[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Proposed Rules]
[Pages 76345-76351]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30836]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Chapter II

[Docket No. FRA-2009-0038]
RIN 2130-AC11


Risk Reduction Program

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

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Rail Safety Improvement Act of 2008 requires the 
development and implementation of railroad safety risk reduction 
programs. Risk reduction is a comprehensive, system-oriented approach 
to safety that determines an operation's level of risk by identifying 
and analyzing applicable hazards and develops plans to mitigate that 
risk. Each Risk Reduction Program (RRP) is statutorily required to be 
supported by a risk analysis and a Risk Reduction Program Plan (RRPP), 
which must include a Technology Implementation Plan and a Fatigue 
Management Plan.
    This ANPRM solicits public comment on a potential rulemaking that 
would require each Class I railroad, each railroad with an inadequate 
safety record, and each passenger railroad to submit an RRPP to FRA for 
its review and approval. Each of those railroads would ultimately be 
required to implement its approved RRP.

DATES: Written comments must be received by February 7, 2011. Comments 
received after that date will be considered to the extent possible 
without incurring additional expenses or delays.
    After all public comments are received, FRA may hold a public 
hearing on a date to be announced in a forthcoming notice. The focus of 
the meeting would be on issues raised in the submitted comments.

ADDRESSES: Comments: Comments related to Docket No. FRA-2009-0038 may 
be submitted by any of the following methods:
    <bullet> Online: Comments should be filed at the Federal 
eRulemaking Portal, http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    <bullet> Fax: 202-493-2251.
    <bullet> Mail: Docket Management Facility, U.S. DOT, 1200 New 
Jersey Avenue, SE., W12-140, Washington, DC 20590.
    <bullet> Hand Delivery: Room W12-140 on the Ground level of the 
West Building, 1200 New Jersey Avenue, SE., Washington, DC between 9 
a.m. and 5 p.m. Monday through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://www.regulations.gov including any personal 
information. 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.

FOR FURTHER INFORMATION CONTACT: Miriam Kloeppel, Staff Director, Risk 
Reduction Program Division, Office of Safety Analysis, FRA, 1200 New 
Jersey Avenue, SE., Mail Stop 25, Washington, DC 20590 (telephone: 202-
493-6224), <a href="/cdn-cgi/l/email-protection#f5989c879c9498db9e999a9085859099b5919a81db929a83"><span class="__cf_email__" data-cfemail="234e4a514a424e0d484f4c465353464f63474c570d444c55">[email protected]</span></a>. Elizabeth A. Gross, Trial Attorney, 
Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE., Mail Stop 
10, Washington, DC 20590 (telephone: 202-493-1342), 
<a href="/cdn-cgi/l/email-protection#f6939a9f8c979493829ed89184998585b6929982d8919980"><span class="__cf_email__" data-cfemail="f3969f9a89929196879bdd94819c8080b3979c87dd949c85">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    In section 103 of the Rail Safety Improvement Act of 2008, Public 
Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 49 U.S.C. 
20156) (hereinafter RSIA), Congress directed the Secretary of 
Transportation to issue a regulation by October 16, 2012, requiring 
certain railroads to develop a Risk Reduction Program (RRP). While

[[Page 76346]]

the statute vests certain responsibilities with the Secretary of the 
U.S. DOT (Secretary), the Secretary has since delegated those 
responsibilities to the FRA Administrator. See 49 CFR 1.49(oo); 74 FR 
26981 (June 5, 2009); see also 49 U.S.C. 103(g).
    Each railroad subject to the regulation would have to develop and 
implement an RRP approved by FRA. See 49 U.S.C. 20156(a)(1). This RRP 
is required to be supported by an RRPP. See 49 U.S.C. 20156(d)(2). FRA 
would also conduct an annual review to ensure that each railroad has 
complied with its RRP. See 49 U.S.C. 20156(a)(3). The RSIA mandates 
that the following three categories of railroads be required to develop 
and implement an FRA-approved RRP:
    (1) Class I 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).
    See 49 U.S.C. 20156(a)(1).
    In accordance with the RSIA mandate, this ANPRM announces the 
initiation of an RRP rulemaking applicable to the above railroads. 
Railroads not required to implement RRPs under the RSIA would be 
permitted to voluntarily submit plans meeting the requirements of any 
final RRP regulation for FRA review and approval. See 49 U.S.C. 
20156(a)(4).

