SPRC at 7; CCJPA at 7. The State Comments asserted that FRA's
regulatory definition is broader than the statutory definition, and
there is no clear direction from Congress to extend the definition as
FRA proposed. See SPRC at 7; CCJPA at 8.
2. State Comments Alleged the SSP Rule Imposes Burdens Without
Improving Safety
The State Comments continued to argue the SSP rule would impose
substantial burdens on States. See SPRC at 9; CCJPA at 10. The State
Comments explained State sponsors \6\ ``do not employ qualified
railroad personnel with the detailed technical knowledge to develop,
implement, and oversee compliance with an SSP.'' See SPRC at 10; CCJPA
at 11. They also claimed FRA's regulatory impact statement
``underestimates the costs to States of compliance with the proposed
SSP requirements'' and ``did not consider'' the costs of ``developing,
implementing, and monitoring compliance with an SSP'' and the
``negative impacts on the overall insurance market.'' See SPRC at 11;
CCJPA at 13. Further, the State Comments alleged the rule would require
States to renegotiate operating agreements which would increase costs.
See SPRC at 12; CCJPA at 13. In sum, the State Comments indicated the
SSP rule's financial burdens could cause States to discontinue IPR
service entirely, and may therefore necessitate repaying Federal grants
or loans for early termination of service. See SPRC at 13; CCJPA at 14.
Moreover, the State Comments argued that including State sponsors in
the rule could subject sponsors to other statutory obligations, such as
railway labor and retirement requirements, and would increase costs and
discourage IPR service. See SPRC at 14; CCJPA at 16.
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\6\ There is currently no statutory or regulatory definition of
the term ``sponsor'' in relation to IPR service. The Joint Petition
appears to understand ``sponsor'' in this context as being a State
that ``provide[s] financial support'' for IPR routes and
``contract[s] for the operation of IPR.'' See Joint Pet. at 2, fn.
2. The NCDOT petition defines ``sponsors'' as ``State or other
public entities that own railroads, equipment or that financially
sponsor intercity passenger rail service.'' NCDOT Pet. at 3. In its
proposed revisions to the strawman text FRA presented during the
October 2017 RSAC meeting, SPRC suggested defining ``State sponsor''
as ``a State, regional or local authority, that contracts with a
railroad to provide intercity passenger railroad transportation
pursuant to Section 209 of the Passenger Rail Investment and
Improvement Act of 2008, as amended.'' See Comments of the SPRC at
2. For purposes of discussion in this rule, FRA understands ``State
sponsor'' as being a State, regional, or local authority, or other
public entity, that provides financial (and potentially other)
support for IPR routes.
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The State Comments asserted that ``FRA has not demonstrated that
requiring States, as well as IPR operators, to be responsible for full
SSP compliance would improve safety.'' SPRC at 3; CCJPA at 3. The State
Comments theorized that requiring both the IPR operator and State
sponsor to develop an SSP would be duplicative and could create
``contradictory and possibly conflicting measures.'' See SPRC at 3, 10,
13; CCJPA at 3; WSDOT at 1. To support this claim, the State Comments
pointed to the NTSB's report in the Dupont, Washington 501 accident to
suggest that because the NTSB issued a recommendation to Amtrak to
include the various responsible parties in a comprehensive safety
management system (SMS), and NTSB did not issue a recommendation to
WSDOT to develop such an independent safety program, which implies that
requiring States to prepare and implement an SSP plan would not improve
safety. See SPRC at 13-14; CCJPA at 15.
Finally, the States indicated that State sponsors of IPR service
lack control over the operator (typically, Amtrak), and although they
pay Amtrak to keep the service running (as required by PRIIA), the only
remedy they have for oversight is to cancel the contract (i.e.,
terminate the IPR service entirely). See, e.g., NCDOT at 3; CCJPA at
12, 14. WSDOT noted that non-operating State sponsors ``do not control
operations nor have access to critical safety reports or other
information'' and lack the required ``appropriate expertise, authority,
and ability to receive timely critical information to make decisions or
take appropriate actions.'' WSDOT at 1-2. WSDOT reiterated that
contractor operators have the appropriate personnel to meet safety
requirements and provide oversight, and having States duplicate that
effort would potentially create conflicting, redundant, and deflective
measures. See WSDOT at 3. MassDOT agreed that the SSP rule ``imputes to
the States a non-existent degree of State control over Amtrak's day-to-
day operations.'' See MassDOT at 2. MassDOT distinguished the service
and contract provided by MBTA (contracting out commuter rail operations
to a third-party operator) from itself, where MassDOT funds (as
required by PRIIA) certain IPR multi-state (Massachusetts, New
Hampshire, Vermont) routes without an operational role for MassDOT. See
MassDOT at 2. MassDOT posited that including a State sponsor as a
regulated entity ``adds confusion as to responsibility, threatens clear
and timely communications between appropriate parties and misdirects
regulatory attention.'' See MassDOT at 4. VTrans, like NNEPRA, MassDOT,
and NCDOT, explained that it has no authority to govern or enforce any
safety rules, even when it is the owner of the property, and all
responsibilities lie with the actual rail operators. See VTrans at 11.
3. State Comments Alleged Requirements To Consult With Its IPR
Operators' Employees Would Interfere With State-IPR Operator Contracts
Finally, the State Comments argued States should not be required to
consult with their IPR operators' employees because it ``introduces
substantial barriers to efficient procurement practices.'' See SPRC at
16; CCJPA at 18. WSDOT and MassDOT shared the concern that direct
contact with an IPR service operator's employees could create labor and
operator issues. See WSDOT at 3; MassDOT at 4. NCDOT emphasized it is
not a party to, nor is it privy to, Amtrak's agreements with its host
railroads and the SSP rule would purportedly insert States into that
relationship. See NCDOT at 3.
[[Page 12829]]
With the above arguments, the State Comments, MassDOT, NCDOT,
NNEPRA/MEDOT, VTrans, and WSDOT, urged FRA to amend the SSP rule to
exempt State sponsors from part 270.
4. Other Comments Related to States' Concerns
In contrast to the above arguments, APTA commented that it supports
the part 270 definition of ``railroad,'' supports FRA's statement that
``each entity involved in providing passenger rail service--including
``State sponsors''--is responsible for complying with Federal rail
safety requirements,'' and believes ``[S]tates must be solely
responsible for [their] employees and contractor's compliance.'' See
APTA at 2. CTDOT supported FRA's proposal to allow for designation of
another entity to ensure compliance with the SSP, and explained the
entities it would so designate for its three passenger services (New
Haven Line, Hartford Line, and Shore Line East). See CTDOT at 1.\7\
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\7\ See FRA-2011-0060-0068 (received Aug. 12, 2019). CTDOT
provided clarifying comments dated November 20, 2019, after the
comment period closed, which FRA added to the docket. See FRA-2011-
0060-0074.
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Amtrak agreed with FRA's statement that ``the vast majority of
State providers of [IPR] service would fall under Amtrak's [SSP
plan].'' See Amtrak at 2. Amtrak asserted that ``uniformity in the
management of system safety program elements is critical to the
successful implementation of risk reduction efforts.'' See id. Amtrak
stated that it supplemented its Amtrak-wide SSP plan with separate
agreements with host railroads, tenant railroads, and States, detailing
specific aspects of the service and infrastructure, along with the
responsibilities of each party, and incorporated these agreements by
reference into its SSP plan.\8\ See id. Amtrak explained these
supplemental, collaborative, written agreements can prevent variation
in programs that could lead to duplication of efforts or issues where
entities think they may be obligated to provide oversight of Amtrak
beyond their skills or resources. See id. Amtrak requested that FRA
clarify that these agreements align with FRA's intent to sufficiently
detail the requirements and obligations of each party. See id.
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\8\ FRA notes that because of the stay of the SSP rule, FRA has
neither approved nor disapproved Amtrak's SSP plan under the rule.
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Finally, a member of the public, Mr. Quinton Simpson stated ``even
if the State contracts'' an IPR service provider, the State has
responsibility and ``needs to ensure that the company is operating
safely.'' Similarly, Dr. Edwin ``Chip'' Kraft commented to FRA that the
``type of communications disconnect resulting in avoidance of
responsibility'' is what the SSP rule is trying to prevent.
B. Other Topics
1. Consultation Comments
FRA received two comments regarding FRA's proposed changes to the
consultation provision in Sec. 270.107. Amtrak commented that it
``concurs with the [NPRM's] proposed clarifications'' to require
serving ``notice on the general chairpersons of labor organizations
representing directly affected railroad employees.'' See Amtrak at 1.
Further, Amtrak detailed its own experience on the labor consultation
process in developing its SSP plan, and indicated that without such
``continuous communication and collaboration between labor
organizations and Amtrak management, its [SSP plan] to implement the
[Safety Management System] would not be as successful nor
sustainable.'' See id. at 1-2. Additionally, Mr. Simpson commented that
he agrees that the contact of the General Chairperson makes sense
because ``the local chairperson was the liaison between the worker and
the company.''
2. Information Protections
Amtrak commented that it agrees with the NPRM's proposal to extend
the SSP information protections to a C\3\RS program included as part of
an SSP, even if the railroad joined C\3\RS on or before August 14,
2017. See Amtrak at 2. Further, Amtrak requested ``that any information
resulting from its [SSP plan] processes prior to the effective date of
the rule's protection provisions be afforded like protections from
discovery or use in civil litigation.'' See id. Amtrak also requested
the ``protections include information developed in [S]tate sponsored
routes, including in circumstances where [S]tate entities may be
subject to disclosure requirements.'' See id. at 3.
APTA supported the proposed protection for C\3\RS outlined in Sec.
270.105(a)(3), but requested it be expanded from Federal or State court
proceedings to also protect from other requests to release the data,
like requests under the Freedom of Information Act (FOIA) or Freedom of
Information Law. See APTA at 1. Further, APTA stated the ``protection
should also apply to any Federal program utilized by the railroads,
such as [the Rail Information Sharing Environment (RISE)] or Clear
Signal for Action [(CSA)].'' See id. at 2. MBTA supported the C\3\RS
program and, like APTA, commented that FRA ``should expand the privacy
protections . . . to FOIA requests, as long as the information being
requested supports the SSP.'' See MBTA at 1. Similarly, AAR supported
the proposed inclusion of FRA's C\3\RS program in the information
protections, but stated the provision should go further to include
railroads' ``in-house close call confidential reporting systems.'' See
AAR at 2.
3. Submission Time
FRA requested comments on whether a one-year period after
publication of the final rule was appropriate for submission of SSP
plans for FRA review. APTA requested that FRA provide two years, to
mirror what the Federal Transit Administration (FTA) provided in
implementing the SMS program. See APTA at 2. MBTA supported extending
compliance dates and providing one year for submission of SSP plans to
allow sufficient time for railroads to reengage labor representatives.
See MBTA at 1. Amtrak asked FRA to implement the rule as soon as
possible. See Amtrak at 3.
4. RRP Rule
Finally, AAR commented that the NPRM ``ignores AAR's supplemental
comments to the RRP rule, filed October 31, 2018.'' AAR's comment also
stated ``[b]y adopting [AAR's] proposed changes to the RRP regulatory
text, FRA can dramatically speed up the enhancement of safety on the
nation's railroads, at no risk.'' See AAR at 1.
III. FRA's Response to Comments and Amendments to Parts 270 and 271
After thoroughly considering the comments received on the NPRM, FRA
is amending part 270 to clarify the application of the rule's
requirements to each ``passenger rail operation,'' as opposed to each
``railroad.'' FRA believes that this approach addresses the concerns
raised by the States; effectuates FRA's intent for system safety;
provides for a more natural understanding of how system safety works on
a practical level; and will ensure each passenger rail operation
develops and implements a compliant SSP.\9\ Specific rule text changes
to carry out this approach are discussed further below in the section-
by-section analysis.
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\9\ FRA's treatment of passenger rail service in this rule is
only intended to affect the application of Federal safety
requirements FRA administers and enforces.
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A. FRA's Modified Approach
As FRA has consistently explained, FRA recognizes that there are
often
[[Page 12830]]
multiple entities involved in each passenger rail service, with each
entity having varying safety responsibilities.\10\ For purposes of part
270, FRA expects each passenger rail operation to have a single SSP and
written SSP plan. FRA agrees with the State Comments that each
passenger rail operation should have a single SSP governing the entire
service, with each entity that may be involved in the service playing a
role in the SSP commensurate with any of its activities affecting
railroad safety. FRA similarly agrees that if each entity involved in a
passenger rail operation filed its own SSP plan, this could lead to
confusion and duplicated actions, contrary to promoting a systemic
approach to safety. Therefore, FRA is clarifying the rule to place the
central responsibilities of developing, filing, and implementing an SSP
plan on the passenger rail operation. For most passenger rail
operations, FRA expects the entity conducting the railroad operations
will develop, submit, and implement the required SSP plan for that
passenger rail operation. The entity submitting the plan for a
passenger rail operation will typically be the railroad providing the
engineers and crews and physically operating the trains on that
passenger rail operation's routes. Of course, if the entities involved
in a passenger rail operation determine that an entity other than the
railroad operating the service should develop and file that operation's
SSP plan, that different entity may be designated with such
responsibility for the passenger rail operation, provided the required
elements of the SSP plan are met with a single plan covering that
system. In this manner, FRA is adopting the designation provision
proposed in Sec. 270.7(c), but with adjustments to reflect that the
responsibility falls on each passenger rail operation and to remove the
language that a designator is not relieved of responsibility for
compliance.
---------------------------------------------------------------------------
\10\ For example, an entity, such as a State agency or rail
authority, may organize and finance the rail service; a primary
contractor may oversee the day-to-day operation of the rail service;
one subcontractor may operate the trains along the route; another
subcontractor may maintain the train equipment; and another entity
may own the track.
---------------------------------------------------------------------------
The passenger rail operation for all current State-sponsored IPR
services could be considered part of one, multifaceted system that is
organized, managed, performed, and operated by a single railroad. As
captured in the amendments to the rule text in this rulemaking, the
requirements of part 270 may apply to those national and State-
supported IPR services operated by Amtrak as a single passenger rail
operation. FRA anticipates Amtrak would develop and implement an SSP
that addresses the varying components of its network. Within that rail
system, other entities involved (e.g., host railroads) must participate
in the SSP process to ensure those entities' roles are performed safely
when they may affect the safe operation of that system's rail service.
With the amendments to the rule, FRA clarifies that it does not require
such other entities to develop, submit, and implement an independent
SSP plan to FRA. For example, a non-operating entity must participate
in (and be identified in) the SSP process to the extent that entity
owns infrastructure or equipment that will be utilized by the passenger
rail operation. But that non-operating entity will not file the SSP
plan for the passenger rail operation unless otherwise agreed amongst
the entities involved in the passenger rail operation.
Indeed, as stated above, Amtrak agreed with FRA's statement that
``the vast majority of State providers of [IPR] service would fall
under Amtrak's [SSP plan].'' See Amtrak at 2. Amtrak asserted that
``uniformity in the management of system safety program elements is
critical to the successful implementation of risk reduction efforts.''
See id. Amtrak explained that it supplemented its Amtrak-wide SSP plan
with separate agreements with host railroads, tenant railroads, and
States, detailing specific aspects of each service and infrastructure,
along with the responsibilities of each party. See id. Amtrak stated
these supplemental, collaborative written agreements can prevent
variation in programs that could lead to duplication of efforts or
issues where entities think they may be obligated to provide oversight
of Amtrak beyond their skills or resources. See id.
FRA finds that these types of agreements will likely align with the
rule's requirements to explain the roles and obligations of each party
involved in a passenger rail operation. As stated above, Amtrak's
national IPR network currently includes many State-supported routes
that compose its system. As Amtrak's comment recognized, if Amtrak
files an SSP plan for its passenger rail network incorporating State-
sponsored IPR services, Amtrak's network SSP plan must also include
details about each route, including State-supported routes, within the
Amtrak network, especially to the extent aspects of those routes vary
from those common to Amtrak's intercity passenger rail network. In this
manner, an SSP plan for Amtrak's system would likely include details
from the long-term agreements Amtrak has with individual States
regarding funding, equipment, track, and/or other items specific to
those State-supported routes. FRA believes this form of centralized SSP
plan addressing various components of the system will conform to the
statutory mandate and benefit rail safety.
