
[Federal Register Volume 77, Number 174 (Friday, September 7, 2012)]
[Proposed Rules]
[Pages 55371-55409]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-20999]



[[Page 55371]]

Vol. 77

Friday,

No. 174

September 7, 2012

Part III





Department of Transportation





-----------------------------------------------------------------------





Federal Railroad Administration





-----------------------------------------------------------------------





49 CFR Part 270





System Safety Program; Proposed Rule

  Federal Register / Vol. 77, No. 174 / Friday, September 7, 2012 / 
Proposed Rules  

[[Page 55372]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 270

[Docket No. FRA-2011-0060, Notice No. 1]
RIN 2130-AC31


System Safety Program

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

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FRA proposes to require commuter and intercity passenger 
railroads to develop and implement a system safety program (SSP) to 
improve the safety of their operations. An SSP would be a structured 
program with proactive processes and procedures developed and 
implemented by commuter and intercity passenger railroads to identify 
and mitigate or eliminate hazards and the resulting risks on each 
railroad's system. A railroad would have a substantial amount of 
flexibility to tailor an SSP to its specific operations. An SSP would 
be implemented by a written SSP plan and submitted to FRA for review 
and approval. A railroad's compliance with its SSP would be audited by 
FRA.

DATES: Written comments must be received by November 6, 2012. Comments 
received after that date will be considered to the extent possible 
without incurring additional expense or delay.
    FRA anticipates being able to resolve this rulemaking without a 
public, oral hearing. However, if FRA receives a specific request for a 
public, oral hearing prior to October 9, 2012, one will be scheduled 
and FRA will publish a supplemental notice in the Federal Register to 
inform interested parties of the date, time, and location of any such 
hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0060, 
Notice No. 1, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket 
name, and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC31). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground 
level of the West Building, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director, 
Passenger Rail Division, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West 
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 631-965-1827), Daniel.Knote@dot.gov; or Matthew Navarrete, 
Trial Attorney, U.S. Department of Transportation, Federal Railroad 
Administration, Office of Chief Counsel, Mail Stop 10, West Building 
3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 
202-493-0138), Matthew.Navarrete@dot.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Background & History
    A. System Safety Program--Generally
    B. System Safety Program--History
    i. System Safety in FRA
    ii. Federal Transit Administration's Part 659 Program
    iii. FRA's Confidential Close Call Reporting System and Clear 
Signal for Action Program
    C. FRA's Railroad Safety Advisory Committee
    i. Overview
    ii. Passenger Safety Working Group
    iii. General Passenger Safety Task Force
    iv. System Safety Task Group
    v. RSAC Vote
III. Statutory Background and History
    A. Rail Safety Improvement Act of 2008
    B. Related Risk Reduction Rulemaking
    C. System Safety Information Protection
    i. Exemption from Freedom of Information Act Disclosure
    ii. Discovery and Other Use of Risk Analysis Information in 
Litigation
    1. RSIA Mandate
    2. The Study and its Conclusions
    3. FRA's Proposal
IV. Guidance Manual
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    This proposal would require commuter and intercity passenger 
railroads to develop and implement a system safety program (SSP). An 
SSP is a structured program with proactive processes and procedures 
developed and implemented by commuter and intercity passenger railroads 
(passenger railroads) to identify and mitigate or eliminate hazards and 
the resulting risks on the railroad's system. An SSP encourages a 
railroad and its employees to work together to proactively identify 
hazards and to jointly determine what, if any, action to take to 
mitigate or eliminate the resulting risks. The proposed rule would 
provide each railroad with a substantial amount of flexibility to 
tailor its SSP to its specific operations. FRA is proposing the SSP 
rule as part of its efforts to continuously improve rail safety and to 
satisfy the statutory mandate contained in sections 103 and 109 of the 
Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, 
Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156, and 
20118-20119.
    Section 103 of RSIA directs the Secretary of Transportation 
(Secretary) to issue a regulation requiring certain railroads, 
including passenger railroads, to develop, submit to the Secretary for 
review and approval, and implement a railroad safety risk reduction 
program. The proposed rule would implement this safety risk mandate for 
passenger railroads. Section 109 of RSIA authorizes the Secretary to 
issue a regulation protecting from discovery and admissibility into 
evidence in litigation documents generated for the purpose of 
developing, implementing, or evaluating a SSP. The proposed rule would 
implement section 109 with respect to the system safety program covered 
by part 270 and a railroad safety

[[Page 55373]]

risk reduction rule required by FRA for Class I freight railroads and 
railroads with an inadequate safety performance. The Secretary has 
delegated the responsibility to carry out his responsibilities under 
both sections 103 and 109 of RSIA, as well as the general 
responsibility to conduct rail safety rulemakings, codified at 49 
U.S.C. 20103, to the Administrator of FRA. 49 CFR 1.49(m) and (oo). The 
proposed SSP rule is a performance-based rule and FRA seeks comments on 
all aspects of the proposed rule.
    An SSP would be implemented by a written system safety program plan 
(SSP plan). The proposed regulation sets forth various elements that a 
railroad's SSP plan would be required to contain to properly implement 
an SSP. The main components of an SSP would be the risk-based hazard 
management program and risk-based hazard analysis. A properly 
implemented risk-based hazard management program and risk-based hazard 
analysis would identify the hazards and resulting risks on the 
railroad's system, develop methods to mitigate or eliminate, if 
practicable, these hazards and risks, and set forth a plan to implement 
these methods. As part of its risk-based hazard analysis, a railroad 
would consider various technologies that may mitigate or eliminate the 
identified hazards and risks, as well as consider the role of fatigue 
in creating hazards and risks.
    As part of its SSP plan, a railroad would also be required to 
describe the various procedures, processes, and programs it has in 
place that support the goals of the SSP. These procedures, processes, 
and programs include, but are not limited to, the following: a 
maintenance, inspection, and, repair program; rules compliance and 
procedures review(s); SSP employee/contractor training; and a public 
safety outreach program. Since most of these are procedures, processes, 
and programs railroads should already have in place, the railroads 
would most likely only have to identify and describe such procedures, 
processes, and programs to comply with the regulation.
    An SSP can be successful only if a railroad engages in a robust 
assessment of the hazards and resulting risks on its system. However, a 
railroad may be reluctant to reveal such hazards and risks if there is 
the possibility that such information may be used against it in a court 
proceeding for damages. Congress directed FRA to conduct a study to 
determine if it was in the public interest to withhold certain 
information, including the railroad's assessment of its safety risks 
and its statement of mitigation measures, from discovery and admission 
into evidence in proceedings for damages involving personal injury and 
wrongful death. See 49 U.S.C. 20119. FRA contracted with an outside 
organization to conduct this study and the study concluded that it was 
in the public interest to withhold this type of information from these 
types of proceedings. See FRA, Study of Existing Legal Protections for 
Safety-Related Information and Analysis of Considerations for and 
Against protecting Railroad Safety Risk Reduction Program Information, 
docket no. FRA-2011-0025-0031, Oct. 21, 2011, available at http://www.fra.dot.gov/Downloads/FRA-Final-Study-Report.pdf. Furthermore, 
Congress authorized FRA, by delegation from the Secretary, to prescribe 
a rule, subject to notice and comment, to address the results of the 
study. 49 U.S.C. 20119(b). The proposed rule addresses the study's 
results and sets forth protections of certain information from 
discovery, admission into evidence, or use for other purposes in a 
proceeding for damages.
    An SSP will affect almost all facets of a railroad's operations. To 
ensure that all employees directly affected by an SSP have an 
opportunity to provide input on the development, implementation, and 
evaluation of a railroad's SSP, a railroad would be required to consult 
in good faith and use its best efforts to reach agreement with all of 
its directly affected employees on the contents of the SSP plan and 
amendments to the plan. In an appendix, the proposed rule provides 
guidance regarding what constitutes ``good faith'' and ``best 
efforts.''
    FRA anticipates the rule would become effective 60 days after the 
publication of the final rule. However, by statute, the protection of 
certain information from discovery, admission into evidence, or use for 
other purposes in a proceeding for damages will not become applicable 
until one year after the publication of the final rule. A railroad 
would be required to submit its SSP plan to FRA for review not more 
than 90 days after the applicability date of the discovery protections, 
i.e., 395 days after the effective date of the final rule, or not less 
than 90 days prior to commencing operations, whichever is later. Within 
90 days of receipt of the SSP plan, or within 90 days of receipt of an 
SSP plan submitted prior to the commencement of railroad operations, 
FRA would review the plan and determine if it meets all the 
requirements set forth in the regulation. If, during the review, FRA 
determines that the railroad's SSP plan does not comply with the 
requirements, FRA would notify the railroad of the specific points in 
which the plan is deficient. The railroad would then have 60 days to 
correct these deficient points and resubmit the plan to FRA. Whenever a 
railroad amends its SSP, it would be required to submit an amended SSP 
plan to FRA for approval and provide a cover letter describing the 
amendments. A similar approval process and timeline would apply 
whenever a railroad amends its SSP.
    A railroad's submission of its SSP plan to FRA would not be FRA's 
first interaction with the railroad. FRA plans on working with the 
railroad throughout the development of its SSP to help the railroad 
properly tailor the program to its specific operation. To this end, 
shortly after publication of the final rule, FRA would publish a 
guidance manual to assist a railroad in the development, 
implementation, and evaluation of its SSP.
    Most of the passenger railroads affected by this proposal already 
participate in the American Public Transportation Association (APTA) 
System Safety Program, which also has a triennial audit program. FRA 
currently provides technical assistance to new passenger railroads for 
the development and implementation of system safety programs and 
conduct of preliminary hazard analyses in the design phase. Thus, the 
economic impact of the proposed rule is generally incremental in nature 
for documentation of existing information and inclusion of certain 
elements not already addressed by railroads in their programs. Total 
estimated twenty-year costs associated with implementation of the 
proposed rule, for existing passenger railroads, range from $1.8 
million (discounted at 7%) to $2.5 million (discounted at 3%).
    FRA believes that there will be new, startup, passenger railroads, 
that will be formed during the twenty-year analysis period. FRA is 
aware of two passenger railroads that intend to commence operations in 
the near future. FRA assumed that one of these railroads would begin 
developing its SSP in Year 2, and that the other would begin developing 
its SSP in Year 3. FRA further assumed that one additional passenger 
railroad would be formed and develop its SSP every other year after 
that, in Years 5, 7, 9, 11, 13, 15, 17 and 19. Total estimated twenty-
year costs associated with implementation of the proposed rule, for 
startup passenger railroads, range from $270 thousand (discounted at 
7%) to $437 thousand (discounted at 3%).
    Total estimated twenty-year costs associated with implementation of 
the proposed rule, for existing passenger

[[Page 55374]]

railroads and startup passenger railroads, range from $2.0 million 
(discounted at 7%) to $3.0 million (discounted at 3%).
    Properly implemented SSPs are successful in optimizing the returns 
on railroad safety investments. Railroads can use them to proactively 
identify potential hazards and resulting risks at an early stage, thus 
minimizing associated casualties and property damage or avoiding them 
altogether. Railroads can also use them to identify a wide array of 
potential safety issues and solutions, which in turn allows them to 
simultaneously evaluate various alternatives for improving overall 
safety with available resources. This results in more cost effective 
investments. In addition, system safety planning helps railroads 
maintain safety gains over time. Without an SSP plan railroads could 
adopt countermeasures to safety problems that become less effective 
over time as the focus shifts to other issues. With SSP plans, those 
safety gains are likely to continue for longer time periods. SSP plans 
can also be instrumental in addressing casualties resulting from 
hazards that are not well-addressed through conventional safety 
programs, such as slips, trips and falls, or risks that occur because 
safety equipment is not used correctly, or routinely.
    During the course of daily operations, hazards are continually 
discovered. Railroads must decide which hazards to address and how to 
do so with the limited resources available. Without a SSP plan in 
place, the decision process might become arbitrary. In the absence of 
the protections provided by the NPRM against discovery in legal 
proceedings for damages, railroads might also be reluctant to keep 
detailed records of known hazards. With a SSP plan in place, railroads 
are able to identify and implement the most cost effective measures to 
reduce casualties.
    Railroad operations and maintenance activities have inherent safety 
critical elements. Thus, every capital expenditure is likely to have a 
safety component, whether for equipment, right-of-way, signaling or 
infrastructure. SSPs can increase the safety return on any investment 
related to the operation and maintenance of the railroad. FRA believes 
a very conservative estimate of all safety-related expenditures by all 
passenger railroads affected by the NPRM is $11.6 billion per year. In 
the first twenty years of the proposed rule, SSP plans can result in 
improved cost effectiveness of investments totaling between $92 billion 
(discounted at 7%) and $139 billion (discounted at 3%). Through 
anecdotal evidence, FRA is aware of situations where railroads 
unknowingly introduced hazards because they did not conduct hazard 
analyses. If the cost to remedy such situations is $100,000 on average 
and five remedies are avoided per year, railroads can save $500,000 per 
year and the proposed rule would be justified. FRA believes that it is 
reasonable to expect higher savings when considering there are 30 
existing passenger rail operators impacted. The impact on the 
effectiveness of investments by startup railroads would likely be 
greater than for existing railroads, as more of their expenses are for 
new infrastructure or other systems that can have safety designed in 
from the start at little or no marginal cost.
    Another way to look at the benefits that might accrue from 
implementing the proposed rule is based on potential accident 
prevention. Between 2001 and 2010, on average, passenger railroads had 
an average of 3,723.2 accidents, resulting in 207 fatalities, 3,543 
other casualties, and $21.1 million in damage to railroad track and 
equipment each year. Total quantified twenty-year accident costs total 
between $24 billion (discounted at 7%) and $36 billion (discounted at 
3%). Of course, these accidents also resulted in damage to other 
property, delays to both railroads and highway users, emergency 
response and clean-up costs, and other costs not quantified in this 
analysis. FRA estimated the accident reduction benefits necessary for 
the NPRM benefits to at least equal the implementation costs and found 
that a reduction of approximately 0.007% would suffice. FRA believes 
that such risk reduction is more than attainable.
    FRA also believes that the SSP Plans will identify numerous 
unnecessary risks that are avoidable at no additional cost but simply 
through the selection of the most appropriate safety measure to address 
a hazard. For instance, railroads may mitigate or eliminate hazards 
that cause or contribute to slips, trips and falls, such as through 
measures that ensure the proper use of safety equipment. FRA believes 
that railroads will make additional investments to mitigate or 
eliminate many risks identified through the SSPs. FRA cannot reasonably 
predict the kinds of measures that may be adopted or the additional 
costs and benefits that will result from these. Nonetheless, FRA 
believes that such measures will not be undertaken unless the benefits 
exceed the costs and the funding is available.
    In conclusion, FRA is confident that the accident reduction and 
cost effectiveness benefits together would justify the $2.0 million 
(discounted at 7%) to $3.0 million (discounted at 3%) implementation 
cost over the first twenty years of the proposed rule.

II. Background

III. System Safety Program--Generally

    Railroads operate in a dynamic, fast-paced environment that at one 
time posed extreme safety risks. Through concerted efforts by 
railroads, labor organizations, the U.S. DOT, and many other entities, 
railroad safety has vastly improved. But even though FRA has issued 
safety regulations and guidance that address many aspects of railroad 
operations, gaps in safety exist, and hazards and risks may arise from 
these gaps. FRA believes that railroads are in an excellent position to 
identify some of these gaps and take the necessary action to mitigate 
or eliminate the arising hazards and resulting risks. Rather than 
prescribing the specific actions the railroads need to take, FRA 
believes it would be more effective to allow the railroads to use their 
knowledge of their unique operating environment to identify the gaps 
and determine the best methods to mitigate or eliminate the hazards and 
resulting risks. An SSP would provide a railroad with the tools to 
systematically and continuously evaluate its system to identify the 
hazards and risks that result from gaps in safety and to mitigate or 
eliminate these hazards and risks.
    There are many programs that are similar to the SSP proposed by 
this part. Most notably, the Federal Aviation Administration (FAA) has 
published an NPRM proposing to require each certificate holder 
operating under 14 CFR part 121 to develop and implement a safety 
management system (SMS). 75 FR 68224, Nov. 5, 2010; and 76 FR 5296, 
Jan. 31, 2011. An SMS ``is a comprehensive, process-oriented approach 
to managing safety throughout the organization.'' 75 FR 68224, Nov. 5, 
2010. An SMS includes: ``an organization-wide safety policy; formal 
methods for identifying hazards, controlling, and continually assessing 
risk; and promotion of safety culture.'' Id. Under FAA's proposed 
regulation, an SMS would have four components: Safety Policy, Safety 
Risk Management, Safety Assurance, and Safety Promotion. Id. at 68225.
    The U.S. Department of Defense (DoD) has also set forth guidelines 
for a System Safety Program. In July 1969, DoD published ``System 
Safety Program Plan Requirements'' (MIL-STD-882). MIL-STD-882 is DoD's 
standard practice for system safety, with the most recent version, MIL-
STD-882E, published on May 11, 2012. DoD, MIL-

[[Page 55375]]

STD-882E, Department of Defense Standard Practice System Safety (May 
11, 2012). MIL-STD-882 is used by many industries in the U.S. and 
internationally and certainly could be of use to a railroad when trying 
to determine which methods to use to comply with the proposed rule. In 
fact, MIL-STD-882 is cited in FRA's safety regulations for railroad 
passenger equipment, 49 CFR part 238, as an example of a formal safety 
methodology to use in complying with certain analysis requirements in 
that rule. See 49 CFR 238.103 and 238.603.

A. System Safety Program-History

i. System Safety in FRA
    System safety is not a new concept to FRA. On February 20, 1996, in 
response to New Jersey Transit (NJT) and Maryland Rail Commuter Service 
accidents in early 1996, FRA issued Emergency Order No. 20, Notice No. 
1 (EO 20). 61 FR 6876, Feb. 22, 1996. EO 20 required, among other 
things, commuter and intercity passenger railroads to promptly develop 
an interim system safety plan addressing the safety of operations that 
permit passengers to occupy the leading car in a train. In particular, 
EO 20 required ``railroads operating scheduled intercity or commuter 
rail service to conduct an analysis of their operations and file with 
FRA an interim safety plan indicating the manner in which risk of a 
collision involving a cab car is addressed.'' Id. at 6879. FRA intended 
these plans to serve as a temporary measure in the light of the 
passenger equipment safety standards that FRA was developing. The plans 
were submitted to FRA and FRA initially determined that they were 
inadequate. As part of the Advance Notice of Proposed Rulemaking for 
the passenger equipment safety standards, FRA proposed system safety 
program and plans for railroads. 61 FR 30672, 30684, June 17, 1996.
    On June 24, 1996, the chairman of APTA's Commuter Railroad 
Committee sent a letter to FRA to announce that APTA commuter railroads 
were in compliance with the requirements of EO 20 and agreed to adopt 
additional safety measures, including comprehensive system safety 
plans. These comprehensive system safety plans were broader in scope 
than the interim plans had been and were modeled after the Federal 
Transit Administration's (FTA) part 659 system safety plans, which were 
being successfully used by rapid transit authorities and include a 
triennial audit process. See 49 CFR part 659. In 1997, APTA and the 
commuter railroads, in conjunction with FRA and the U.S. DOT, developed 
the Manual for the Development of System Safety Program Plans for 
Commuter Railroads. Pursuant to APTA's manual, the existing commuter 
railroads developed system safety plans, and the triennial audit 
process of these plans began in early 1998 with FRA's participation.
    In January of 2005, in Glendale, CA, a Southern California Regional 
Rail Authority (Metrolink) commuter train derailed after striking an 
abandon vehicle left on the tracks. The derailment caused the Metrolink 
train to collide with the trains on both sides of it, a Union Pacific 
Railroad Company (UP) freight train and another Metrolink train and 
resulted in the death of 11 people. After this incident, FRA developed 
a Collision Hazard Analysis Guide to assist in conducting collision 
hazard assessments. The Collision Hazard Analysis Guide supports APTA's 
Manual for the Development of System Safety Program Plans for Commuter 
Railroads by providing a ``step-by-step procedure on how to perform 
hazard analysis and how to develop effective mitigation strategies that 
will improve passenger rail safety.'' FRA, Collision Hazard Analysis 
Guide: Commuter and Intercity Passenger Rail Service, 5 (October 2007), 
available on FRA's Web site at www.fra.dot.gov. The hazard guidelines 
used in the Collision Hazard Analysis Guide are based on MIL-STD-882 
and the hazard identification/resolution processes described in APTA's 
Manual for the Development of System Safety Program Plans for Commuter 
Railroads.'' Id. After the publication of the Collision Hazard Analysis 
Guide, the commuter railroads, in conjunction with APTA, requested a 
meeting with FRA to discuss the implications of conducting a collision 
hazard analysis and having a record of such an analysis. The railroads 
expressed concern that to the extent the analysis revealed information 
about a railroad's operations that was not currently available, the 
information could be used against the railroad in court proceedings.
    FRA has codified certain discrete aspects of system safety planning 
in the Passenger Train Emergency Preparedness regulations, issued in 
May 1998, and the Passenger Equipment Safety Standards, issued in May 
1999, but comprehensive system safety planning has remained the 
province of the individual passenger railroads. A majority of commuter 
railroads still participate in the system safety program established in 
1997 by APTA. The latest version of APTA's Manual for the Development 
of System Safety Program Plans for Commuter Railroads was published on 
May 15, 2006. As mentioned previously, the Manual for the Development 
of System Safety Program Plans for Commuter Railroads was developed 
jointly with FRA, and FRA participates in the audits of the railroad's 
system safety plans based on this guide. From this experience, FRA has 
gained substantial knowledge regarding the best methods to develop, 
implement, and evaluate an SSP. Many components of the proposed rule 
are modeled after elements in APTA's Manual for the Development of 
System Safety Program Plans for Commuter Railroads.
ii. Federal Transit Administration's Part 659 Program
    In 1991, Congress required FTA to establish a program that required 
State-conducted oversight of the safety and security of rail fixed 
guideway systems that were not regulated by FRA. See Intermodal Surface 
Transportation Efficiency Act of 1991, Public Law 102-240, sec. 3029, 
also codified at 49 U.S.C. 5330. In December 1995, FTA adopted 49 CFR 
part 659, Rail Fixed Guideway Systems; State Safety Oversight, which 
implemented Congress's mandate. 60 FR 67034, Dec. 27, 1995. In April 
2005, FTA amended part 659 to incorporate the experience and insight it 
had gained regarding the benefits of and recommended practices for 
implementing State safety oversight requirements. 70 FR 22562, Apr. 29, 
2005.
    FTA's part 659 program applies only to rapid transit systems or 
portions thereof not subject to FRA's regulations. 49 CFR 659.3 and 
659.5. Therefore, the requirements of FTA's part 659 would not overlap 
with any of the requirements proposed in this SSP regulation. However, 
as mentioned previously, APTA's Manual for the Development of System 
Safety Program Plans for Commuter Railroads is based on FTA's part 659, 
so many of the elements in APTA's system safety program are based on 
FTA's part 659 program. FRA has always maintained a close working 
relationship with FTA and the implementation of the part 659 program 
and proposes to use many of the same concepts from the part 659 program 
in the SSP rule. FRA has noted where the elements in the proposed SSP 
rule are directly from or are based on elements from FTA's part 659.
iii. FRA's Confidential Close Call Reporting System and Clear Signal 
for Action Program
    FRA believes that in addition to process and technology 
innovations, human factors-based solutions can make

[[Page 55376]]

a significant contribution to improving safety in the railroad 
industry. Based on this belief, FRA implemented the Confidential Close-
Call Reporting System (C3RS). The C3RS includes: (1) Voluntary 
confidential reporting of close-call events by employees and root-
cause-analysis problem solving by a Peer Review Team composed of labor, 
management, and FRA; (2) identification and implementation of 
corrective actions; (3) tracking the results of change; and (4) 
reporting the results of change to employees. Confidential reporting 
and joint labor-management-FRA root-cause problem solving are the most 
innovative of these characteristics for the railroad industry. 
Demonstration pilot sites for C3RS are at Union Pacific Railroad, 
Canadian Pacific Railway, New Jersey Transit, and Amtrak. C3RS is in 
the pilot stage and, currently, only implemented by two railroads 
providing intercity and passenger service, New Jersey Transit and 
Amtrak. Ranney, J. and Raslear, T., Derailments decrease at a C3RS site 
at midterm, FRA Research Results: RR12-04, April 2012, available at 
http://www.fra.dot.gov/rpd/downloads/RR_Derailments_Decrease_C3RS_Site_at_Midterm_final.pdf.
    FRA also implemented the Clear Signal for Action (CSA) program, 
another human factors-based solution shown to improve safety. The CSA 
Program includes: (1) Voluntary, anonymous labor peer-to-peer feedback 
in the work environment on risky behaviors and conditions; (2) labor 
Steering Committee root cause analysis and the development of behavior 
and condition-related corrective actions; (3) Steering Committee 
implementation of behavior-related corrective actions; (4) joint labor-
management Barrier Removal Team refining condition-related corrective 
actions and implementation; (5) tracking the results of the change; and 
(6) reporting the results of change to employees. Anonymous labor peer 
to peer feedback on risky behaviors and conditions, root cause analysis 
and cooperation between labor and management in corrective actions are 
the most innovative of these characteristics for the railroad industry. 
FRA considers the CSA program ready for broad implementation across the 
industry with three demonstration pilots completed demonstrating its 
applicability in diverse railroad work settings. One setting was with 
Amtrak baggage handlers; a second was with UP yard crews; and a third 
was with UP road crews. Currently FRA is funding the development of low 
cost program materials to aid in its distribution starting with 
passenger rail. Coplen, M. Ranney, J. & Zuschlag, M., Promising 
Evidence of Impact on Road Safety by Changing At-risk Behavior Process 
at Union Pacific, FRA Research Results: RR08-08, June 2008, available 
at http://www.fra.dot.gov/downloads/Research/rr0808.pdf; Coplen, M. 
Ranney, J., Wu, S. & Zuschlag, M., Safe Practices, Operating Rule 
Compliance and Derailment Rates Improve at Union Pacific Yards with 
STEEL Process--A Risk Reduction Approach to Safety, FRA Research 
Results: RR09-08, May 2009, available at http://www.fra.dot.gov/downloads/research/rr0908Final.pdf.
    The C3RS and CSA program embody many of the concepts and principles 
found in an SSP: proactive identification of hazards and risks, 
analysis of those hazards and risks, and implementing the appropriate 
action to eliminate or mitigate the hazards and risks. While FRA does 
not intend to require any railroad to implement a C3RS or CSA program 
as part of their SSP, FRA does believe that these types of programs 
would prove useful in the development of an SSP and encourages 
railroads to include such programs as part of their SSP. FRA seeks 
comment on the extent these programs might be useful in the development 
of an SSP or as a component of an SSP.