II. Related Proceeding

    With the assistance of the Railroad Safety Advisory Committee 
(RSAC), FRA is currently developing a System Safety Program (SSP) 
regulation applicable to passenger railroads. An SSP is anticipated to 
be a comprehensive process for the application of engineering and 
management principles, criteria, and techniques to optimize safety. 
Like risk reduction, an SSP might require a railroad to assess and 
manage risk, and to develop proactive hazard management methods that 
would support safety improvement. As currently envisioned, SSP would be 
specifically tailored to the risks presented by passenger railroads. To 
the extent possible, FRA intends to incorporate risk reduction 
requirements into a complimentary safety and risk reduction framework.

III. RSIA RRP Requirements

    Under the RSIA, each RRP required to be submitted by a railroad 
must contain certain components. As a general matter, an RRP is 
required to systematically evaluate safety risks on a railroad's system 
and to manage those risks to reduce the consequences and rates of 
railroad accidents, incidents, injuries, and fatalities. See 49 U.S.C. 
20156(a)(1)(A). The RRP will help achieve this goal by mitigating 
aspects that increase railroad safety risks and enhancing aspects that 
decrease railroad safety risks. Id. Each RRP must contain a risk-based 
hazard analysis \1\ and must be supported by an RRPP describing the 
processes, procedures and resources that are committed to supporting 
the RRP.\2\ For example, the RRPP must describe the organizational 
functions and procedures that a railroad will utilize in developing, 
implementing, and evaluating its RRP. In addition, an RRPP must also 
incorporate a Technology Implementation Plan and a Fatigue Management 
Plan.
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    \1\ The RSIA uses the phrase ``risk analysis'' to describe the 
type of analysis a railroad is required to perform. For purposes of 
this ANPRM and any final rule, however, FRA will refer to this 
analysis as a ``risk-based hazard analysis.'' This terminology 
clarifies that safety hazard risks are the concern of the 
rulemaking, as opposed to financial or other types of risk. 
Additionally, this harmonizes the risk reduction rulemaking with the 
terminology currently being utilized by the SSP rulemaking.
    \2\ The RSIA uses the phrases ``comprehensive safety risk 
reduction program'' and ``risk mitigation plan'' to describe the 
plan that must accompany and support an RRP submitted by a railroad 
to the FRA for approval. For purposes of this ANPRM, however, FRA 
will refer to this plan as an RRPP.
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A. Risk-Based Hazard Analysis

    Each railroad required to implement an RRP would conduct a risk-
based hazard analysis that would be submitted along with the railroad's 
RRPP. See 49 U.S.C. 20156(c). FRA would likely expect a risk-based 
hazard analysis to identify and analyze the following factors that 
affect railroad safety:
    <bullet> Operating rules and practices;
    <bullet> Infrastructure;
    <bullet> Equipment;
    <bullet> Employee staffing levels and schedules;
    <bullet> Management structure;
    <bullet> Employee training; and
    <bullet> Other matters that impact railroad safety.
    A railroad would not be required to limit its risk-based hazard 
analysis to the above identified factors, and FRA may require a 
railroad to consider these and/or additional factors in any proposed or 
final rule. However, the contents of a railroad's risk mitigation RRPP 
would be based upon the results of the railroad's completed risk-based 
hazard analysis. See 49 U.S.C. 20156(d)(1).