1. IPR Examples
By way of example, if an entity (State A) merely provides financial
support to Amtrak per its obligations under PRIIA Sec. 209 \11\ for a
State-supported intercity passenger route under 750 miles, part 270
does not require State A to submit an SSP plan for that State-supported
route. Amtrak, as the operator of that State-supported IPR service,
likely will file its national Amtrak SSP plan to include that State-
supported route for the passenger rail operation's (Amtrak's) SSP.
(Amtrak, or any other entity involved in the passenger rail operation,
will retain the option of submitting a separate SSP plan for each IPR
route, but Amtrak will not be required to subdivide its national
network into separate plans.) As required by the rule, Amtrak's SSP
plan must describe State A's role in the SSP (i.e., Amtrak's SSP must
explain that State A funds those specific operations on that route).
See, e.g., Sec. 270.103(d), System description, and Sec. 270.103(e),
Management and organizational structure. In this manner, passenger rail
service stakeholders must be included in the description of the rail
system in the SSP plan, but are not otherwise responsible for
submitting an independent SSP plan for that passenger rail operation.
---------------------------------------------------------------------------
\11\ Section 209 of PRIIA requires that the Amtrak Board of
Directors, in consultation with the Secretary of Transportation, the
governors of each relevant State, and the Mayor of the District of
Columbia, or entities representing those officials, develop and
implement a single, nationwide standardized methodology for
establishing and allocating the operating and capital costs of
providing IPR service among the States and Amtrak for the trains
operated on designated high-speed rail corridors (outside the
Northeast Corridor), short-distance corridors, or routes of not more
than 750 miles, and services operated at the request of a State, a
regional or local authority, or another person.
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For purposes of part 270, to the extent an entity (such as a State)
does more than just provide financial assistance to a passenger rail
operation, the relative responsibilities for that entity in the SSP
context will increase. With respect to some operations, States may have
a role in making substantive operational and safety-related decisions,
including selecting contractors to perform services implementing those
decisions. For example, if an entity (State B) is involved in a
passenger rail operation
[[Page 12831]]
by funding a State-supported route on Amtrak's national system pursuant
to PRIIA Sec. 209, and by procuring rolling stock for use only on that
State-supported IPR route, State B will not be responsible for
submitting an independent SSP plan for that route. Instead, for
purposes of part 270, Amtrak will likely incorporate that State-
supported route on its national system into an SSP plan. This
understanding reflects current practical circumstances and how such
services are organized. However, State B will be required by part 270
to participate in the development of the SSP, to the extent that State
B's involvement (here, the procurement of the rail equipment) affects
railroad safety. Thus, the entity preparing the SSP plan (here, Amtrak)
must coordinate with State B on the equipment's safety to file a
compliant SSP plan to include that State-supported route. In this way,
FRA requires State B to be involved in the SSP plan in more ways than
in the example of State A above. Specifically, the SSP plan requirement
regarding equipment procurement is an area where State B must be
involved. See Sec. 270.103(o), Contract procurement requirements. For
example, if State B performs an analysis for determining safety
characteristics or features of equipment it is considering purchasing
for use in its State-supported route, that role should be described in
the passenger rail operation's SSP plan--even if that plan is submitted
by the operator of the system (e.g., Amtrak for all current State-
sponsored IPR services).\12\ Similarly, Sec. 270.103(f)(1)(i) outlines
that the passenger rail operation's SSP plan must detail the roles and
responsibilities of each position that has significant responsibility
for implementing the SSP, including those held by employees and other
persons utilizing or providing significant safety-related services as
identified pursuant to Sec. 270.103(d)(2). In this example, aspects of
the SSP plan benefit from State participation and the identification of
the State's role in the passenger rail operation. For purposes of part
270, however, only one entity involved in each passenger rail operation
need bear the full responsibility for developing, submitting, and
implementing an SSP plan for the passenger rail operation.
---------------------------------------------------------------------------
\12\ For example, the role of the California Department of
Transportation's (Caltrans') Rolling Stock Procurement Branch would
be described in Amtrak's SSP covering that operation for equipment
Caltrans procures. See https://dot.ca.gov/programs/rail-and-mass-transportation/rolling-stock-procurement-branch.
---------------------------------------------------------------------------
2. Commuter (or Other Short-Haul) Examples
In the context of commuter (or other short-haul) passenger rail
operations, FRA similarly requires each operation to develop and submit
a single SSP plan to FRA for review and approval. FRA's amendments to
part 270 make clear that each commuter (or other short-haul) passenger
rail operation must file an SSP plan that covers all components of that
commuter (or other short-haul) operation. For example, for a commuter
passenger rail operation, FRA expects the SSP plan will detail the
operation to include any public authority that sponsors or organizes
the service, describe the track ownership on the system, identify the
contractor operator(s), and explain dispatching responsibilities. If a
commuter operation has more than one contractor operator (for example,
the operation has distinct operators on specific routes in the commuter
system), FRA expects that passenger rail operation will establish and
file a single SSP plan to address its entire rail system. The SSP plan
could be prepared, filed, and implemented for the passenger rail
operation by the commuter rail system's owners, a contractor operator,
or some other entity involved in the rail system, provided the SSP plan
meets the requirements in the rule and the passenger rail operation
works with the relevant stakeholders that compose that commuter rail
system to ensure the system is viewed holistically. Of course, FRA is
available to assist all passenger rail operations regarding the
requirements of part 270.
3. Summary of Amendments and Response to States' Comments
FRA is adding a definition in Sec. 270.5, for ``passenger rail
operation'' to clarify which entity will need an SSP plan. The
definition retains the flexibility that entity has in preparing and
implementing the plan. FRA is also amending other sections of part 270
to include the term ``passenger rail operation.'' FRA is reframing
these regulatory sections as a responsibility for each passenger rail
operation to develop and submit an SSP plan to FRA. These amendments
are intended to clarify that an SSP plan must be submitted for each
passenger rail operation, and FRA does not expect each specific entity
involved in a passenger rail service, whether a railroad or not, to
establish, submit, and implement its own SSP plan. Rather, each
passenger rail operation will have one SSP plan. FRA believes that for
purposes of part 270, these changes effectively and practically
implement the rule: (1) Consistent with the statutory mandate; (2)
considering the comments received; and (3) considering the regulatory
landscape in which the SSP rule overlays and supplements a body of
existing rail safety regulations and requires centralized analyses. To
be consistent with this approach, FRA is changing ``railroad'' to
``passenger rail operation,'' as appropriate, throughout part 270.
Additionally, FRA is finalizing proposed amendments to the rule
that clarify that while all persons providing IPR or commuter (or other
short-haul) rail passenger transportation share responsibility for
ensuring compliance with the SSP final rule, the rule does not restrict
a passenger rail operation's ability to provide for an appropriate
designation of responsibility amongst the entities involved in the
service. As discussed in the NPRM, any such designation must be
described in the SSP plan, although a passenger rail operation may also
notify FRA of a designation by submitting a notice of such designation
before submitting the SSP plan. The section-by-section analysis
discusses these proposed amendments in detail below. FRA believes these
amendments clarify the ability to specify which entity will fulfill the
responsibilities of this part for each passenger rail operation, so
that work and effort is not duplicated. FRA will look to the designated
entity when reviewing and approving a submitted SSP plan, auditing the
implementation of that plan, and deciding whether to take action to
enforce the SSP rule requirements.
B. How FRA's Approach Responds to the States' Concerns
As discussed above, FRA has modified its approach to address the
concerns raised by the State commenters, and to clarify which entity
will need an SSP plan. The comments received in response to the NPRM
raised varying concerns, as described above, from FRA's statutory
authority over State sponsors, to alleged substantial burdens of the
rule, and logistical concerns about labor consultation requirements.
FRA believes that the modified, practical approach this rule requires,
stressing that there must be a single SSP plan for each passenger rail
operation, addresses these concerns.
For example, the State Comments argued that State sponsors are not
structured to handle the SSP process or they lack sufficient capacity
to handle the requirements of the SSP process. Simply stated, FRA's
approach to focus on the passenger rail operation allows for an entity
that is equipped to manage
[[Page 12832]]
and implement such requirements to be responsible for the operation's
SSP.
1. Statutory Authority Concerns
The State Comments asserted that FRA lacks authority to apply the
SSP rule to State sponsors. As FRA noted in the NPRM, FRA disagrees
that applying the SSP rule to State sponsors of IPR service goes beyond
FRA's statutory authority. See 84 FR 27220-21. FRA has a long history
of applying its safety regulations to State entities involved in
passenger rail operations. See generally 49 CFR parts 213, 238 and 239.
However, FRA's modified approach in this rule recognizes that each
passenger rail operation must have a compliant SSP and SSP plan, but
does not specifically require State sponsors to develop and implement
SSPs or SSP plans. This SSP plan must describe each entity involved in
that passenger rail operation, including State sponsors, and that
passenger rail operation must ensure all entities involved in the rail
service work together as a system. Overall, for purposes of part 270,
FRA focuses on the passenger rail operation, and emphasizes that State
sponsors of IPR service are only responsible to the extent and degree
their roles and responsibilities are described in the operation's SSP
plan. Because this modified approach does not hold a State sponsor
responsible for specifically submitting an SSP plan or for being
ultimately responsible under the regulation for the passenger rail
operation the State sponsors, FRA does not find the States' statutory
authority concerns to be implicated.
Although FRA's modified approach in this rule renders the State's
statutory authority concerns moot, FRA notes that it does not concur
with the States' comments concerning FRA's jurisdiction over States.
The State Comments asserted that States are not ``persons'' under the
definition of ``person'' in 1 U.S.C. 1. See generally SPRC at 5-6.
Specifically, the State Comments argued that the definition of
``person'' in 1 U.S.C. 1, includes ``corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies, as well as individuals,'' but does not specifically include
the word ``State.'' See id. The State Comments, by extension, contended
that a State cannot be a ``railroad carrier'' under 49 U.S.C. 20102(3)
or under the SSP rule, because those definitions refer to a ``person
providing railroad transportation.''
While FRA acknowledges that ``States'' are not explicitly included
in the general 1 U.S.C. 1 definition and the presumption that
``persons'' does not include sovereigns, that presumption is not a
``hard and fast rule of exclusion.'' Vermont Agency of Natural
Resources v. United States, 529 U.S. 765, 780-82 (2000). FRA's general
jurisdictional statute, 49 U.S.C. 20103, provides the Secretary of
Transportation authority to ``prescribe regulations and issue orders
for every area of railroad safety supplementing laws and regulations in
effect on October 16, 1970.'' This authority is generally delegated to
FRA in 49 CFR 1.89.\13\ Additionally, the statutory scheme provides
that the FRA Administrator shall carry out the duties and powers
related to railroad safety vested in the Secretary by section 20134(c)
and chapters 203 through 211 of this title, and by chapter 213 of this
title for carrying out chapters 203 through 211. See 49 U.S.C. 103(g).
The penalty provision for general violations relating to railroad
safety provides that a ``person may not fail to comply with section
20160 or with a regulation prescribed or order issued by the Secretary
of Transportation under chapter 201 of this title.'' 49 U.S.C. 21301
(emphasis added). Additionally, other sections in the penalty
provisions in 49 U.S.C. ch. 213 apply to a person violating other
specific railroad safety requirements, such as those relating to
violations of 49 U.S.C. ch. 203-209 (Safety Appliances, Signal Systems,
Locomotives, Accidents and Incidents), and 211 (Hours of Service). See
49 U.S.C. 21302 and 21303.
---------------------------------------------------------------------------
\13\ See also 49 U.S.C. 103.
---------------------------------------------------------------------------
The statutory mandate in 49 U.S.C. 20156(h) states that FRA (as
delegated by the Secretary) ``shall have the authority to assess civil
penalties pursuant to chapter 213 for a violation of this section,
including the failure to submit, certify, or comply with a safety risk
reduction program, risk mitigation plan, technology implementation
plan, or fatigue management plan.''
The use of the term ``person'' in 49 U.S.C. ch. 213, and 49 U.S.C.
20156(h)'s reference to chapter 213 demonstrates that persons used in
Subtitle V-Rail Programs, Part A-Safety, of the U.S. Code should
include States or political subdivisions of States. To read the
statutory scheme otherwise would seemingly mean FRA would not be
permitted even to issue civil penalties against commuter rail
authorities (often instrumentalities of a State or locality) for
violations of Federal rail safety requirements because they would not
be considered ``persons'' under 49 U.S.C. 21301. This result would be
incongruous. Additionally, whether or not a State entity may be
considered a railroad carrier under 49 U.S.C. 20102(3), FRA has
authority over a person, including a State entity, whose actions,
roles, or functions affect railroad safety. See 49 U.S.C. 20103. Under
the modified approach to part 270 explained here, State sponsors of IPR
service are not required to establish and implement an SSP as railroad
carriers, but they do have responsibility to the extent they affect
railroad safety, under FRA's general jurisdiction. See 49 U.S.C. 20103;
49 CFR part 270.
2. Burden
The State Comments echoed their previous arguments that the SSP
rule would impose burdens on State sponsors without improving safety.
As FRA noted in the NPRM, FRA disagrees and believes that it properly
considered the costs and burdens of the rule on States that sponsor IPR
service. See 84 FR 27219-20.
As explained above, all current State-sponsored IPR services could
be considered part of Amtrak's SSP. This is because all State sponsors
currently have agreements with Amtrak to provide IPR service on their
State-supported routes. As such, the typical IPR service is an Amtrak-
scheduled service using equipment Amtrak operates and maintains. In
fact, for all State-sponsored IPR service FRA is aware of, Amtrak is
the operator. FRA continues to attribute the costs of implementing the
SSP rule for current State-sponsored IPR operations to Amtrak
(consistent with FRA's past rulemaking practice),\14\ on the
expectation that Amtrak will prepare either one national SSP plan to
include State-sponsored routes of IPR service or, if more appropriate,
potentially submit separate SSPs on behalf of unique services distinct
from those common to Amtrak's national system. See 81 FR 53892, n. 14;
84 FR 27219. In the analysis for the SSP final rule, FRA captured any
costs for future State-sponsored IPR service using operators other than
Amtrak by estimating there would be one new startup IPR service or
commuter rail operation in Years 2 and 3 of the analysis and one new
startup every other year thereafter. See 81 FR 53852; 84 FR 27219.
---------------------------------------------------------------------------
\14\ See Passenger Equipment Safety Standards, final rule, 64 FR
25560, 25654 (May 12, 1999) (``The [regulatory] evaluation . . .
takes into consideration that individual States will contract with
Amtrak for the provision of rail service on their behalf. In this
regard, for example, a State may utilize Amtrak's inspection forces
trained under the rule, and thus not have to train inspection forces
on its own.'').
---------------------------------------------------------------------------
Further, while the State Comments alleged substantial and
undetermined burdens, FRA maintains that these burdens were either
considered by FRA
[[Page 12833]]
in the regulatory impact analysis or are not mandated by the SSP final
rule as revised. The State Comments restated previous arguments
contending the rule would impose the following burdens: (1) States do
not employ qualified railroad personnel with the detailed technical
knowledge to develop, implement, and oversee compliance with an SSP and
would have to hire such individuals; (2) States would face considerable
challenges in augmenting existing human resources before the
responsibilities imposed by the rule could be fulfilled; (3)
implementing the rule will likely require State sponsors to renegotiate
their existing operating agreements with Amtrak and other contractors
to ensure the exchanges of information the rule requires and to
implement required consultation procedures; (4) States may have to
discontinue IPR service due to the costs imposed by the rule, and if
they discontinue service, FRA may require States to repay grants/loans;
and (5) the rule's definition of ``railroad'' potentially opens the
door to attempts to make States that sponsor IPR service responsible
for other statutory obligations, including railway labor and retirement
requirements. See generally 84 FR 27220; Joint Pet. at 4-9; SPRC at 9-
14.
The rule does not require States to hire additional technical or
human resources personnel. Further, FRA clarifies that the rule does
not restrict the ability to designate an entity to fulfill the
responsibilities under the rule. FRA discusses designation of SSP
responsibility more fully in the section-by-section analysis below.
Overall, FRA believes with the changes in the rule text, these alleged
burdens will fall more appropriately on each applicable passenger rail
operation, and not specifically on State sponsors who merely provide
funding to have Amtrak (or another contractor operator) operate
additional routes as part of its network. FRA expects that the costs to
such State sponsors of cooperating with Amtrak to allow Amtrak to
develop and implement an SSP on these State-supported routes will be
nominal.