B. FRA's Railroad Safety Advisory Committee

i. Overview
    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties.
    An alphabetical list of RSAC members includes the following:
     American Association of Private Railroad Car Owners 
(AAPRCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association;
     Amtrak;
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers;
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     FTA;*
     Fertilizer Institute;
     High Speed Ground Transportation Association;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers;
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRCMA);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association Inc.;
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC 
(TCIU);
     Transportation Security Administration (TSA); and
     United Transportation Union (UTU).
    *Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. The working group may establish one or more 
task forces or other task groups to develop facts and options on a 
particular aspect of a given task. The task force, or other task group, 
reports to the working group. If a working group comes to consensus on 
recommendations for action, the package is presented to the full RSAC 
for a vote. If the proposal is accepted by

[[Page 55377]]

a simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff play an active role at the working group level in discussing 
the issues and options and in drafting the language of the consensus 
proposal, and because the RSAC recommendation constitutes the consensus 
of some of the industry's leading experts on a given subject, FRA is 
often favorably inclined toward the RSAC recommendation. However, FRA 
is in no way bound to follow the recommendation and the agency 
exercises its independent judgment on whether the recommended 
regulatory proposal achieves the agency's regulatory goals, is soundly 
supported, and is in accordance with applicable policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. However, to the maximum extent 
practicable, FRA utilizes RSAC to provide consensus recommendations 
with respect to both proposed and final agency actions. If RSAC is 
unable to reach consensus on a recommendation for action, the task is 
withdrawn and FRA determines the best course of action.
ii. Passenger Safety Working Group
    The RSAC established the Passenger Safety Working Group to handle 
the task of reviewing passenger equipment safety needs and programs. 
The Passenger Safety Working Group recommends consideration of specific 
actions that could be useful in advancing the safety of rail passenger 
service and develop recommendations for the full RSAC to consider. 
Members of the Passenger Safety Working Group, in addition to FRA, 
include the following:
     AAR, including members from BNSF Railway Company, CSX 
Transportation, Inc., and UP;
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., Herzog 
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet, 
formerly LDK Engineering, Inc.), Long Island Rail Road, Maryland 
Transit Administration, Metrolink, Metro-North Commuter Railroad 
Company, Northeast Illinois Regional Commuter Railroad Corporation, and 
Southeastern Pennsylvania Transportation Authority;
     ASLRRA;
     BLET;
     BRS;
     FTA;
     NARP;
     NTSB;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TSA;
     TWU; and
     UTU.
iii. General Passenger Safety Task Force
    In 2006, the General Passenger Safety Task Force was established 
under the Passenger Safety Working Group to focus on door securement, 
passenger safety in train stations, and system safety plans. Members of 
the General Passenger Safety Task Force, in addition to FRA, include 
the following:
     AAR, including members from BNSF, CSXT, Norfolk Southern 
Railway Co., and UP;
     AASHTO;
     Amtrak;
     APTA, including members from Alaska Railroad Corporation, 
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts 
Bay Commuter Railroad Company, Metro-North, MTA, NJT, New Mexico Rail 
Runner Express, Port Authority Trans-Hudson, SEPTA, Metrolink, and Utah 
Transit Authority;
     ASLRRA;
     ATDA;
     BLET;
     FTA;
     NARP;
     NRCMA;
     NTSB;
     Transport Canada; and
     UTU.
    The General Passenger Safety Task Force was formed from the 
membership of the Passenger Safety Working Group and held its first 
meeting in February 2007 and the second meeting in April 2007 in 
conjunction with Passenger Safety Working Group. At the April 2007 
meeting, the decision was made to create a System Safety Task Group to 
focus on the core elements and features of a system safety regulation 
and to draft language to recommend to the full RSAC for a system safety 
regulation.
iv. System Safety Task Group
    The System Safety Task Group was formed from the membership of the 
General Passenger Safety Task Force and first met as an independent 
group in June 2008 in Baltimore, MD. Additional meetings were held on 
December 2-4, 2008 in Cambridge, MA, August 25-27, 2009 in Washington, 
DC, October 6-8, 2009 in Orlando, FL, March 16-17, 2010 in Washington, 
DC, February 1-2, 2012 in Cambridge, MA, and March 8, 2012 by 
teleconference. The System Safety Task Group produced recommended draft 
language for a system safety regulation, but work on this language was 
delayed until completion of the study to determine whether it was in 
the public interest to withhold from discovery or admission into 
evidence in a Federal or State court proceeding for damages involving 
personal injury or wrongful death against a carrier any information 
(including a railroad's analysis of its safety risks and its statement 
of the mitigation measures with which it will address those risks) 
compiled or collected for the purpose of evaluating, planning, or 
implementing a risk reduction program. See 49 U.S.C. 20119(a). This 
study was completed in October 2011 and is discussed further in the 
Statutory Background section of this preamble. The General Passenger 
Safety Task Force, including the members of the System Safety Task 
Group, met on February 1-2, 2012, and continued work on finalizing the 
language that it would recommend to the Passenger Safety Working Group. 
A final combined General Passenger Safety Task Force and System Safety 
Task Group meeting was held by teleconference on March 8, 2012.
v. RSAC Vote
    On May 2, 2012, the General Passenger Safety Task Force formally 
voted to unanimously accept the system safety regulation language 
recommended by the System Safety Task Group. On May 10, 2012, the 
Passenger Safety Working Group voted to unanimously accept the system 
safety regulation language recommended by the General Passenger Safety 
Task Force. On May 21, 2012, the RSAC unanimously voted to accept the 
system safety regulation language recommended by the Passenger Safety 
Working Group. Thus, the Passenger Safety Working Group's 
recommendation was adopted by the full RSAC as a formal recommendation 
to FRA.
    The proposed rule incorporates the majority of RSAC's 
recommendations. FRA decided not to incorporate certain recommendations 
because they were unnecessary or duplicative and their exclusion would 
not have a substantive effect on the rule. The proposed rule also 
contains elements that were not part of RSAC's recommendations. The 
majority of these elements are added to provide clarity and to conform 
with Federal Register formatting requirements. However, FRA will note 
in this NPRM the areas in which the exclusion of the RSAC 
recommendations or the inclusion of

[[Page 55378]]

elements not part of the RSAC recommendations do have a substantive 
effect on the rule and will provide an explanation for doing so.

IV. Statutory Background

A. The Rail Safety Improvement Act of 2008

    The proposed SSP rule would implement sections 103 and 109 RSIA as 
they apply to railroad carriers that provide intercity rail passenger 
or commuter rail passenger transportation (passenger railroads). See 49 
U.S.C. 20156, 20118, and 20119. In section 103 Congress directed the 
Secretary to issue a regulation requiring certain railroads to develop, 
submit to the Secretary for review and approval, and implement a 
railroad safety risk reduction program. The Secretary has delegated 
this responsibility to the FRA Administrator. See 49 CFR 1.49(oo), 74 
FR 26981, Jun. 5, 2009; see also 49 U.S.C. 103(g). The railroads 
required to be subject to such a regulation include the following:
    (1) Class 1 railroads;
    (2) Railroad carriers with inadequate safety performance, as 
determined by the Secretary; and
    (3) Railroad carriers that provide intercity rail passenger or 
commuter rail passenger transportation (passenger railroads).
    This proposed SSP rule would implement this railroad safety risk 
reduction mandate (and the other specific safety risk reduction program 
requirements found in section 103) for passenger railroads. The SSP 
rule is a risk reduction program in that it would require a passenger 
railroad to assess and manage risk and to develop proactive hazard 
management methods to promote safety improvement. The proposed rule 
contains provisions that, while not explicitly required by the RSIA 
safety risk reduction program mandate, are necessary to properly 
implement the mandate and are consistent with the intent behind the 
mandate. Further, as mentioned previously, many of the elements in the 
proposed rule are modeled after APTA's Manual for the Development of 
System Safety Program Plans for Commuter Railroads. The majority of 
railroads, therefore, will have already implemented those elements. The 
proposed rule would also implement section 109 of the RSIA, which 
addresses the protection of information in railroad safety risk 
analyses and will be discussed later in this NPRM.

B. Related Risk Reduction Rulemaking

    FRA is currently developing, also with the assistance of the RSAC, 
a separate risk reduction rule that would implement the requirements of 
sections 103 and 109 of the RSIA for Class I freight railroads and 
railroads with inadequate safety performance. Although passenger 
railroads could be subject to the requirements of this second risk 
reduction rule, the rule would specify that passenger railroads that 
are in compliance with the SSP rule be deemed in compliance with the 
risk reduction rule. Establishing separate safety risk reduction rules 
for passenger and freight railroads will allow those rules to account 
for the significant differences between passenger and freight 
operations. For example, passenger operations generate risks uniquely 
associated with the passengers that utilize their services. The 
proposed SSP rule can be specifically tailored to these types of risks, 
which are not independently generated by freight railroads.

C. System Safety Information Protection

    Section 109 of the RSIA (codified at 49 U.S.C. 20118-20119) 
authorizes FRA to issue a rule protecting risk analysis information 
generated by railroads. These provisions would apply to information 
generated by passenger railroads pursuant to the proposed system safety 
rulemaking and to any railroad safety risk reduction programs required 
by FRA for Class I railroads and railroads with inadequate safety 
performance.
i. Exemption From Freedom of Information Act Disclosure
    In section 109 of the RSIA (codified at 49 U.S.C. 20118-20119), 
Congress determined that for risk reduction programs to be effective, 
the risk analyses must be shielded from production in response to 
Freedom of Information Act (FOIA) requests. See 49 U.S.C. 20118. FOIA 
is a Federal statute establishing certain requirements for the public 
disclosure of records held by Federal agencies. See 5 U.S.C. 552. 
Generally, FOIA requires a Federal agency to make most records 
available upon request, unless a record is protected from mandatory 
disclosure by one of nine exemptions.
    Section 109(a) of RSIA specifically provides that a record obtained 
by FRA pursuant to a provision, regulation, or order related to a risk 
reduction program or pilot program is exempt from disclosure under 
FOIA. The term ``record'' includes, but is not limited to, ``a railroad 
carrier's analysis of its safety risks and its statement of the 
mitigation measures it has identified with which to address those 
risks.'' Id. This FOIA exemption also applies to records made available 
to FRA for inspection or copying pursuant to a risk reduction program 
or pilot program.
    Railroad system safety records in FRA's possession, therefore, are 
generally exempt from mandatory disclosure under FOIA. The RSIA, 
however, establishes two exceptions to this prohibition on FOIA 
disclosure. The first exception permits disclosure when it is necessary 
to enforce or carry out any Federal law. The second exception permits 
disclosure when a record is comprised of facts otherwise available to 
the public and when FRA, in its discretion, has determined that 
disclosure would be consistent with the confidentiality needed for a 
risk reduction program or pilot program.
ii. Discovery and Other Use of Risk Analysis Information in Litigation
1. The RSIA Mandate
    The RSIA also addressed the disclosure and use of risk analysis 
information in litigation. Section 109 directed FRA to conduct a study 
to determine whether it was in the public interest to withhold from 
discovery or admission into evidence in a Federal or State court 
proceeding for damages involving personal injury or wrongful death 
against a carrier any information (including a railroad's analysis of 
its safety risks and its statement of the mitigation measures with 
which it will address those risks) compiled or collected for the 
purpose of evaluating, planning, or implementing a risk reduction 
program. See 49 U.S.C. 20119(a). In conducting this study, the RSIA 
required FRA to solicit input from railroads, railroad non-profit 
employee labor organizations, railroad accident victims and their 
families, and the general public. See id. The RSIA also states that 
upon completion of the study, if in the public interest, FRA may 
prescribe a rule to address the results of the study (i.e., a rule to 
protect risk analysis information from disclosure during litigation). 
See 49 U.S.C. 20119(b). The RSIA prohibits any such rule from becoming 
effective until one year after its adoption. See id.
2. The Study and Its Conclusions
    FRA contracted with a law firm, Baker Botts L.L.P., to conduct the 
study on FRA's behalf. Various documents related to the study are 
available for review in public docket number FRA-2011-0025, which can 
be accessed online at www.regulations.gov. As a first step, the 
contracted law firm prepared a comprehensive report identifying and 
evaluating other Federal safety programs that protect risk reduction 
information

[[Page 55379]]

from use in litigation. See Report on Federal Safety Programs and Legal 
Protections for Safety-Related Information, FRA, docket no. FRA-2011-
0025-0002, April 14, 2011. Next, as required by section 109 of the 
RSIA, FRA published a Federal Register notice seeking public comment on 
the issue of whether it would be in the public interest to protect 
certain railroad risk reduction information from use in litigation. See 
76 FR 26682, May 9, 2011. Comments received in response to this notice 
may be viewed in the public docket.
    On October 21, 2011, the contracted law firm produced a final 
report on the study. See Study of Existing Legal Protections for 
Safety-Related Information and Analysis of Considerations for and 
Against protecting Railroad Safety Risk Reduction Program Information, 
FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011, available at http://www.fra.dot.gov/Downloads/FRA-Final-Study-Report.pdf. The final report 
contained analyses of other Federal programs that protect similar risk 
reduction data, the public comments submitted to the docket, and 
whether it would be in the public interest, including the interests of 
public safety and the legal rights of persons injured in railroad 
accidents, to protect railroad risk reduction information from 
disclosure during litigation. The final report concluded that it would 
be within FRA's authority and in the public interest for FRA to 
promulgate a regulation protecting certain risk analysis information 
held by the railroads from discovery and use in litigation and makes 
recommendations for the drafting and structuring of such a regulation. 
See id. at 63-64.
3. FRA's Proposal
    In response to the final study report, this NPRM is proposing to 
protect any information compiled or collected solely for the purpose of 
developing, implementing or evaluating an SSP from discovery, admission 
into evidence, or consideration for other purposes in a Federal or 
State court proceeding for damages involving personal injury, wrongful 
death, and property damage. The information protected would include a 
railroad's identification of its safety hazards, analysis of its safety 
risks, and its statement of the mitigation measures with which it would 
address those risks and could be in the following forms: Plans, 
reports, documents, surveys, schedules, lists, or data. (Similar 
protection will be proposed for railroad safety risk reduction programs 
required by FRA for Class I railroads and railroads with inadequate 
safety performance). Additional specifics regarding this proposal will 
be discussed in the section-by-section analysis of this NPRM.

V. Guidance Manual

    FRA has been working with railroads for many years to implement 
many of the principles and elements that the SSP rule contains. From 
this experience, FRA has learned the best practices and the pitfalls of 
implementing an SSP. Since each railroad operation is unique, the best 
practices for each railroad will be different. Therefore, rather than 
setting forth specific requirements that may be applicable for one 
railroad, but unworkable for another, FRA will set forth general 
requirements of a SSP in the rule and allow each railroad the 
flexibility to tailor those requirements to their specific operations. 
To this end, FRA plans on providing the railroads with a guidance 
manual that will assist in the development, implementation, and 
evaluation of their SSPs. This guidance manual (``Guide'') will provide 
the railroads with the most efficient and effective methods to 
implement their SSPs. Regarding most aspects of an SSP, a railroad will 
be able to refer to this Guide for assistance in implementing its SSP. 
FRA expects to publish the Guide shortly after the publication of the 
final rule in this proceeding. FTA has published a similar document 
regarding implementation of its part 659 program. See Resource Toolkit 
for State Oversight Agencies Implementing 49 CFR part 659 (March 2006).

VI. Section-by-Section Analysis

    FRA proposes to add a new part 270 to chapter 49 of the CFR. Part 
270 would satisfy the RSIA requirements regarding safety risk reduction 
programs for railroads providing intercity rail passenger or commuter 
rail passenger service. 49 U.S.C. 20156. It will also protect certain 
information compiled or collected pursuant to a safety risk reduction 
program from admission into evidence or discovery during court 
proceedings for damages. 49 U.S.C. 20119.

Subpart A--General

Section 270.1 Purpose and scope
    Paragraph (a) states that the purpose of the proposed rule is to 
improve railroad safety through structured, proactive processes and 
procedures developed and implemented by railroads. The proposed rule 
would require a railroad to establish a program that systematically 
evaluates railroad safety hazards on its system and manages those risks 
in order to reduce the numbers and rates of railroad accidents, 
incidents, injuries, and fatalities.
    Paragraph (b) states that the proposed rule prescribes minimum 
Federal safety standards for the preparation, adoption, and 
implementation of railroad system safety programs. The proposed rule 
would not restrict railroads from adopting and enforcing additional or 
more stringent requirements not inconsistent with this part.
    Paragraph (c) states that the proposed rule provides for the 
protection of information generated solely for the purpose of 
developing, implementing, or evaluating a system safety program under 
this part or a railroad safety risk reduction program required by this 
chapter for Class I railroads and railroads with inadequate safety 
performance.
Section 270.3 Application
    The RSIA mandates that FRA require each railroad carrier that is a 
Class I railroad, a railroad carrier that has inadequate safety 
performance, or a railroad that provides intercity rail passenger or 
commuter rail passenger transportation to establish a railroad safety 
risk reduction program. 49 U.S.C. 20156(a)(1). This proposed rule sets 
forth the requirements related to a railroad safety risk reduction 
program for a railroad that provides intercity rail passenger or 
commuter rail passenger transportation. Safety risk reduction programs 
for Class I railroads and railroads with inadequate safety performance 
will be addressed in the separate Risk Reduction Program rulemaking 
proceeding.
    Paragraph (a) proposes that this rule apply to railroads that 
operate intercity or commuter passenger train service on the general 
railroad system of transportation and railroads that provide commuter 
or other short-haul rail passenger train service in a metropolitan or 
suburban area (as described by 49 U.S.C. 20102(2)), including public 
authorities operating passenger train service. A public authority that 
indirectly provides passenger train service by contracting out the 
actual operation to another railroad or independent contractor would be 
regulated by FRA as a railroad under the provisions of the proposed 
rule. Although the public authority would ultimately be responsible for 
the development and implementation of an SSP (along with all related 
recordkeeping requirements), the railroad or other independent 
contractor that operates the authority's passenger

[[Page 55380]]

train service would be expected to fulfill all of the responsibilities 
under this part with respect to the SSP, including implementation.
    FRA proposes to except certain railroads from the proposed rule's 
applicability. The first exception, proposed in paragraph (b)(1), 
covers rapid transit operations in an urban area that are not connected 
to the general railroad system of transportation. This paragraph is 
intended merely to clarify the circumstances under which rapid transit 
operations are not subject to FRA jurisdiction under this part. It 
should be noted, however, that some rapid transit type operations, 
given their links to the general system, are within FRA's jurisdiction 
and FRA specifically intends for part 270 to apply to those rapid 
transit type operations.
    Paragraph (b)(2) proposes an exemption for operations commonly 
described as tourist, scenic, historic, or excursion service whether on 
or off the general railroad system. Tourist, scenic, historic, or 
excursion rail operations is defined by proposed Sec.  270.5 and this 
exemption is consistent with FRA's other regulations concerning 
passenger operations. See 49 CFR 238.3(c)(3) and 239.3(b)(3). Further, 
the basis of this exemption is consistent with that underlying FRA's 
other regulations concerning passenger operations. See 63 FR 24644, May 
4, 1998; 64 FR 25576, May 12, 1999.
    Paragraph (b)(3) makes clear that the requirements of the proposed 
rule would not apply to the operation of private passenger train cars, 
including business or office cars and circus train cars. While FRA 
believes that a private passenger car operation should be held to the 
same basic level of safety as other passenger train operations, such 
operations were not specifically identified in the statutory mandate 
and FRA is taking into account the burden that would be imposed by 
requiring private passenger car owners and operators to conform to the 
requirements of this part. Private passenger cars are often hauled by 
host railroads such as Amtrak and commuter railroads, and these hosts 
often impose their own safety requirements on the operation of the 
private passenger cars. Pursuant to this proposal, these host railroads 
would already be required to have SSPs in place to protect the safety 
of their own passengers; the private car passengers would presumably 
benefit from these programs even without the rule directly covering 
private car owners or operators. In the case of non-revenue passengers, 
including employees and guests of railroads that are transported in 
business and office cars, as well as persons traveling on circus 
trains, the railroads would be expected to provide for their safety in 
accordance with existing safety operating procedures and protocols 
relating to normal freight train operations.
    Finally, paragraph (b)(4) proposes an exception from the 
requirements of this part for railroads that operate only on track 
inside an installation that is not part of the general railroad system 
of transportation (i.e., plant railroads, as defined in Sec.  270.5). 
Plant railroads are typified by operations such as those in steel mills 
that do not go beyond the plant's boundaries and that do not involve 
the switching of rail cars for entities other than themselves.
    Section 103(a)(4) of RSIA allows a railroad carrier that is not 
required to submit a railroad safety risk reduction program to 
voluntarily submit such a program. 49 U.S.C. 20156(a)(4). If the 
railroad voluntary submits a program, it shall comply with the 
requirements set forth in RSIA and is subject to approval by the 
Secretary. Id. FRA anticipates that railroads who voluntarily submit a 
railroad safety risk reduction program under RSIA would do so pursuant 
to the risk reduction program regulation that is currently being 
developed. Proposed paragraph (a) is broad and intended to cover the 
majority of the railroads that provide intercity and passenger service. 
Absent the exceptions in paragraph (b), if a railroad is not required 
by this proposed part to establish an SSP, that railroad more than 
likely does not provide intercity or passenger service and, therefore, 
may be required to establish a risk reduction program. If these 
railroads are not required to establish a risk reduction program but 
decide to voluntarily establish a railroad safety risk reduction 
program pursuant to RSIA, the risk reduction program regulation would 
more than likely be better suited for their operations. FRA does not 
intend to prohibit railroads that are not required to establish either 
an SSP or risk reduction program from voluntarily establishing an SSP. 
FRA seeks comment on whether a provision that allows a railroad to 
voluntary establish an SSP should be included in the proposed SSP rule.
Section 270.5 Definitions
    This proposed section contains a set of definitions that clarify 
the meaning of important terms as they are used in the rule. The 
proposed definitions are carefully worded in an attempt to minimize the 
potential for misinterpretation of the rule. Many of the proposed 
definitions are based on definitions in FTA's part 659 and APTA's 
system safety program. FRA requests comment and input regarding the 
terms defined in this section and specifically whether other terms 
should be defined.
    ``Administrator'' refers to Federal Railroad Administrator or his 
or her delegate.
    ``Configuration management'' means the process a railroad would use 
to ensure that the configurations of all property, equipment and system 
design elements are properly documented.
    ``FRA'' means the Federal Railroad Administration.
    ``Fully implemented'' means that all the elements of the railroad's 
SSP plan required by this part are established and applied to the 
safety management of the railroad. A railroad's SSP is considered 
``fully implemented'' when all of the elements described in the 
railroad's SSP plan are properly established and effectively applied to 
the safety management of the railroad.
    ``Hazard'' means any real or potential condition, as identified in 
the railroad's risk-based hazard analysis under Sec.  270.103(r), that 
can cause injury, illness, or death; damage to or loss of a system; or 
damage to equipment, property, or the environment. This definition is 
based on the existing definition of the term contained in FTA's part 
659. 49 CFR 659.5.
    ``Passenger'' means a person, excluding an on-duty employee, who is 
on board, boarding, or alighting from a rail vehicle for the purpose of 
travel. This definition is modeled after the definition of 
``passenger'' contained in FTA's regulations at part 659, which ``means 
a person who is on board, boarding, or alighting from a rail transit 
vehicle for the purpose of travel.'' 49 CFR 659.5. FRA has added the 
phrase ``excluding an on-duty employee'' to the proposed definition to 
clarify that, if a person is engaging in these activities (on board, 
boarding, or alighting) and they are an off-duty railroad employee, 
that person is considered a passenger for the purposes of this rule.
    ``Person'' means an entity of any type covered under 1 U.S.C. 1, 
including, but not limited to, the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor or subcontractor providing goods 
or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor or 
subcontractor.
    ``Plant railroad'' means a type of operation that has traditionally 
been excluded from the application of FRA regulations because it is not 
part of the