B. Technology Implementation Plan and Positive Train Control Systems

    An RRPP must include a Technology Implementation Plan (TIP) that 
describes the railroad's plan for the ``development, implementation, 
maintenance, and use of current, new, or novel technologies on its 
system over a 10-year period to reduce safety risks identified under 
the railroad safety risk reduction program.'' 49 U.S.C. 20156(e)(1). At 
a minimum, a TIP must contain (1) a technology analysis addressing the 
safety impact, feasibility, and costs and benefits of implementing 
technologies, and (2) a 10-year implementation schedule prioritizing 
the development and implementation of new technology. See 49 U.S.C. 
20156(e)(2) and (e)(3).
    The RSIA also contains several provisions regarding a railroad's 
TIP and the implementation of positive train control (PTC) systems. 
These provisions, however, apply only to the extent that a railroad is 
not already required to implement a PTC system under section 104 of the 
RSIA. Under section 104, certain railroads--including all Class I and 
passenger railroads--are required to implement PTC systems by December 
31, 2015. See 49 U.S.C. 20156(e)(4) and 20157(a). Therefore, the RSIA's 
provisions (other than those in section 104) regarding PTC systems 
would apply only to railroads determined to have an inadequate safety 
record. Possible methodologies FRA could use to determine whether a 
railroad has an inadequate safety record are discussed later in this 
ANPRM.
    While there is no general requirement in the RSIA that all 
railroads with an inadequate safety record must address PTC systems in 
their TIPs, the RSIA does contain the following provisions regarding 
PTC systems:
    <bullet> If a railroad's TIP contains an implementation schedule 
for a PTC system, the railroad must comply with that schedule. See 49 
U.S.C. 20156(e)(4)(A).
    <bullet> If a railroad is required to submit a TIP that addresses 
PTC systems, that railroad must implement such a PTC system pursuant to 
its TIP by December 31, 2018. See 49 U.S.C. 20156(e)(4)(B).
    The above provisions mean that a railroad voluntarily submitting a 
TIP addressing the implementation of a PTC system would not have to 
comply with the December 31, 2018 implementation deadline. Rather, such 
a railroad would only be required to comply with the implementation 
schedule contained in its own TIP. The December 31, 2018 deadline would 
apply only to a railroad with an inadequate safety record that

[[Page 76347]]

FRA specifically requires to implement PTC.

C. Fatigue Management Plan

    Each RRPP must include a Fatigue Management Plan (FMP) that will be 
designed to reduce the likelihood of accidents, incidents, injuries, 
and fatalities caused by the fatigue of safety-related railroad 
employees. See 49 U.S.C. 20156(f)(1). A railroad will have to update 
its FMP every two years. Id. An FMP should accomplish this by 
prescribing appropriate fatigue countermeasures, taking into account 
the various operating circumstances on the different parts of a 
railroad system. See 49 U.S.C. 20156(f)(2). A railroad would also have 
to consider whether its FMP should include elements addressing the 
following:
    <bullet> Employee education and training on the physiological and 
human factors that affect fatigue, as well as strategies to reduce or 
mitigate the effects of fatigue, based on the most current scientific 
and medical research and literature.
    <bullet> Opportunities for identification, diagnosis, and treatment 
of any medical condition that may affect alertness or fatigue, 
including sleep disorders.
    <bullet> Effects on employee fatigue of an employee's short-term or 
sustained response to emergency situations, such as derailments and 
natural disasters, or engagement in other intensive working conditions.
    <bullet> Scheduling practices for employees, including innovative 
scheduling practices, on-duty call practices, work and rest cycles, 
increased consecutive days off for employees, changes in shift 
patterns, appropriate scheduling practices for varying types of work, 
and other aspects of employee scheduling that would reduce employee 
fatigue and cumulative sleep loss.
    <bullet> Methods to minimize accidents and incidents that occur as 
a result of working at times when scientific and medical research have 
shown increased fatigue disrupts employees' circadian rhythm.
    <bullet> Alertness strategies, such as policies on napping, to 
address acute drowsiness and fatigue while an employee is on duty.
    <bullet> Opportunities to obtain restful sleep at lodging 
facilities, including employee sleeping quarters provided by the 
railroad carrier.
    <bullet> The increase of the number of consecutive hours of off-
duty rest, during which an employee receives no communication from the 
employing railroad carrier or its managers, supervisors, officers, or 
agents.
    <bullet> Avoidance of abrupt changes in rest cycles for employees.
    <bullet> Additional elements that the Secretary considers 
appropriate.