FRA further underscores that State entities involved in providing
IPR service have always had to comply with FRA safety regulations to
ensure railroad safety, and they have done so successfully.\15\ Because
State entities have been complying with their responsibilities under
these and other statutorily-based rules,\16\ and given the clarified
responsibility State sponsors have to cooperate with the passenger rail
operation as it formulates and implements a compliant SSP, FRA does not
believe that the SSP rule will somehow force States to terminate IPR
service.
---------------------------------------------------------------------------
\15\ See 63 FR 24630 (May 4, 1998) and 64 FR 25560 (May 12,
1999).
\16\ FRA's Passenger Train Emergency Preparedness regulations
are generally satisfied by having Amtrak prepare and implement the
required emergency preparedness plans for the State-supported
routes. FRA does not require the States to duplicate the efforts of
the entities that prepare and implement SSP plans for each passenger
rail operation.
---------------------------------------------------------------------------
Regarding the States' claim that implementing the final rule will
result in costs associated with renegotiating contracts, FRA notes that
the rule itself does not require contract renegotiation. Rather, to the
extent any such costs will be incurred, they will result from the
States' own decisions on how the IPR service should be provided, and
not a requirement of the rule.
Finally, FRA disagrees with the States that being subject to the
SSP rule will open them up to application of other statutes. To the
extent another agency might argue that labor, tax, or other statutes
apply to the States based on the application of this rule, the
challenge would be to that agency's statute, not the SSP rule. Further,
FRA was mandated by the RSIA to issue an SSP rule that specifically
applies to providers of IPR service.\17\ There is no basis for
disregarding a statutory mandate because another agency might use it to
apply an unrelated statute. Further, the amendments in this rule
addressing the part 270 requirements to each passenger rail operation,
rather than to each railroad, as applicable, emphasizes that each
operation must have a compliant SSP, and does not tag a State with any
specific responsibility. States and, more precisely, the State entities
through which they act, are ``persons'' subject to part 270 to the
extent they affect railroad safety, but FRA need not categorize such
State entities (e.g., transportation departments, rail authorities)
with a term of art (e.g., railroad carrier) in this context. Therefore,
the simple obligation to cooperate to ensure a comprehensive SSP is
developed and submitted for that passenger rail operation (typically by
the operator of that service) does not suggest State entities will
become subject to other statutes.
---------------------------------------------------------------------------
\17\ See 49 U.S.C. 20156(a)(1)(A); 49 CFR 1.89(b).
---------------------------------------------------------------------------
3. Consultation Concerns
Finally, FRA recognizes the State Comments alleged the rule's
requirements to consult with IPR operators' employees would interfere
with State-IPR operator contracts. As discussed above, in formulating
this final rule, FRA took a practical approach to address the varying
concerns commenters raised. FRA believes this approach is an
appropriate way to implement the statutory mandate and is structured to
impose the requirements on each passenger rail operation without
interfering with the various stakeholders' current ways of doing
business. The rule focuses the responsibility on those that have the
capacity to plan and implement an SSP. The rule does not directly
impose requirements on State sponsors, unless those sponsors choose to
adopt that responsibility. Because State sponsors are not specifically
responsible for filing the plan for a passenger rail operation, FRA
finds the respective consultation concerns are rendered moot. The rule
does not require employees of States sponsoring IPR service to consult
with a contractor operator's employees. FRA's economic analysis
calculated costs and benefits in this way, and, although the
requirements are now clarified in the rule text, FRA does not believe
there is any meaningful change in cost or benefit calculations from
those of the 2016 final rule.
C. Other Topics
FRA is addressing the comments received on other topics within the
section-by-section analysis below. However, as a general matter, FRA
received no adverse comments on the consultation notification
amendments and, given the supporting comments received, is adopting the
changes essentially as proposed. Similarly, FRA is adopting the changes
in the information protections section generally as proposed, given the
support for including C\3\RS in the rule's protections.
Several commenters who supported extending this rule's information
protections to the C\3\RS program also urged FRA to further extend the
application of the information protections. For context, the
information protections generally apply to certain information a
railroad compiles or collects after August 14, 2017, solely for SSP
purposes. See 49 CFR 270.105(a). The rule also specifies certain
categories of information that are not protected, including information
a railroad compiled or collected on or before August 14, 2017, and that
the railroad continues to compile and collect, even if the railroad
uses that for its SSP. See
[[Page 12834]]
49 CFR 270.105(b)(2).\18\ This final rule amends the protections to
clarify that they apply to information a passenger rail operation
compiles or collects as part of a C\3\RS program included in its SSP,
even if the information was compiled or collected on or before August
14, 2017, for non-SSP purposes.
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\18\ For a more detailed discussion on how the information
protections and their exceptions apply, please see the SSP NPRM and
final rule. See 77 FR 55373, 55378-79, 55390-92, and 55406 (Sept. 7,
2012); 81 FR 53851, 53855-56, 53858-60, 53878-82, and 53900 (Aug.
12, 2016).
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Two of the comments urging further expansion of the information
protections were closely related to FRA's C\3\RS proposal.
Specifically, APTA suggested FRA expand the information protections to
cover any Federal program, such as the RISE pilot program or the former
CSA program, and AAR suggested FRA expand the protections to a
railroad's in-house confidential close call reporting program. FRA
understands APTA and AAR are asking FRA to extend the information
protections to all information a railroad compiles or collects as part
of these programs, even if the information was compiled or collected on
or before August 14, 2017, for non-SSP purposes. FRA notes that if a
railroad compiles or collects information as part of a voluntary
Federal data program that has solely system safety purposes, such as
RISE, or a railroad reporting program that has solely system safety
purposes, the compilation or collection remains solely for SSP
purposes, and that information is eligible for protection under Sec.
270.105.
The remaining comments urging expansion of the rule's information
protections related not specifically to the C\3\RS proposal, but to the
nature of the information protections generally. Specifically, APTA
suggested FRA extend the protections to FOIA/FOIL requests; Amtrak
suggested the protections should extend to any information resulting
from SSP plan processes before the effective date of the rule's
information protection provisions (i.e., August 14, 2017) and should
include information developed relating to State sponsored routes,
including circumstances where State entities may be subject to
disclosure requirements; and MBTA suggested FRA expand the protections
to FOIA requests.\19\
---------------------------------------------------------------------------
\19\ FRA assumes that APTA intended ``FOIL'' (i.e., ``Freedom of
Information Law'') to refer to State freedom of information laws
generally.
---------------------------------------------------------------------------
For the reasons discussed below, FRA declines to adopt any of the
above suggestions.
As an initial matter, FRA notes that expanding the information
protections to FOIA requests, as requested by APTA and MBTA, is
unnecessary because 49 U.S.C. 20118 already exempts certain railroad
safety risk reduction records the Secretary obtains from mandatory
disclosure under FOIA. FRA has discussed this FOIA exemption in both
the SSP and RRP final rules. See 81 FR 53855 and 53878 (Aug. 12, 2016);
85 FR 9262-63, 9266-67, 9268, and 9270 (Feb. 18, 2020).
FRA declines to apply the information protections to all
information a railroad compiles or collects under other FRA programs,
as requested by APTA, because no other ongoing program presents the
same challenge as C\3\RS. As the NPRM explained, the information
protection date of August 14, 2017, presented several problems in
determining how the information protections would apply to C\3\RS
programs. See 84 FR 27222-23 (June 12, 2019). Without the clarification
that all C\3\RS information would be protected when part of an SSP,
even if the information was compiled or collected on or before August
14, 2017, for non-SSP purposes, C\3\RS would have found itself in the
unworkable situation where some C\3\RS information was protected and
some not, based solely on when a participating railroad joined C\3\RS.
Id. FRA is unaware of a similar situation with any other FRA program.
For example, CSA was an FRA pilot project of limited duration, and RISE
is an FRA program currently under development. All CSA participation
and information therefore came before August 14, 2017, while all RISE
participation and information will come afterwards. As a result, all
CSA and RISE participants and information will effectively be treated
the same when it comes to the information protections. As for other FRA
programs that may engage in risk analysis activities, FRA also
participates in Switching Operations Fatality Analysis (SOFA) Working
Group and the Fatality Analysis of Maintenance-of-Way Employees and
Signalmen (FAMES) Committee.\20\ Both SOFA and FAMES are programs
established well before the date of the rule's information protections
and have reached a point where membership and participation are stable
and fairly representative of the railroad industry at large.\21\
Although SOFA and FAMES are active programs currently generating data,
unlike with C\3\RS, FRA does not anticipate significant future growth.
As such, neither SOFA nor FAMES is likely to present a situation where
some participants receive protection because they joined after August
14, 2017, solely as part of an SSP, while participants who joined on or
before August 14, 2017, do not. As an examination of these programs
illustrates, FRA concludes it does not need to amend the information
protections to cover all information a passenger rail operation
compiles or collects under any Federal program, even if the information
was compiled or collected on or before August 14, 2017, for non-SSP
purposes.
---------------------------------------------------------------------------
\20\ The SOFA Working Group looks for commonalities among
fatalities that occur during switching operations and develops
findings and recommendations that will aid in preventing railroad
employee deaths. See https://www.fra.dot.gov/SOFA. FAMES focuses on
identifying risks, trends, and factors impacting roadway worker
safety. See Introduction to the FAMES Committee, May 21, 2012, p. 1,
available at https://www.fra.dot.gov/eLib/Details/L01182.
\21\ SOFA began in 1998 and FAMES began in 2009. SOFA includes
representatives from AAR, ASLRRA, BLET, FRA, and SMART-TD. FAMES
includes participants and affiliates from AAR, Amtrak, APTA, ASLRRA,
BMWED, BNSF Railway, BRS, CSX Transportation, Farmrail System, Inc.,
FRA, Norfolk Southern Railway, and Union Pacific Railroad.
---------------------------------------------------------------------------
Regarding railroads' own confidential close call protection
programs, FRA declines to expand the protections to all information
generated by such programs because they are not a single Federal
program sponsored by FRA. While some railroads may have established
their own reporting programs on or before August 14, 2017, for non-SSP
purposes, FRA lacks the direct knowledge necessary to determine that
the protections should be expanded to cover these programs. If a
railroad's own program was begun after August 14, 2017, and fits
entirely within the umbrella of the railroad's SSP or RRP, the existing
data protections would apply. FRA therefore concludes that it would be
inappropriate to amend the information protections to cover all
information a railroad compiles or collects as part of its own
confidential close call reporting program, even if that information was
compiled or collected on or before August 14, 2017, for non-SSP
purposes.
Finally, FRA declines to address the remaining comments from APTA
and Amtrak that relate to the nature of the information protections
generally, as FRA did not intend for this rulemaking to reopen a
substantive discussion of the protections beyond the limited issue of
C\3\RS. FRA presented the information protections for public notice and
comment in both the SSP and RRP rulemaking processes and held public
hearings on both rulemakings. Numerous parties commented on the
proposed protections, and FRA
[[Page 12835]]
responded to these comments in the SSP and RRP final rules and in the
June 2019 NPRM, proposed extending the information protections to FRA-
sponsored C\3\RS programs included in a passenger rail operation's SSP.
As such, there has already been extensive substantive discussion of the
information protections. FRA therefore believes that amending the
information protections in a manner unrelated to the C\3\RS program as
proposed in this proceeding would not be consistent with the rulemaking
process through which the protections have already gone, especially
when FRA did not invite public comment on the protections in general.
FRA is addressing the comments received on submission time in the
section-by-section, as applicable.
Finally, the purpose of this rulemaking was to specifically address
the petitions for reconsideration on the 2016 SSP final rule and to
make other necessary clarifying adjustments. FRA was not required to
address AAR's supplemental comment \22\ on the RRP NPRM in either the
NPRM or in this final rule. AAR has raised this point directly to FRA
in the context of larger discussions on regulatory reform, and any
change to the SSP rule arising from those discussions would follow in a
separate rulemaking.
---------------------------------------------------------------------------
\22\ AAR filed its supplemental comment on the RRP NPRM on
October 31, 2018. The comment period for the RRP NPRM closed on
October 21, 2015.
---------------------------------------------------------------------------
D. Conforming Amendments to the RRP Final Rule
The SSP rule implements the RSIA mandate for railroad safety risk
reduction programs for passenger railroads. On February 18, 2020, FRA
published a separate RRP final rule addressing the mandate for certain
freight railroads. See 85 FR 9262 (Feb. 18, 2020). Throughout both the
SSP and RRP rulemaking proceedings, FRA has consistently stated both an
SSP and RRP final rule would contain consultation and information
protection provisions that were essentially identical. See 81 FR 53855
(Aug. 12, 2016); 80 FR 10955 (Feb. 27, 2015); 85 FR 9262, 9266-68,
9274-75, 9279, and 9300-01 (Feb. 18, 2020). The NPRM in this proceeding
stated that FRA may use this final rule to make conforming changes to
the consultation and information protection provisions of an RRP final
rule. As discussed further in the section-by-section analysis, FRA is
therefore amending the RRP rule (49 CFR part 271) as needed to make its
consultation and information protection provisions consistent with the
corresponding SSP provisions (as amended by this final rule).
IV. Section-by-Section Analysis
In response to petitions for reconsideration and comments received
on the NPRM, FRA is making various clarifying amendments to part 270--
System Safety Program. FRA is also clarifying that the SSP rule's
information protections apply to C\3\RS programs included in an SSP and
extending certain compliance dates to account for the stay of the rule.
FRA is also making conforming changes to 49 CFR part 271, Risk
Reduction Program. Specific changes are noted for each section below.
Part 270--System Safety Program
Section 270.1--Purpose and scope
This section contains a formal statement of the rule's purpose and
scope. FRA is amending paragraphs (a) and (b) to replace the word
``railroads'' with ``passenger rail operations'' to conform with FRA's
approach, discussed above. In this manner, FRA makes clear that each
passenger rail operation is required to improve railroad safety through
structured, proactive processes and procedures in a system safety
program.
Section 270.3--Application
This section sets forth the applicability of the rule. FRA is
amending paragraphs (a)(1) and (2) to replace the word ``railroads''
with ``passenger rail operations'' to conform with the approach
discussed above. Specifically, paragraph (a)(1) is revised to read that
this part applies to ``passenger rail operations that operate intercity
or commuter passenger train service on the general railroad system of
transportation.'' Further, to maintain consistency and parallelism with
the language in (a)(1), FRA is amending paragraph (a)(2) to refer to
``passenger rail operations that operate commuter or other short-haul
rail passenger train service'' rather than ``railroads that provide''
such service.
Section 270.5--Definitions
This section contains a set of definitions that clarify the meaning
of important terms as they are used in the rule.
As proposed, FRA is amending the definitions section of part 270 to
add a definition for ``Confidential Close Call Reporting System
(C\3\RS),'' which means an FRA-sponsored voluntary program designed to
improve the safety of railroad operations by allowing railroad
employees to confidentially report unsafe events that are either
currently not required to be reported or are underreported. This
definition closely parallels the description of C\3\RS on FRA's
website. See https://www.fra.dot.gov/c3rs.
Additionally, as part of the changes made throughout the rule to
phrase the rule's requirements as those belonging to each passenger
rail operation, FRA is adding a definition for ``Passenger rail
operation,'' which means an intercity, commuter, or other short-haul
passenger rail service. The term passenger rail operation generally
refers to the service itself, and is not limited to the nature of the
railroad company that conducts the operation. In other words, the
``passenger rail operation'' is not referring to just the ``operator''
or entity that employs the crews operating the train service. See also
64 FR 25576 (May 12, 1999). By ``operation,'' FRA means the specific
physical service. The ``passenger rail operation'' encapsulates all the
pieces of the service (including, but not limited to, the right-of-way,
track, equipment, crews, railroad employees), and is not limited to a
specific route. In the commuter context, an example of a ``passenger
rail operation'' is the Northeast Illinois Regional Commuter Railroad
Corp. (Metra Rail) service, encompassing Metra Rail's various routes,
contractor operators, and host railroads. At the same time, the
``passenger rail operation'' for all current State-sponsored IPR
services could be considered part of Amtrak's network (including the
Northeast Corridor, Amtrak's Long Distance routes, and State-supported
routes). FRA recognizes multiple entities are often involved in a
passenger rail operation, including contractors, but FRA believes it is
nonetheless clearer to describe responsibilities with respect to the
passenger rail operation as a whole, for purposes of implementing the
regulation.