[[Page 55381]]

general railroad system of transportation. Under Sec.  270.3, FRA has 
chosen to exempt plant railroads, as defined in proposed Sec.  270.5, 
from the proposed regulation. In the past, FRA has not defined the term 
``plant railroad'' in other regulations that it has issued because FRA 
assumed that its Statement of Agency Policy Concerning Enforcement of 
the Federal Railroad Safety Laws, The Extent and Exercise of FRA's 
Safety Jurisdiction, 49 CFR part 209, Appendix A (FRA's Policy 
Statement or the Policy Statement) provided sufficient clarification as 
to the definition of that term. However, it has come to FRA's attention 
that certain rail operations believed that they met the characteristics 
of a plant railroad, as set forth in the Policy Statement, when, in 
fact, their rail operations were part of the general railroad system of 
transportation (general system) and therefore did not meet the 
definition of a plant railroad. FRA would like to avoid any confusion 
as to what types of rail operations qualify as plant railroads. FRA 
would also like to save interested persons the time and effort needed 
to cross-reference and review FRA's Policy Statement to determine 
whether a certain operation qualifies as a plant railroad. 
Consequently, FRA has decided to define the term ``plant railroad'' in 
part 270.
    The proposed definition would clarify that when an entity operates 
a locomotive to move rail cars in service for other entities, rather 
than solely for its own purposes or industrial processes, the services 
become public in nature. Such public services represent the interchange 
of goods, which characterizes operation on the general system. As a 
result, even if a plant railroad moves rail cars for entities other 
than itself solely on its property, the rail operations will likely be 
subject to FRA's safety jurisdiction because those rail operations 
bring plant trackage into the general system.
    The proposed definition of the term ``plant railroad'' is 
consistent with FRA's longstanding policy that it will exercise its 
safety jurisdiction over a rail operation that moves rail cars for 
entities other than itself because those movements bring the track over 
which the entity is operating into the general system. See 49 CFR part 
209, Appendix A. Indeed, FRA's Policy Statement provides that 
``operations by the plant railroad indicating it [i]s moving cars on * 
* * trackage for other than its own purposes (e.g., moving cars to 
neighboring industries for hire)'' brings plant track into the general 
system and thereby subjects it to FRA's safety jurisdiction. 49 CFR 
part 209, Appendix A. Additionally, this interpretation of the term 
``plant railroad'' has been upheld in litigation before the U.S. Court 
of Appeals for the Fifth Circuit. See Port of Shreveport-Bossier v. 
Federal Railroad Administration, No. 10-60324 (5th Cir. 2011) 
(unpublished per curiam opinion).
    ``Positive train control system'' means a system designed to 
prevent train-to-train collisions, overspeed derailments, incursions 
into established work zone limits, and the movement of a train through 
a switch left in the wrong position, as described in subpart I of 49 
CFR part 236.
    ``Rail vehicle'' means railroad rolling stock, including, but not 
limited to, passenger and maintenance vehicles.
    ``Railroad'' means: (1) Any form of non-highway ground 
transportation that runs on rails or electromagnetic guideways, 
including--
    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads, but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation; and
    (2) A person or organization that provides railroad transportation, 
whether directly or by contracting out operation of the railroad to 
another person.
    The definition of ``railroad'' is based upon 49 U.S.C. 20102(1) and 
(2), and encompasses any person providing railroad transportation 
directly or indirectly, including a commuter rail authority that 
provides railroad transportation by contracting out the operation of 
the railroad to another person, as well as any form of non-highway 
ground transportation that runs on rails or electromagnetic guideways, 
but excludes urban rapid transit not connected to the general system.
    ``Risk'' means the combination of the probability (or frequency of 
occurrence) and the consequence (or severity) of a hazard.
    ``System Safety'' means the application of management and 
engineering principles and techniques to optimize all aspects of 
safety, within the constraints of operational effectiveness, time, and 
cost, throughout all phases of the system life cycle. By specifying 
that system safety operates within certain constraints, this definition 
is intended to clarify that there may be hazards on the railroad's 
system that a railroad may not be capable of fully mitigating or 
eliminating. Rather, the railroad would monitor the hazard and at some 
point, if feasible, employ methods to mitigate or eliminate that hazard 
and resulting risk.
    The definition for ``Tourist, scenic, historic, or excursion 
operations that are not part of the general railroad system of 
transportation'' means railroad operations that carry passengers, often 
using antiquated equipment, with the conveyance of the passengers to a 
particular destination not being the principal purpose. Train movements 
of new passenger equipment for demonstration purposes are not tourist, 
scenic, historic, or excursion operations. This definitions is 
consistent with FRA's other regulations concerning passenger 
operations. See 49 CFR 238.5 and 239.5.
    RSAC recommended including definitions for the following terms: 
contractor, FTA, hazard analysis, improvement plan, individual 
investigation, passenger operations, passenger railroad, railroad 
property, risk-based hazard management, safety, safety certification, 
safety culture, safety-related services, safety-related employee, 
sponsoring railroad, system safety program, and system safety program 
plan. FRA determined that these definitions did not provide any 
additional clarity and were unnecessary. FRA seeks comments regarding 
whether any of these definitions or any other definitions should be 
added to the final rule.
Section 270.7 Waivers
    This section explains the process for requesting a waiver from a 
provision of the proposed rule. FRA has historically entertained waiver 
petitions from parties affected by an FRA regulation. In reviewing such 
requests, FRA conducts investigations to determine if a deviation from 
the general regulatory criteria is in the public interest and can be 
made without compromising or diminishing railroad safety.
    The rules governing the FRA waiver process are found in 49 CFR part 
211. In general, these rules state that after a petition for a waiver 
is received by FRA, a notice of the waiver request is published in the 
Federal Register, an opportunity for public comment is provided, and an 
opportunity for a hearing is afforded the petitioning or other 
interested party. After reviewing information from the petitioning 
party and others, FRA would grant or deny the petition. In certain 
circumstances,

[[Page 55382]]

conditions may be imposed on the grant of a waiver if FRA concludes 
that the conditions are necessary to assure safety or if they are in 
the public interest, or both.
Section 270.9 Penalties and Responsibility for Compliance
    This section contains provisions regarding the proposed penalties 
for failure to comply with the rule and the responsibility for 
compliance.
    Paragraph (a) identifies the civil penalties that FRA may impose 
upon any person that violates or causes a violation any requirement of 
this part. These penalties are authorized by 49 U.S.C. 20156(h), 21301, 
21302, and 21304. The penalty provision parallels penalty provisions 
included in numerous other safety regulations issued by FRA. 
Essentially, any person who violates any requirement of this part or 
causes the violation of any such requirement would be subject to a 
civil penalty of at least $650 and not more than $25,000 per violation. 
Civil penalties may be assessed against individuals only for willful 
violations. Where a grossly negligent violation or a pattern of 
repeated violations creates an imminent hazard of death or injury to 
persons, or causes death or injury, a penalty not to exceed $105,000 
per violation may be assessed. In addition, each day a violation 
continues constitutes a separate offense. Maximum penalties of $25,000 
and $105,000 are required by the Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410, 28 U.S.C. 2461, note, as 
amended by the Debt Collection Improvement Act of 1996, Public Law 104-
134, 110 Stat. 1321-373, which requires each agency to regularly adjust 
certain civil monetary penalties in an effort to maintain their 
remedial impact and promote compliance with the law. Furthermore, a 
person may be subject to criminal penalties under 49 U.S.C. 21311 for 
knowingly and willfully falsifying reports required by these 
regulations. FRA believes that the inclusion of penalty provisions for 
failure to comply with the regulations is important in ensuring that 
compliance is achieved. Even though this proposed rule does not include 
a schedule of civil penalties, the final rule would contain such a 
schedule.
    Proposed paragraph (b) is intended to make clear that any person, 
including but not limited to a railroad, contractor or subcontractor 
for a railroad, or a local or State governmental entity that performs 
any function covered by this part, must perform that function in 
accordance with the requirements of this part.

Subpart B--System Safety Program Requirements

Section 270.101 System Safety Program; General
    This section sets forth the general requirements of the rule. Each 
railroad subject to part 270 (i.e., each passenger railroad) would be 
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. The main components of a 
railroad's SSP would be the risk-based hazard management program and 
risk-based hazard analysis that would be designed to proactively 
identify risks and mitigate or eliminate the resulting risks from those 
hazards. The risk-based hazard management program and risk-based hazard 
analysis requirements are set forth in Sec.  270.103(q) and (r).
    To properly implement an SSP, a railroad would be required to set 
forth an SSP plan, as required by Sec.  270.103. The SSP plan would be 
a document or a series/collection of documents that contain all of the 
elements required by this part. A railroad's SSP plan can reference 
documents and does not have to make unnecessary duplication of these 
documents to include in the plan. The SSP plan shall be designed to 
support the railroad's SSP.
    Proposed paragraph (b) would require that a railroad's SSP be 
designed so that it promotes a positive safety culture. Safety culture 
may be defined as the shared values, actions and behaviors that 
demonstrate commitment to safety over competing goals and demands. U.S. 
DOT, Safety Council Research Paper, SAFETY CULTURE: A Significant 
Driver Affecting Safety in Transportation (May 2011). Research has 
shown that when an organization has a strong safety culture, accidents 
and incidents are less frequent and less severe. Id. Whereas, if an 
organization's safety culture is weak, significant and catastrophic 
accidents are more likely to occur. Id. For an SSP to achieve its goal, 
the mitigation or elimination of safety hazards and risks on the rail 
system, the railroad must have a positive and strong safety culture, so 
it is vital that the railroad's SSP be designed so that it promotes a 
positive safety culture. A railroad would have to describe its safety 
culture pursuant to Sec.  270.103(c)(1) and describe how it measures 
the success of its safety culture pursuant to Sec.  270.103(v).
Section 270.102 Consultation Requirements
    This section proposes to implement section 103(g)(1) of RSIA, which 
states that a railroad required to establish an SSP must ``consult 
with, employ good faith and use its best efforts to reach agreement 
with, all of its directly affected employees, including any non-profit 
employee labor organization representing a class or craft of directly 
affected employees of the railroad carrier, on the contents of the 
safety risk reduction program.'' 49 U.S.C. 20156(g)(1). This section 
would also implement section 103(g)(2) of RSIA, which further provides 
that if a ``railroad carrier and its directly affected employees, 
including any nonprofit employee labor organization representing a 
class or craft of directly affected employees of the railroad carrier, 
cannot reach consensus on the proposed contents of the plan, then 
directly affected employees and such organizations may file a statement 
with the Secretary explaining their views on the plan on which 
consensus was not reached.'' 49 U.S.C. 20156(g)(2). The RSIA requires 
FRA to consider these views during review and approval of a railroad's 
SSP plan.
    RSAC did not provide recommended language for this section. Rather, 
FRA worked with the System Safety Task Group to receive input regarding 
how the consultation process should be addressed, with the 
understanding that the language would be provided in this NPRM for 
review and comment. Therefore, FRA seeks comment on the approach 
proposed in this rule regarding the consultation requirement set forth 
in section 103(g) of RSIA.
    Paragraph (a)(1) of this section proposes to implement section 
103(g)(1) of RSIA by requiring a railroad to consult with its directly 
affected employees on the contents of its SSP plan. As part of that 
consultation, a railroad must utilize good faith and best efforts to 
reach agreement with its directly affected employees on the contents of 
its plan.
    Proposed paragraph (a)(2) specifies that the term directly affected 
employees includes any non-profit employee labor organization 
representing a class or craft of the railroad's directly affected 
employees. This section makes it clear that a railroad that consults 
with a non-profit employee labor organization is considered to have 
consulted with the directly affected employees represented by that 
organization.
    Proposed paragraph (a)(3) requires a railroad to meet with its 
directly

[[Page 55383]]

affected employees no later than [180 days after the effective date of 
the final rule] to discuss the consultation process. This meeting will 
be the railroad's and directly affected employee's opportunity to 
schedule, plan, and discuss the consultation process. FRA does not 
expect a railroad to discuss any substantive material until Sec.  
270.105 becomes applicable. Rather, this meeting should be more 
administrative in nature so that both parties understand the 
consultation process as they go forward and that they may engage in 
substantive discussions as soon as possible after the applicability 
date of Sec.  270.105. This will also be an opportunity to educate the 
directly affected employees on system safety and how it may affect 
them. The railroad will be required to provide notice to the directly 
affected employees no less than 60 days before the meeting is 
scheduled.
    Proposed paragraph (a)(4) directs readers to appendix B of this 
part for additional guidance on how a railroad might comply with the 
consultation requirements of this section. This appendix is discussed 
later in this preamble.
    Paragraph (b) proposes to require a railroad to submit, together 
with its SSP plan, a consultation statement. The purpose of this 
consultation statement would be twofold: (1) To help FRA determine 
whether the railroad has complied with Sec.  270.102(a) by, in good 
faith, consulting and using its best efforts to reach agreement with 
its directly affected employees on the contents of its SSP plan; and 
(2) to ensure that the directly affected employees with which the 
railroad has consulted were aware of the railroad's submission of its 
SSP plan to FRA for review. The consultation statement must contain 
specific information described in proposed paragraphs (b)(1) through 
(b)(4) of this section.
    Paragraph (b)(1) proposes to require that the consultation 
statement contain a detailed description of the process the railroad 
utilized to consult with its directly affected employees. This 
description should contain information such as (but not limited to) the 
following: (1) How many meetings the railroad held with its directly 
affected employees; (2) what materials the railroad provided its 
directly affected employees regarding the draft SSP plan; and (3) how 
input from directly affected employees was received and handled during 
the consultation process.
    If the railroad is unable to reach agreement with its directly 
affected employees on the contents of its SSP plan, paragraph (b)(2) 
proposes to require that the consultation statement identify any areas 
of non-agreement and provide the railroad's explanation for why it 
believed agreement was not reached. A railroad could specify, in this 
portion of the statement, whether it was able to reach agreement on the 
contents of its SSP plan with certain directly affected employees, but 
not others.
    If the SSP plan would affect a provision of a collective bargaining 
agreement between the railroad and a non-profit employee labor 
organization, paragraph (b)(3) would require the consultation statement 
to identify any such provision and explain how the railroad's SSP plan 
would affect it.
    Under proposed paragraph (b)(4), the consultation statement must 
include a service list containing the names and contact information for 
the international/national president and general chairperson of any 
non-profit employee labor organization representing directly affected 
employees; any labor representative who participated in the 
consultation process; and any directly affected employee who 
significantly participated in the consultation process independently of 
a non-profit labor organization. This paragraph would also require a 
railroad (at the same time it submits its proposed SSP plan and 
consultation statement to FRA) to provide individuals identified in the 
service list a copy of the SSP plan and consultation statement. This 
service list would help FRA determine whether the railroad had complied 
with the Sec.  270.102(a) requirement to consult with its directly 
affected employees. Requiring the railroad to provide individuals 
identified in the service list with a copy of its submitted plan and 
consultation statement would also notify those individuals that they 
now have 60 days under Sec.  270.102(c)(2) (discussed below) to submit 
a statement to FRA if they are not able to come to reach agreement with 
the railroad on the contents of the SSP plan.
    Proposed paragraph (c)(1) would implement section 103(g)(2) of RSIA 
by providing that, if a railroad and its directly affected employees 
cannot reach agreement on the proposed contents of an SSP plan, then a 
directly affected employee may file a statement with the FRA Associate 
Administrator for Railroad Safety/Chief Safety Officer explaining his 
or her views on the plan on which agreement was not reached. See 49 
U.S.C. 20156(g)(2). The FRA Associate Administrator for Railroad 
Safety/Chief Safety Officer will consider any such views during the 
plan review and approval process.
    Proposed paragraph (c)(2) specifies that a railroad's directly 
affected employees have 60 days following the railroad's submission of 
its proposed SSP plan to submit the statement described in paragraph 
(c)(1) of this section. FRA believes 60 days would provide directly 
affected employees sufficient time to review a railroad's proposed SSP 
plan and to draft and submit to FRA a statement if they were not able 
to come to agreement with the railroad on the contents of that plan. In 
order to provide directly affected employees the opportunity to submit 
a statement, FRA would not approve or disapprove a railroad's proposed 
SSP plan before the conclusion of this 60-day period.
    Proposed paragraph (d) would require that a railroad's SSP plan 
include a description of the process the railroad will use to consult 
with its directly affected employees on any substantive amendments to 
the railroad's SSP plan. As with its initial SSP plan, a railroad must 
use good faith and best efforts to reach agreement with directly 
affected employees on any substantive amendments to that plan. 
Requiring a railroad to detail that process in its plan would 
facilitate the consultation by establishing a known path to be 
followed. A railroad that did not follow this process when 
substantively amending its SSP plan could then be subject to penalties 
for failing to comply with the provisions of its plan. This requirement 
would not apply to non-substantive amendments (e.g., amendments 
updating names and addresses of railroad personnel). If a railroad is 
uncertain as to whether a proposed amendment is substantive or non-
substantive, it could contact FRA for guidance.
Section 270.103 SSP plan
    As mentioned previously, a railroad would be required to create a 
written SSP plan to fully implement and support its SSP. Proposed Sec.  
270.103 sets forth all of the required elements of the railroad's SSP 
plan.
    Paragraph (a) proposes that a railroad's SSP plan must contain the 
minimum elements set forth in Sec.  270.103. As provided in Sec.  
270.201, a railroad's SSP plan must be submitted to and approved by the 
FRA Associate Administrator for Railroad Safety/Chief Safety Officer. 
The FRA Associate Administrator for Railroad Safety/Chief Safety 
Officer approval of the SSP plan would be considered approval of the 
railroad's SSP as required by RSIA. See 49 U.S.C. 20156(a)(3).
    In certain scenarios, a railroad providing passenger service will 
not be

[[Page 55384]]

the railroad that owns the track on which the railroad is providing 
passenger service. Rather, the railroad that owns the track will be 
hosting the railroad that is providing the passenger train service. For 
a railroad providing passenger train service to effectively identify, 
evaluate, and manage the hazards and resulting risks on the system over 
which it operates as required by this part, the railroad would need to 
evaluate all aspects of the operation. As such, proposed paragraph 
(a)(2) of this section addresses the coordination that must occur 
between a railroad providing passenger service and a railroad hosting 
that passenger train service. If certain aspects of the operation are 
not under the control of the railroad providing passenger service but 
are controlled by the railroad hosting the operation, the two railroads 
will need to communicate so those aspects can be adequately addressed 
by the railroad's SSP. Furthermore, if the SSP plan contains elements 
that are applicable to the railroad hosting the passenger service, then 
the two railroads will need to coordinate those portions so that the 
identified hazard and resulting risk is mitigated or eliminated. A 
passenger railroad may have multiple railroads hosting its passenger 
train service on its system and will need to coordinate with each 
railroad. If the railroad hosting the passenger train service does not 
cooperate with the railroad providing the passenger train service to 
coordinate the applicable parts of the SSP, under proposed Sec.  270.9, 
the railroad hosting the passenger train service may be subject to 
penalties because they may cause the railroad providing the passenger 
service to violate the requirements of this part.
    In proposed paragraph (b), each SSP plan would have a policy 
statement that endorses the railroad's SSP. This policy statement 
should define, as clearly as possible, the railroad's authority for the 
establishment and implementation of the SSP. The policy statement would 
be required to be signed by the chief official of the railroad. This 
signature would indicate that the top level of management at the 
railroad endorses the SSP.
    Paragraph (c) proposes to require a railroad to set forth a 
statement in its SSP plan that describes the purpose and scope of the 
railroad's SSP. The statement would be required to have, at a minimum, 
three elements.
    First, the statement would describe the safety philosophy and 
safety culture of the railroad. Proposed Sec.  270.101(b) requires a 
railroad to design its SSP so that it promotes and supports a positive 
safety culture. In order for the railroad to properly design its SSP so 
that it complies promotes and supports a positive safety culture, it 
would first need to define what exactly is its safety culture and 
philosophy. Once its safety culture is defined, the railroad would have 
to describe how it measures the success of its safety culture pursuant 
to paragraph (v) of this section.
    Second, the railroad shall describe the railroad's management's 
responsibilities within the SSP. This description would make clear who 
within the railroad's management are responsible for which aspects of 
the SSP.
    Finally, the railroad would be required to describe how host 
railroads, contractors, shared track/corridor operators, and any other 
entity or person that provides significant safety-related services 
would, as appropriate, support and participate in the railroad's SSP. 
It is essential that these entities have defined roles in the 
railroad's program. As addressed in proposed Sec.  270.103(a)(2), each 
railroad that hosts passenger train service for a railroad subject to 
this part would need to communicate with the railroad that provides or 
operates such passenger service and coordinate the portions of the SSP 
plan applicable to the railroad hosting the passenger train service. 
This section requires the railroad that provides passenger service to 
describe how it plans on satisfying Sec.  270.103(a)(2).
    Proposed paragraph (d) addresses the importance of goals in an SSP. 
The central goal of an SSP is to manage risks to reduce the number and 
rates of railroad accidents, incidents, injuries, and fatalities. FRA 
believes one way to achieve this central goal is for a railroad to set 
forth goals that are designed in such a way that when the railroad 
achieves these goals, the central goal is achieved as well. APTA's 
Manual for the Development of System Safety Program Plans for Commuter 
Railroads served as the model for the guidelines set forth in paragraph 
(d).
    Paragraph (d) would require a railroad to include as part of its 
SSP plan a statement that defines the system safety goals. The 
statement would also describe the clear strategies on how these goals 
will be achieved. By setting forth the strategies by which it will 
achieve the goals, the railroad would have the opportunity to provide 
its vision on how it would ultimately reduce the numbers and rates of 
railroad accidents, incidents, injuries and fatalities. The statement 
would also describe what the railroad's management's responsibilities 
are to achieve the system safety goals. By stating the railroad 
management's responsibilities to achieve the stated goals, the railroad 
and FRA would know who, and at what level within management, is 
responsible for ensuring that the stated goals are achieved.
    Rather than setting forth specific requirements that these goals 
must satisfy, FRA proposes general requirements. This would allow 
railroads the flexibility to establish goals specific to their 
operations. The general parameters of these goals are that they should 
be--
     Long-term so that they are relevant to the railroad's SSP 
throughout the life of the railroad. This does not mean that goals 
cannot have relevance in the short-term. Rather, goals must have 
significance beyond the short-term and continue to contribute to the 
SSP.
     Meaningful so that they are not so broad that they cannot 
be attributed to specific aspects of the railroad's operations. The 
desired results must be specific and must have a meaningful impact on 
safety.
     Measurable so that they are designed in such a way that it 
is easily determined whether each goal is achieved or at least progress 
is being made to achieve the goal.
     Consistent with the overall goal(s) of the SSP, in that 
they must be focused on the identification of hazards and the 
elimination or mitigation of the resulting risks.
    Proposed paragraph (e) requires a railroad to set forth a statement 
in its SSP plan describing the characteristics of the railroad system. 
Generally, this description should be sufficient to allow persons who 
are not familiar with the railroad's operations and railroad operations 
in general to understand the railroad's system and its basic 
operations. Specifically, this statement would describe the following:
     The history of the railroad, including when and how the 
railroad was established, the history of service delivery, and the 
major milestones in the railroad's history;
     The railroad operations (including any host operations), 
including the role, responsibilities, and organization of the railroad 
operating departments;
     The physical characteristics of the railroad, including 
the number miles of track the railroad operates, the number of stations 
the railroad services, the number and types of grade crossings the 
railroad operates over, and on which segments the railroad shares track 
with other railroads;
     The scope of the service the railroad provides, including 
the number of passengers, the number of routes, and the days and hours 
when service is