FRA is amending the definition of ``Person'' to remove the general
reference to ``1 U.S.C. 1,'' and replace it with a more applicable and
FRA-specific statutory provision, ``49 U.S.C. 21301.'' FRA is making
this clarifying change to refer to FRA's general civil penalty
authority in 49 U.S.C. 21301 to better align with FRA's safety
jurisdiction. See also 49 U.S.C. 20103, 20156(h).
FRA is making small adjustments to the definitions of ``Fully
implemented,'' ``Hazard,'' and ``System safety program plan,'' to
conform to the ``passenger rail operation'' framework edits described
above. For example, the word ``railroad'' in the definition of ``Fully
[[Page 12836]]
implemented'' is replaced with ``passenger rail operation.'' The words
``the railroad's'' are replaced with the word ``a'' in the definition
of ``Hazard.'' Similarly, the definition of ``System safety program
plan'' is amended to mean ``a document developed by the passenger rail
operation that implements and supports the system safety program,''
rather than ``a document developed by the railroad that implements and
supports the railroad's system safety program.'' These changes are
intended to clarify that each passenger rail operation have an SSP
under the regulation, without focusing specifically on any one entity
involved in the operation.
Section 270.7--Penalties and Responsibility for Compliance
This section contains provisions relating to compliance with part
270 and penalties for violations of part 270.
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),\23\ that provides the 2019 inflation adjustment to
civil penalty amounts that may be imposed for violations of certain DOT
regulations. See 84 FR 37059 (July 31, 2019). To avoid the need to
update this section every time the civil penalty amounts are adjusted
for inflation, FRA has changed Sec. 270.7(a) 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 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. These updates are also consistent with the RRP
final rule.
---------------------------------------------------------------------------
\23\ 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 84 FR 37059, 37060 (July 31,
2019).
---------------------------------------------------------------------------
As discussed above, to effectuate the framework change, FRA
modified paragraph (b) to add the phrase ``or passenger rail
operation'' after the words ``duty of a railroad'' and after the words
``whether or not a railroad'' when describing the duties of this part.
Paragraph (b) now reads ``[a]lthough the requirements of this part are
stated in terms of the duty of a railroad or passenger rail operation,
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 or passenger rail operation) shall perform that function in
accordance with this part.'' Sec. 270.7(b) (emphasis added).
For reasons discussed in the NPRM and as discussed above, FRA is
adding a new paragraph (c)(1) to this section to clarify that even
though all persons providing IPR or commuter (or other short-haul) rail
passenger transportation share responsibility for ensuring compliance
with this part, the rule does not restrict the ability for a passenger
rail operation to designate a person as responsible for compliance with
this part.
However, FRA is not adopting the sentence in (c)(1) proposed in the
NPRM that would have stated that a designator (designating entity) was
not relieved of responsibility for compliance with this part. As the
State Comments explained, this statement rendered the proposed
designation provision of little comfort. As discussed in the NPRM,
FRA's policy is to look to a designated entity as the person with
responsibility for compliance with the SSP final rule. In this final
rule, FRA emphasizes that it is still FRA's policy to hold a designated
entity responsible for compliance with this part. Of course, FRA's
overall approval of an SSP plan takes into account any designation of
responsibility and, as a result, failure to fulfill those compliance
responsibilities could lead FRA to reopen consideration of the plan
under Sec. 270.201(d).
In paragraph (c)(2)(i), a passenger rail operation may designate a
person as responsible for compliance with part 270 by including a
designation of responsibility in the SSP plan. This designation must be
included in the SSP plan's statement describing the passenger rail
operation's management and organizational structure and include the
information specified by Sec. 270.103(e)(6), the details of which are
discussed below in the section-by-section analysis for that section.
Any rescission or modification of a designation must be made in
accordance with the requirements for amending SSP plans in Sec.
270.201(c).
FRA notes that the use of ``may'' in paragraph (c)(2) was
intentional, as this section does not require a passenger rail
operation to designate a person as responsible for compliance--any
person can comply with the SSP requirements on its own behalf. However,
if a passenger rail operation intends to designate a person as
responsible for compliance, the SSP plan must describe the passenger
rail operation's management and organizational structure, including
management responsibilities within the SSP and the distribution of
safety responsibilities within the organization, in addition to the
requirements of Sec. Sec. 270.7(c)(2) and 270.103(e)(6).
Nonetheless, FRA further notes that in approving SSP plans, FRA
will consider how a designation of responsibility for SSP compliance is
consistent with the holistic, system-wide nature of safety management
systems. FRA believes that the systemic nature of SSP requires a single
entity to have overall responsibility for the entire SSP, to ensure
that the SSP is properly implemented throughout the passenger rail
operation's entire system by the potentially various entities
responsible for separate aspects of the system's safety. FRA therefore
expects that a designation will identify only a single entity with
overall responsibility for SSP compliance, as opposed to designating
SSP responsibility piecemeal to multiple entities.
Including a designation provision in an SSP plan will not, however,
relieve the passenger rail operation of responsibility for ensuring
that host railroads and other persons that provide or utilize
significant safety-related services appropriately support and
participate in an SSP, as required under Sec. 270.103(e)(5).
Designating a single person as responsible for SSP compliance will not
mean that no other entity participates in the SSP. Rather, it means
that the designated person has the primary responsibility for ensuring
overall SSP compliance, which can include ensuring the participation of
other persons as appropriate.
FRA acknowledges that some passenger rail operations may wish to
make a designation of responsibility for SSP compliance clear before
submitting an SSP plan to FRA, particularly if the designation would
involve responsibility for consulting with directly affected employees
on the contents of an SSP plan. Paragraph (c)(2)(ii) therefore states
that a passenger rail operation may notify FRA of a designation of
responsibility before submitting an SSP plan by submitting a
designation notice to the Associate Administrator for Railroad Safety
and Chief Safety Officer. The notice must include all information
required under Sec. 270.103(e)(6), although this information must
still be included in the SSP plan. If a passenger rail operation does
submit a designation notice under this proposed provision, FRA will
encourage the passenger rail operation \24\ to share the notice with
[[Page 12837]]
directly affected employees before and during the consultation process.
Although FRA specifically requested public comment on whether such a
deadline for this notification would be necessary, FRA received no
comments on this issue.
---------------------------------------------------------------------------
\24\ The entity designated by the designation notice (the
designee) will be the entity representing the passenger rail
operation and therefore responsible for sharing the notice with its
directly affected employees.
---------------------------------------------------------------------------
Accordingly, FRA is finalizing a designation provision as proposed
in the NPRM, with the modifications discussed above. This provision
explicitly allows each passenger rail operation to determine what
entity has responsibility for compliance and submission of the required
SSP plan. FRA will not select for each passenger rail operation what
entity will submit the SSP plan. As described above, any designation
must be detailed in the SSP plan itself. See also Sec. 270.103(e).
Section 270.101--System Safety Program; General
This section sets forth the general requirements of the rule. Each
passenger rail operation subject to this part is required to establish
and fully implement an SSP that systematically evaluates railroad
safety hazards on its system and manages the resulting risks to reduce
the number and rates of railroad accidents, incidents, injuries, and
fatalities.
As discussed above, FRA is amending Sec. 270.101 to be consistent
with changes throughout part 270 that phrase the rule's requirements in
terms of a ``passenger rail operation'' instead of a ``railroad.''
Specifically, FRA is amending paragraph (a) to state ``each passenger
rail operation subject to this part . . .'' rather than ``each railroad
subject to this part.'' Sec. 270.101(a) (emphasis added). FRA is also
reformulating paragraph (b) to state ``a system safety program shall be
designed so that it promotes and supports a positive railroad safety
culture.'' These changes are for clarity and are not intended to alter
the substantive effect of the rule.
Section 270.103--System Safety Program Plan
This section requires a passenger rail operation to adopt and fully
implement an SSP through a written SSP plan containing the information
required in this section.
As discussed above, FRA is amending Sec. 270.103 to be consistent
with changes throughout part 270 by replacing the requirement in
certain places for the ``railroad'' to be for the ``passenger rail
operation.'' For example, in paragraph (a), FRA is modifying the
language in paragraphs (a)(1) and (2) from ``each railroad subject to
this part. . .'' to ``each passenger rail operation subject to this
part.'' In paragraph (b), ``each railroad shall set forth in its SSP
plan a policy statement that endorses the railroad's [SSP]. . .''
becomes ``each SSP plan shall contain a policy statement that endorses
the passenger rail operation's [SSP]. . . .'' Similar changes are made
throughout Sec. 270.103.
In some places, such as in paragraph (d), FRA re-framed the
regulatory language to be applicable to the ``rail system'' as opposed
to the ``railroad.'' Additionally, throughout the part, FRA adjusted
references to ``a SSP'' to ``an SSP,'' to conform with grammar
conventions.
Paragraph (e) specifically states an SSP plan must include a
statement describing the system's management and organizational
structure, and paragraphs (e)(1) through (5) specify information this
statement must contain. FRA is amending this section to add a new
paragraph (e)(6), which contains the requirements for a designation
included in an SSP plan and any designation submitted under Sec.
270.7(c)(2). Under paragraph (e)(6), a designation must include the
name and contact information for the designator (designating entity)
and the designated entity; a statement signed by an authorized
representative of the designated entity acknowledging responsibility
for compliance with part 270; a statement affirming a copy of the
designation has been provided to the primary contact for each non-
profit employee labor organization representing directly affected
employees for consultation purposes under Sec. 270.107(a)(2); and a
description of how the directly affected employees not represented by a
non-profit employee labor organization will be notified of the
designation for consultation purposes under Sec. 270.107(a). The
central purpose of this amendment is to ensure there is a specific
entity identified as the responsible party for submitting an SSP plan
for each passenger rail operation. FRA is also making minor formatting
amendments to paragraphs (e)(4) and (5) to account for the additional
paragraph (e)(6).
FRA is also modifying the introductory language in paragraph (h)
regarding rules compliance and procedures review from ``the
railroad's'' rules and procedures to ``applicable'' rules and
procedures. FRA recognized the possibility that a passenger rail
operation may have to comply with another railroad's rules and
procedures. Similarly, FRA changed ``the railroad's'' to ``applicable''
operating and safety rules and maintenance procedures in paragraphs
(h)(2) and (3). FRA believes the existing language in Sec. 270.103(h)
was too specific to account for this scenario.
Other clarifying changes to reflect that the rule's requirements
are applicable to each passenger rail operation were made throughout
the section.
Section 270.105--Discovery and Admission as Evidence of Certain
Information
This section sets forth the discoverability and admissibility
protections for certain SSP information. The SSP final rule preamble
discussed these protections in depth. See 81 FR 53878-53882 (Aug. 12,
2016). For reasons discussed in the NPRM and after considering the
comments received, FRA is adding paragraph (a)(3) to this section to
clarify that for court proceedings initiated after 365 days following
publication of this final rule, the protections established by this
section apply to C\3\RS information a passenger rail operation includes
in its SSP, even if the passenger rail operation compiled or collected
the C\3\RS information on or before August 14, 2017, for non-SSP
purposes. FRA is also adding language to the introductory text of
paragraph (a) to indicate the information protections apply except as
provided in paragraph (a)(3).
FRA is making minor formatting amendments to paragraphs (a)(1) and
(2) to account for the additional paragraph (a)(3).
FRA is making conforming edits in paragraphs (a) and (b) to refer
to the ``passenger rail operation'' rather than the ``railroad,'' to be
consistent with the framework and clarifying changes to the rule
discussed above.
Finally, FRA is adding new paragraph (e) to clarify that Sec.
270.105 does not protect information during civil enforcement or
criminal law enforcement proceedings. For example, Sec. 270.105 will
not apply to a civil enforcement or criminal action brought to enforce
Federal railroad safety laws, or proceedings such as a civil
enforcement 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 a
``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 enforcement or
criminal
[[Page 12838]]
law enforcement case. Nevertheless, to help ensure no attempt is made
to rely on the rule's information protections in a civil enforcement or
criminal law enforcement proceeding, paragraph (e) explicitly states
that Sec. 270.105 does not apply to civil enforcement or criminal
enforcement actions. This change is consistent with language in the RRP
final rule (see 49 CFR 271.11).
Section 270.107--Consultation Requirements
This section requires a passenger rail operation subject to part
270 to consult with its directly affected employees on the contents of
its SSP plan. See 49 U.S.C. 20156(g)(1). The SSP final rule preamble
discussed the requirements of this section in depth. See 81 FR 53882-
53887 (Aug. 12, 2016). As discussed in the NPRM, FRA is making several
amendments to this section, including incorporating language proposed
in the Labor Petitions, as modified and clarified by FRA. To account
for the stay of the SSP final rule, FRA is also extending the
compliance date for holding the preliminary meeting with directly
affected employees. Additionally, as discussed above, FRA is amending
this section to be consistent with changes throughout part 270 by
replacing certain references to ``railroad'' with references to
``passenger rail operation.''
Paragraph (a)--General Duty
Paragraph (a)(2) of this section states that a passenger rail
operation that consults with a non-profit employee labor organization
is considered to have consulted with the directly affected employees
represented by that organization. If a passenger rail operation
contracts out significant portions of its operations, the contractor
and the contractor's employees performing those operations are
considered directly affected employees for part 270 purposes.\25\
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\25\ As discussed in the section-by-section analysis for the new
definition of ``passenger rail operation,'' FRA recognizes that a
single passenger rail operation is often composed of multiple
entities, including contractors. FRA believes it is nonetheless
clearer, when describing the rule's requirements, to refer to the
responsibilities of the ``passenger rail operation'' as a whole. In
the context of the consultation requirement, this means that FRA
does expect the entities involved in the passenger rail operation to
be responsible for meeting the consultation requirement applicable
to the operation. For example, when an entity enters into a contract
on behalf of a passenger rail operation, that entity would be
responsible for consulting with contractors or contractor employees
to the extent required by paragraph (a)(2).
---------------------------------------------------------------------------
For reasons discussed in the NPRM and as discussed above, FRA is
amending paragraph (a)(2) to add that unless agreed otherwise, for
consultation purposes, the primary point of contact for directly
affected employees represented by a non-profit employee labor
organization is the general chairperson for that non-profit employee
labor organization. Alternatively, at the beginning of the consultation
process, a non-profit employee labor organization and a passenger rail
operation may agree upon a different point of contact. While the Labor
Petition requested FRA amend paragraph (a)(3) to establish the general
chairperson of a non-profit employee labor organization as a passenger
rail operation's primary point of contact, FRA believes such a
provision belongs more appropriately in paragraph (a)(2), which
contains requirements addressing the consultation process generally.
Paragraph (a)(3), in contrast, only addresses the preliminary meeting
portion of the consultation process. By amending paragraph (a)(2)
instead of paragraph (a)(3), FRA is clarifying that a general
chairperson is the primary contact for the entire consultation process,
not just the preliminary meeting. FRA specifically requested public
comment on whether amending paragraph (a)(2) instead of paragraph
(a)(3) would adequately address the Labor Petition's concerns. FRA
received no comments on this issue.
Existing paragraph (a)(3) requires a passenger rail operation to
have a preliminary meeting with its directly affected employees to
discuss how the consultation process will proceed no later than April
10, 2017. To account for the stay of the SSP final rule, as discussed
in the NPRM, FRA is amending paragraph (a)(3)(i) to extend the deadline
for the preliminary meeting from April 10, 2017, to 120 days after the
publication date of this final rule.
Paragraph (b)(3)--Consultation Statements
Paragraph (b)(3) requires a passenger rail operation consultation
statement to include a service list containing the name and contact
information for each international/national president of any non-profit
employee labor organization representing a class or craft of the
passenger rail operation's directly affected employees.\26\ When a
passenger rail operation submits its SSP plan and consultation
statement, it must simultaneously send a copy of both to all
individuals identified in the service list.
---------------------------------------------------------------------------
\26\ Paragraph (b)(3) also requires the service list to 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.