[[Page 55385]]

provided. The railroad may also provide a system map;
     The maintenance activities performed by the railroad, 
including the role, responsibilities, and organization of the 
railroad's various maintenance departments and the type of maintenance 
required by the railroad's operations and facilities;
     Identification of the railroad's physical plant, including 
the size, location, and function of the railroad's physical assets, 
such as maintenance facilities, offices, stations, vehicles, signals, 
and structures for all modes; and
     Any other aspects of the railroad pertinent to the 
railroad's operations.
    Proposed paragraph (e)(2) would also require a railroad to identify 
in its SSP plan the entities and persons that provide significant 
safety-related services. The term ``significant safety-related 
services'' is intended to be understood broadly to give a railroad the 
flexibility to evaluate the services other entities provide to the 
railroad and the degree that these services are safety-related. FRA 
recognizes that not all railroad operations are the same; thus, not all 
entities and persons that provide significant safety-related services 
to a railroad will be the same. During its review of a railroad's SSP 
plan, FRA would determine whether the entities and persons the railroad 
has described as providing or utilizing significant safety-related 
services sufficiently describe such services. FRA would work with the 
railroad to make the determination. FRA seeks comment on whether to 
require a railroad to identify entities that not only provide 
significant safety-related services but also utilize significant 
safety-related services. A railroad would have significant discretion 
to identify which entities utilize significant safety-related services.
    Paragraph (f) proposes to require a railroad to set forth a 
statement in its SSP plan that describes the management/organizational 
structure of the railroad. This statement would include: a chart or 
other visual representation of the organizational structure of the 
railroad; a description of how the safety responsibilities are 
distributed within the railroad organization; clear identification of 
the lines of authority used by the railroad to manage safety issues; 
and a description of the relationships and individual responsibilities 
in an SSP between the railroad, host railroad(s), contract operator(s), 
shared track/corridor operator(s), and other entities that provide 
significant safety-related services. Under paragraph (f)(1), the chart 
or other visual representation of the organizational structure of the 
railroad would not need to be overly detailed. Rather, it must identify 
the divisions within the railroad, the key management positions within 
each division, and titles of the officials in those positions.
    When identifying the divisions within a railroad under paragraph 
(f)(2), it is important for the railroad to identify how the safety 
responsibilities are distributed within these divisions. A railroad may 
have one division that handles safety matters or there may be multiple 
divisions and each division has separate and distinct responsibilities 
for handling safety matters. Regardless how the railroad distributes 
the responsibility to manage safety issues, it is important that the 
railroad identifies and describes how safety is being managed on its 
system.
    Under paragraph (f)(3), the railroad would also need to clearly 
identify which of the management positions within the division(s) are 
responsible for managing the safety issues within the railroad. 
Identification of these lines of authority would allow FRA to determine 
who within the organization and at what level is responsible for 
managing the safety issues. While FRA recognizes that safety is 
everybody's responsibility within the railroad organization, the 
management personnel responsible for managing the safety issues would 
need to be identified.
    Paragraph (f)(4) would require the railroad to describe the 
relationship and responsibilities between it and certain other entities 
and persons. These entities include: host railroads, contract 
operators, shared track/corridor operators, and other entities or 
persons that provide significant safety-related services. Describing 
the relationship and responsibilities between the railroad and the host 
railroads, contract operators, and shared track/corridor operators 
should be relatively easy because the railroads most likely have 
entered into contracts with these entities that outline this 
information. Regarding the relationships and responsibilities between 
the railroad and other entities or persons that provide significant 
safety-related services that must be identified under paragraph (e)(2) 
of this section, the rule would provide the railroads the flexibility 
to determine who provides significant safety-related services. FRA 
intends to provide such flexibility in paragraph (f)(4) when a railroad 
must identify the relationships among these entities or persons. The 
description should be detailed enough so that FRA can understand the 
basis of the relationship and the responsibilities of each entity or 
person based on that relationship.
    Paragraph (f)(4) would also require the railroad to describe the 
roles and responsibilities in the railroad's SSP for each host 
railroad, contract operator, shared track/corridor operator, and other 
entity or person that provides significant safety-related services. The 
railroad would simply have to provide a statement detailing what the 
roles of these entities specifically are in the railroad's SSP. Since 
these entities play a key role in the safe operation of the railroad, 
they would, presumably, have a role in the railroad's SSP.
    Proposed paragraph (g) requires a railroad's SSP plan to include a 
plan that describes how the railroad intends to implement its SSP. This 
is a general requirement and FRA does not expect the railroad to 
provide a discussion of how it would implement every single aspect of 
its SSP. Rather, the implementation plan must, at a minimum, describe 
roles and responsibilities of each position or job function (including 
those held by employees, contractors who provide significant safety-
related services, and other entities or persons that provide 
significant safety-related services) that has significant 
responsibilities to implement the SSP. The plan must also identify the 
milestones necessary to be reached to properly implement the SSP. The 
positions or job functions that would be described are those that are 
responsible for implementing the major elements of the SSP, to the 
extent that the individuals filling these positions/job functions have 
clear and concrete roles and responsibilities. Every single individual 
who participates in the railroad's SSP does not need to be described in 
the implementation plan; rather, it is only those individuals who have 
significant responsibilities for implementing the railroad's SSP. The 
phrase ``significant responsibilities'' is intended to be broadly 
understood to provide the railroads the flexibility to determine, based 
on their individual operations, what may be considered ``significant 
responsibilities.''
    In its SSP plan a railroad would also set forth the milestones that 
should be reached so that it properly implements its SSP. Aside from 
requiring the SSP be fully implemented within 36 months of approval, 
FRA does not provide specific milestones that the railroad must 
achieve. Each railroad's SSP would be different; therefore, the 
milestones that must be achieved to properly implement an SSP would be 
different. A railroad would have the flexibility to determine, based on 
its own SSP and instead of

[[Page 55386]]

rigid requirements, realistic benchmarks that need to be achieved to 
properly implement its SSP. FRA plans on working with the railroads to 
determine what these milestones should be. These milestones are not 
permanent; FRA understands that there are unforeseeable circumstances 
that can cause a railroad to adjust the implementation of its SSP and 
subsequently adjust the milestones. The important element is that the 
railroad sets forth milestones so that there are standards that can be 
used to determine the progress of the railroad's implementation of its 
SSP.
    Proposed paragraph (h)(1) requires a railroad's SSP plan to 
identify and describe the processes and procedures used for maintenance 
and repair of its infrastructure and equipment directly affecting 
railroad safety. The phrase ``infrastructure and equipment directly 
affecting railroad safety'' is intended to be broadly understood in 
order to provide the railroad the opportunity to take a realistic 
survey of its particular operations and make the determination of which 
infrastructure and equipment directly affects the safety of that 
railroad. However, as guidance, a list of the types of infrastructure 
and equipment that are considered to directly affect railroad safety is 
provided. This list includes: fixed facilities and equipment, rolling 
stock, signal and train control systems, track and right-of-way, and 
traction power distribution systems. Once the railroad has determined 
what infrastructure and equipment directly affect railroad safety, it 
would then identify and describe the processes and procedures used for 
the maintenance and repair of that infrastructure and equipment. This 
section would not require the railroad to establish processes and 
procedures for maintenance and repair, however, because the railroad 
most certainly should already have such a process in place. The safety 
of a railroad's operations depends greatly upon the condition of its 
infrastructure and equipment. Therefore, these maintenance and repair 
processes and procedures should and are expected to already be in 
place.
    Under proposed paragraph (h)(2), each description of the process 
used for maintenance and repair of infrastructure and equipment 
directly affecting safety would also include the processes and 
procedures used to conduct testing and inspections of the 
infrastructure and equipment. Multiple FRA regulations require a 
railroad to conduct testing and inspection of infrastructure and 
equipment and, in paragraph (h)(2), FRA is interested in the processes 
and procedures that the railroad has developed to meet these regulatory 
standards. For example, pursuant to part 234, a railroad must inspect, 
test, and repair warning systems at grade crossings. Under proposed 
paragraph (h)(2), the railroad would describe the internal procedures 
it developed to educate its employees on the proper way to conduct the 
inspection, testing and repair of grade crossing warning systems. 
Typically, railroads have a manual or manuals that describing the 
maintenance and testing procedures and processes used to conduct 
testing and inspections of the infrastructure and equipment. In most 
cases, simply referencing the current processes and procedures in the 
SSP plan would satisfy this paragraph, rather than providing the entire 
manual(s). If FRA reviews a manual, FRA would determine if the manual 
is current, if it is readily available to the employees who are 
performing the functions it addresses, and if these employees are 
trained on it.
    While FRA is always concerned with the safety of railroad employees 
performing their duties, employee safety in maintenance and servicing 
areas generally falls within the jurisdiction of the United States 
Department of Labor's Occupational Safety and Health Administration 
(OSHA). It is not FRA's intent in this rule to displace OSHA's 
jurisdiction with regard to the safety of employees while performing 
inspections, tests, and maintenance, except where FRA has already 
addressed workplace safety issues, such as blue signal protection in 49 
CFR part 218. In other rules, FRA has included a provision that makes 
it clear that FRA does not intend to displace OSHA's jurisdiction over 
certain subject matters. See, e.g., 49 CFR 238.107(c). FRA seeks 
comment whether such a clarifying statement is necessary for any such 
subject matter that this proposed part may affect.
    Proposed paragraph (i) requires a railroad's SSP plan to set forth 
a statement describing both the railroad's processes and procedures for 
developing, maintaining, and ensuring compliance with the railroad's 
rules and procedures directly affecting railroad safety and the 
railroad's processes for complying with railroad safety laws and 
regulations. This statement would describe how the railroad not only 
develops, maintains, and complies with its own safety rules, but also 
how the railroad complies with applicable safety laws and regulations. 
The statement would include identification of the railroad's operating 
and safety rules and procedures that are subject to review under 
Chapter II, Subtitle B of Title 49 of the Code of Federal Regulations, 
i.e., all of FRA's railroad safety regulations.
    The railroad would identify the techniques used to assess the 
compliance of its employees with applicable railroad safety laws and 
regulations and the railroad's operating and safety rules and 
maintenance procedures. Both Federal railroad safety laws and 
regulations and railroad operating and safety rules and maintenance 
procedures are effective at increasing the safety of the railroad's 
operations only if the railroad and its employees comply with such 
rules and procedures. By ensuring compliance with such rules and 
procedures, the overall safety of the railroad is improved.
    The railroad would also identify the techniques used to assess the 
effectiveness of the railroad's supervision relating to the compliance 
with applicable railroad safety laws and regulations and the railroad's 
operating and safety rules and maintenance procedures. If the 
railroad's supervision relating to compliance with these rules and 
procedures is effective, the employees' compliance should also be 
effective, thus improving the overall safety of the railroad.
    Paragraph (j) proposes to require that a railroad's SSP plan 
describe the railroad's plan on how the necessary employees will be 
trained on the SSP. This SSP training plan would describe the 
procedures in which employees who are responsible for implementing and 
supporting the program, contractors who provide significant safety-
related services, and any other entity or person that provides 
significant safety-related services would be trained on the railroad's 
SSP. A railroad's SSP can be successful only if those who are 
responsible for implementing and supporting the program understand the 
requirements and goals of the program. To this end, a railroad would 
train those responsible for implementing and supporting the railroad's 
SSP on the elements of the program so that they have the knowledge and 
skills to fulfill their responsibilities under the program.
    For each position or job function that has been identified under 
proposed paragraph (g)(1) as having significant responsibility for 
implementing a railroad's SSP, the railroad's training plan would 
describe the frequency and the content of the training on the SSP that 
the position receives. If the railroad does not identify a position or 
job function under paragraph (g)(1) as having significant 
responsibilities to implement the SSP but the position or job function 
is safety related or has a significant impact on safety, personnel

[[Page 55387]]

in these positions or performing these job functions would be required 
to receive basic training on the system safety concepts and the system 
safety implications of their position or job function. Even though the 
personnel may not have responsibilities to implement the railroad's 
SSP, they would have an impact on the program because their position or 
job function is safety-related or has a significant impact on safety, 
or both. It is important that all persons who may have an impact on the 
success of a railroad's SSP understand the requirements of the program 
so they can work together to achieve the goals of the program.
    A railroad could conduct its SSP training by interactive computer-
based training, video conferencing, formal classroom training, or some 
combination of all three. Paragraph (j) is not intended to limit the 
forms of training; rather, it is intended to provide the railroads the 
flexibility to conduct training using methods other than traditional 
classroom training. SSP training could also be combined with a 
railroad's regular safety or rules training and in some cases SSP 
training could be included in field ``tool box'' safety training 
sessions. The railroad would describe the process it would use to 
maintain and update the SSP training records. The railroad would also 
describe the process that it would use to ensure that it is complying 
with the requirements of the training plans as required by this part.
    Proposed paragraph (k) requires that a railroad's SSP plan describe 
the processes used by the railroad to manage emergencies that may arise 
within its system. Part of this description should include the 
processes the railroad uses to comply with the applicable emergency 
equipment standards contained in part 238 of this chapter and the 
passenger train emergency preparedness requirements contained in part 
239 of this chapter.
    Proposed paragraph (l) requires that the railroad's SSP plan 
describe the programs that it has established that protect the safety 
of its employees and contractors. The railroad would describe: (1) The 
processes that have been established to help ensure the safety of 
employees and contractors while working on or in close proximity to the 
railroad's property as described pursuant to paragraph (e) of this 
section; (2) processes to help ensure that employees and contractors 
understand the requirements established by the railroad pursuant to 
paragraph (g)(1) of this section; and (3) fitness-for-duty programs, 
including standards for the control of alcohol and drug use contained 
in part 219 of this chapter, fatigue management programs under this 
part, and medical monitoring programs.
    Employees and contractors of the railroad are exposed to many 
hazards and risks while on railroad property. A railroad's SSP would be 
required to take into consideration the safety of these persons and the 
programs and processes it has already in place to address the hazards 
they face and resulting risks. While FRA is always concerned with the 
safety of employees in performing their duties, employee safety in 
maintenance and servicing areas generally falls within the jurisdiction 
of OSHA. As discussed earlier, it is not FRA's intent in this rule to 
displace OSHA's jurisdiction with regard to the safety of employees 
while performing inspections, tests, and maintenance, except where FRA 
has already addressed workplace safety issues, such as for blue signal 
protection. As noted, in other rules, FRA has included a provision that 
makes it clear that FRA does not intend to displace OSHA's jurisdiction 
over certain subject matters. FRA seeks comment whether such a 
clarifying statement is necessary for any such subject matter that this 
proposed part may affect.
    Proposed paragraph (m) requires that a railroad's SSP plan describe 
the railroad's public safety outreach program that provides safety 
information to the railroad's passengers and the general public. A 
safety outreach program provides the necessary safety information to 
the railroad's passengers and to the public at large so that they 
minimize their exposure to the hazards and resulting risks on the 
railroad. A railroad's passengers would potentially play an important 
role in the success of the railroad's SSP. The more information 
passengers have regarding the railroad's safety programs, the more they 
would contribute to the success of the railroad's SSP.
    Proposed paragraph (n) requires that a railroad's SSP plan to 
describe the processes that the railroad uses to receive notification 
of accidents, investigate and report those accidents, and develop, 
implement, and track any corrective actions found necessary to address 
the investigations' finding. These processes should already be in place 
because they are necessary to comply with the requirements of part 225 
of this chapter. Accidents can reveal hazards and risks on the 
railroad's system, which the railroad can then address as part of its 
SSP.
    Proposed paragraph (o) requires a railroad's SSP plan to describe 
the processes that the railroad has or would put in place to collect, 
maintain, analyze, and distribute safety data in support of the SSP. 
These processes are important because they will provide the railroad 
with the information necessary to determine the effectiveness of its 
SSP.
    Proposed paragraph (p) requires a railroad's SSP plan to describe 
the process it employs to address safety concerns and hazards during 
the safety-related contract procurement process. This applies to 
safety-related contracts so that the railroad can ensure that safety 
concerns and hazards that may result from the procurement are addressed 
as necessary.
    The main components of an SSP are the risk-based hazard management 
program and the risk-based hazard analysis. The railroad would use the 
risk-based hazard management program to describe the various methods, 
processes, and procedures it will employ to properly and effectively 
identify, analyze, and mitigate or eliminate hazards and resulting 
risks. The risk-based hazard analysis is where the railroad will 
actually identify, analyze and determine the specific actions it will 
take to mitigate or eliminate hazards and the resulting risks. 
Paragraphs (q) and (r) set forth the proposed elements of the 
railroad's risk-based hazard management program and risk-based hazard 
analysis. Both of these proposed paragraphs implement sections 103(c) 
through (f) of RSIA. 49 U.S.C. 20156(c)-(f).
    The risk-based hazard management program will be a fully 
implemented program within the railroad's SSP. Proposed paragraph (q) 
requires a railroad to describe various methods, processes, and 
procedures that, when implemented, will identify, analyze, and mitigate 
or eliminate hazards and the resulting risks on the railroad's system. 
Proposed paragraph (q) embodies FRA's intent to provide railroads with 
the flexibility to tailor its SSP to its specific operations. Paragraph 
(q) does not set forth rigid requirements of a risk-based hazard 
management program. Rather, more general guidelines are provided and 
the railroad is able to apply these general guidelines to its specific 
operations.
    Paragraph (q)(1) would require a railroad to identify the positions 
within the railroad who will be responsible for administering the risk-
based hazard management program. These positions would be responsible 
for developing and implementing the risk-based hazard management 
program. Rather than identifying the specific individuals, the

[[Page 55388]]

railroad would identify the positions that are responsible for 
administering the risk-based hazard management program so that the SSP 
will not have to be updated each time an individual changes position.
    Paragraph (q)(2) would require a railroad to identify the 
stakeholders who will participate in the hazard management program. 
This means the railroad will identify all of the entities who will be 
affected and may play a role in the risk-based hazard management 
program.
    Paragraph (q)(3) would require the railroad to identify the 
structure and participants in any hazard management teams or safety 
committees that the railroad may establish to support the risk-based 
hazard management program. By establishing these teams or committees, 
the railroad can extensively analyze hazards and risks and thoroughly 
consider the specific actions to effectively mitigate or eliminate the 
hazards and risks.
    Paragraph (q)(4) would require the railroad to describe the process 
for setting goals for the risk-based hazard management program and how 
the performance against the goals will be performed. Similar to the 
SSP, establishing clear and concise goals will play an important role 
in the success of a railroad's risk-based hazard management program. 
The goals should be tailored so that the central goal of the risk-based 
hazard management program is supported.
    Paragraph (q)(5) would require the railroad to describe the process 
used in the risk-based hazard analysis to identify hazards on the 
railroad's system. The railroad would determine the methods it would 
use in the risk-based hazard analysis in proposed paragraph (r) of this 
section, to identify hazards on various aspects of its system. This 
would be the railroad's opportunity to consider any new or novel 
techniques or methods to identify hazards that best suit that 
railroad's operations. FRA plans on working with railroads, along with 
providing guidance, to explore the various methods and techniques it 
may use.
    Paragraph (q)(6) would require the railroad to describe the 
processes or procedures that will be used in the risk-based hazard 
analysis to analyze hazards and support the risk-based hazard 
management program. In proposed paragraph (q)(5), the railroad would 
describe the process it will use to identify hazards, in proposed 
paragraph (q)(6), the railroad will describe the processes and 
procedures it will use to analyze the identified hazard. By analyzing 
the hazards, the railroad gains the necessary knowledge to effectively 
identify the resulting risk.
    Paragraph (q)(7) would require the railroad to describe the methods 
used in the risk-based hazard analysis to determine the severity and 
frequency of the hazard and the resulting risk. A railroad will want to 
identify the most severe hazards with the greatest amount of risk so 
that it may prioritize the mitigation or elimination of that hazard and 
risk. By developing a method that would effectively identify the 
severity and frequency of hazards and the resulting risks, the railroad 
will be able to effectively prioritize the mitigation or elimination of 
the hazard and resulting risks.
    Paragraph (q)(8) would require a railroad to describe the methods 
used in the risk-based hazard analysis to identify actions that 
mitigate or eliminate hazards and corresponding risks. Here the 
railroad would identify the methods or techniques it will use to 
determine which actions it would need to take to mitigate or eliminate 
the identified hazards and risks. As with identifying the hazards and 
resulting risks, this would be the railroad's opportunity to consider 
any new or novel methods to mitigate or eliminate hazards and the 
resulting risks that best suits that railroad's operations. FRA 
recognizes that not all hazards and resulting risks can be eliminated 
or even mitigated, due to costs, feasibility, or other reasons. 
However, FRA would expect the railroads to consider all reasonable 
actions that may mitigate or eliminate hazards and the resulting risks 
and to implement those actions that are best suited for that railroad's 
operations.
    Paragraph (q)(9) would require the railroad to describe how 
decisions affecting the safety of the rail system will be made relative 
to the risk-based hazard management program. Railroads make numerous 
decisions every day that affect the safety of the rail system. 
Paragraph (q)(9) would require a railroad to describe how those 
decisions will be made when they relate to the risk-based hazard 
management program.
    Paragraph (q)(10) would require the railroad to describe the 
methods used in the risk-based hazard management program to support 
continuous safety improvement throughout the life of the rail system. 
As with the SSP, the railroad will describe the methods that it has 
implemented as part of the risk-based hazard management program that 
will support continuous safety improvement.
    Paragraph (q)(11) would require the railroad to describe the 
methods used to maintain records of the identified hazards and risks 
throughout the life of the rail system. In this proposed paragraph the 
railroad will describe how it plans to maintain the records of the 
results of the risk-based hazard analysis. While the railroad will not 
provide these records in its SSP plan submission to FRA, the railroad 
would be required to make the results of the risk-based hazard analysis 
available upon request to representatives of FRA pursuant to proposed 
Sec.  270.201(a)(2).
    Once FRA has approved a railroad's SSP plan pursuant to proposed 
Sec.  270.201(b), the railroad would be required to conduct a risk-
based hazard analysis. Proposed paragraph (r)(1) is the RSIA-mandated 
``risk analysis'' that a railroad must conduct. As discussed earlier, 
RSIA requires a railroad, as part of its development of a railroad 
safety risk reduction program (e.g., an SSP), to ``identify and analyze 
the aspects of its railroad, including operating rules and practices, 
infrastructure, equipment, employee levels and schedules, safety 
culture, management structure, employee training, and other matters, 
including those not covered by railroad safety regulations or other 
Federal regulations, that impact railroad safety.'' 49 U.S.C. 20156(c). 
Proposed paragraph (r)(1) follows the language of RSIA; however, in the 
list of the aspects of the railroad system that must be analyzed, 
paragraph (r)(1) does not include ``safety culture.'' Safety culture, 
which proposed paragraph (c)(1) of this section would require the 
railroad to describe, is not something that a railroad can necessarily 
``identify and analyze'' as readily as the other aspects listed. A 
railroad would have to describe how it measures the success of its 
safety culture pursuant to Sec.  270.103(v). Proposed paragraph (r)(1) 
would also require the railroad to analyze any new technology 
identified in proposed paragraph (t) of this section. Absent safety 
culture and including new technology, paragraph (r)(1) would require a 
railroad to analyze: operating rules and practices, infrastructure, 
equipment, employee levels and schedules, management structure, 
employee training, employee fatigue as identified in paragraph (s) of 
this section, new technology as identified in paragraph (t) of this 
section, and other aspects that have an impact on railroad safety not 
covered by railroad safety regulations or other Federal regulations. 
The railroad's operating rules and practices, infrastructure, 
equipment, employee levels and schedules, management structure, and 
employee training, would already be identified by the railroad pursuant 
to this part and would be part of the SSP plan so the

[[Page 55389]]

analysis and identification of hazards and resulting risks should be 
rather straightforward. See proposed paragraphs (e), (f), and (h) 
through (j) of this section. Employee fatigue is addressed further in 
proposed paragraph (t). The railroad would determine which aspects have 
an impact on railroad safety that are not covered by railroad safety 
regulations or other Federal regulations. When analyzing the various 
aspects, the railroad will apply the risk-based hazard analysis 
methodology previously identified in proposed paragraph (q)(5)-(7).
    Once the railroad has analyzed the various aspects of its 
operations and identified hazards and the resulting risks, the railroad 
would be required to manage these risks. This proposed requirement is 
derived directly from RSIA, which requires a railroad, as part of its 
SSP, to have a risk mitigation plan that mitigates the aspects that 
increase risks to railroad safety and enhances the aspects that 
decrease the risks to railroad safety. 49 U.S.C. 20156(d). In proposed 
paragraph (r)(2), the railroad will use the methods described in 
proposed paragraph (q)(8) to identify and implement specific actions to 
mitigate or eliminate the hazards and risks identified by proposed 
paragraph (r)(1).
    A risk-based hazard analysis is not a one-time event. The railroad 
operates in a dynamic environment and certain changes in that 
environment may expose new hazards and risks that a previous risk-based 
hazard analysis did not identify. Proposed paragraph (r)(3) identifies 
the changes that FRA believes are significant enough to require that a 
railroad conduct a new risk-based hazard analysis. A railroad would be 
required to conduct a risk-based hazard analysis when there are 
significant operational changes, system extensions, system 
modifications, or other circumstances that have a direct impact on 
railroad safety.
    As part of its SSP plan, paragraph (s) would require a railroad to 
set forth a technology implementation plan. See 49 U.S.C. 20156(d)(2). 
To establish a technology implementation plan, a railroad would first 
conduct a technology analysis. A technology analysis would evaluate 
current, new, or novel technologies that may mitigate or eliminate 
hazards and the resulting risks identified in the risk-based hazard 
analysis conducted pursuant to proposed paragraph (r) of this section. 
As part of its evaluation, a railroad would consider the safety impact, 
feasibility, and the cost and benefits of implementing the technologies 
to mitigate or eliminate hazards and the resulting risks. RSIA mandates 
that a railroad consider certain technologies as part of its technology 
analysis. These technologies 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.
    FRA is not proposing a specific formula that a railroad must use to 
determine whether it should implement any of the technology analyzed in 
the technology analysis. Rather, the railroad would consider the safety 
impact, feasibility, and the cost and benefits of these technologies 
and based on the railroad's specific operations, decide whether to 
implement any of the technologies. Technology has proved to be an 
invaluable tool to manage hazards across all modes of transportation, 
and a robust SSP would certainly include risk mitigation technology.
    If a railroad decides to implement any of the technologies 
identified in the technology analysis, the railroad would be required 
to set forth a prioritized implementation schedule for the development, 
adoption, implementation, and maintenance of those technologies over a 
10-year period. By establishing this implementation schedule, the 
railroad would be able to describe its plan on how it would apply 
technology on its system to mitigate or eliminate the identified 
hazards and resulting risks.
    Paragraph (s)(3) would state that, except as required by 49 CFR 
part 236, subpart I (Positive Train Control Systems), if a railroad 
decides to implement a PTC system as part of its technology 
implementation plan, the railroad shall set forth and comply with a 
schedule that would implement the system no later than December 31, 
2018, as required by the RSIA. See 49 U.S.C. 20156(e)(4)(B). However, 
this paragraph would not, in itself, require a railroad to implement a 
PTC system. In addition, FRA specifically seeks public comment on 
whether a railroad electing to implement a PTC system would find it 
difficult to meet the December 31, 2018 implementation deadline. If so, 
what measures could be taken to assist a railroad struggling to meet 
the deadline and achieve the safety purposes of the statute?
    As part of its SSP, RSIA requires a railroad to establish a fatigue 
management plan. 49 U.S.C. 20156(d)(2). Section 103(f) of RSIA sets 
forth the various requirements of a fatigue management plan. 49 U.S.C. 
20156(f). On December 8, 2011, RSAC voted to establish a Fatigue 
Management Plans Working Group (FMP Working Group). The purpose of the 
group is to provide ``advice regarding the development of implementing 
regulations for Fatigue Management Plans and their deployment under the 
Rail Safety Improvement Act of 2008''. Railroad Safety Advisory 
Committee Task Statement: Fatigue Management Plans, Task No.: 11-03, 
Dec. 8, 2011. (A copy of this statement is included in the public 
docket for this SSP rulemaking.) Specifically, the FMP Working Group is 
tasked to: ``review the mandates and objectives of the [RSIA] related 
to the development of Fatigue Management Plans, determine how medical 
conditions that affect alertness and fatigue will be incorporated into 
Fatigue Management Plans, review available data on existing alertness 
strategies, consider the role of innovative scheduling practices in the 
reduction of employee fatigue, and review the existing data on fatigue 
countermeasures.'' Id. FRA contemplates that the FMP Working Group will 
develop proposed rule text for approval by the RSAC and submission to 
FRA that will prescribe recommended requirements of the Fatigue 
Management Plan. FRA will consider any RSAC recommendation in 
developing proposed changes to the SSP rule.
    Proposed paragraph (u) sets forth the proposed requirements for 
ensuring that safety issues are addressed whenever there are certain 
changes to the railroad's operations. Paragraph (u)(1) proposes to 
require each railroad to establish and set forth a statement in its SSP 
plan that describes the processes and procedures used by the railroad 
to manage significant operational changes, system extensions, system 
modifications, or other circumstances that will have a direct impact on 
railroad safety. Since these changes have a direct impact on safety, it 
is important that the railroad has a process that manages these changes 
so that safety is not compromised. The term ``significant changes that 
will have a direct impact on railroad safety'' is intended to be 
broadly understood; however, the other changes listed (significant 
operational changes, system extensions, system modifications) are the 
type of changes that would necessitate a process/procedure to properly 
manage them.
    Proposed paragraph (u)(2) would require each railroad to establish 
in its SSP plan a configuration management

[[Page 55390]]

program. The term configuration management is defined in Sec.  270.5 as 
``a process that ensures that the configurations of all property, 
equipment, and system design elements are accurately documented.'' 
Accordingly, the railroad's configuration management program shall: (1) 
State who within the railroad has authority to make configuration 
changes; (2) establish processes to make configuration changes to the 
railroad's system; and (3) establish processes to ensure that all 
departments of the railroad affected by the configuration changes are 
formally notified and approve of the change.
    Proposed paragraph (u)(3) requires a railroad to establish and 
describe in its SSP plan the process it uses to certify that safety 
concerns and hazards are adequately addressed prior to the initiation 
of operations and major projects to extend, rehabilitate, or modify an 
existing system or repair vehicles and equipment. By certifying that 
safety concerns have been addressed before the railroad initiates 
operations and major projects to extend, rehabilitate, or modify an 
existing system or replace vehicles and equipment, the railroad 
minimizes the negative impact on safety that any of these activities 
may have.
    As discussed previously, an SSP can only be effective at mitigating 
or eliminating hazards and risks if the railroad has a robust and 
positive safety culture. Pursuant to proposed Sec.  270.101(b), a 
railroad would design its SSP so that it promotes and supports a 
positive safety culture, pursuant to proposed Sec.  270.103(c)(1), a 
railroad will identify in its SSP plan its safety culture, and pursuant 
to proposed Sec.  270.103(v) a railroad will describe in its SSP plan 
how it measures the success of its safety culture. A railroad cannot 
have a robust safety culture unless it actively promotes it and 
determines whether it is successful.
Section 270.105 Discovery and Admission as Evidence of Certain 
Information
    As discussed in the Background section, FRA's Study concluded that 
it is in the public interest to protect certain information generated 
by railroads from discovery or admission into evidence in litigation. 
Section 109 of RSIA provides FRA with the authority to promulgate a 
regulation if FRA determines that it is in the public interest, 
including public safety and the legal rights of persons injured in 
railroad accidents, to prescribe a rule that addresses the results of 
the Study.
    Following the issuance of the Study, the RSAC met and reached 
consensus on recommendations for this rulemaking, including a 
recommendation on the discovery and admissibility issue. RSAC 
recommended that FRA issue a rule that would protect documents 
generated solely for the purpose of developing, implementing, or 
evaluating an SSP from (1) discovery, or admissibility into evidence, 
or considered for other purposes in a Federal or State court proceeding 
for damages involving property damage, personal injury, or wrongful 
death; and (2) State discovery rules and sunshine laws which could be 
used to require the disclosure of such information.
    In Sec.  270.105, Discovery and admission as evidence of certain 
information, FRA proposes discovery and admissibility protections that 
are based on the Study's results and the RSAC recommendations. FRA 
modeled this proposed section after 23 U.S.C. 409. In section 409, 
Congress enacted statutory protections for certain information compiled 
or collected pursuant to Federal highway safety or construction 
programs. See 23 U.S.C. 409. Section 409 protects both data 
compilations and raw data. A litigant may rely on section 409 to 
withhold certain documents from a discovery request, in seeking a 
protective order, or as the basis to object to a line of questioning 
during a trial or deposition. Section 409 extends protection to 
information that may never have been in any Federal entity's 
possession.
    Section 409 was enacted by Congress in response to concerns raised 
by the States that compliance with the Federal road hazard reporting 
requirements could reveal certain information that would increase the 
State's risk of liability. Without confidentiality protections, States 
feared that their ``efforts to identify roads eligible for aid under 
the Program would increase the risk of liability for accidents that 
took place at hazardous locations before improvements could be made.'' 
Pierce County v. Guillen, 537 U.S. 129, 133-34 (2003) (citing H.R. Doc. 
No. 94-366, p. 36 (1976)).
    The constitutionality and validity of section 409 has been affirmed 
by the Supreme Court of the United States. See Pierce County v. 
Guillen. In Guillen, the Court considered the application of section 
409 to documents created pursuant to the Hazard Elimination Program, 
which is a Federal highway program that provides funding to State and 
local governments to improve the most dangerous sections of their 
roads. Id. at 133. To be eligible for the program, the State or local 
government must (1) maintain a systematic engineering survey of all 
roads, with descriptions of all obstacles, hazards, and other dangerous 
conditions; and (2) create a prioritized plan for improving those 
conditions. Id.
    The Court held that section 409 protects information actually 
compiled or collected by any government entity for the purpose of 
participating in a Federal highway program, but does not protect 
information that was originally compiled or collected for purposes 
unrelated to the Federal highway program, even if the information was 
at some point used for the Federal highway program. Guillen at 144. The 
Court took into consideration Congress's desire to make clear that the 
Hazard Elimination Program ``was not intended to be an effort-free tool 
in litigation against state and local governments.'' Id. at 146. 
However, the Court also noted that the text of section 409 ``evinces no 
intent to make plaintiffs worse off than they would have been had 
section 152 [Hazard Management Program] funding never existed.'' Id. 
The Court also held that section 409 was a valid exercise of Congress's 
powers under the Commerce Clause because section 409 ``can be viewed as 
legislation aimed at improving safety in the channels of commerce and 
increasing protection for the instrumentalities of interstate 
commerce.'' Id.
    A comparison of the text of section 409 with section 109, which was 
added to the U.S. Code by the RSIA, shows that Congress used similar 
language in both provisions. Given the similar language and concept of 
the two statutes, and the Supreme Court's expressed acknowledgement of 
the constitutionality of section 409, FRA views section 409 as an 
appropriate model for proposed Sec.  270.105.
    FRA proposes that under certain circumstances information 
(including plans, reports, documents, surveys, schedules, lists, or 
data) would not be subject to discovery, admitted into evidence, or 
considered for other purposes in a Federal or State court proceeding 
for damages. This information may not be used in such litigation for 
any purpose when it is compiled or collected solely for the purpose of 
developing, implementing, or evaluating an SSP, including the 
railroad's analysis of its safety risks conducted pursuant to proposed 
Sec.  270.103(r)(1) and its identification of the mitigation measures 
with which it would address those risks pursuant to proposed Sec.  
270.103(r)(2). Proposed Sec.  270.105(a) applies to information that 
may not be in the Federal government's

[[Page 55391]]

possession; rather, it may be information the railroad has as part of 
its SSP but would not be required to provide to the Federal government 
under this part.
    The RSIA identifies reports, surveys, schedules, lists, and data as 
the forms of information that should be included as part of FRA's 
Study. 49 U.S.C. 20119(a). However, FRA does not necessarily view this 
as an exclusive list. In the statute, Congress directed FRA to consider 
the need for protecting information that includes a railroad's analysis 
of its safety risks and its statement of the mitigation measures with 
which it would address those risks. Therefore, FRA deems it necessary 
to include ``documents'' and ``plans'' in this proposed provision to 
effectuate Congress's directive in section 109 of RSIA. 
Notwithstanding, FRA does not propose protecting all documents plans 
that are part of an SSP. Rather, as proposed in Sec.  270.105(a), the 
document has to be ``compiled or collected solely for purpose of 
developing, implementing, or evaluating a System Safety Program under 
this part.'' The meaning of ``compiled or collected solely for purpose 
of developing, implementing, or evaluating a System Safety Program 
under this part'' is discussed below.
    As discussed previously, the proposed regulation would require a 
railroad to implement its SSP through an SSP plan. While the railroad 
will not provide in the SSP plan that it submits to FRA the results of 
the risk-based hazard analysis and the specific elimination or 
mitigation measures it will be implementing, its own SSP plan may 
contain this information while it's in possession of the railroad. 
Therefore, to adequately protect this type of information, the term 
``plan'' is added to cover a railroad's SSP Plan and any elimination or 
mitigation plans.
    It is important to note that these proposed protections will only 
extend to plans, reports, documents, surveys, schedules, lists, or data 
that are ``compiled or collected solely for purpose of developing, 
implementing, or evaluating a System Safety Program.'' The term 
``compiled and collected'' is taken directly from the RSIA. FRA 
recognizes that railroads may be reluctant to compile or collect 
extensive and detailed information regarding the safety hazards and 
resulting risks on their system if this information could potentially 
be used against them in litigation. The term ``compiles'' refers to 
information that was generated by the railroad for the purposes of an 
SSP; whereas the term ``collected'' refers to information that was not 
necessarily generated for the purposes of the SSP, but was assembled in 
a collection for use by the SSP. It is important to note that the 
collection is protected; however, each separate piece of information 
that was not originally compiled for use by the SSP remains subject to 
discovery and admission into evidence subject to any other applicable 
provision of law or regulation.
    The information has to be compiled or collected solely for the 
purpose of developing, implementing, or evaluating an SSP. The use of 
the term ``solely'' means that the original purpose of compiling or 
collecting the information was exclusively for the railroad's SSP. A 
railroad cannot compile or collect the information for one purpose and 
then try to use proposed paragraph (a) to protect that information 
because it simply uses that information for its SSP. The railroad's 
original and primary purpose of compiling or collecting the information 
must be for developing, implementing, or evaluating its SSP in order 
for the protections to be extended to that information. Further, if the 
railroad is required by another provision of law or regulation to 
collect the information, the protections of proposed paragraph (a) do 
not extend to that information because it is not being compiled or 
collected solely for the purpose of developing, implementing, or 
evaluating an SSP.
    The information must be compiled or collected solely for the 
purpose of developing, implementing, or evaluating an SSP. These three 
terms are taken directly from RSIA. They cover the necessary uses of 
the information compiled or collected solely for the SSP. To develop an 
SSP, a railroad will need to conduct a risk-based hazard analysis to 
evaluate and identify the safety hazards and resulting risks on its 
system. This type of information is essential and is information that a 
railroad does not necessarily already have. In order for the railroad 
to conduct a robust risk-based hazard analysis to develop its SSP, the 
protections from discovery and admissibility are extended to the SSP 
development stage. Based on the information generated by the risk-based 
hazard analysis, the railroad would implement measures to mitigate or 
eliminate the risks identified. To properly implement these measures, 
the railroad will need the information regarding the hazards and risks 
on the railroads system identified during the development stage. 
Therefore, the protection of this information is extended to the 
implementation stage. Finally, the railroad would be required to 
evaluate whether the measures it implements to mitigate or eliminate 
the hazards and risks identified by the risk-based hazard analysis are 
effective. To do so, it will need to review the information developed 
by the risk-based hazard analysis and the methods it used to implement 
the elimination/mitigation measures. The use of this information in the 
evaluation of the railroad's SSP is protected.
    The information covered by this proposed section shall not be 
subject to discovery, admitted into evidence, or considered for other 
purposes in a Federal or State court proceeding that involves a claim 
for damages involving personal injury, wrongful death, or property 
damage. The protections apply to discovery, admission into evidence, or 
consideration for other purposes. The first two situations come 
directly from RSIA; however, FRA determined that for the protections to 
be effective they must also apply to any other situation where a 
litigant might try to use the information in a Federal or State court 
proceeding that involves a claim for damages involving personal injury, 
wrongful death, or property damage. For example, under proposed Sec.  
270.105, a litigant would be prohibited from admitting into evidence a 
railroad's risk-based hazard analysis; however, without the additional 
language, the railroad's risk-based hazard analysis could be used by a 
party for the purpose of refreshing the recollection of a witness or by 
an expert witness to support an opinion. The additional language, ``or 
considered for other purposes,'' ensures that the protected information 
remains out of a proceeding completely. The protections would be 
useless if a litigant is able to use the information in the proceeding 
for another purpose. To encourage railroads to perform the necessary 
vigorous risk analysis and to implement truly effective elimination or 
mitigation measures, the protections should be extended to any use in a 
proceeding.
    FRA further notes that this proposed section applies to Federal or 
State court proceedings that involve a claim for damages involving 
personal injury, wrongful death, or property damage. This means, for 
example, if a proceeding has a claim for personal injury and a claim 
for property damage, the protections are extended to that entire 
proceeding; therefore a litigant cannot use any of the information 
protected by this section as it applies to either the personal injury 
or property damage claim. Section 109 of RSIA required the Study to 
consider proceedings that involve a claim for damages involving 
personal injury or wrongful death; however, in order to effectuate

[[Page 55392]]

Congress's intent behind section 103 of RSIA, that railroads engage in 
a robust and candid hazard analysis and develop meaningful mitigation 
measures, FRA has determined that it is necessary for the protections 
to be extended to proceedings that involve a claim solely for property 
damage. The typical railroad accident resulting in injury or death also 
involves some form of property damage. Without protecting proceedings 
that involve a claim for property damage, a litigant could bring two 
separate claims arising from the same incident in two separate 
proceedings, the first for property damages and the second one for 
personal injury or wrongful death and be able to conduct discovery 
regarding the railroad's risk analysis and to introduce this analysis 
in the property damage proceeding but not in the personal injury or 
wrongful death proceeding. This means that a railroad's risk analysis 
could be used against the railroad in a proceeding for damages. If this 
is the case, a railroad will be hesitant to engage in a robust and 
candid hazard analysis and develop meaningful mitigation measures. Such 
an approach would be nonsensical and would completely frustrate 
Congress's intent in providing FRA the ability to protect that 
information which is necessary to ensure that open and complete risk 
assessments are performed and appropriate mitigation measures are 
implemented. Therefore, in order to be consistent with Congressional 
intent behind section 103 of RSIA, FRA has determined to extend the 
protections in Sec.  270.105 to proceedings that involve a claim for 
property damage. Furthermore, RSAC, which includes railroads and rail 
labor organizations, recommended to FRA that the protections be 
extended in this way to proceedings that involve a claim for property 
damage.
    Proposed paragraph (b) would ensure that the proposed protections 
set forth in paragraph (a) do not extend to information compiled or 
collected for a purpose other than that specifically identified in 
paragraph (a). This type of information shall continue to be 
discoverable and admissible into evidence if it was discoverable and 
admissible prior to the existence of this section. This includes 
information compiled or collected for a purpose other than that 
specifically identified in paragraph (a) that either: (1) Existed prior 
to the effective date of this part; (2) existed prior to the effective 
date of this part and continues to be compiled or collected; or (3) is 
compiled and collected after the effective date of this part. Proposed 
paragraph (b) affirms the intent behind the use of the term ``solely'' 
in paragraph (a), in that a railroad could not compile or collect 
information for a different purpose and then expect to use paragraph 
(a) to protect that information just because the information is also 
used in its SSP. If the information was originally compiled or 
collected for a purpose unrelated to the railroad's SSP, then it is 
unprotected and would continue to be unprotected.
    Examples of the types of information that proposed paragraph (b) 
applies to may be records related to prior incidents/accidents and 
reports prepared in the normal course of business (such as inspection 
reports). Generally, this type of information is often discoverable, 
may be admissible in Federal and State proceedings, and should remain 
discoverable and admissible where it is relevant and not unduly 
prejudicial to a party after the implementation of this part. However, 
FRA recognizes that evidentiary decisions are based on the facts of 
each particular case; therefore, FRA does not intend this to be a 
definitive and authoritative list. Rather, FRA merely provides these as 
examples of the types of information that paragraph (a) is not intended 
to protect.
    Proposed paragraph (c) clarifies that a litigant cannot rely on 
State discovery rules, evidentiary rules, or sunshine laws that could 
be used to require the disclosure of information that is protected by 
paragraph (a). This provision is necessary to ensure the effectiveness 
of the Federal protections established in paragraph (a) in situations 
where there is a conflict with State discovery rules or sunshine laws. 
The concept that Federal law takes precedence where there is a direct 
conflict between State and Federal law should not be controversial as 
it derives from the constitutional principal that ``the Laws of the 
United States * * * shall be the supreme Law of the Land.'' U.S. 
Const., Art. VI. Additionally, FRA notes that 49 U.S.C. 20106 is 
applicable to this section, as FRA's Study concluded that a rule 
``limiting the use of information collected as part of a railroad 
safety risk reduction program in discovery or litigation'' furthers the 
public interest by ``ensuring safety through effective railroad safety 
risk reduction program plans.'' See Study at 64. FRA concurs in this 
conclusion. Section 20106 provides that States may not adopt or 
continue in effect any law, regulation, or order related to railroad 
safety or security that covers the subject matter of a regulation 
prescribed or order issued by the Secretary of Transportation (with 
respect to railroad safety matters) or the Secretary of Homeland 
Security (with respect to railroad security matters), except when the 
State law, regulation, or order qualifies under the ``essentially local 
safety or security hazard'' exception to section 20106.
    As discussed in the Background section, FRA is currently 
developing, with the assistance of the RSAC, a separate risk reduction 
rule that would implement the requirements of sections 103 and 109 of 
the RSIA for Class I freight railroads and railroads with an inadequate 
safety performance. Section 109 of RSIA mandates that the effective 
date of a rule prescribed pursuant to that section must be one year 
after the publication of that rule. Therefore, proposed Sec.  270.105 
will not become effective until one year after the publication of the 
final rule for this proposed part. FRA believes that the public 
interest considerations for the protections in Sec.  270.105 are the 
same for the forthcoming risk reduction rule for the Class I freight 
railroads and railroads with an inadequate safety performance. 
Therefore, FRA intends that proposed paragraph (d) extend the 
protections and the exceptions to those protections to the forthcoming 
risk reduction rule. The effect of this proposal is that the 
protections for the forthcoming risk reduction rule will be applicable 
one year after the publication of the final rule for this proposed part 
and not the final rule for the risk reduction rule. FRA seeks comments 
regarding this approach.

Subpart C--Review, Approval, and Retention of System Safety Program 
Plans

    RSIA requires a railroad to submit its SSP, including any of the 
required plans, to the Administrator (as delegate of the Secretary) for 
review and approval. 49 U.S.C. 20156(a)(1)(B). Subpart C, Review, 
Approval, and Retention of System Safety Program Plans, addresses these 
RSIA requirements.
Section 270.201 Filing and Approval
    This proposed section sets forth the requirements for the filing of 
an SSP plan and FRA's approval process.
    Proposed paragraph (a)(1) requires that each railroad required to 
establish and fully implement an SSP submit one copy of its SSP plan to 
the FRA Associate Administrator for Railroad Safety/Chief Safety 
Officer no later than 395 days after the effective date of the final 
rule or not less than 90 days prior to commencing operations, whichever 
is later. FRA seeks comment on whether electronic submission of an SSP 
plan

[[Page 55393]]

should be permitted and, if so, what type of process FRA should use to 
accept such submissions.
    The railroad would not include the results of its risk-based hazard 
analysis in its SSP plan that it submits to FRA pursuant to proposed 
paragraph (a)(1) of this section. The SSP plan should only include the 
methods used to conduct its risk-based hazard analysis as described in 
proposed paragraph (q). However, since the risk-based hazard analysis 
is a vital element of an SSP, FRA would work with the railroads to 
ensure that this analysis is robust and addresses all the necessary 
aspects of the railroad's operations. To achieve this goal, FRA, its 
representatives, and States participating under part 212 of this 
chapter would have access to the railroad's risk-based hazard analysis 
pursuant to proposed paragraph (a)(2).
    As part of its submission, the railroad will provide certain 
additional information. Primarily, under paragraph (a)(3), the SSP plan 
submission shall include the signature, name, title, address, and 
telephone number of the chief official responsible for safety and who 
bears primary managerial authority for implementing the SSP for the 
submitting railroad. The SSP plan shall also include the contact 
information for the primary person managing the SSP and the senior 
representatives of contract operators, shared track/corridor operators, 
and others who provide significant safety-related services. The contact 
information for the primary person managing the SSP is necessary so 
that FRA knows who to contact regarding any issues with the railroad's 
SSP. The contact information for the senior representatives of contract 
operators, shared track/corridor operators, and others who provide 
significant safety-related services is necessary so that FRA is aware 
of which entities will be involved in implementing and supporting the 
railroad's SSP.
    Proposed paragraph (a)(4) references the requirements of proposed 
Sec.  270.102(b), which generally requires a railroad to submit with 
its SSP plan a consultation statement describing how it consulted with 
its directly affected employees on the contents of its SSP. When the 
railroad provides the consultation statement to FRA, proposed Sec.  
270.102(b)(4) also requires that the railroad provide a copy of the 
statement to certain directly affected employees identified in a 
service list. The directly affected employees can then file a statement 
within 60 days after the railroad filed its consultation statement, as 
discussed in proposed Sec.  270.102(c)(1).
    Under paragraph (a)(5), the chief official responsible for safety 
and who bears primary managerial authority for implementing the 
railroad's SSP shall certify that the contents of the railroad's SSP 
plan are accurate and that the railroad will implement the contents of 
the program as approved by Sec.  270.201(b).
    Paragraph (b) sets forth the proposed FRA approval process for a 
railroad's SSP plan. Within 90 days of receipt of an SSP plan, or 
within 90 days of receipt of each SSP plan submitted prior to the 
commencement of railroad operations, FRA will review the proposed SSP 
plan to determine if the elements prescribed in this part are 
sufficiently addressed in the railroad's submission. This review will 
also consider any statement submitted by directly affected employees 
pursuant to proposed Sec.  270.102. This process will involve 
continuous communication between FRA and the railroad. As with drafting 
the plan, FRA intends to work with the railroads when reviewing the 
plan. Furthermore, FRA plans on issuing a guide that will provide 
additional guidance on this process.
    Once FRA determines whether a railroad's SSP plan complies with the 
requirements of this part, FRA will notify, in writing, the primary 
contact person of each affected railroad whether the railroad's SSP 
plan is approved or not. If FRA does not approve a plan, it will inform 
the railroad of the specific points in which the plan is deficient. FRA 
will also provide the notification to each individual identified in the 
service list accompanying the consultation statement required under 
proposed Sec.  270.102(b). Once the railroad has received notification 
that the plan is not approved and the specific points in which the plan 
is deficient, the railroad has 60 days to correct all of the 
deficiencies and resubmit the plan to FRA.
    Proposed paragraph (c) addresses the process a railroad will follow 
whenever it amends its SSP. When a railroad amends its SSP plan it 
shall submit the amended SSP plan to FRA not less than 60 days prior to 
the proposed effective date of the amendment(s). The railroad shall 
file the amended SSP plan with a cover letter outlining the proposed 
changes to the original, approved SSP plan. The cover letter should 
provide enough information so that FRA knows what is being added or 
removed from the original approved SSP. The railroad would also be 
required to follow the process it described pursuant to proposed Sec.  
270.102(d) regarding the consultation with directly affected employees 
concerning the amendment to the SSP plan. The railroad would describe 
in the cover letter the process it used to consult the directly 
affected employees on the amendments.
    FRA recognizes that some amendments may be safety-critical and that 
the railroad may not be able to submit the amended SSP plan to FRA 60 
days prior to the proposed effective date of the amendments. In these 
instances, the railroad shall submit the amended SSP plan to FRA as 
soon as possible. The railroad shall provide an explanation why the 
amendment is safety critical and describe the effects of the amendment.
    FRA will review the proposed amended SSP plan within 45 days of 
receipt. FRA will then notify the primary contact person whether the 
proposed SSP plan has been approved by FRA. If the amended plan is not 
approved, FRA will provide the specific points in which the proposed 
amendment to the plan is deficient. If FRA does not notify the railroad 
whether the amended plan is approved or not by the proposed effective 
date of the amendment(s) to the plan, the railroad may implement the 
amendment(s) to the plan, subject to FRA's decision. If a proposed 
amendment to the SSP plan is not approved by FRA, the affected railroad 
shall correct any deficiencies identified by FRA. The railroad shall 
provide FRA with a corrected copy of the amended SSP plan no later than 
60 days following receipt of FRA's written notice that any proposed 
amendment was not approved.
    Paragraph (d) proposes to allow FRA to reopen consideration of a 
plan or amendment after initial approval of the plan or amendment. An 
example of a type of situation in which FRA may reopen review is if FRA 
determines that the railroad is not complying with its plan/amendment 
or information has been made available that was not available when FRA 
originally reviewed the plan or amendment. The determination of whether 
to reopen consideration will be made solely within FRA's discretion on 
made on a case-by-case basis.
Section 270.203 Retention of SSP plan
    This section sets forth the proposed requirements related to a 
railroad's retention of its SSP plan. A railroad will be required to 
retain at its system and various division headquarters a copy of its 
SSP plan and a copy of any amendments to the plan. The railroad must 
make the plan and any amendments available to representatives of FRA 
and States participating under part 212 of this chapter for inspection

[[Page 55394]]

and copying during normal business hours.