---------------------------------------------------------------------------
FRA is amending paragraph (b)(3) to add that the service list must
also include the name and contact information for either each general
chairperson of any non-profit employee labor organization representing
a class or craft of the passenger rail operation's directly affected
employees or the agreed-upon point of contact that the non-profit
employee labor organization and the passenger rail operation agreed
upon at the beginning of the consultation process.
Section 270.201--Filing and Approval
This section contains the requirements for filing an SSP plan and
FRA's approval process. As discussed in the NPRM, FRA is amending
paragraph (a)(1) to account for the stay of the requirements of the SSP
final rule. Because FRA extended the date of the preliminary meeting
under Sec. 270.107(a)(3), it is also necessary to extend the time for
a passenger rail operation to submit its SSP plan to FRA. FRA proposed
providing one year after the publication date of this rule to submit
SSP plans to FRA for review and approval.
FRA specifically requested public comment on whether an entire year
following the publication of a final rule would be necessary for
submission of SSP plans to FRA, or whether a shorter deadline, such as
six months, would provide sufficient time. As mentioned above, MBTA
commented that it supported FRA's proposal to allow a full year to
submit SSP plans to FRA (and indicated a shorter time frame would be
insufficient). APTA commented that FRA should instead provide two years
from the date of the final rule, to be similar to the time frame FTA
provided in implementing the SMS program. Amtrak generally commented
that FRA should implement the rule immediately. Given these comments,
FRA is providing each passenger rail operation with a one-year period
after the publication date of this rule, as proposed, to submit SSP
plans to FRA for review and approval.
Additionally, as discussed above, FRA is amending Sec. 270.201 be
consistent with changes throughout the part by replacing the
requirement for the ``railroad'' to be framed as a responsibility of
the ``passenger rail operation.'' For example, in paragraph (a)(1),
each ``passenger rail operation'' to which this part applies shall
submit one copy of its SSP plan, rather than each ``railroad.'' As
noted above, FRA expects that in most instances, the entity conducting
the railroad operation will
[[Page 12839]]
submit the passenger rail operation's SSP plan.
Section 270.203--Retention of System Safety Program Plan
This section contains the requirements for retaining an SSP plan.
As discussed above, FRA is amending Sec. 270.203 be consistent with
changes throughout part 270 by replacing the requirement for ``each
railroad'' to retain a copy of the SSP plan, with a requirement that
``each passenger rail operation'' retain a copy of the SSP plan.
Section 270.301--General
This section describes the general requirement for each SSP to be
assessed internally and audited externally by FRA. As discussed above,
FRA is amending Sec. 270.301 to be consistent with changes throughout
the part by clarifying the responsibility for the SSP's internal
assessment lies with ``the passenger rail operation.''
Section 270.303--Internal System Safety Program Assessment
This section describes the requirements for each SSP to be assessed
internally. As discussed above, FRA is amending Sec. 270.303 be
consistent with changes throughout part 270 by replacing references to
``the railroad'' with ``the passenger rail operation.''
Section 270.305--External Safety Audit
This section describes the process FRA will use when it conducts
audits of a passenger rail operation's SSP. As discussed above, FRA is
amending Sec. 270.305 to be consistent with changes throughout the
part by clarifying the responsibility falls on ``the passenger rail
operation.''
Appendix A to Part 270 [Reserved]
FRA has removed its civil penalty guidelines from the CFR to the
FRA website. See 84 FR 23730 (May 23, 2019). FRA intends to change the
wording in the guidelines on the website to be consistent with the
changes made in this rule. For example, FRA intends to revise the
existing reference to the failure to hold the preliminary meeting by
April 10, 2017, as that date has passed, and is being adjusted in this
final rule.
Appendix B to Part 270--Federal Railroad Administration Guidance on the
SSP Consultation Process
Appendix B contains guidance on how each passenger rail operation
could comply with the consultation requirements of Sec. 270.107. FRA
is amending appendix B as proposed to reflect the amended compliance
dates in Sec. Sec. 270.107(a)(3)(i) and 270.201(a)(1). FRA also made
changes throughout appendix B to clarify, as discussed above, by
removing the modifier ``railroad's'' from ``railroad's SSP plan,'' and,
where appropriate, changing references from ``railroad'' to ``passenger
rail operation.''
Additionally, FRA removed a sentence from the guidance about the
passenger rail operation waiting to hold substantive consultations
regarding the contents of its SSP to take advantage of the information
protection provisions once they go into effect, because for purposes of
49 U.S.C. 20119(b), the information protection provisions were adopted
on August 12, 2016. That adoption was unaffected by the subsequent
stays, so the rule's information protections are applicable to
information a passenger rail operation compiles or collects after
August 14, 2017.
Appendix C to Part 270--Procedures for Submission of SSP Plans and
Statements From Directly Affected Employees
Appendix C provides passenger rail operations and directly affected
employees the option to file SSP plans or consultation statements
electronically. FRA is amending appendix C to be consistent with the
changes throughout the part. For example, FRA is removing references to
``railroad's'' from phrases like ``railroad's SSP plan.'' Additionally,
certain references to ``railroad'' were changed to ``passenger rail
operation,'' where appropriate, to be consistent with other edits made
in this part.
Part 271--Risk Reduction Program
As discussed in Section III.D of the preamble, FRA is making
conforming changes to part 271 to mirror those in part 270.
Section 271.5--Definitions
For reasons discussed in Section III.D of the preamble and in the
section-by-section analysis for Sec. 270.5, FRA is amending Sec.
271.5 by adding a definition for ``Confidential Close Call Reporting
System (C\3\RS).'' FRA is also revising the definition of ``Person'' to
remove the general reference to ``1 U.S.C. 1'' and replace it with a
more applicable and FRA-specific provision, ``49 U.S.C. 21301.''
Section 271.11--Information Protections
As discussed in Sections III.C and III.D of the preamble, FRA is
adding paragraph (a)(3) to Sec. 271.11 to clarify that for court
proceedings initiated after 365 days following publication of this
final rule, the information protections established by this section
apply to C\3\RS information a railroad includes in its RRP, even if the
railroad compiled or collected the C\3\RS information on or before
February 17, 2021, for non-RRP purposes. FRA is also adding language to
the introductory text of paragraph (a) to indicate the information
protections apply except as provided in paragraph (a)(3).
FRA is also making minor formatting amendments to paragraphs (a)(1)
and (2) to account for the additional paragraph (a)(3).
Section 271.207--Consultation
For reasons discussed in Section III.D of the preamble and the
section-by-section analysis for Sec. 270.107, FRA is amending
paragraph (a)(2) of Sec. 271.207 to add that, unless agreed otherwise,
for consultation purposes, the primary point of contact for directly
affected employees represented by a non-profit employee labor
organization is the general chairperson for that non-profit employee
labor organization. Alternatively, at the beginning of the consultation
process, a non-profit employee labor organization and a railroad may
agree upon a different point of contact. Similarly, FRA is also
amending paragraph (d)(3) to add that a service list must also include
the name and contact information for either each general chairperson of
any non-profit employee labor organization representing a class or
craft of a railroad's directly affected employees or the agreed-upon
point of contact that the non-profit employee labor organization and
the railroad agreed upon at the beginning of the consultation process.
V. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and Procedures
This final rule is a non-significant rulemaking and evaluated in
accordance with existing policies and procedures under Executive Order
12866 and DOT Order 2100.6. See 58 FR 51735, Sep. 30, 1993 and https://www.transportation.gov/regulations/2018-dot-rulemaking-order. The scope
of this analysis is limited to the revisions that FRA is making in this
rulemaking. FRA concluded that because this final rule generally
includes only voluntary actions or alternative action by designated
entities that will be voluntary, or clarifying edits, this final rule
does not impart
[[Page 12840]]
additional burdens or benefits on regulated entities.
Pursuant to petitions for reconsideration FRA received in response
to the SSP final rule and comments received on the NPRM, this final
rule contains six sets of substantive amendments to part 270. As
discussed in Section III.D of the preamble, this rule also amends part
271 to ensure that the RRP and SSP rules have essentially identical
consultation and information protection provisions. The following
paragraphs describe analysis of the effects of the amendments.
First, to address the States' concerns discussed in Section III of
the NPRM and as explained above, the final rule amends part 270 to
clarify that a passenger rail operation subject to the part may
designate an entity as responsible for SSP compliance under Sec. Sec.
270.7(c) and 270.103(e)(6). As any such designation will be voluntary,
such clarification adds no additional burden nor provides any
additional safety benefit. In addition, the revisions to Sec. Sec.
270.7(c) and 270.103(e)(6) clarify the responsibilities of the
designated entity. FRA requested comment from the public on the costs
and benefits described in this paragraph. Although the States commented
on the purported burdens of part 270 generally, FRA did not receive
specific comments on the NPRM's economic analysis.
Second, to address the Labor Petition's concerns discussed in
Section II of the NPRM, FRA is amending both the SSP and RRP rules to
add the general chairperson of a non-profit employee labor organization
(or a non-profit employee labor organization primary point of contact
agreed on at the beginning of the consultation process) as the point of
contact for directly affected employees represented by that non-profit
employee labor organization.
Third, FRA received a comment from AAR on the 2012 SSP NPRM voicing
concern that an inadvertent failure to serve a general chairperson may
result in FRA deeming a railroad as not using ``best efforts'' in the
consultation process. In response to such concern, FRA is allowing a
passenger rail operation and a non-profit employee labor organization
to establish an alternative point of contact within the non-profit
employee labor organization. This point of contact could be a person
the passenger rail operation and non-profit employee labor organization
agree on at the beginning of the consultation process. FRA anticipates
any burden associated with requiring the inclusion of a general
chairperson in the service list (see paragraph above) will be
significantly alleviated, if not eliminated altogether, by the
provision allowing passenger rail operations and non-profit employee
labor organizations to agree on an alternative point of contact.
Although FRA specifically requested comment from the public on this
conclusion, it did not receive adverse comment, and generally finalized
the provision as proposed.
Fourth, as discussed in Section VI of the NPRM, FRA is amending the
information protections in both the SSP and RRP rules to address the
C\3\RS program. Because this amendment merely addresses the scope of
the protections provided by the SSP and RRP final rules, there are no
burdens associated with it.
Fifth, FRA is also adjusting the various compliance dates in part
270 to account for the stay of the SSP final rule's requirements.
Because the adjustments are necessary only to conform the rule's
deadlines with the stay, they have already been accounted for in the
regulatory impact analysis that accompanied the final rule extending
the stay. See 84 FR 45683 (Aug. 30, 2019).
Finally, as discussed above, FRA is amending part 270 throughout to
frame the responsibilities of the rule as belonging to each passenger
rail operation. This language does not affect FRA's existing economic
analysis of the costs and burdens of the rule.
This rule is not an Executive Order 13771 regulatory action because
this rule is not significant under Executive Order 12866. 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).
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 impact on small
entities. An agency must prepare an Initial Regulatory Flexibility
Analysis unless it determines and certifies that a rule, if
promulgated, would not have a significant impact on a substantial
number of small entities. The six sets of revisions within this final
rule would not impart any additional burden on regulated entities. Four
of the sets of revisions add clarity to the SSP final rule, and the
revision requiring submission of the designation notice to FRA is
voluntary and would only apply if a designation is made. Another
revision allows an alternative non-profit employee labor organization
primary point of contact to be agreed on at the beginning of the
consultation process, thereby eliminating or significantly mitigating
any burden associated with the revision requiring inclusion of a
general chairperson in the service list.
``Small entity'' is defined in 5 U.S.C. 601 as including 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 ``linehaul railroad''
that has fewer than 1,500 employees, a ``short line railroad'' with
fewer than 1,500 employees, or a ``commuter rail system'' with annual
receipts of less than $15.0 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. Pursuant to that authority, FRA
has published a final statement of agency policy that formally
establishes ``small entities'' or ``small businesses'' as being
railroads, contractors, and hazardous materials shippers that meet the
revenue requirements of a Class III railroad as set forth in 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 appendix C to 49 CFR part 209. The $20-million limit
is based on the STB's revenue threshold for a Class III railroad.
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 this rulemaking.
For purposes of this analysis, the SSP portions of this rule will
impact 33 commuter or other short-haul passenger railroads and two
intercity passenger railroads, Amtrak and the ARC.\27\ Neither of the
intercity passenger railroads is considered a small entity. Amtrak
serves populations well in excess of 50,000, and the ARC is owned
[[Page 12841]]
by the State of Alaska, which has a population well in excess of
50,000.
---------------------------------------------------------------------------
\27\ This analysis considers all current State-sponsored IPR
services to be part of Amtrak's SSP, which is a reasonable
expectation as discussed in this final rule.
---------------------------------------------------------------------------
Based on the definition of ``small entity,'' only one commuter or
other short-haul railroad is considered a small entity: the Hawkeye
Express (operated by the Iowa Northern Railway Company). For purposes
of this analysis, the RRP portions of this rule will affect 7 Class I
railroads and a maximum of 50 Class III railroads. See 85 FR 9262,
9307-11 (Feb. 18, 2020).
Although the regulation may impact a substantial number of small
entities, by virtue of its impact on the only identified small entity
that is a commuter or other short-haul railroad subject to the SSP
rule, and the maximum of 50 Class III railroads that could be affected
by the RRP rule, it would merely provide additional clarifying
information without introducing any additional burden. Further, any
potential impact on small entities would be positive. The regulation
would therefore not have a significant impact on a substantial number
of small entities.
A substantial number of small entities may be impacted by this
regulation; however, any impact would be minimal. Although FRA
requested comments as to the impact that the NPRM would have on both
small passenger railroads as well as all passenger railroads in
general, no comments were received on this issue.
C. 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 Respondent universe Total annual responses response burden hours equivalent 28
--------------------------------------------------------------------------------------------------------------------------------------------------------
270.103--System Safety Program 35 passenger rail operations.... 11.7 plans...................... 40 hours............ 467 $42,777
Plan (SSP Plan)--
Comprehensive written SSP
Plan that meets all of this
section's requirements.
--Copies of designations to 35 passenger rail operations.... 11.7 copies..................... 2 minutes........... .4 30
non-profit employee labor
organizations (New
requirement).
--Designation notifications to 35 passenger rail operations.... 11.7 notices.................... 5 minutes........... 1 76
employees not represented by
non-profit employee labor
organizations (New
requirement).
--Records of system safety 35 passenger rail operations.... 495 records..................... 15 seconds.......... 2 157
training for employees/
contractors/others.
--(q)(1) Performance of risk- 35 passenger rail operations.... 35 analyses results............. 20 hours............ 700 53,200
based hazard analyses and
furnishing of results of risk-
based hazard analyses upon
request of FRA/participating
part 212 States.
--(q)(2) Identification and 35 passenger rail operations.... 35 mitigation methods 10 hours............ 350 26,600
implementation of risk descriptions.
mitigation methods and
furnishing of descriptions of
specific risk mitigation
methods that address hazards
upon request of FRA/
participating part 212 States.
--(r)(1) Performance of 35 passenger rail operations.... 35 results of technology 10 hours............ 350 26,600
technology analysis and analysis.
furnishing of results of
system's technology analysis
upon request of FRA/
participating part 212 States.
270.107(a)--Consultation 35 passenger rail operations.... 11.7 consults (w/labor union 1 hour.............. 12 912
requirements--consultation reps.).
with directly affected
employees on SSP Plan.
--(a)(3)(ii) Notification to 35 passenger rail operations.... 11.7 notices.................... 30 minutes.......... 6 456
directly affected employees
of preliminary meeting at
least 60 days before being
held.
--(b) Consultation statements 35 passenger rail operations.... 11.7 statements................. 1 hour.............. 12 912
that includes service list
with name & contact
information for labor
organization chairpersons &
non-union employees who
participated in process.
--Copies of consultations 35 passenger rail operations.... 11.7 copies..................... 1 minute............ .2 15
statements to service list
individuals.
270.201(b)--SSP Plan found 35 passenger rail operations.... 4 amended plans................. 30 hours............ 120 9,120
deficient by FRA and
requiring amendment.
--Review of amended SSP Plan 35 passenger rail operations.... 1 further amended plan.......... 20 hours............ 20 1,520
found deficient and requiring
further amendment.
--Reopened review of initial 35 passenger rail operations.... 1 amended plans................. 30 hours............ 30 2,280
SSP Plan approval for cause
stated.
270.203--Retention of SSP 35 passenger rail operations.... 16 copies....................... 10 minutes.......... 3 228
Plans--Retained copies of SSP
Plans.