Subpart D--System Safety Program Internal Assessments and External 
Auditing

    Subpart D sets forth the proposed requirements related to a 
railroad's internal SSP assessment and FRA's external audit of the 
railroad's SSP.
Section 270.301 General
    To determine whether an SSP is successful, it will need to be 
evaluated by both the railroad and FRA on a periodic basis. This 
proposed section sets forth the general requirement that a railroad's 
SSP and its implementation will be assessed internally by the railroad 
and audited externally by the FRA or FRA's designee.
Section 270.303 Internal system safety program assessment
    This section sets forth the proposed requirements related to the 
railroad's internal SSP assessment. Once FRA approves a railroad's SSP 
plan, the railroad shall conduct an annual assessment the extent to 
which: (1) The SSP is fully implemented; (2) the railroad's compliance 
with the implemented elements of the approved SSP plan; and (3) the 
railroad has achieved the goals set forth in proposed Sec.  270.103(d). 
This internal assessment is intended to provide the railroad with an 
overall survey of the progress of its SSP implementation and the areas 
in which improvement is necessary.
    As part of its SSP plan, the railroad will describe the processes 
used to: (1) Conduct internal SSP assessments; (2) report the findings 
of the internal SSP assessments internally; (3) develop, track, and 
review recommendations as a result of the internal SSP assessments; (4) 
develop improvement plans based on the internal SSP assessments that, 
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; (5) manage revisions and updates to 
the SSP plan based on the internal SSP assessments; and (6) comply with 
the reporting requirements set forth in proposed Sec.  270.201. By 
describing these processes, the railroad will detail how it plans to 
assess its SSP and how it will improve it if necessary. Since this is 
an internal assessment, a railroad will tailor the processes to its 
specific operations, and FRA will work with the railroad to determine 
the best method to internally measure the success of the railroad's 
SSP.
    Within 60 days of completing its internal assessment, the railroad 
will submit a copy of its internal assessment report. This report will 
include the SSP assessment and the status of internal assessment 
findings and improvement plans. The railroad will also outline the 
specific improvement plans for achieving full implementation of its SSP 
and the milestones it has set forth. The railroad's chief official 
responsible for safety shall certify the results of the railroad's 
internal SSP plan assessment.
Section 270.305 External safety audit
    This section sets forth the proposed process FRA will utilize when 
it conducts audits of a railroad's SSP. These audits will evaluate the 
railroad's compliance with the elements required by this part in the 
railroad's approved SSP plan. Because the railroad's SSP plan and any 
amendments would have already been approved by FRA pursuant to proposed 
Sec.  270.201(b) and (c), this section is intended to permit FRA to 
focus on the extent to which the railroad is complying with its own 
plan.
    Similar to the SSP plan review process, FRA does not intend the 
audit to be conducted in a vacuum. Rather, during the audit, FRA will 
maintain communication with the railroad and attempt to resolve any 
issues before completion of the audit. Once the audit is completed, FRA 
will provide the railroad with written notification of the audit 
results. These results will identify any areas where the railroad is 
not properly complying with its SSP, any areas that need to be 
addressed by the SSP but are not, or any other areas in which FRA 
believes the railroad and its plan are not in compliance with this 
part.
    If the results of the audit require the railroad to take any 
corrective action, the railroad is provided 60 days to submit an 
improvement plan, for FRA approval, to address the audit findings. The 
improvement plan will identify who is responsible for carrying out the 
necessary tasks to address the audit findings and specify target dates 
and milestones to implement the improvements that address the audit 
findings. Specification of milestones is important because it will 
allow the railroad to determine the appropriate progress of the 
improvements while allowing FRA to gauge the railroad's compliance with 
its improvement plan.
    If FRA does not approve a railroad's improvement plan, FRA will 
notify the railroad of the specific deficiencies in the improvement 
plan. The railroad will then amend the improvement plan to correct the 
deficiencies identified by FRA and provide FRA a copy of the amended 
improvement plan no later than 30 days after the railroad received 
notice from FRA that its improvement plan was not approved. This 
process is similar to the process provided when FRA does not initially 
approve a railroad's SSP. The railroad shall provide a report to FRA 
and States participating under part 212 of this chapter for review 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.

Appendix B to Part 270--Federal Railroad Administration Guidance on the 
System Safety Program Consultation Process

    Appendix B would contain guidance on how a railroad could comply 
with Sec.  270.102, which states that a railroad must in good faith 
consult with and use its best efforts to reach agreement with all of 
its directly affected employees on the contents of the SSP plan. The 
appendix begins with a general discussion of the terms ``good faith'' 
and ``best efforts,'' explaining that they are separate terms and that 
each has a specific and distinct meaning. For example, the good faith 
obligation is concerned with a railroad's state of mind during the 
consultation process, and the best efforts obligation is concerned with 
the specific efforts made by the railroad in an attempt to reach 
agreement with its directly affected employees. The appendix also 
explains that FRA will determine a railroad's compliance with the Sec.  
270.102 requirements on a case-by-case basis and outlines the potential 
consequences for a railroad that fails to consult with its directly 
affected employees in good faith and using best efforts.
    The appendix also contains specific guidance on the process a 
railroad may use to consult with its directly affected employees. This 
guidance would not establish prescriptive requirements with which a 
railroad must comply, but would provide a road map for how a railroad 
may conduct the consultation process. The guidance also distinguishes 
between employees who are represented by a non-profit employee labor 
organization and employees who are not, as the processes a railroad may 
use to consult with represented and non-represented employees could 
differ significantly. Overall, however, the appendix stresses that 
there are many compliant ways in which a railroad may choose to consult 
with its directly affected employees and

[[Page 55395]]

that FRA believes, therefore, that it is important to maintain a 
flexible approach to the Sec.  270.102 consultation requirements, so a 
railroad and its directly affected employees may consult in the manner 
best suited to their specific circumstances.

VII. Regulatory Impact

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

    This NPRM has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. 44 FR 
11034, Feb. 26, 1979. FRA has prepared and placed in the docket a 
regulatory impact analysis (RIA) addressing the economic impact of this 
NPRM.
    This NPRM directly responds to the Congressional mandate in section 
103 of RSIA that FRA, by delegation from the Secretary, require each 
railroad that provides intercity rail passenger or commuter rail 
passenger transportation to establish a railroad safety risk reduction 
program. 49 U.S.C. 20156(a)(1). The proposal also implements section 
109 of RSIA which authorizes FRA, by delegation from the Secretary, to 
issue a regulation protecting from discovery and admissibility into 
evidence in litigation documents generated for the purpose of 
developing, implementing, or evaluating a SSP. FRA believes that all of 
the requirements of the proposed rule are directly or implicitly 
required by RSIA and will promote railroad safety.
    Most of the passenger railroads affected by this proposal already 
participate in APTA's system safety program and are currently 
participating in the APTA audit program. Railroads that are still 
negotiating contracts or not participating directly with APTA have 
developed, or are in the process of developing an APTA system safety 
program. There is one railroad that does not currently have or is 
developing an APTA system safety program, a small event commuter 
railroad in Iowa. That railroad has a very simple system, and FRA 
believes that the costs to develop its SSP pursuant to the proposed 
rule will be relatively low. Since the majority of intercity passenger 
or commuter railroads already have APTA system safety programs, there 
will not be a significant burden for these railroads to implement the 
regulatory requirements set forth in this proposed rule. Thus, the 
economic impact of the proposed rule is generally incremental in nature 
for documentation of existing information and inclusion of certain 
elements not already addressed by railroads in their programs. 
Regarding new start intercity passenger or commuter railroads, FRA 
currently and will continue to provide technical assistance to these 
types of railroads for the development and implementation of system 
safety programs and conduct of preliminary hazard analyses in the 
design phase leading to operations implementation.
    For purposes of this analysis, FRA has analyzed the impact on the 
30 existing passenger and railroads and projected costs for startup 
railroads. Total estimated twenty-year costs associated with 
implementation of the proposed rule, for existing passenger railroads, 
range from $1.8 million (discounted at 7%) to $2.5 million (discounted 
at 3%).
    FRA believes that there will be new, startup, passenger railroads, 
that will be formed during the twenty-year analysis period. FRA is 
aware of two passenger railroads that intend to commence operations in 
the near future. FRA assumed that one of these railroads would begin 
developing its SSP in Year 2, and that the other would begin developing 
its SSP in Year 3. FRA further assumed that one additional passenger 
railroad would be formed and begin developing its SSP every other year 
after that, in Years 5, 7, 9, 11, 13, 15, 17 and 19. Total estimated 
twenty-year costs associated with implementation of the proposed rule, 
for startup passenger railroads, range from $270 thousand (discounted 
at 7%) to $437 thousand (discounted at 3%).
    Total estimated twenty-year costs associated with implementation of 
the proposed rule, for existing passenger railroads and startup 
passenger railroads, range from $2.0 million (discounted at 7%) to $3.0 
million (discounted at 3%).

                                      Table 1--Estimated Costs of the NPRM
----------------------------------------------------------------------------------------------------------------
                                                             Current dollar   Discounted value  Discounted value
                                                                  value           7 percent         3 percent
----------------------------------------------------------------------------------------------------------------
Total.....................................................     $4,123,164.26     $2,022,847.85     $2,968,788.59
----------------------------------------------------------------------------------------------------------------

    Properly implemented SSPs are successful in optimizing the returns 
on railroad safety investments. Railroads can use them to proactively 
identify potential hazards and resulting risks at an early stage thus 
minimizing associated casualties and property damage or avoiding them 
altogether. Railroads can also use them to identify a wide array of 
potential safety issues and solutions, which in turn allows them to 
simultaneously evaluate various alternatives for improving overall 
safety with resources available. This results in more cost effective 
investments. In addition, system safety planning helps railroads 
maintain safety gains over time. Without an SSP plan to guide them, 
railroads could adopt countermeasures to safety problems that become 
less effective over time as the focus shifts to other issues. With SSP 
plans, those safety gains are likely to continue for longer time 
periods. SSP plans can also be instrumental in reducing casualties 
resulting from hazards that are not well addressed through conventional 
safety programs, such as slips, trips and falls, or risks that occur 
because safety equipment is not used correctly, or routinely.
    During the course of daily operations, hazards are routinely 
discovered. Railroads must decide which hazards to address and how, 
with the limited resources available for this purpose. Without an SSP 
plan in place, the decision process might become arbitrary. In the 
absence of the protections against discovery in legal proceedings for 
damages provided by the proposed rule, railroads might also be 
reluctant to keep detailed records of known hazards. With an SSP plan 
in place, railroads are able to identify and implement the most cost-
effective measures to reduce casualties.
    It is difficult, if not impossible, to completely segregate 
railroad expenses that go to enhance safety from other expenses. 
Railroad operations and maintenance activities have inherent safety-
critical elements. Thus, every capital expenditure is likely to have a 
safety component, whether for equipment, right-of-way, signal or 
infrastructure. SSPs can increase the safety return on any investment 
related to the operation and maintenance of the railroad. FRA believes 
a very conservative estimate of all safety-related expenditures by all 
passenger

[[Page 55396]]

railroads affected by the proposed rule is $11.6 billion per year. In 
the first twenty years of the proposed rule, SSP plans can increase the 
cost effectiveness of investments totaling between $92 billion 
(discounted at 7%) and $139 billion (discounted at 3%).
    Anecdotally, FRA is aware of a situation where noise walls had to 
be relocated after they were installed, because the walls were placed 
where they blocked sight lines for both motorists and train crews at a 
highway-rail grade crossing. If it cost $100,000 to move such a wall; 
if railroads avoided moving just five such walls per year or 
implementing other similar corrective actions, for a total savings of 
$500,000 per year, the rule would pay for itself. FRA believes that it 
is reasonable to expect far more savings in total when considering 
there are 30 existing passenger rail operators impacted. The impact on 
the effectiveness of investments by startup railroads would likely be 
greater than for existing railroads, as more of their expenses are for 
new infrastructure or other systems that can have safety designed in 
from the start at little or no marginal cost.
    Another way to look at the benefits that might accrue from SSPs is 
to look at total passenger operation related accident costs. Over the 
time period 2001-2010, on average passenger railroads had 3,723.2 
accidents per year. These accidents resulted in 207 fatalities; 3,543 
other casualties; and $21.1 million in damage to railroad track and 
equipment. Of course, these accidents also caused damage to other 
property, delays on both railroads and highways, response costs and 
many other costs. In other analyses, FRA has found that the total 
societal cost of a serious accident is at least 2.33 times the fatality 
costs.\1\ Such accident costs include fatality costs, injury costs, 
delay costs, response costs, damage to equipment, damage to track and 
structures, and equipment clearing, although there may be other 
societal costs not accounted for. Accidents that are serious enough to 
result in fatalities can result in such costs. Further, some accidents, 
such as grade crossing accidents, can be quite severe and result in 
very serious injuries even without a fatality. Although there is not a 
fatality, these types of accidents do result in societal costs. The 
total societal costs of serious accidents include the total societal 
costs of fatal accidents plus the total societal costs of other serious 
accidents. Therefore, the combined total societal costs of all kinds of 
serious accidents are greater than the total societal costs of fatal 
accidents. FRA believes multiplying societal costs of fatalities by a 
factor of 2.33 to derive total societal cost of serious accidents is a 
conservative approach to estimating such costs. In this case, if the 
fatality costs are $6.2 million per fatality, and the average number of 
fatalities is 207, then the societal cost of fatalities is $1,283.4 
million per year, and the total societal cost of serious accidents 
related to passenger operations is $2,990.3 million per year.
---------------------------------------------------------------------------

    \1\ DOT/FRA--Positive Train Control Systems, Final Rule, 
Regulatory Impact Analysis, Document FRA 2008-0132-0060, http://www.regulations.gov/#!documentDetail;D=FRA-2008-0132-0060.
---------------------------------------------------------------------------

    Again, FRA has relevant anecdotal evidence that accident reduction 
benefits are achievable. One railroad installed track switches near an 
overhead highway bridge, yet the cost of locating the switches at a 
safer location would have been negligible. Derailments are much more 
likely at switch points than at most other locations on tracks. If a 
train were to derail into a bridge, as happened in Eschede Germany on 
June 3, 1998, the results would be catastrophic, on the order of the 
passenger accident occurring at Chatsworth, CA, on September 12, 2008. 
FRA estimates that the total societal cost of the Chatsworth accident 
was at least $380 million. If the probability of such a severe accident 
were reduced by 2 percent per year, the benefit, $7.6 million per year, 
would pay for the proposed rule many times over. FRA believes that an 
SSP will identify many of these avoidable risks at no cost. Again, the 
impact on the potential accidents of startup railroads can be greater, 
because those startup railroads can build safety in from the start, 
using their SSPs.
    FRA analyzed the percentage of the potential accident reduction 
benefit pools that would have to be saved in order for the proposed 
rule to have accident reduction benefits at least equal to costs. The 
results are presented in the Table 2 below, which represents the 
percentage improvements in investment efficiency or accident costs for 
existing passenger railroads that would be necessary for this proposal 
to break even based on the estimated costs. FRA believes that such 
savings are more than attainable.

                        Table 2--Estimated Twenty-Year Costs as Percent of Benefit Pools
----------------------------------------------------------------------------------------------------------------
                                                                  Current dollar    Discounted      Discounted
                                                                      value %        value 7%        value 3%
----------------------------------------------------------------------------------------------------------------
                          Benefit Pool                            ..............  ..............  ..............
Railroad Investment.............................................          0.0018          0.0019          0.0018
Railroad Accidents..............................................          0.0068         0. 0074          0.0070
----------------------------------------------------------------------------------------------------------------

    Further, FRA believes that an SSP can result in cost savings as a 
result of avoiding casualties from other types of accidents and 
incidents. Some of the basic hazards and resulting risks that an SSP 
can assist in mitigating or eliminating include ones that may be the 
cause of or contribute to slips, trips and falls. The potential risks 
of such hazards include falling from a bridge or scaffold because the 
required safety equipment was not worn, or slipping, falling or 
stumbling due to irregular surfaces, or because of oil, grease, or 
other slippery substance. Included here would also be the avoidance of 
injuries that could be caused by not wearing or improperly using safety 
equipment while performing regular maintenance tasks or operating power 
equipment. There are also potential risks that passengers, employees 
and others could also be exposed to due to holes or irregular surfaces 
on platforms or stairs. FRA believes that railroads will mitigate or 
eliminate many of these hazards and resulting risks through an SSP, but 
the process of eliminating or mitigating these risks will require 
additional costs, and it is impossible at present to estimate precisely 
the kinds of measures that may be adopted and their costs as well as 
benefits. Nonetheless, FRA believes that such measures will not be 
undertaken unless the benefits exceed the costs and the funding is 
available.
    In conclusion, FRA is confident that the accident reduction and 
cost effectiveness benefits together would justify the $2.0 million 
(discounted at 7%) to $3.0 million (discounted at 3%)

[[Page 55397]]

implementation cost over the first twenty years of the proposed rule.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Analysis.

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency 
review of proposed and final rules to assess their impacts on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it determines and certifies that a rule, if 
promulgated, would not have a significant economic impact on a 
substantial number of small entities. FRA has not determined whether 
this proposed rule would have a significant economic impact on a 
substantial number of small entities. Therefore, FRA is publishing this 
IRFA to aid the public in commenting on the potential small business 
impacts of the requirements in this NPRM. FRA invites all interested 
parties to submit data and information regarding the potential economic 
impact on small entities that would result from the adoption of the 
proposals in this NPRM. FRA will consider all information and comments 
received in the public comment process when making a determination 
regarding the economic impact on small entities in the final rule.
    FRA estimates that the total cost for the proposed rule will be 
$4.1 million (undiscounted)--$2.0 million (discounted at 7 percent), or 
$3.0 million (discounted at 3 percent), for the railroad industry over 
a 20-year period. Based on information currently available, FRA 
estimates that 1 percent of the total railroad costs associated with 
implementing the proposed rule would be borne by small entities. FRA 
generally uses conservative assumptions in its costing of rules.
    There are two railroads that would be considered small entities for 
purposes of this analysis, and together they comprise about 7 percent 
of the railroads impacted directly by this proposed regulation. Thus, a 
substantial number of small entities in this sector may be impacted. In 
order to get a better understanding of the total costs for the railroad 
industry (which forms the basis for the estimates in this IRFA), or 
more cost detail on any specific requirement, please see the Regulatory 
Impact Analysis (RIA) that FRA has placed in the docket for this 
rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
     A description of the reasons why action by the agency is 
being considered.
     A succinct statement of the objectives of, and the legal 
basis for, the proposed rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule will apply.
     A description of the projected reporting, recordkeeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record.
     Identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
1. Reasons for Considering Agency Action
    FRA has proposed part 270 in order to comply with sections 103 and 
109 of RSIA. RSIA mandates that FRA, by delegation from the Secretary, 
shall require each railroad that provides intercity rail passenger or 
commuter rail passenger transportation to establish a railroad safety 
risk reduction program. 49 U.S.C. 20156(a)(1). This proposed rule sets 
forth the requirements for a safety risk reduction program for a 
railroad that provides intercity rail passenger or commuter rail 
passenger transportation.
2. A Succinct Statement of the Objectives of, and the Legal Basis for, 
the Proposed Rule
    The purpose of this proposed rule is to improve railroad safety 
through structured, proactive processes and procedures developed and 
implemented by railroad operators. The proposed rule will require a 
railroad to establish a program that systematically evaluates railroad 
safety hazards on its system and manages those risks in order to reduce 
the numbers and rates of railroad accidents, incidents, injuries, and 
fatalities.
    The proposed rule prescribes minimum Federal safety standards for 
the preparation, adoption, and implementation of railroad system safety 
programs. The proposed rule does not restrict railroads from adopting 
and enforcing additional or more stringent requirements not 
inconsistent with this part.
    FRA proposes to add part 270 to title 49 of the Code of Federal 
Regulations. Part 270 will satisfy the RSIA requirement of a railroad 
safety risk reduction program for a railroad providing intercity rail 
passenger or commuter rail passenger service. 49 U.S.C. 20156(a)(1). It 
will also include protection from admission or discovery of certain 
information generated solely for the purpose of developing, 
implementing, or evaluating a system safety program under part 270, or 
a railroad safety risk reduction program required by FRA for Class I 
railroads, railroads with inadequate safety performance, or any other 
railroad. 49 U.S.C. 20119.
3. A Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The ``universe'' of the entities considered in an IRFA generally 
includes only those small entities that can reasonably expect to be 
directly regulated by this proposed action. Small passenger railroads 
are the only types of small entities that may be affected directly by 
this proposed rule.
    ``Small entity'' is defined in 5 U.S.C. 601(3) as having the same 
meaning as ``small business concern'' under section 3 of the Small 
Business Act. This includes any small business concern that is 
independently owned and operated, and is not dominant in its field of 
operation. Section 601(4) likewise includes within the definition of 
``small entities'' not-for-profit enterprises that are independently 
owned and operated, and are not dominant in their field of operation.
    The U.S. Small Business Administration (SBA) stipulates in its size 
standards that the largest a railroad business firm that is ``for 
profit'' may be and still be classified as a ``small entity'' is 1,500 
employees for ``Line Haul Operating Railroads'' and 500 employees for 
``Switching and Terminal Establishments.'' 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

[[Page 55398]]

on the Surface Transportation Board'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 
proposing to use this definition for this rulemaking. Any comments 
received pertinent to its use will be addressed in the final rule.
Passenger Railroads
    Commuter and intercity passenger railroads would have to comply 
with all provisions of Part 270; however, the amount of effort to 
comply with the proposed rule is commensurate with the size of the 
entity.
    There are two intercity passenger railroads, Amtrak and the Alaska 
Railroad. Neither can be considered a small entity. Amtrak is a Class I 
railroad and the Alaska Railroad is a Class II railroad. The Alaska 
Railroad is owned by the State of Alaska, which has a population well 
in excess of 50,000.
    There are 28 commuter or other short-haul passenger railroad 
operations in the U.S. Most of these railroads are part of larger 
transit organizations that receive Federal funds and serve major 
metropolitan areas with populations greater than 50,000. However, two 
of these railroads do not fall in this category and are considered 
small entities: Saratoga & North Creek Railway (SNC), and the Hawkeye 
Express, which is operated by the Iowa Northern Railway Company (IANR). 
All other passenger railroad operations in the United States are part 
of larger governmental entities whose service jurisdictions exceed 
50,000 in population.
    In 2011 Hawkeye Express transported approximately 5,000 passengers 
per game over a 7-mile round-trip distance to and from University of 
Iowa (University) football games. Iowa Northern has approximately 100 
employees and is primarily a freight operation totaling 184,385 freight 
train miles in 2010. The service is on a contractual arrangement with 
the University, a State of Iowa institution. (The population of Iowa 
City, Iowa, is approximately 69,000.) Iowa Northern owns and operates 
the 6 bi-level passenger cars used for this small passenger operation 
which runs on average 7 days over a calendar year. FRA expects that any 
costs imposed on the railroad by this regulation will likely be passed 
on to the University as part of the transportation cost, and requests 
comment on this assumption.
    SNC began operation in the summer of 2011 and currently provides 
daily rail service over a 57-mile line between Saratoga Springs and 
North Creek, New York. The SNC, a Class III railroad, is a limited 
liability company, wholly owned by San Luis & Rio Grande Railroad 
(SLRG). SLRG is a Class III rail carrier and a subsidiary of Permian 
Basin Railways, Inc. (Permian), which in turn is owned by Iowa Pacific 
Holdings, LLC (IPH). The SNC primarily transports visitors to Saratoga 
Springs, tourists seeking to sightsee along the Hudson River, and 
travelers connecting to and from Amtrak service. The railroad operates 
year round, with standard coach passenger trains. Additional service 
activity includes seasonal ski trains, and specials such as ``Thomas 
The Train.'' This railroad operates under a five-year contract with the 
local government, and is restarting freight operations as well. The 
railroad has about 25 employees. SNC has already developed and is 
starting to utilize an SSP plan which follows the APTA model of SSP 
plan features and processes.
    FRA has assisted and plans to continue to assist ``new start'' 
passenger railroads, including small business entities, in the 
development of their SSPs, starting at the design and planning phase 
through implementation. FRA will also provide guidance to those 
railroads so that the scope and content of their SSPs is proportionate 
to their size and nature of their operation.
    The cost burden to the two small entities will be considerably less 
on average than that of the other 28 railroads. FRA estimates impacts 
on these two railroads could range on average between $1,375 and $3,150 
per annum to comply with the regulation, depending on the existing 
level of compliance and discount rate (or $14,568 to $62,382 over 20 
years per entity, again depending on the existing level of compliance 
and discount rate.)
    Since one of these railroads provides service under contract to a 
State institution, it may be able to pass some or all of the compliance 
cost on to that institution. The small entity itself may not be 
significantly impacted. As indicated above, FRA will assist an entity 
like the Hawkeye Express in preparing its program and plan if it is not 
already preparing an SSP. FRA envisions the SSP plan of such an entity 
as a very concise and brief document. FRA seeks comment on these 
findings and conclusions.
Contractors
    Some passenger railroads use contractors to perform many different 
functions on their railroads. For some of these railroads, contractors 
perform safety-related functions, such as operating trains. For the 
purpose of assessing the impact of an SSP, contractors fall into two 
groups; larger contractors who perform primary operating and 
maintenance functions for the passenger railroads and smaller 
contractors who perform ancillary functions to the primary operations. 
Larger contractors are typically large private companies such as 
Herzog, or part of an international conglomerate such as Keolis or 
Veolia, with substantial multidisciplinary workforces, and are able to 
perform most all operating functions the passenger railroad requires. 
Smaller contractors may perform duties such as snow clearing on station 
platforms, brush clearing, painting stations, etc.
    Safety related policy, work rules, guidelines, and regulations are 
imparted to the small contractors today as part of their contractual 
obligations and qualification to work on the passenger railroad 
property. FRA sees minimal additional burden to imparting the same type 
of information under each passenger railroad's SSP. A very small 
administrative burden may result.
    No provisions of the proposed rule would directly require any 
contractors (small or large) to do anything unless they are also 
intercity passenger or commuter railroads.
    FRA seeks comment on these findings and conclusions.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    There are reporting, recordkeeping, and compliance costs associated 
with the proposed regulation. This NPRM proposes what almost all 
passenger railroads have for the most part been doing voluntarily for 
some time. FRA believes that the added burden due to these proposed 
requirements is marginal. The total 20-year cost of this proposed 
rulemaking is $4.1 million (undiscounted), of which FRA estimates 2.9 
percent or less will be attributable to small entities. FRA estimates 
that the approximate total burden for small railroads for the 20-year 
period could range between $33,384 and $120,217, depending on discount 
rates and extent of costs relative to larger railroads. FRA believes 
this would not be a substantial burden. For a thorough presentation of 
cost estimates, please refer to the RIA, which has been placed in the 
docket for this rulemaking. FRA expects that most of the skills 
necessary to comply with

[[Page 55399]]

the proposed regulation would be possessed by professional hazard 
assessment personnel, and record-keeping and reporting personnel.
    The following section outlines potential additional burden on small 
railroads for each subpart of the proposed rule:
Subpart A--General
    The policy, purpose, and definitions outlined in subpart A do not 
impose any direct burdens on small railroads.
Subpart B--System Safety Program Requirements
    This subpart of the proposed rule will have a more or less 
proportional effect on small and large entities. This portion of the 
proposed rule will create approximately 36 percent of the total burden 
for small entities. The proposed requirements in this subpart describe 
what must be developed and placed in the SSP plan to properly implement 
the SSP. More specifically it requires the development of the risk-
based hazard analysis and risk-based hazard management program, 
technology plans, and fatigue management plans.
Subpart C--Review, Approval, and Retention of System Safety Program 
Plans
    This subpart of the proposed rule will create approximately 14 
percent of the total burden for small entities. This activity is for 
the initial delivery and review of the SSP plan, as well as delivery of 
any ongoing amendments.
Subpart D--System Safety Program Internal Assessments and External 
Auditing
    This subpart of the proposed rule will create approximately 50 
percent of the total burden for small entities. This is for the ongoing 
cost for the small railroads to perform an internal assessment and 
report on internal audits on an annual basis as well as host an 
external audit by FRA or its designees every three years.
    RSIA mandates that FRA, as delegated by Secretary, require each 
railroad carrier that provides intercity rail passenger or commuter 
rail passenger transportation develop a railroad safety risk reduction 
program. FRA has no discretion with respect to applicability. All but 
one passenger railroad currently voluntarily has such programs in 
place. Thus, for most of these railroads the additional burden would 
likely only stem from describing such procedures, processes, and 
programs required by the proposed regulation. FRA estimates one of 
these railroads would have to develop a program to comply with the 
proposed regulation. However, the burden for this one railroad would be 
mitigated because FRA specialists would provide assistance in the 
development of the program.
Market and Competition Considerations.
    The small railroad segment of the passenger railroad industry 
essentially faces no intra-modal competition. The two railroads under 
consideration would only be competing with individual automobile 
traffic and serve in large part as a service offering to get drivers 
out of their automobiles and off congested roadways. One of the two 
entities provides a service at a sporting event to assist attendees to 
travel to the stadium from distant parking lots. The other small entity 
provides passenger train service to tourist and other destinations. FRA 
is not aware of any bus service that currently exists that competes 
with either of these railroads. FRA requests comments and input on 
current or planned future existence of any such service or competition.
    The railroad industry has several significant barriers to entry, 
such as the need to own the right-of-way and the high capital 
expenditure needed to purchase a fleet, track, and equipment. As such, 
small railroads usually have monopolies over the small and segmented 
markets in which they operate. Thus, while this rule may have an 
economic impact on all passenger railroads, it should not have an 
impact on the intra-modal competitive position of small railroads.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rules that may duplicate, 
overlap, or conflict with the proposed rule; the proposed regulation in 
fact supports most other safety regulations for railroad operations.
    The FTA first implemented requirements similar to an SSP in 49 CFR 
part 659 in 1995. However, FTA's part 659 program applies only to rapid 
transit systems or portions thereof not subject to FRA's rules. 49 CFR 
659.3 and 659.5. Therefore, the requirements of FTA's part 659 would 
not overlap with any of the requirements proposed in this SSP 
regulation. However, APTA's Manual for the Development of System Safety 
Program Plans for Commuter Railroads is based on FTA's part 659, so 
many of the elements in APTA's system safety program are based on FTA's 
part 659 program. FRA has always had a close working relationship with 
FTA and the implementation of the part 659 program and proposes to use 
many of the same concepts from the 659 program in this SSP rulemaking. 
FRA has noted where the elements in the proposed SSP rule are directly 
from or are based on elements from FTA's part 659.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact on small entities that would 
result from the adoption of the proposals in this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination regarding the economic impact on small 
entities.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local governments 
or the agency consults with State and local government officials early 
in the process of developing the regulation. Where a regulation has 
federalism implications and preempts State law, the agency seeks to 
consult with State and local officials in the process of developing the 
regulation.
    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132. FRA has determined that 
the proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. In addition, FRA has determined that this 
proposed rule will not impose substantial direct compliance costs on 
State and local governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.

[[Page 55400]]

    This NPRM proposes to add part 270, System Safety Program. FRA is 
not aware of any State having regulations similar to proposed part 270. 
However, FRA notes that this part could have preemptive effect by the 
operation of law under a provision of the former Federal Railroad 
Safety Act of 1970, repealed and codified at 49 U.S.C. 20106 (Sec. 
20106). Sec. 20106 provides that States may not adopt or continue in 
effect any law, regulation, or order related to railroad safety or 
security that covers the subject matter of a regulation prescribed or 
order issued by the Secretary of Transportation (with respect to 
railroad safety matters) or the Secretary of Homeland Security (with 
respect to railroad security matters), except when the State law, 
regulation, or order qualifies under the ``essentially local safety or 
security hazard'' exception to Sec. 20106. In addition, as previously 
discussed, 49 U.S.C. 20119(b) authorizes FRA to issue a rule governing 
the discovery and use of risk analysis information in litigation.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under 49 U.S.C. 20106 and 20119. Accordingly, FRA has determined 
that preparation of a federalism summary impact statement for this 
proposed rule is not required.

D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

E. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new information collection requirements 
are duly designated, and the estimated time to fulfill each requirement 
is as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR Section/Subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
270.7: Waiver Petitions            30 railroads.......  2 petitions........  8 hours............              16
270.102(a): Consultation           28 railroads.......  4 consults.........  4 hours............              16
 Requirements--RR Consultation
 with Its Directly Affected
 Employees on System Safety
 Program Plan (SSPP)
    (b) RR Consultation            30 railroads.......  30 statements......  20 minutes.........              10
     Statements.
    Copies of Consultations        30 railroads.......  30 copies..........  1 minute...........               1
     Statements by RR to Service
     List Individuals.
270.103: System Safety Program     30 railroads.......  30 SSPPs...........  40 hours...........           1,200
 Plan (SSPP)--Comprehensive
 Written SSPP Meeting All of This
 Section's Requirements
    System Safety Training by RR   30 railroads.......  450 trained          2 hours............             900
     of Employees/Contractors/                           individuals.
     Others.
    Records of System Safety       30 railroads.......  450 records........  2 minutes..........              15
     Trained Employees/
     Contractors/Others.
    Furnishing of RR Results of    30 railroads.......  10 results of        20 hours...........             200
     Risk-Based Hazard Analyses                          analyses.
     Upon FRA/Participating Part
     212 States.
    Furnishing of Descriptions of  30 railroads.......  10 description of    10 hours...........             100
     Railroad's Specific Risk                            mitigation methods.
     Mitigation Methods That
     Address Hazards Upon FRA
     Request.
    Furnishing of Results of       30 railroads.......  30 results of        40 hours...........           1,200
     Railroad's Technology                               technology
     Analysis Upon FRA/                                  analyses.
     Participating Part 212
     States' Request.
270.201: SSPPs Found Deficient by  30 railroads.......  4 amended SSPPs....  40 hours...........             160
 FRA and Requiring Amendment
    Review of Amended SSPPs Found  30 railroads.......  1 amended SSPP.....  40 hours...........              40
     Deficient and Requiring
     Amendment.
    Reopened Review of Initial     30 railroads.......  2 amended SSPPs....  40 hours...........              80
     SSPP Approval for Cause
     Stated.
270.203: Retention of SSPPs        30 railroads.......  30 copies..........  10 minutes.........               5
    Retained Copies of SSPPs.....
270.303: Annual Internal SSPP      30 railroads.......  30 assessments.....  40 hours...........           1,200
 Assessments Conducted by RRs
    Certification of Results of    30 railroads.......  30 certifications..  8 hours............             240
     RR Internal Assessment by
     Chief Safety Official.
270.305: External Safety Audit     30 railroads.......  6 plans............  40 hours...........             240
    RR Submission of Improvement
     Plans in Response to Results
     of FRA Audit.
    Improvement Plans Found        30 railroads.......  2 amended plans....  24 hours...........              48
     Deficient by FRA and
     Requiring Amendment.
    RR Status Report to FRA of     30 railroads.......  2 reports..........  4 hours............               8
     Implementation of
     Improvements Set Forth in
     the Improvement Plan.
Appendix B--Additional Documents   30 railroads.......  2 documents........  30 minutes.........               1
 Provided to FRA Upon Request

[[Page 55401]]

 
    Consultation with Non-         2 railroads........  2 consults.........  8 hours............              16
     Represented Employees by RRs.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning the following issues: 
whether these information collection requirements are necessary for the 
proper performance of the functions of FRA, including whether the 
information has practical utility; the accuracy of FRA's estimates of 
the burden of the information collection requirements; the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized. For information or a 
copy of the paperwork package submitted to OMB, contact Mr. Robert 
Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Kimberly 
Toone, Records Management Officer, at 202-493-6132.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan 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 Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

G. Environmental Assessment

    FRA has evaluated this proposed 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 proposed rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows: ``(c) 
Actions categorically excluded. Certain classes of FRA actions have 
been determined to be categorically excluded from the requirements of 
these Procedures as they do not individually or cumulatively have a 
significant effect on the human environment. * * * The following 
classes of FRA actions are categorically excluded: * * * (20) 
Promulgation of railroad safety rules and policy statements that do not 
result in significantly increased emissions or air or water pollutants 
or noise or increased traffic congestion in any mode of 
transportation.''
    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 regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

H. 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 1 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. 
For the year 2010, this monetary amount of $100,000,000 has been 
adjusted to $143,100,000 to account for inflation. This proposed rule 
would not result in the expenditure of more than $143,100,000 by the 
public sector in any one year, and thus preparation of such a statement 
is not required.

I. 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. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates, or is expected to 
lead to the promulgation of, a final rule or regulation (including a 
notice of inquiry, advance notice of proposed rulemaking, and notice of 
proposed rulemaking) that (1)(i) is a significant regulatory action 
under Executive Order 12866 or any successor order and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) is designated by the Administrator of the Office 
of Information and Regulatory Affairs as a significant energy action. 
FRA has evaluated this NPRM in accordance with Executive Order 13211. 
FRA has determined that this NPRM will not have a significant adverse 
effect on the supply, distribution, or use of energy. Consequently, FRA 
has determined that this regulatory action is not a ``significant 
energy action'' within the meaning of Executive Order 13211.

J. Privacy Act Statement

    Interested parties should be aware that anyone is able to search 
the electronic form of all comments

[[Page 55402]]

received into any agency docket by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit 
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 270

    Penalties; Railroad safety; Reporting and recordkeeping 
requirements; and System safety.

The Proposal

    In consideration of the foregoing, FRA proposes to add part 270 to 
Chapter II, Subtitle B of Title 49, Code of Federal Regulations, to 
read as follows:

PART 270--SYSTEM SAFETY PROGRAM

Subpart A-General
Sec.
270.1 Purpose and scope.
270.3 Application.
270.5 Definitions.
270.7 Waivers.
270.9 Penalties and responsibility for compliance.
Subpart B--System Safety Program Requirements
270.101 System safety program; general.
270.102 Consultation requirements.
270.103 System safety program plan
270.105 Discovery and admission as evidence of certain information.
Subpart C--Review, Approval, and Retention of System Safety Program 
Plans
270.201 Filing and approval.
270.203 Retention of system safety program plan.
Subpart D--System Safety Program Internal Assessments and External 
Auditing
270.301 General.
270.303 Internal system safety program assessment.
270.305 External safety audit.

Appendix A to Part 270--Schedule of Civil Penalties [Reserved]
Appendix B to Part 270--Federal Railroad Administration Guidance on 
the System Safety Program Consultation Process

    Authority:  49 U.S.C. 20103, 20106-20107, 20118-20119, 20156, 
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

Subpart A--General


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 railroads. This part requires certain railroads to 
establish a system safety program that systematically evaluates 
railroad safety hazards on their systems and manages those risks in 
order to reduce the numbers 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 railroads from adopting and 
enforcing additional or more stringent requirements not inconsistent 
with this part.
    (c) This part prescribes the protection of information generated 
solely for the purpose of developing, implementing, or evaluating a 
system safety program under this part or a railroad safety risk 
reduction program required by this chapter for Class I railroads and 
railroads with inadequate safety performance.


Sec.  270.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part 
applies to all--
    (1) Railroads that operate intercity or commuter passenger train 
service on the general railroad system of transportation; and
    (2) Railroads that provide commuter or other short-haul rail 
passenger train service in a metropolitan or suburban area (as 
described by 49 U.S.C. 20102(2)), including public authorities 
operating passenger train service.
    (b) This part does not apply to:
    (1) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation;
    (2) Tourist, scenic, historic, or excursion operations, whether on 
or off the general railroad system of transportation;
    (3) Operation of private cars, including business/office cars and 
circus trains; or
    (4) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  270.5).


Sec.  270.5  Definitions.

    As used in this part--
    Administrator means the Federal Railroad Administrator or his or 
her delegate.
    Configuration management means a process that ensures that the 
configurations of all property, equipment, and system design elements 
are accurately documented.
    FRA means the Federal Railroad Administration.
    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 railroad.
    Hazard means any real or potential condition (as identified in the 
railroad's 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 means a person, excluding an on-duty employee, who is on 
board, boarding, or alighting from a rail vehicle for the purpose of 
travel.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including, but not limited to, the following: A railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor or subcontractor providing goods 
or services to a railroad; and any employee of such owner, 
manufacturer, lessor, lessee, or independent contractor or 
subcontractor.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
is not considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    Positive train control system means a system designed to prevent 
train-to-train collisions, overspeed derailments, incursions into 
established work zone limits, and the movement of a train through a 
switch left in the wrong position, as described in subpart I of part 
236 of this chapter.
    Rail vehicle means railroad rolling stock, including, but not 
limited to passenger and maintenance vehicles.
    Railroad means--
    (1) Any form of non-highway ground transportation that runs on 
rails or electromagnetic guideways, including--

[[Page 55403]]

    (i) Commuter or other short-haul rail passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (ii) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads, but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation; and
    (2) A person or organization that provides railroad transportation, 
whether directly or by contracting out operation of the railroad to 
another person.
    Risk means the combination of the probability (or frequency of 
occurrence) and the consequence (or severity) of a hazard.
    SSP plan means system safety program plan.
    System safety means the application of management and engineering 
principles, and techniques to optimize all aspects of safety, within 
the constraints of operational effectiveness, time, and cost, 
throughout all phases of a system life cycle.
    Tourist, scenic, historic, or excursion operations means railroad 
operations that carry passengers, often using antiquated equipment, 
with the conveyance of the passengers to a particular destination not 
being the principal purpose. Train movements of new passenger equipment 
for demonstration purposes are not tourist, scenic, historic, or 
excursion operations.


Sec.  270.7  Waivers.

    (a) A person subject to a requirement of this part may petition the 
Administrator for a waiver of compliance with such requirement. The 
filing of such a petition does not affect that person's responsibility 
for compliance with that requirement while the petition is being 
considered.
    (b) Each petition for a waiver under this section shall be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If the Administrator finds that a waiver of compliance is in 
the public interest and is consistent with railroad safety, the 
Administrator may grant the waiver subject to any conditions the 
Administrator deems necessary.


Sec.  270.9  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 $650 and not more than $25,000 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 violation has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed 
$105,000 per violation may be assessed. 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 (formerly codified 
in 45 U.S.C. 438(e)). Appendix A 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, when any person, including a contractor or 
subcontractor to a railroad, performs any function covered by this 
part, that person (whether or not a railroad) shall perform that 
function in accordance with this part.

Subpart B--System Safety Program Requirements


Sec.  270.101  System safety program; general.

    (a) Each railroad 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 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 railroad's SSP shall be designed so that it promotes and 
supports a positive safety culture at the railroad.


Sec.  270.102  Consultation requirements.

    (a) General duty. (1) Each railroad 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 on the contents of the SSP plan.
    (2) For purposes of this part, the term directly affected employees 
includes any non-profit employee labor organization representing a 
class or craft of directly affected employees of the railroad. A 
railroad that consults with such a non-profit employee labor 
organization is considered to have consulted with the directly affected 
employees represented by that organization.
    (3) A railroad shall meet no later than (180 days after the 
effective date of the final rule) with its directly affected employees 
to discuss the consultation process. The railroad shall notify the 
directly affected employees of this meeting no less than 60 days before 
it is scheduled.
    (4) Appendix B to this part contains guidance on how a railroad 
might comply with the requirements of this section.
    (b) Railroad consultation statements. A railroad required to submit 
an SSP plan under Sec.  270.201 must also submit, together with that 
plan, a consultation statement that includes the following information:
    (1) A detailed description of the process the railroad utilized to 
consult with its directly affected employees;
    (2) If the railroad was not able to reach agreement with its 
directly affected employees on the contents of its SSP plan, 
identification of any known areas of non-agreement and an explanation 
why it believes agreement was not reached;
    (3) If the SSP plan would affect a provision of a collective 
bargaining agreement between the railroad and a non-profit employee 
labor organization, identification of any such provision and an 
explanation how the SSP plan would affect it; and
    (4) A service list containing the names and contact information for 
the international/national president and general chairperson of any 
non-profit employee labor organization representing a class or craft of 
the railroad's directly affected employees; any labor organization 
representative who participated in the consultation process; and any 
directly affected employee who significantly participated in the 
consultation process independently of a non-profit employee labor 
organization. When a railroad submits its SSP plan and consultation 
statement to FRA, it must also send a copy of these documents to all 
individuals identified in the service list.
    (c) Statements from directly affected employees. (1) If a railroad 
and its directly affected employees cannot reach agreement on the 
proposed contents of an SSP plan, then directly affected employees may 
file a statement with the FRA Associate Administrator for Railroad 
Safety/Chief Safety Officer explaining their views on the plan on which 
agreement was not reached. The FRA Associate Administrator for

[[Page 55404]]

Railroad Safety/Chief Safety Officer shall consider any such views 
during the plan review and approval process.
    (2) A railroad's directly affected employees have 60 days following 
the railroad's 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. As required by Sec.  270.201(c)(1)(i), a railroad's SSP 
plan must include a description of the process the railroad will use to 
consult with its directly affected employees on any subsequent 
substantive amendments to the railroad's 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).


Sec.  270.103  System safety program plan.