270.303--Annual internal SSP 35 passenger rail operations.... 16 evaluations/reports.......... 2 hours............. 32 2,432
assessments/reports conducted.
--Certification of results of 35 passenger rail operations.... 35 certification statements..... 2 hours............. 70 8,050
internal assessment by chief
safety official.
270.305--External safety 35 passenger rail operations.... 6 plans......................... 12 hours............ 72 8,280
audit--Submission of
improvement plans in response
to results of FRA audit.
--Improvement plans found 35 passenger rail operations.... 2 amended plans................. 10 hours............ 20 1,520
deficient by FRA and
requiring amendment.
--Status report to FRA of 35 passenger rail operations.... 2 reports....................... 4 hours............. 8 608
implementation of
improvements set forth in the
improvement plan.
Appendix B--Additional 35 passenger rail operations.... 4 documents..................... 15 minutes.......... 1 76
documents provided to FRA
upon request.
Appendix C--Written requests 35 passenger rail operations.... 7 written requests.............. 15 minutes.......... 2 152
to file required submissions
electronically.
-------------------------------------------------------------------------------------------------------------------------
[[Page 12842]]
Totals.................... 35 passenger rail operations.... 776 responses................... N/A................. 2,279 186,001
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions,
searching existing data sources, gathering or maintaining the needed
data, and reviewing the information.
---------------------------------------------------------------------------
\28\ FRA derived the wage rates from the Surface Transportation
Board website for 2018 wage data, and it uses the average annual
wages for each employee group as follows: For Executives, Officials,
and Staff Assistants, this cost amounts to $115 per hour. For
Professional and Administrative staff, this cost amounts to $76 per
hour.
---------------------------------------------------------------------------
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 Railroad Safety, 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 for part
270 is 2130-0599.\29\
---------------------------------------------------------------------------
\29\ No changes are necessary to the RRP rule's PRA analysis to
account for the conforming amendments to the consultation and
information protection provisions in this rule. See 85 FR 9262,
9311-13 (Feb. 18, 2020).
---------------------------------------------------------------------------
D. Environmental Impact
FRA has evaluated this rule in accordance with 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 that
this rule is not a major Federal 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. See 64 FR 28547 (May
26, 1999).
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this rule that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this rule is
not a major Federal action significantly affecting the quality of the
human environment.
E. Federalism Implications
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 has analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13132. VTrans commented that the
SSP rule had significant federalism implications that FRA did not
consider regarding the rule's applicability to VTrans. See VTrans at
12. Specifically, VTrans contended the rule ``would have a chilling
effect'' on States (like Vermont), that, in reliance on existing law,
have ``structured their support for . . . intercity passenger rail
service to avoid `railroad carrier' status.'' See id. As discussed
above, FRA does not believe the proposal or SSP final rule raised such
implications. However, in any event, the revisions to the rule make
even clearer that no such implications are intended.
This rule generally clarifies or makes technical amendments to the
requirements contained in part 270, System Safety Program, and part
271, Risk Reduction Program. FRA has determined that this final rule
has no federalism implications, other than the possible preemption of
State laws under 49 U.S.C. 20106. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply, and
preparation of a federalism summary impact statement for the rule is
not required.
F. Unfunded Mandates Reform Act of 1995
Pursuant to 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 that before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in 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 one year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement detailing the
effect on State, local, and tribal governments and the private sector.
This rule would not result in such an expenditure, and thus
[[Page 12843]]
preparation of such a statement is not required.
G. 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 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 rule would not burden the development or use
of domestically produced energy resources.
List of Subjects
49 CFR Part 270
Penalties, Railroad safety, Reporting and recordkeeping
requirements, System safety.
49 CFR Part 271
Penalties, Railroad safety, Reporting and recordkeeping
requirements, Risk reduction.
The Rule
For the reasons discussed in the preamble, FRA amends parts 270 and
271 of chapter II, subtitle B of title 49, Code of Federal Regulations,
as follows:
PART 270--SYSTEM SAFETY PROGRAM
0
1. The authority citation for part 270 continues to read as follows:
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.
0
2. In Sec. 270.1, revise paragraphs (a) and (b) to read as follows:
Sec. 270.1 Purpose and scope.
(a) The purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by passenger rail operations. This part requires certain
passenger rail operations to establish a system safety program that
systematically evaluates railroad safety hazards and the resulting
risks on their systems and manages those risks 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 railroad system safety
programs. This part does not restrict passenger rail operations from
adopting and enforcing additional or more stringent requirements not
inconsistent with this part.
* * * * *
0
3. In Sec. 270.3, revise paragraphs (a)(1) and (2) to read as follows:
Sec. 270.3 Application.
(a) * * *
(1) Passenger rail operations that operate intercity or commuter
passenger train service on the general railroad system of
transportation; and
(2) Passenger rail operations that operate commuter or other short-
haul rail passenger train service in a metropolitan or suburban area
(as described by 49 U.S.C. 20102(2)), including public authorities
operating passenger train service.
* * * * *
0
4. In Sec. 270.5:
0
a. Add a definition in alphabetical order for ``Confidential Close Call
Reporting System (C\3\RS)'';
0
b. Revise the definitions of ``Fully implemented'' and ``Hazard'';
0
c. Add a definition in alphabetical order for ``Passenger rail
operation''; and
0
d. Revise the definitions of ``Person'' and ``System safety program
plan''.
The additions and revisions read as follows:
Sec. 270.5 Definitions.
* * * * *
Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad
operations by allowing railroad employees to confidentially report
currently unreported or underreported unsafe events.
* * * * *
Fully implemented means that all elements of a system safety
program as described in the SSP plan are established and applied to the
safety management of the passenger rail operation.
Hazard means any real or potential condition (as identified in a
risk-based hazard analysis) that can cause injury, illness, or death;
damage to or loss of a system, equipment, or property; or damage to the
environment.
* * * * *
Passenger rail operation means an intercity, commuter, or other
short-haul passenger rail service.
Person means an entity of any type covered under 49 U.S.C. 21301,
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; any employee of such owner, manufacturer,
lessor, lessee, or independent contractor or subcontractor.
* * * * *
System safety program plan means a document developed by the
passenger rail operation that implements and supports the system safety
program.
* * * * *
0
5. Revise Sec. 270.7 to read as follows:
Sec. 270.7 Penalties and responsibility for compliance.
(a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least 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 persons, 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 who knowingly
and willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311. FRA's website at
www.fra.dot.gov contains a schedule of civil penalty amounts used in
connection with this part.
(b) Although the requirements of this part are stated in terms of
the duty of a railroad or passenger rail operation, 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
or passenger rail operation) shall perform that function in accordance
with this part.
(c)(1) All persons providing intercity rail passenger or commuter
(or other short-haul) rail passenger service share responsibility for
ensuring compliance with this part. Nothing in this paragraph (c),
however, shall restrict the ability to provide for an appropriate
designation
[[Page 12844]]
of responsibility for compliance with this part.
(2)(i) Any passenger rail operation subject to this part may
designate a person as responsible for compliance with this part by
including a designation of responsibility in the SSP plan. This
designation must be included in the SSP plan's statement describing the
passenger rail operation's management and organizational structure and
include the information specified by Sec. 270.103(e)(6).
(ii) A passenger rail operation subject to this part may notify FRA
of a designation of responsibility before submitting an SSP plan by
first submitting a designation of responsibility notice to the
Associate Administrator for Railroad Safety and Chief Safety Officer.
The notice must include all information required under Sec.
270.103(e)(6), and this information must also be included in the SSP
plan.
0
6. Revise Sec. 270.101 to read as follows:
Sec. 270.101 System safety program; general.
(a) Each passenger rail operation subject to this part shall
establish and fully implement a system safety program 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. A system safety program
shall include a risk-based hazard management program and risk-based
hazard analysis designed to proactively identify hazards and mitigate
or eliminate the resulting risks. The system safety program shall be
fully implemented and supported by a written SSP plan described in
Sec. 270.103.
(b) A system safety program shall be designed so that it promotes
and supports a positive railroad safety culture.
0
7. Revise Sec. 270.103 to read as follows:
Sec. 270.103 System safety program plan.
(a) General. (1) Each passenger rail operation subject to this part
shall adopt and fully implement a system safety program through a
written SSP plan that, at a minimum, contains the elements in this
section. This SSP plan shall be approved by FRA under the process
specified in Sec. 270.201.
(2) Each passenger rail operation subject to this part shall
communicate with each railroad that hosts passenger train service for
that passenger rail operation and coordinate the portions of the SSP
plan applicable to the railroad hosting the passenger train service.
(b) System safety program policy statement. Each SSP plan shall
contain a policy statement that endorses the passenger rail operation's
system safety program. This policy statement shall:
(1) Define the passenger rail operation's authority for the
establishment and implementation of the system safety program;
(2) Describe the safety philosophy and safety culture of the
passenger rail operation; and
(3) Be signed by the chief official of the passenger rail
operation.
(c) System safety program goals. Each SSP plan shall contain a
statement defining the goals for the passenger rail operation's system
safety program. This statement shall describe clear strategies on how
the goals will be achieved and what management's responsibilities are
to achieve them. At a minimum, the goals shall be:
(1) Long-term;
(2) Meaningful;
(3) Measurable; and
(4) Focused on the identification of hazards and the mitigation or
elimination of the resulting risks.
(d) Rail system description. (1) Each SSP plan shall include a
statement describing the rail system. The description shall include:
The rail operations, including any host operations; the physical
characteristics of the rail system; the scope of rail service; the rail
system's maintenance activities; and any other pertinent aspects of the
rail system.
(2) Each SSP plan shall identify the persons that enter into a
contractual relationship with the passenger rail operation to either
perform significant safety-related services on the passenger rail
operation's behalf or to utilize significant safety-related services
provided by the passenger rail operation for purposes related to
railroad operations.
(3) Each SSP plan shall describe the relationships and
responsibilities between the passenger rail operation and: Host
railroads, contractor operators, shared track/corridor operators, and
persons providing or utilizing significant safety-related services as
identified pursuant to paragraph (d)(2) of this section.
(e) Management and organizational structure. Each SSP plan shall
contain a statement that describes the management and organizational
structure of the passenger rail operation. This statement shall include
the following:
(1) A chart or other visual representation of the organizational
structure of the passenger rail operation;
(2) A description of the passenger rail operation's management
responsibilities within the system safety program;
(3) A description of how safety responsibilities are distributed
within the rail organization;
(4) Clear identification of the lines of authority used by the
passenger rail operation to manage safety issues;
(5) A description of the roles and responsibilities in the
passenger rail operation's system safety program for each host
railroad, contractor operator, shared track/corridor operator, and any
persons utilizing or providing significant safety-related services as
identified pursuant to (d)(2) of this section. As part of this
description, the SSP plan shall describe how each host railroad,
contractor operator, shared track/corridor operator, and any persons
utilizing or providing significant safety-related services as
identified pursuant to paragraph (d)(2) of this section supports and
participates in the passenger rail operation's system safety program,
as appropriate; and
(6) If a passenger rail operation subject to this part designates a
person as responsible for compliance with this part under Sec.
270.7(c)(2), the following information must be included in the
passenger rail operation's SSP plan and any notice of designation
submitted under Sec. 270.7(c)(2):
(i) The name and contact information of the designator;
(ii) The name and contact information of the designated entity and
a statement signed by an authorized representative of the designated
entity acknowledging responsibility for compliance with this part;
(iii) A statement affirming that a copy of the designation has been
provided to the primary point of contact for each non-profit employee
labor organization representing directly affected employees for
consultation purposes under Sec. 270.107(a)(2); and
(iv) A description of how directly affected employees not
represented by a non-profit employee labor organization were notified
of the designation for consultation purposes under Sec. 270.107(a).
(f) System safety program implementation process. (1) Each SSP plan
shall contain a statement that describes the process the passenger rail
operation will use to implement its system safety program. As part of
the implementation process, the SSP plan shall describe:
(i) Roles and responsibilities of each position that has
significant responsibility for implementing the system safety program,
including those held by employees and other persons utilizing or
providing significant safety-related services as identified pursuant to
(d)(2) of this section; and
[[Page 12845]]
(ii) Milestones necessary to be reached to fully implement the
program.
(2) A system safety program shall be fully implemented within 36
months of FRA's approval of the SSP plan pursuant to subpart C of this
part.
(g) Maintenance, repair, and inspection program. (1) Each SSP plan
shall identify and describe the processes and procedures used for
maintenance and repair of infrastructure and equipment directly
affecting railroad safety. Examples of infrastructure and equipment
that directly affect railroad safety include: Fixed facilities and
equipment, rolling stock, signal and train control systems, track and
right-of-way, passenger train/station platform interface (gaps), and
traction power distribution systems.
(2) Each description of the processes and procedures used for
maintenance and repair of infrastructure and equipment directly
affecting safety shall include the processes and procedures used to
conduct testing and inspections of the infrastructure and equipment.
(3) If a manual or manuals comply with all applicable Federal
regulations and describe the processes and procedures that satisfy this
section, the SSP plan may reference those manuals. FRA approval of an
SSP plan that contains or references such manuals is not approval of
the manuals themselves; each manual must independently comply with
applicable regulations and is subject to a civil penalty if not in
compliance with applicable regulations.
(4) The identification and description required by this section of
the processes and procedures used for maintenance, repair, and
inspection of infrastructure and equipment directly affecting railroad
safety is not intended to address and should not include procedures to
address employee working conditions that arise in the course of
conducting such maintenance, repair, and inspection of infrastructure
and equipment directly affecting railroad safety as set forth in the
plan. FRA does not intend to approve any specific portion of an SSP
plan that relates exclusively to employee working conditions.
(h) Rules compliance and procedures review. Each SSP plan shall
contain a statement describing the processes and procedures used by the
passenger rail operation to develop, maintain, and comply with
applicable rules and procedures directly affecting railroad safety and
to comply with the applicable railroad safety laws and regulations
found in this chapter. The statement shall identify:
(1) The operating and safety rules and maintenance procedures that
are subject to review under this chapter;
(2) Techniques used to assess the compliance of the passenger rail
operation's employees with applicable operating and safety rules and
maintenance procedures, and applicable railroad safety laws and
regulations; and
(3) Techniques used to assess the effectiveness of the passenger
rail operation's supervision relating to the compliance with the
applicable operating and safety rules and maintenance procedures, and
applicable railroad safety laws and regulations.
(i) System safety program employee/contractor training. (1) Each
employee who is responsible for implementing and supporting the system
safety program, and any persons utilizing or providing significant
safety-related services will be trained on the passenger rail
operation's system safety program.
(2) Each passenger rail operation shall establish and describe in
its SSP plan a system safety program training plan. A system safety
program training plan shall set forth the procedures by which employees
that are responsible for implementing and supporting the system safety
program, and any persons utilizing or providing significant safety-
related services, will be trained on the system safety program. A
system safety program training plan shall help ensure that all
personnel who are responsible for implementing and supporting the
system safety program understand the goals of the program, are familiar
with the elements of the program, and have the requisite knowledge and
skills to fulfill their responsibilities under the program.
(3) For each position identified pursuant to paragraph (f)(1)(i) of
this section, the training plan shall describe the frequency and
content of the system safety program training that the position
receives.
(4) If a position is not identified under paragraph (f)(1)(i) of
this section as having significant responsibility to implement the
system safety program but the position is safety-related or has a
significant impact on safety, personnel in those positions shall
receive training in basic system safety concepts and the system safety
implications of their position.
(5) Training under this subpart may include, but is not limited to,
classroom, computer-based, or correspondence training.
(6) The passenger rail operation shall keep a record of all
training conducted under this part and update that record as necessary.
The system safety program training plan shall set forth the process
used to maintain and update the necessary training records required by
this part.
(7) The system safety program training plan shall set forth the
process used by the passenger rail operation to ensure that it is
complying with the training requirements set forth in the training
plan.
(j) Emergency management. Each SSP plan shall contain a statement
that describes the processes used to manage emergencies that may arise
within the passenger rail operation's system including, but not limited
to, the processes to comply with applicable emergency equipment
standards in part 238 of this chapter and the passenger train emergency
preparedness requirements in part 239 of this chapter.