    (a) General. (1) Each railroad 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 railroad subject to this part shall communicate with each 
railroad that hosts passenger train service for that railroad and 
coordinate the portions of the SSP plan applicable to the railroad 
hosting the passenger train service.
    (b) System safety program policy statement. Each railroad shall set 
forth in its SSP plan a policy statement that endorses the railroad's 
system safety program. This policy statement shall:
    (1) Define the railroad's authority for establishment and 
implementation of the system safety program; and
    (2) Be signed by the chief official at the railroad.
    (c) Purpose and scope of system safety program. Each railroad shall 
set forth in its SSP plan a statement defining the purpose and scope of 
the system safety program. The purpose and scope statement shall 
describe:
    (1) The safety philosophy and safety culture of the railroad;
    (2) The railroad's management responsibilities within the system 
safety program; and
    (3) How host railroads, contractor operators, shared track/corridor 
operators, contractors who provide significant safety-related services, 
and any other entity or person that provides significant safety-related 
services as identified by the railroad pursuant to paragraph (e)(2) of 
this section will, as appropriate, support and participate in the 
railroad's system safety program.
    (d) System safety program goals. Each railroad shall set forth in 
its SSP plan a statement defining the goals for the railroad'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.
    (e) Railroad system description. (1) Each railroad shall set forth 
in its SSP plan a statement describing the railroad's system. The 
description shall include: a history of the railroad's operations, 
including any host operations; the physical characteristics of the 
railroad; the scope of service; the railroad's maintenance; and 
identification of the physical plant and any other pertinent aspects of 
the railroad's system.
    (2) Each railroad shall identify the persons that provide 
significant safety-related services to the railroad.
    (f) Railroad management and organizational structure. Each railroad 
shall set forth a statement in its SSP plan that describes the 
management/organizational structure of the railroad. This statement 
shall include:
    (1) A chart or other visual representation of the organizational 
structure of the railroad;
    (2) A description of how safety responsibilities are distributed 
within the railroad organization;
    (3) Clear identification of the lines of authority used by the 
railroad to manage safety issues; and
    (4) A description of the relationships and responsibilities between 
the railroad, host railroads, contract operators, shared track/corridor 
operators, and other entities or persons that provide significant 
safety-related services. The statement shall set forth the roles and 
responsibilities in the railroad's system safety program for each host 
railroad, contract operator, shared track/corridor operator, or other 
entity or person that provides significant safety-related services.
    (g) System safety program implementation plan. Each railroad shall 
set forth a plan in its SSP plan that describes how the system safety 
program will be implemented on that railroad. This plan shall include a 
description of the:
    (1) Roles and responsibilities of each position or job function 
that has significant responsibility for implementing the system safety 
program, including those held by employees, contractors who provide 
significant safety-related services, and other entities or persons that 
provide significant safety-related services; and
    (2) Milestones necessary to be reached to fully implement the 
program.
    (h) Maintenance, inspection and repair program. (1) Each railroad 
shall identify and describe in its SSP plan 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, 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.
    (i) Rules compliance and procedures review. Each railroad shall set 
forth a statement describing the processes and procedures used by the 
railroad to develop, maintain, and comply with the railroad's 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 include:
    (1) Identification of the railroad's operating and safety rules and 
procedures that are subject to review under this chapter;
    (2) Techniques used to assess the compliance of the railroad's 
employees with the railroad's operating and safety rules and 
maintenance procedures, and applicable FRA regulations; and
    (3) Techniques used to assess the effectiveness of the railroad's 
supervision relating to the compliance with the railroad's operating 
and safety rules and maintenance procedures, and applicable railroad 
safety laws and regulations.
    (j) System safety program employee/contractor training. (1) Each 
railroad shall set forth a statement in its SSP plan that describes the 
railroad's system safety program training plan. A system safety program 
training plan shall set forth the procedures in which employees who are 
responsible for implementing and supporting the SSP, contractors who 
provide significant safety-related services, and any other entity or 
person that provides significant safety-related services will be 
trained on the railroad's system safety

[[Page 55405]]

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 railroad's program, and have the requisite 
knowledge and skills to fulfill their responsibilities under the 
program. The railroad shall keep a record of training conducted under 
this part and update that record as necessary.
    (2) For each position or job function identified pursuant to 
paragraph (g)(1) of this section, the training plan shall describe the 
frequency and content of the system safety program training the 
position receives.
    (3) If a position or job function is not identified under paragraph 
(g)(1) of this section as having significant responsibilities to 
implement and support the system safety program but the position or job 
function is safety related or has a significant impact on safety, 
personnel in those positions or performing those job functions shall 
receive training in basic system safety concepts and the system safety 
implications of their position or job function.
    (4) Training under this subpart may be conducted by interactive 
computer-based training, video conferencing, or formal classroom 
training.
    (5) The system safety program training plan shall set forth the 
process used to maintain and update the necessary training records 
required by this part.
    (6) The system safety program training plan shall set forth the 
process used by the railroad to ensure that it is complying with the 
training requirements set forth in the training plan.
    (k) Emergency management. Each railroad shall set forth a statement 
in its SSP plan that describes the processes used by the railroad to 
manage emergencies that may arise within its system including, but not 
limited to, the processes to comply with applicable emergency equipment 
standards contained in part 238 of this chapter and the passenger train 
emergency preparedness requirements contained in part 239 of this 
chapter.
    (l) Workplace safety. Each railroad shall set forth a statement in 
its SSP plan that describes the programs established by the railroad 
that protect the safety of the railroad's employees and contractors. 
The statement shall describe any:
    (1) Processes that help ensure the safety of employees and 
contractors while working on or in close proximity to the railroad's 
property as described in paragraph (e) of this section;
    (2) Processes that help ensure the employees and contractors 
understand the requirements established by the railroad pursuant to 
paragraph (g)(1) of this section; and
    (3) Fitness-for-duty programs, including standards for the control 
of alcohol and drug use contained in part 219 of this chapter, fatigue 
management programs established by this part, and medical monitoring 
programs.
    (m) Public safety outreach program. Each railroad shall establish 
and set forth a statement in its SSP plan that describes its public 
safety outreach program that provides safety information to railroad 
passengers and the general public.
    (n) Accident reporting and investigation. Each railroad shall set 
forth a statement in its SSP plan that describes the processes that the 
railroad uses to receive notification of accidents, investigate and 
report those accidents, and develop, implement, and track any 
corrective actions found necessary to address the investigation's 
finding(s).
    (o) Safety data acquisition. Each railroad shall set forth a 
statement in its SSP plan that describes the processes used to collect, 
maintain, analyze, and distribute safety data in support of the system 
safety program.
    (p) Contract procurement requirements. Each railroad shall set 
forth a statement in its SSP plan that describes the process to help 
ensure that safety concerns and hazards are adequately addressed during 
the safety-related contract procurement process.
    (q) Risk-based hazard management program. Each railroad shall 
establish a risk-based hazard management program as part of the 
railroad's system safety program. The risk-based hazard management 
program shall be fully described in the SSP plan. The description of 
the risk-based hazard management program shall include:
    (1) The identity of the individual(s) responsible for administering 
the risk-based hazard management program;
    (2) The identities of stakeholders who will participate in the 
risk-based hazard management program;
    (3) The structure and participants in any hazard management teams 
or safety committees that a railroad may establish to support the risk-
based hazard management program;
    (4) The process for setting goals for the risk-based hazard 
management program and how performance against the goals will be 
reported;
    (5) The processes used in the risk-based hazard analysis to 
identify hazards on the railroad's system;
    (6) The processes or procedures that will be used in the risk-based 
hazard analysis to analyze hazards and support the risk-based hazard 
management program;
    (7) The methods used in the risk-based hazard analysis to determine 
the severity and frequency of hazards and to calculate the resulting 
risk;
    (8) The methods used in the risk-based hazard analysis to identify 
actions that mitigate or eliminate hazards and corresponding risks.
    (9) How decisions affecting safety of the rail system will be made 
relative to the risk-based hazard management program;
    (10) The methods used in the risk-based hazard management program 
to support continuous safety improvement throughout the life of the 
rail system.
    (11) The method used to maintain records of identified hazards and 
risks and mitigations throughout the life of the rail system.
    (r) Risk-based hazard analysis. (1) Once FRA approves a railroad's 
SSP pursuant to Sec.  270.201(b), the railroad shall apply the risk-
based hazard analysis methodology identified in paragraph (q)(5) 
through (7) of this section to identify and analyze hazards on the 
railroad system and to determine the resulting risks. At a minimum, the 
aspects of the railroad system that should be analyzed include: 
operating rules and practices, infrastructure, equipment, employee 
levels and schedules, management structure, employee training, employee 
fatigue as identified in paragraph (s) of this section, new technology 
as identified in paragraph (t) of this section, 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 and implement 
specific actions using the methods described in paragraph (q)(8) of 
this section that will mitigate or eliminate the hazards and resulting 
risks identified by paragraph (r)(1) of this section.
    (3) A railroad shall also conduct a risk-based hazard analysis 
pursuant to paragraphs (r)(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.
    (s) Technology analysis and implementation plan. (1) A railroad 
shall conduct a technology analysis that evaluates current, new, or 
novel technologies that may mitigate or eliminate hazards and the 
resulting risks identified in the risk-based hazard analysis process. 
The railroad shall

[[Page 55406]]

analyze the safety impact, feasibility, and cost and benefits of 
implementing technologies that will mitigate or eliminate hazards and 
the resulting risks. At a minimum, the technologies a railroad shall 
consider as part of its technology analysis are: processor-based 
technologies, positive train control systems, electronically-controlled 
pneumatic brakes, rail integrity inspection systems, rail integrity 
warning systems, switch position monitors and indicators, trespasser 
prevention technology, and highway-rail grade crossing warning and 
protection technology. The railroad shall make the results of the 
technology analysis conducted pursuant to this paragraph available upon 
request to representatives of FRA upon request and States participating 
under part 212 of this chapter.
    (2) A railroad shall establish a technology implementation plan as 
part of its SSP plan that contains the results of the technology 
analysis conducted pursuant to paragraph (s)(1) of this section. If a 
railroad decides to implement any of the technologies identified in the 
technology analysis based on the technology's safety impact, 
feasibility, or costs and benefits, the technology implementation plan 
shall describe the railroad's plan and a prioritized implementation 
schedule for the development, adoption, implementation and maintenance 
of those technologies over a 10-year period.
    (3) Except as required by subpart I of part 236 of this chapter, if 
a railroad decides to implement positive train control systems as part 
of its technology implementation plan, the railroad shall set forth and 
comply with a schedule for implementation of the positive train control 
system no later than December 31, 2018.
    (t) Fatigue management plan. A railroad shall set forth in its SSP 
plan a Fatigue Management Plan no later than (three years after the 
effective date of the final rule).
    (u) Safety Assurance--(1) Change management. Each railroad shall 
establish and set forth a statement in its SSP plan describing 
processes and procedures used by the railroad 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 railroad shall establish a 
configuration management program and describe the program in its SSP 
plan. The configuration management program shall--
    (i) State who within the railroad has authority to make 
configuration changes;
    (ii) Establish processes to make configuration changes to the 
railroad's system; and
    (iii) Establish processes to ensure that all departments of the 
railroad affected by the configuration changes are formally notified 
and approve of the change.
    (3) Safety certification. Each railroad shall establish and set 
forth a statement in its SSP plan that describes the certification 
process used by the railroad to help ensure that safety concerns and 
hazards are adequately addressed prior to the initiation of operations 
and major projects to extend, rehabilitate, or modify an existing 
system or replace vehicles and equipment.
    (v) Safety culture. A railroad shall set forth a statement in its 
SSP plan that describes how it measures the success of its safety 
culture identified in paragraph (c)(1) of this section.


Sec.  270.105  Discovery and admission as evidence of certain 
information.

    (a) Any information (including plans, reports, documents, surveys, 
schedules, lists, or data) compiled or collected solely for the purpose 
of developing, implementing, or evaluating a system safety program 
under this part, including a railroad carrier's analysis of its safety 
risks conducted pursuant to Sec.  270.103(r)(1) and its statement of 
the mitigation measures with which it would address those risks created 
pursuant to Sec.  270.103(r)(2), shall not be subject to discovery, 
admitted into evidence, or considered for other purposes in a Federal 
or State court proceedings for damages involving personal injury, 
wrongful death, or property damage.
    (b) This section does not affect the discovery, admissibility, or 
consideration for other purposes of information (including plans, 
reports, documents, surveys, schedules, lists, or data) compiled or 
collected for a purpose other than that specifically identified in 
paragraph (a) of this section. Such information shall continue to be 
discoverable and admissible into evidence if it was discoverable and 
admissible prior to the existence of this section. This includes such 
information that either:
    (1) Existed prior to (365 days from the publication of the final 
rule);
    (2) Existed prior to (365 days from the publication of the final 
rule) and that continues to be compiled or collected; or
    (3) Is compiled or collected after (365 days from the publication 
of the final rule).
    (c) State discovery rules and sunshine laws that could be used to 
require the disclosure of information protected by paragraph (a) of 
this section are preempted.
    (d) Paragraphs (a) through (c) of this section shall apply to any 
railroad safety risk reduction programs required by this chapter for 
Class I railroads, railroads with inadequate safety performance, or any 
other railroad.

Subpart C--Review, Approval, and Retention of System Safety Program 
Plans


Sec.  270.201  Filing and approval.

    (a) Filing. (1) Each railroad to which this part applies shall 
submit one copy of its SSP plan to the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer at Mail Stop 25, 1200 New Jersey 
Avenue SE., Washington, DC 20590, not more than (395 days after the 
effective date of the final rule) or not less than 90 days prior to 
commencing operations, whichever is later.
    (2) The railroad shall not include in its SSP plan the risk-based 
hazard analysis conducted pursuant to Sec.  270.103(r). The railroad 
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 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 
railroad. The system safety plan shall also include the name and 
contact information for:
    (i) The primary person responsible for managing the system safety 
program, and
    (ii) The senior representatives of host railroads, contract 
operators, shared track/corridor operators, and others who provide 
significant safety-related services.
    (4) As required by Sec.  270.102(b), each railroad must submit with 
its SSP plan a consultation statement describing how it consulted with 
its directly affected employees on the contents of its system safety 
program. Directly affected employees may also file a statement in 
accordance with Sec.  270.102(c).
    (5) The chief official responsible for safety and who bears primary 
managerial authority for implementing the program for the submitting 
railroad shall certify that the contents of the SSP plan are accurate 
and that the railroad

[[Page 55407]]

will implement the contents of the program as approved by FRA pursuant 
to paragraph (b) of this section.
    (b) Approval. (1) Within 90 days of receipt of a SSP plan, or 
within 90 days of receipt of each SSP plan submitted prior to the 
commencement of railroad operations, FRA will review the proposed SSP 
plan to determine if the elements prescribed in this part are 
sufficiently addressed in the railroad's submission. This review will 
also consider any statement submitted by directly affected employees 
pursuant to Sec.  270.102.
    (2) FRA will notify the primary contact person of each affected 
railroad in writing whether the proposed plan has been approved by FRA, 
and if not approved, the specific points in which the plan is 
deficient. FRA will also provide this notification to each individual 
identified in the service list accompanying the consultation statement 
required under Sec.  270.102(b).
    (3) If a proposed system safety plan is not approved by FRA, the 
affected railroad 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 60 days following receipt of FRA's written 
notice that the proposed SSP plan was not approved.
    (c) Review of Amendments. (1)(i) Railroads shall submit 
amendment(s) to the SSP plan to FRA not less than 60 days prior to the 
proposed effective date of the amendment(s). The railroad 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 it used pursuant to Sec.  
270.102(d) to consult with directly affected employees on the 
amendment(s).
    (ii) If the amendment(s) is safety-critical and the railroad is 
unable to submit the amended SSP plan to FRA 60 days prior to the 
proposed effective date of the amendment(s), the railroad shall submit 
the amended SSP plan to FRA as soon as possible thereafter.
    (2)(i) FRA will review the proposed amended SSP plan within 45 days 
of receipt. FRA will then notify the primary contact person of each 
affected railroad whether the proposed amended plan has been approved 
by FRA, and if not approved, the specific points in which the proposed 
amendment(s) to the SSP plan is deficient.
    (ii) If FRA has not notified the railroad by the proposed effective 
date of the amendment(s) whether the proposed amended plan has been 
approved or not, the railroad may implement the amendment(s), subject 
to FRA's decision.
    (iii) If a proposed SSP amendment is not approved by FRA, the 
affected railroad shall correct all deficiencies identified by FRA. The 
railroad shall provide FRA with a corrected copy of the amended SSP 
plan no later than 60 days following receipt of FRA's written notice 
that the proposed amendment was not approved.
    (d) Reopened Review. Following initial approval of a plan, or 
amendment, FRA may reopen consideration of the plan, or amendment, for 
cause stated.


Sec.  270.203  Retention of system safety program plan.

    Each railroad 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.

Subpart D--System Safety Program Internal Assessments and External 
Auditing


Sec.  270.301  General.

    The system safety program and its implementation shall be assessed 
internally by the railroad and audited externally by the FRA or FRA's 
designee.


Sec.  270.303  Internal system safety program assessment.

    (a) Following FRA's initial approval of the railroad's SSP plan 
pursuant to Sec.  270.201, the railroad shall annually conduct an 
assessment of the extent to which:
    (1) The system safety program is fully implemented;
    (2) The railroad is in compliance with the implemented elements of 
the approved system safety program; and
    (3) The railroad has achieved the goals set forth in Sec.  
270.103(d).
    (b) As part of its system safety plan, the railroad 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 assessment;
    (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;
    (5) Manage revisions and updates to the SSP plan based on the 
internal system safety program assessments; and
    (6) Comply with the reporting requirements set forth in Sec.  
270.201.
    (c)(1) Within 60 days of completing its internal SSP plan 
assessment pursuant to paragraph (a) of this section, the railroad 
shall:
    (i) Submit to FRA a copy of the railroad's internal assessment 
report that includes a system safety program assessment and the status 
of internal assessment findings and improvement plans; 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 railroad's chief official responsible for safety shall 
certify the results of the railroad's internal SSP plan assessment.


Sec.  270.305  External safety audit

    (a) FRA may conduct, or cause to be conducted, external audits of a 
railroad's system safety program. Each audit will evaluate the 
railroad's compliance with the elements required by this part in the 
railroad's approved SSP plan. FRA shall provide the railroad 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 railroad shall submit to FRA for approval, if 
necessary, improvement plans to address all audit findings. Improvement 
plans submitted shall, at a minimum, 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 railroad's improvement plan, FRA 
will notify the railroad of the specific deficiencies in the 
improvement plan. The affected railroad 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 
receipt of FRA's written notice that the proposed plan was not 
approved.
    (3) Upon request, the railroad shall provide to FRA and States 
participating under part 212 of this chapter for review

[[Page 55408]]

a report regarding the status of the implementation of the improvements 
set forth in the improvement plan established pursuant to paragraph 
(b)(1) of this section.

Appendix A to Part 270--Schedule of Civil Penalties [Reserved]

Appendix B to Part 270--Federal Railroad Administration Guidance on the 
System Safety Program Consultation Process

    A railroad 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.  270.102(a). This appendix 
discusses the meaning of the terms ``good faith'' and ``best 
efforts,'' and provides guidance on how a railroad could comply with 
the requirement to consult with directly affected employees on the 
contents of its SSP plan. Specific guidance will be provided for 
employees who are represented by a non-profit employee labor 
organization and employees who are not represented by any such 
organization.

The Meaning of ``Good Faith'' and ``Best Efforts''

    ``Good faith'' and ``best efforts'' are not interchangeable 
terms representing a vague standard for the Sec.  270.102 
consultation process. Rather, each term has a specific and distinct 
meaning. When consulting with directly affected employees, 
therefore, a railroad must independently meet the standards for both 
the good faith and best efforts obligations. A railroad that does 
not meet the standard for one or the other will not be in compliance 
with the consultation requirements of Sec.  270.102.
    The good faith obligation requires a railroad to consult with 
employees in a manner that is honest, fair, and reasonable, and to 
genuinely pursue agreement on the contents of an SSP plan. If a 
railroad consults with its employees merely in a perfunctory manner, 
without genuinely pursuing agreement, it will not have met the good 
faith requirement. A railroad may also fail to meet its good faith 
obligation if it merely attempts to use the SSP plan to unilaterally 
modify a provision of a collective bargaining agreement between the 
railroad and a non-profit employee labor organization.
    On the other hand, ``best efforts'' establishes a higher 
standard than that imposed by the good faith obligation, and 
describes the diligent attempts that a railroad 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 
railroad's state of mind during the consultation process, the best 
efforts obligation is concerned with the specific efforts made by 
the railroad in an attempt to reach agreement. This would include 
considerations such as whether a railroad had held sufficient 
meetings with its employees, or whether the railroad had made an 
effort to respond to feedback provided by employees during the 
consultation process. For example, a railroad would not meet the 
best efforts obligation if it did not initiate the consultation 
process in a timely manner, and thereby failed to provide employees 
sufficient time to engage in the consultation process. A railroad 
may, however, wish to hold off substantive consultations regarding 
the contents of its SSP until one year after the effective date of 
the rule in order to ensure that information generated as part of 
the process is protected from discovery and admissibility into 
evidence under Sec.  270.105 of the rule. 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 railroad has met its Sec.  270.102 good faith and 
best efforts obligations. This determination will be based upon the 
consultation statement submitted by the railroad pursuant to Sec.  
270.102(b) and any statements submitted by employees pursuant to 
Sec.  270.102(c). If FRA finds that these statements do not provide 
sufficient information to determine whether a railroad used good 
faith and best efforts to reach agreement, FRA may investigate 
further and contact the railroad or its employees to request 
additional information. If FRA determines that a railroad did not 
use good faith and best efforts, FRA may disapprove the SSP plan 
submitted by the railroad and direct the railroad to comply with the 
consultation requirements of Sec.  270.102. Pursuant to Sec.  
270.201(b)(3), if FRA does not approve the SSP plan, the railroad 
will have 60 days, following receipt of FRA's written notice that 
the plan was not approved, to correct any deficiency identified. In 
such cases, the identified deficiency would be that the railroad did 
not use good faith and best efforts to consult and reach agreement 
with its directly affected employees. If a railroad then does not 
submit to FRA within 60 days a SSP plan meeting the consultation 
requirements of Sec.  270.102, the railroad could be subject to 
penalties for failure to comply with Sec.  270.201(b)(3).

Guidance on How a Railroad May Consult With Directly Affected Employees

    Because the standard imposed by the best efforts obligation will 
vary depending upon the railroad, there may be countless ways for 
various railroads to comply with the consultation requirements of 
Sec.  270.102. Therefore, FRA believes it is important to maintain a 
flexible approach to the Sec.  270.102 consultation requirements, in 
order to give a railroad and its directly affected employees the 
freedom to consult in a manner best suited to their specific 
circumstances.
    FRA is nevertheless providing guidance in this appendix as to 
how a railroad may proceed when consulting (utilizing good faith and 
best efforts) with employees in an attempt to reach agreement on the 
contents of an SSP plan. FRA believes this guidance may be useful as 
a starting point for railroads that are uncertain about how to 
comply with the Sec.  270.102 consultation requirements. This 
guidance distinguishes between employees who are represented by a 
non-profit employee labor organization and employees who are not, as 
the processes a railroad may use to consult with represented and 
non-represented employees could differ significantly.
    This guidance does not establish prescriptive requirements with 
which a railroad must comply, but merely outlines a consultation 
process a railroad may choose to follow. A railroad's consultation 
statement could indicate that the railroad followed the guidance in 
this appendix as evidence that it utilized good faith and best 
efforts to reach agreement with its employees on the contents of a 
SSP plan.

Employees Represented by a Non-Profit Employee Labor Organization

    As provided in Sec.  270.102(a)(2), a railroad consulting with 
the representatives of a non-profit employee labor organization on 
the contents of a SSP plan will be considered to have consulted with 
the directly affected employees represented by that organization.
    A railroad could 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.  270.102(a)(3), a railroad must meet 
with representatives from a non-profit employee labor organization 
(representing a class or craft of the railroad's directly affected 
employees) within 180 days of the effective date of the final rule 
to begin the process of consulting on the contents of the railroad's 
SSP plan. A railroad 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 after the applicability date of Sec.  270.105 
a railroad should have a meeting with the directed affected 
employees to discuss substantive issues with the SSP.
     Within 90 days after the applicability date of Sec.  
270.105, a railroad would file its SSP plan with FRA.
     As provided by Sec.  270.102(c), if agreement on the 
contents of a SSP plan could not be reached, a labor organization 
(representing a class or craft of the railroad's directly affected 
employees) could file a statement with the FRA Associate 
Administrator for Railroad Safety/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 railroad's directly 
affected employees may not be represented by a non-profit employee 
labor organization. For such non-represented employees, the 
consultation process described for represented employees may not be 
appropriate or sufficient. For example, FRA believes that a railroad 
with non-represented employees must make a concerted effort to 
ensure that its non-

[[Page 55409]]

represented employees are aware that they are able to participate in 
the development of the railroad's SSP plan. FRA therefore is 
providing the following guidance regarding how a railroad may 
utilize good faith and best efforts when consulting with non-
represented employees on the contents of its SSP plan.
     Within 60 days of the effective date of the final rule, 
a railroad should notify non-represented employees that--
    (1) The railroad is required to consult in good faith with, and 
use its best efforts to reach agreement with, all directly affected 
employees on the proposed contents of its SSP plan;
    (2) Non-represented employees are invited to participate in the 
consultation process (and include instructions on how to engage in 
this process); and
    (3) If a railroad 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/Chief Safety Officer explaining his or her 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 
railroad's Web site;
    (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 railroad could use any or all of these methods 
of communication, so long as the notification complies with the 
railroad's obligation to utilize best efforts in the consultation 
process.
     Following the initial notification (and before the 
railroad submits its SSP plan to FRA), a railroad 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 railroad should provide non-represented employees 
60 days to submit comments to the railroad on the draft.
     Following this 60-day comment period and any changes to 
the draft SSP plan made as a result, the railroad should submit the 
proposed SSP plan to FRA, as required by this part.
     As provided by Sec.  270.102(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/Chief Safety Officer explaining his or her views 
on the plan on which agreement was not reached.

    Issued in Washington, DC, on August 17, 2012.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2012-20999 Filed 9-6-12; 8:45 am]
BILLING CODE 4910-06-P