(k) Workplace safety. Each SSP plan shall contain a statement that
describes the programs established to protect the safety of the
passenger rail operation's employees and contractors. The statement
shall include a description of:
(1) The processes that help ensure the safety of employees and
contractors while working on or in close proximity to railroad property
as described in paragraph (d) of this section;
(2) The processes that help ensure that employees and contractors
understand the requirements established by the passenger rail operation
pursuant to paragraph (f)(1) of this section;
(3) Any fitness-for-duty programs or any medical monitoring
programs; and
(4) The standards for the control of alcohol and drug use in part
219 of this chapter.
(l) Public safety outreach program. Each passenger rail operation
shall establish and set forth a statement in its SSP plan that
describes its public safety outreach program to provide safety
information to railroad passengers and the general public. Each
passenger rail operation's safety outreach program shall provide a
means for railroad passengers and the general public to report any
observed hazards.
(m) Accident/incident reporting and investigation. Each SSP plan
shall include a statement that describes the processes that the
passenger rail operation uses to receive notification of accidents/
incidents, investigate and report those accidents/incidents, and
develop, implement, and track any corrective actions found necessary to
address an investigation's finding(s).
(n) Safety data acquisition. Each passenger rail operation shall
establish and set forth a statement in its SSP plan that describes the
processes it uses to collect, maintain, analyze, and
[[Page 12846]]
distribute safety data in support of the system safety program.
(o) Contract procurement requirements. Each SSP plan shall set
forth a statement that describes the process(es) used to help ensure
that safety concerns and hazards are adequately addressed during the
safety-related contract procurement process.
(p) Risk-based hazard management program. Each passenger rail
operation shall establish a risk-based hazard management program as
part of the system safety program. The risk-based hazard management
program shall be fully described in the SSP plan.
(1) The risk-based hazard management program shall establish:
(i) The processes or procedures used in the risk-based hazard
analysis to identify hazards on the rail system;
(ii) The processes or procedures used in the risk-based hazard
analysis to analyze identified hazards and support the risk-based
hazard management program;
(iii) The methods used in the risk-based hazard analysis to
determine the severity and frequency of hazards and to determine the
corresponding risk;
(iv) The methods used in the risk-based hazard analysis to identify
actions that mitigate or eliminate hazards and corresponding risks;
(v) The process for setting goals for the risk-based hazard
management program and how performance against the goals will be
reported;
(vi) The process to make decisions that affect the safety of the
rail system relative to the risk-based hazard management program;
(vii) The methods used in the risk-based hazard management program
to support continuous safety improvement throughout the life of the
rail system; and
(viii) The methods used to maintain records of identified hazards
and risks and the mitigation or elimination of the identified hazards
and risks throughout the life of the rail system.
(2) The SSP plan's description of the risk-based hazard management
program shall include:
(i) The position title of the individual(s) responsible for
administering the risk-based hazard management program;
(ii) The identities of stakeholders who will participate in the
risk-based hazard management program; and
(iii) The position title of the participants and structure of any
hazard management teams or safety committees that may be established to
support the risk-based hazard management program.
(q) Risk-based hazard analysis. (1) Once FRA approves a passenger
rail operation's SSP plan pursuant to Sec. 270.201(b), the risk-based
hazard analysis methodology identified in paragraphs (p)(1)(i) through
(iii) of this section shall be applied to identify and analyze hazards
on the rail system and to determine the resulting risks. At a minimum,
the aspects of the rail system that shall be analyzed include:
Operating rules and practices, infrastructure, equipment, employee
levels and schedules, management structure, employee training, and
other aspects that have an impact on railroad safety not covered by
railroad safety regulations or other Federal regulations.
(2) A risk-based hazard analysis shall identify specific actions
that shall be implemented using the methods described in paragraph
(p)(1)(iv) of this section that will mitigate or eliminate the hazards
and resulting risks identified by paragraph (q)(1) of this section.
(3) A passenger rail operation shall also conduct a risk-based
hazard analysis pursuant to paragraphs (q)(1) and (2) of this section
when there are significant operational changes, system extensions,
system modifications, or other circumstances that have a direct impact
on railroad safety.
(r) Technology analysis and implementation plan. (1) A passenger
rail operation shall develop, and periodically update as necessary, a
technology analysis and implementation plan as described by this
paragraph. The passenger rail operation shall include this technology
analysis and implementation plan in its SSP plan.
(2) A passenger rail operation's technology analysis and
implementation plan shall describe the process used to:
(i) Identify and analyze current, new, or novel technologies that
will mitigate or eliminate the hazards and resulting risks identified
by the risk-based hazard analysis pursuant to paragraph (q)(1) of this
section; and
(ii) Analyze the safety impact, feasibility, and costs and benefits
of implementing the technologies identified by the processes under
paragraph (r)(2)(i) of this section that will mitigate or eliminate
hazards and the resulting risks.
(3) Once FRA approves a passenger rail operation's SSP plan
pursuant to Sec. 270.201(b), including the technology analysis and
implementation plan, the passenger rail operation shall apply:
(i) The processes described in paragraph (r)(2)(i) of this section
to identify and analyze technologies that will mitigate or eliminate
the hazards and resulting risks identified by the risk-based hazard
analysis pursuant to paragraph (q)(1) of this section. At a minimum,
the technologies a passenger rail operation 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; and
(ii) The processes described in paragraph (r)(2)(ii) of this
section to the technologies identified by the analysis under paragraph
(r)(3)(i) of this section.
(4) If a passenger rail operation decides to implement any of the
technologies identified in paragraph (r)(3) of this section, in the
technology analysis and implementation plan in the SSP plan, the
passenger rail operation shall:
(i) Describe how it will develop, adopt, implement, maintain, and
use the identified technologies; and
(ii) Set forth a prioritized implementation schedule for the
development, adoption, implementation and maintenance of those
technologies over a 10-year period.
(5) Except as required by subpart I of part 236 of this chapter, if
a passenger rail operation decides to implement a positive train
control system as part of its technology analysis and implementation
plan, the technology implementation plan 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).
(6) The passenger rail operation shall not include in its SSP plan
the analysis conducted pursuant to paragraph (r)(3) of this section. A
passenger rail operation shall make the results of any analysis
conducted pursuant to paragraph (r)(3) of this section available upon
request to representatives of FRA and States participating under part
212 of this chapter.
(s) Safety Assurance--(1) Change management. Each passenger rail
operation shall establish and set forth a statement in its SSP plan
describing the processes and procedures used to manage significant
operational changes, system extensions, system modifications, or other
significant changes that will have a direct impact on railroad safety.
(2) Configuration management. Each passenger rail operation shall
establish a configuration management program
[[Page 12847]]
and describe the program in its SSP plan. The configuration management
program shall:
(i) Identify who has authority to make configuration changes;
(ii) Establish processes to make configuration changes to the rail
system; and
(iii) Establish processes to ensure that all departments of the
system affected by the configuration changes are formally notified and
approve of the change.
(3) Safety certification. Each passenger rail operation shall
establish and set forth a statement in its SSP plan that describes the
certification process used to help ensure that safety concerns and
hazards are adequately addressed before the initiation of operations or
major projects to extend, rehabilitate, or modify an existing system or
replace vehicles and equipment.
(t) Safety culture. Each SSP plan shall contain a statement that
describes how the passenger rail operation measures the success of its
safety culture identified in paragraph (b)(2) of this section.
0
8. In Sec. 270.105, revise paragraphs (a) and (b)(2) and add paragraph
(e) to read as follows:
Sec. 270.105 Discovery and admission as evidence of certain
information.
(a) Protected information. Except as provided in paragraph (a)(3)
of this section, any information compiled or collected after August 14,
2017, solely for the purpose of planning, implementing, or evaluating a
system safety 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 passenger rail
operation's analysis of its safety risks under Sec. 270.103(q)(1) and
a passenger rail operation's statement of mitigation measures under
Sec. 270.103(q)(2);
(2) ``Solely'' means that a passenger rail operation originally
compiled or collected the information for the exclusive purpose of
planning, implementing, or evaluating a system safety program under
this part. Information compiled or collected for any other purpose is
not protected, even if the passenger rail operation also uses that
information for a system safety program. ``Solely'' also means that a
passenger rail operation continues to use that information only for its
system safety program. If a passenger rail operation subsequently uses
for any other purpose information that was initially compiled or
collected for a system safety program, this section does not protect
that information to the extent that it is used for the non-system
safety program purpose. The use of that information within the
passenger rail operation's system safety 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 of
regulation; and
(3) A passenger rail operation may include a Confidential Close
Call Reporting System (C\3\RS) program in a system safety program
established under this part. For Federal or State court proceedings
described by this paragraph (a) that are initiated after March 4, 2021,
the information protected by this paragraph (a) includes C\3\RS
information a passenger rail operation includes in its system safety
program, even if the passenger rail operation compiled or collected the
C\3\RS information on or before August 14, 2017, for purposes other
than planning, implementing, or evaluating a system safety program
under this part.
(b) * * *
(2) Information compiled or collected on or before August 14, 2017,
and that continues to be compiled or collected, even if used to plan,
implement, or evaluate a system safety program; or
* * * * *
(e) Enforcement. This section does not apply to civil enforcement
or criminal law enforcement proceedings.
0
9. Revise Sec. 270.107 to read as follows:
Sec. 270.107 Consultation requirements.
(a) General duty. (1) Each passenger rail operation required to
establish a system safety program 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 SSP plan.
(2) A passenger rail operation that consults with a non-profit
employee labor organization as required by paragraph (a)(1) of this
section is considered to have consulted with the directly affected
employees represented by that organization. For directly affected
employees represented by a non-profit employee labor organization, the
primary point of contact shall be either the general chairperson of
that non-profit employee labor organization or a non-profit employee
labor organization primary point of contact the passenger rail
operation and the non-profit employee labor organization agree on at
the beginning of the consultation process. If a passenger rail
operation contracts out significant portions of its operations, the
contractor and the contractor's employees performing those operations
shall be considered directly affected employees for the purposes of
this part.
(3) A passenger rail operation shall have a preliminary meeting
with its directly affected employees to discuss how the consultation
process will proceed. A passenger rail operation is not required to
discuss the substance of an SSP plan during this preliminary meeting. A
passenger rail operation must:
(i) Hold the preliminary meeting no later than July 2, 2020;
(ii) Notify the directly affected employees of the preliminary
meeting no less than 60 days before it is held.
(4) Appendix B to this part contains non-mandatory guidance on how
a passenger rail operation may comply with the requirements of this
section.
(b) Consultation statements. A passenger rail operation required to
submit an SSP plan under Sec. 270.201 must also submit, together with
the plan, a consultation statement that includes the following
information:
(1) A detailed description of the process utilized to consult with
directly affected employees;
(2) If the passenger rail operation could not reach agreement with
its directly affected employees on the contents of its SSP plan,
identification of any known areas of disagreement and an explanation of
why it believes agreement was not reached; and
(3) A service list containing the name and contact information for
either each international/national president and general chairperson of
any non-profit employee labor organization representing a class or
craft of the passenger rail operation's directly affected employees, or
each non-profit employee labor organization primary point of contact
the passenger rail operation and the non-profit employee labor
organization agree on at the beginning of the consultation process. 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. When a passenger rail operation submits its SSP plan and
consultation statement to FRA pursuant to Sec. 270.201, it must also
simultaneously send a copy of
[[Page 12848]]
these documents to all individuals identified in the service list.
(c) Statements from directly affected employees. (1) If a passenger
rail operation and its directly affected employees cannot reach
agreement on the proposed contents of an SSP plan, the directly
affected employees may file a statement with the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer explaining
their views on the plan on which agreement was not reached with the FRA
Associate Administrator for Railroad Safety and Chief Safety Officer at
Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590. The FRA
Associate Administrator for Railroad Safety and Chief Safety Officer
shall consider any such views during the plan review and approval
process.
(2) A passenger rail operation's directly affected employees have
30 days following the date of the submission of a proposed SSP plan to
submit the statement described in paragraph (c)(1) of this section.
(d) Consultation requirements for system safety program plan
amendments. A passenger rail operation's SSP plan must include a
description of the process the passenger rail operation will use to
consult with its directly affected employees on any subsequent
substantive amendments to the system safety program. The requirements
of this paragraph do not apply to non-substantive amendments (e.g.,
amendments that update names and addresses of railroad personnel).
0
10. Revise Sec. 270.201 to read as follows:
Sec. 270.201 Filing and approval.
(a) Filing. (1) Each passenger rail operation to which this part
applies shall submit one copy of its SSP plan to the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer, 1200 New
Jersey Avenue SE, Washington, DC 20590, no later than March 4, 2021, or
not less than 90 days before commencing passenger operations, whichever
is later.
(2) The passenger rail operation shall not include in its SSP plan
the risk-based hazard analysis conducted pursuant to Sec. 270.103(q).
A passenger rail operation shall make the results of any risk-based
hazard analysis available upon request to representatives of FRA and
States participating under part 212 of this chapter.
(3) The SSP plan shall include:
(i) The signature, name, title, address, and telephone number of
the chief safety officer who bears primary managerial authority for
implementing the program for the submitting passenger rail operation.
By signing, this chief official is certifying that the contents of the
SSP plan are accurate and that the passenger rail operation will
implement the contents of the program as approved by FRA;
(ii) The contact information for the primary person responsible for
managing the system safety program; and
(iii) The contact information for the senior representatives of any
host railroad, contractor operator, shared track/corridor operator, or
persons utilizing or providing significant safety-related services.
(4) As required by Sec. 270.107(b), each passenger rail operation
must submit with its SSP plan a consultation statement describing how
it consulted with its directly affected employees on the contents of
its SSP plan. Directly affected employees may also file a statement in
accordance with Sec. 270.107(c).
(b) Approval. (1) Within 90 days of receipt of an SSP plan, FRA
will review the SSP plan to determine if the elements prescribed in
this part are sufficiently addressed. This review will also consider
any statement submitted by directly affected employees pursuant to
Sec. 270.107(c).
(2) FRA will notify each person identified in the SSP plan under
Sec. 270.201(a)(3) in writing whether the proposed plan has been
approved by FRA, and, if not approved, the specific points in which the
SSP plan is deficient. FRA will also provide this notification to each
individual identified in the service list accompanying the consultation
statement required under Sec. 270.107(b).
(3) If FRA does not approve an SSP plan, the affected passenger
rail operation shall amend the proposed plan to correct all
deficiencies identified by FRA and provide FRA with a corrected copy of
the SSP plan not later than 90 days following receipt of FRA's written
notice that the proposed SSP plan was not approved.
(4) Approval of an SSP plan under this part does not constitute
approval of the specific actions a passenger rail operation will
implement under an SSP plan pursuant to Sec. 270.103(q)(2) and shall
not be construed as establishing a Federal standard regarding those
specific actions.
(c) Review of amendments. (1)(i) A passenger rail operation shall
submit any amendment(s) to the SSP plan to FRA not less than 60 days
before the proposed effective date of the amendment(s). The passenger
rail operation shall file the amended SSP plan with a cover letter
outlining the changes made to the original approved SSP plan by the
proposed amendment(s). The cover letter shall also describe the process
the passenger rail operation used pursuant to Sec. 270.107(d) to
consult with its directly affected employees on the amendment(s).
(ii) If an amendment is safety-critical and the passenger rail
operation is unable to submit the amended SSP plan to FRA 60 days
before the proposed effective date of the amendment, the passenger rail
operation shall submit the amended SSP plan with a cover letter
outlining the changes made to the original approved SSP plan by the
proposed amendment(s) and why the amendment is safety-critical to FRA
as near as possible to 60 days before the proposed effective date of
the amendment(s).
(iii) 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 in paragraphs (c)(1)(i) and (ii) of this
section, although the passenger rail operation shall still file the
proposed amendment with FRA's Associate Administrator for Railroad
Safety and Chief Safety Officer. These proposed amendments may be
implemented upon filing with FRA. All other proposed amendments must
comply with the formal approval process in paragraph (c) of this
section.
(2)(i) Except as provided in paragraph (c)(1)(iii) of this section,
FRA will review the proposed amended SSP plan within 45 days of
receipt. FRA will then notify the primary contact person of each
affected passenger rail operation whether the proposed amended plan has
been approved by FRA, and if not approved, the specific points in which
each proposed amendment to the SSP plan is deficient.
(ii) If FRA has not notified the passenger rail operation by the
proposed effective date of the amendment(s) whether the proposed
amended plan has been approved or not, the passenger rail operation may
implement the amendment(s) pending FRA's decision.
(iii) If a proposed SSP plan amendment is not approved by FRA, no
later than 60 days following the receipt of FRA's written notice, the
passenger rail operation shall provide FRA either a corrected copy of
the amendment that addresses all deficiencies noted by FRA or written
notice that the passenger rail operation is retracting the amendment.
(d) Reopened review. Following initial approval of a plan, or
amendment, FRA may reopen consideration of the plan or amendment for
cause stated.
[[Page 12849]]
(e) Electronic submission. All documents required to be submitted
to FRA under this part may be submitted electronically. Appendix C to
this part provides instructions on electronic submission of documents.
0
11. Revise Sec. 270.203 to read as follows:
Sec. 270.203 Retention of system safety program plan.
Each passenger rail operation to which this part applies shall
retain at its system headquarters, and at any division headquarters,
one copy of the SSP plan required by this part and one copy of each
subsequent amendment to that plan. These records shall be made
available to representatives of FRA and States participating under part
212 of this chapter for inspection and copying during normal business
hours.
0
12. Revise Sec. 270.301 to read as follows:
Sec. 270.301 General.
The system safety program and its implementation shall be assessed
internally by the passenger rail operation and audited externally by
FRA or FRA's designee.
0
13. Revise Sec. 270.303 to read as follows:
Sec. 270.303 Internal system safety program assessment.
(a) Following FRA's initial approval of the passenger rail
operation's SSP plan pursuant to Sec. 270.201, the passenger rail
operation shall annually conduct an assessment of the extent to which:
(1) The system safety program is fully implemented;
(2) The passenger rail operation is in compliance with the
implemented elements of the approved system safety program; and
(3) The passenger rail operation has achieved the goals set forth
in Sec. 270.103(c).
(b) As part of its SSP plan, the passenger rail operation shall set
forth a statement describing the processes used to:
(1) Conduct internal system safety program assessments;
(2) Internally report the findings of the internal system safety
program assessments;
(3) Develop, track, and review recommendations as a result of the
internal system safety program assessments;
(4) Develop improvement plans based on the internal system safety
program assessments. Improvement plans shall, at a minimum, identify
who is responsible for carrying out the necessary tasks to address
assessment findings and specify a schedule of target dates with
milestones to implement the improvements that address the assessment
findings; and
(5) Manage revisions and updates to the SSP plan based on the
internal system safety program assessments.
(c)(1) Within 60 days of completing its internal SSP plan
assessment pursuant to paragraph (a) of this section, the passenger
rail operation shall:
(i) Submit to FRA a copy of the passenger rail operation's internal
assessment report that includes a system safety program assessment and
the status of internal assessment findings and improvement plans to the
FRA Associate Administrator for Railroad Safety and Chief Safety
Officer, Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590;
and
(ii) Outline the specific improvement plans for achieving full
implementation of the SSP plan, as well as achieving the goals of the
plan.
(2) The passenger rail operation's chief official responsible for
safety shall certify the results of the internal SSP plan assessment.
0
14. Revise Sec. 270.305 to read as follows:
Sec. 270.305 External safety audit.
(a) FRA may conduct, or cause to be conducted, external audits of a
system safety program. Each audit will evaluate compliance with the
elements required by this part in an approved SSP plan. FRA shall
provide the passenger rail operation written notification of the
results of any audit.
(b)(1) Within 60 days of FRA's written notification of the results
of the audit, the passenger rail operation shall submit to FRA for
approval an improvement plan to address the audit findings that require
corrective action. At a minimum, the improvement plan shall identify
who is responsible for carrying out the necessary tasks to address
audit findings and specify target dates and milestones to implement the
improvements that address the audit findings.
(2) If FRA does not approve the passenger rail operation's
improvement plan, FRA will notify the passenger rail operation of the
specific deficiencies in the improvement plan. The affected passenger
rail operation shall amend the proposed plan to correct the
deficiencies identified by FRA and provide FRA with a corrected copy of
the improvement plan no later than 30 days following its receipt of
FRA's written notice that the proposed plan was not approved.
(3) Upon request, the passenger rail operation shall provide to FRA
and States participating under part 212 of this chapter for review a
report upon request regarding the status of the implementation of the
improvements set forth in the improvement plan established pursuant to
paragraph (b)(1) of this section.
0
15. Revise appendix B to part 270 to read as follows:
Appendix B to Part 270--Federal Railroad Administration Guidance on the
System Safety Program Consultation Process
A passenger rail operation required to develop a system safety
program under this part must in good faith consult with and use its
best efforts to reach agreement with its directly affected employees on
the contents of the SSP plan. See Sec. 270.107(a). This appendix
discusses the meaning of the terms ``good faith'' and ``best efforts,''
and provides non-mandatory guidance on how to comply with the
requirement to consult with directly affected employees on the contents
of the SSP plan.
The 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. The guidance is not legally
binding in its own right and will not be relied upon by the U.S.
Department of Transportation as a separate basis for affirmative
enforcement action or other administrative penalty. Conformity with
this guidance (as distinct from existing statutes and regulations) is
voluntary only, and nonconformity will not affect rights and
obligations under existing statutes and regulations.
The Meaning of ``Good Faith'' and ``Best Efforts''
``Good faith'' and ``best efforts'' are not interchangeable terms
representing a vague standard for the Sec. 270.107 consultation
process. Rather, each term has a specific and distinct meaning. When
consulting with directly affected employees, therefore, a passenger
rail operation must independently meet the standards for both the good
faith and best efforts obligations. A passenger rail operation that
does not meet the standard for one or the other will not be in
compliance with the consultation requirements of Sec. 270.107.
The good faith obligation requires a passenger rail operation to
consult with employees in a manner that is honest, fair, and
reasonable, and to genuinely pursue agreement on the contents of an SSP
plan. If a passenger rail operation consults with its employees merely
in a
[[Page 12850]]
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 passenger rail operation's directly affected
employees express concerns with certain parts of the SSP plan, and the
passenger rail operation neither addresses those concerns in further
consultation nor attempts to address those concerns by making changes
to the SSP 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 passenger rail operation must pursue to reach
agreement with its employees on the contents of its system safety
program. While the good faith obligation is concerned with the
passenger rail operation's state of mind during the consultation
process, the best efforts obligation is concerned with the specific
efforts made by the passenger rail operation in an attempt to reach
agreement. This would include considerations such as whether a
passenger rail operation had held sufficient meetings with its
employees to address or make an attempt to address any concerns raised
by the employees, or whether the passenger rail operation had made an
effort to respond to feedback provided by employees during the
consultation process. For example, a passenger rail operation 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 process.
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 SSP plans, FRA will determine on a case-by-case
basis whether a passenger rail operation has met its Sec. 270.107 good
faith and best efforts obligations. This determination will be based
upon the consultation statement submitted by the passenger rail
operation pursuant to Sec. 270.107(b) and any statements submitted by
employees pursuant to Sec. 270.107(c). If FRA finds that these
statements do not provide sufficient information to determine whether a
passenger rail operation used good faith and best efforts to reach
agreement, FRA may investigate further and contact the passenger rail
operation or its employees to request additional information. If FRA
determines that a passenger rail operation did not use good faith and
best efforts, FRA may disapprove the SSP plan submitted by the
passenger rail operation and direct the passenger rail operation to
comply with the consultation requirements of Sec. 270.107. Pursuant to
Sec. 270.201(b)(3), if FRA does not approve the SSP plan, the
passenger rail operation 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 passenger rail operation did not use good faith and best
efforts to consult and reach agreement with its directly affected
employees. If a passenger rail operation then does not submit to FRA
within 90 days an SSP plan meeting the consultation requirements of
Sec. 270.107, FRA could impose penalties for failure to comply with
Sec. 270.201(b)(3).
Guidance on How a Passenger Rail Operation May Consult With Directly
Affected Employees
Because the standard imposed by the best efforts obligation will
vary depending upon the passenger rail operation, there may be
countless ways to comply with the consultation requirements of Sec.
270.107. Therefore, FRA believes it is important to maintain a flexible
approach to the Sec. 270.107 consultation requirements, to give a
passenger rail operation 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
passenger rail operation may proceed when consulting (utilizing good
faith and best efforts) with employees in an attempt to reach agreement
on the contents of an SSP plan. FRA believes this guidance may be
useful as a starting point for those that are uncertain about how to
comply with the Sec. 270.107 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 passenger rail operation may use to consult with represented and non-
represented employees could differ significantly.
This guidance does not establish prescriptive requirements but
merely outlines a consultation process a passenger rail operation may
choose to follow. A passenger rail operation's consultation statement
could indicate that it 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 SSP plan.
Employees Represented by a Non-Profit Employee Labor Organization
As provided in Sec. 270.107(a)(2), a passenger rail operation
consulting with the representatives of a non-profit employee labor
organization on the contents of an SSP plan will be considered to have
consulted with the directly affected employees represented by that
organization.
A passenger rail operation 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 SSP plan.
Pursuant to Sec. 270.107(a)(3)(i), a passenger rail
operation must meet with representatives from a non-profit employee
labor organization (representing a class or craft of the passenger rail
operation's directly affected employees) no later than July 2, 2020, to
begin the process of consulting on the contents of the SSP plan. A
passenger rail operation must provide notice at least 60 days before
the scheduled meeting.
During the time between the initial meeting and the
applicability date of Sec. 270.105 the parties may meet to discuss
administrative details of the consultation process as necessary.
Within 60 days after the applicability date of Sec.
270.105 a passenger rail operation should have a meeting with the
directed affected railroad employees to discuss substantive issues with
the SSP.
Pursuant to Sec. 270.201(a)(1), a passenger rail
operation would file its SSP plan with FRA no later than March 4, 2021,
or not less than 90 days before commencement of new passenger service,
whichever is later.
As provided by Sec. 270.107(c), if agreement on the
contents of an SSP plan could not be reached, a labor organization
(representing a class or craft of the passenger rail operation'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.
Employees Who Are Not Represented by a Non-Profit Employee Labor
Organization
FRA recognizes that some (or all) of a passenger rail operation's
directly affected employees may not be represented by a non-profit
employee labor organization. For such non-represented employees, the
consultation
[[Page 12851]]
process described for represented employees may not be appropriate or
sufficient. For example, FRA believes that a passenger rail operation
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 SSP plan. FRA therefore is
providing the following guidance regarding how a passenger rail
operation may utilize good faith and best efforts when consulting with
non-represented employees on the contents of its SSP plan.
By April 20, 2020, a passenger rail operation should
notify non-represented employees that--
(1) The passenger rail operation 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 SSP plan;
(2) The passenger rail operation is required to meet with its
directly affected employees by July 2, 2020, to address the
consultation process;
(3) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in this
process); and
(4) If a passenger rail operation is unable to reach agreement with
its directly affected employees on the contents of the proposed SSP
plan, an employee may file a statement with the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer explaining
the employee's views on the plan on which agreement was not reached.
This initial notification (and all subsequent
communications, as necessary or appropriate) could be provided to non-
represented employees in the following ways:
(1) Electronically, such as by email or an announcement on the
passenger rail operation's website;
(2) By posting the notification in a location easily accessible and
visible to non-represented employees; or
(3) By providing all non-represented employees a hard copy of the
notification. A passenger rail operation could use any or all of these
methods of communication, so long as the notification complies with the
passenger rail operation's obligation to utilize best efforts in the
consultation process.
Following the initial notification and initial meeting to
discuss the consultation process (and before the passenger rail
operation submits its SSP plan to FRA), a passenger rail operation
should provide non-represented employees a draft proposal of its SSP
plan. This draft proposal should solicit additional input from non-
represented employees, and the passenger rail operation should provide
non-represented employees 60 days to submit comments to the passenger
rail operation on the draft.
Following this 60-day comment period and any changes to
the draft SSP plan made as a result, the passenger rail operation
should submit the proposed SSP plan to FRA, as required by this part.
As provided by Sec. 270.107(c), if agreement on the
contents of an SSP 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 employee's views on
the plan on which agreement was not reached.
0
16. Revise appendix C to part 270 to read as follows:
Appendix C to Part 270--Procedures for Submission of SSP Plans and
Statements From Directly Affected Employees
This appendix summarizes procedures for the submission of an SSP
plan and statements by directly affected employees consistent with the
requirements of this part.
Submission by a Passenger Rail Operation and Directly Affected
Employees
As provided for in Sec. 270.101, a system safety program shall be
fully implemented and supported by a written SSP plan. Each passenger
rail operation must submit its SSP plan to FRA for approval as provided
for in Sec. 270.201.
As provided for in Sec. 270.107(c), if a passenger rail operation
and its directly affected employees cannot come to agreement on the
proposed contents of the SSP plan, the directly affected employees have
30 days following the submission of the proposed SSP 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.
The passenger rail operation's and directly affected employees'
submissions shall be sent to the FRA Associate Administrator for
Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey
Avenue SE, Washington, DC 20590. When a passenger rail operation
submits its SSP plan and consultation statement to FRA pursuant to
Sec. 270.201, it must also simultaneously send a copy of these
documents to all individuals identified in the service list pursuant to
Sec. 270.107(b)(3).
Each passenger rail operation and directly affected employee is
authorized to file by electronic means any submissions required under
this part. Before any person submits anything 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 passenger rail operation or directly affected
employee(s);
(2) The names of two individuals, including job titles, who will be
the passenger rail operation'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 passenger rail operation's or
directly affected employees' points of contact;
(4) The system or main headquarters address located in the United
States;
(5) The email addresses for the passenger rail operation's or
directly affected employees' points of contact; and
(6) The daytime telephone numbers for the passenger rail
operation's or directly affected employees' points of contact.
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, Mail Stop 25, 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 passenger rail operation that
electronically submits an initial SSP 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 passenger rail operation that
submits the materials does so by delivering the written materials to
the Associate Administrator and opts not to submit the materials
electronically. A passenger rail operation 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.
[[Page 12852]]
PART 271--RISK REDUCTION PROGRAM
0
17. The authority citation for part 271 continues to read as follows:
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.
0
18. In Sec. 271.5, add a definition in alphabetical order for
``Confidential Close Call Reporting System (C\3\RS)'' and revise the
definition of ``Person'' to read as follows:
Sec. 271.5 Definitions.
* * * * *
Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad
operations by allowing railroad employees to confidentially report
currently unreported or underreported unsafe events.
* * * * *
Person means an entity of any type covered under 49 U.S.C. 21301,
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; any employee of such owner, manufacturer,
lessor, lessee, or independent contractor or subcontractor.
* * * * *
0
19. In Sec. 271.11, revise paragraphs (a) introductory text and
(a)(1), the final sentence of paragraph (a)(2), and add paragraph
(a)(3) to read as follows:
Sec. 271.11 Discovery and admission as evidence of certain
information.
(a) Protected information. Except as provided in paragraph (a)(3)
of this section, 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);
(2) * * * This section does not protect information that is
required to be compiled or collected pursuant to any other provision of
law or regulation; and
(3) A railroad may include a Confidential Close Call Reporting
System (C\3\RS) program in a risk reduction program established under
this part. For Federal or State court proceedings described by this
paragraph (a) that are initiated after March 4, 2021, the information
protected by this paragraph (a) includes C\3\RS information a railroad
includes in its risk reduction program, even if the railroad compiled
or collected the C\3\RS information on or before February 17, 2021, for
purposes other than planning, implementing, or evaluating a risk
reduction program under this part.
* * * * *
0
20. In Sec. 271.207, add a second sentence to paragraph (a)(2) and
revise paragraph (d)(3) to read as follows:
Sec. 271.207 Consultation requirements.
(a) * * *
(2) * * * For directly affected employees represented by a non-
profit employee labor organization, the primary point of contact shall
be either the general chairperson of the non-profit employee labor
organization or a non-profit employee labor organization primary point
of contact the railroad and the non-profit employee labor organization
agree on at the beginning of the consultation process.
* * * * *
(d) * * *
(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, or each non-profit employee labor organization
primary point of contact the railroad and the non-profit employee labor
organization agree on at the beginning of the process. 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. 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.
* * * * *
Issued in Washington, DC, on February 28, 2020.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2020-04424 Filed 3-2-20; 8:45 am]
BILLING CODE 4910-06-P