See 49 U.S.C. 20156(f)(3)(A)-(J).

D. Consensus Requirements

    Each railroad submitting an RRP must consult on the contents of the 
plan in good faith with all of its directly affected railroad employees 
and any non-profit employee labor organization representing directly 
affected employees. See 49 U.S.C. 20156(g)(1). If the railroad cannot 
reach a consensus on the proposed contents with the employees or the 
labor organization, the employees or the labor organization may file a 
statement with FRA explaining their views on the RRP on which consensus 
was not reached. See 49 U.S.C. 20156(g)(2). FRA is required to consider 
such views during the review and approval of the RRP. Id.

E. Protection of Confidential Information

1. FOIA Protection
    Under section 109 of the RSIA, 49 U.S.C. 20118(a), certain 
information submitted to FRA pursuant to an RRP or risk reduction pilot 
project is prohibited from disclosure under the Freedom of Information 
Act, 5 U.S.C. 552, (``FOIA''), except as necessary for the Secretary or 
another Federal agency to enforce or carry out any provision of Federal 
law. This prohibition applies to any part of any record that FRA 
receives, inspects, or copies pursuant to an RRP or pilot project, 
including (but not limited to) a railroad's analysis of its safety 
risks and its statement of identified mitigation measures. Id. This 
prohibition, however, is subject to the exception that FRA may disclose 
information otherwise available to the public if FRA determines that 
disclosure would be consistent with the confidentiality needed for an 
RRP or pilot program. See 49 U.S.C. 20118(b).
    In addition, FRA may also prohibit disclosure of risk analyses or 
risk mitigation analyses obtained under other provisions, regulations, 
or orders promulgated under 49 U.S.C. chapter 201, if FRA determines 
that the prohibition of public disclosure is necessary to promote 
railroad safety. See 49 U.S.C. 20118(c).
2. Protection From Discovery
    The RSIA also directs FRA to conduct a study evaluating whether it 
is in the public interest to withhold certain risk reduction 
information from discovery or admission into evidence in Federal or 
State court proceedings against a railroad that involve personal injury 
or wrongful death. See 49 U.S.C. 20119(a). In conducting this study, 
FRA must take into account both public safety and the legal rights of 
persons injured in railroad accidents, and must solicit input from 
railroads, railroad non-profit employee labor organizations, railroad 
accident victims and their families, and the general public. Id. The 
risk reduction information that is the subject of the study would 
include any report, survey, schedule, list, or data compiled or 
collected for the purpose of evaluating, planning, or implementing a 
railroad RRP that is required under 49 U.S.C. chapter 201, including a 
railroad's analysis of safety risks and its statement of mitigation 
measures with which it will address those risks. Id. FRA may then issue 
a rule addressing the results of this study, so long as the rule is in 
the public interest (including public safety and the legal rights of 
persons injured in railroad accidents). See 49 U.S.C. 20119(b). Any 
such rule may not go into effect until one year after its adoption. Id.
    FRA anticipates that it will complete this study within one to two 
years. The public will have an opportunity to comment on the 
information collection requirements of this study through FRA's 
obligation under the Paperwork Reduction Act.

IV. FRA's Risk Reduction Initiative

    Although FRA's traditional rule-based system has been effective at 
establishing minimum safety standards, additional safety improvements 
could be achieved through the establishment of risk reduction programs. 
FRA's risk reduction initiative utilizes an approach based on (1) 
voluntary risk reduction programs in the railroad industry, and (2) 
changes to FRA's internal safety culture to maximize the agency's 
ability to improve railroad safety. FRA envisions that the RRP and SSP 
regulations discussed in this ANPRM will enhance this broad approach. 
Risk reduction is a problem-solving process used to identify and 
mitigate railroad safety risks. Its objective is to develop innovative 
methods, processes, and technologies that can be used to identify and 
mitigate railroad safety risk factors proactively instead of 
reactively, so that risks are effectively counteracted before an 
accident, injury, or fatality occurs.
    Overall, a risk reduction approach could help railroads, FRA, and 
labor organizations learn how unsafe events may occur and identify 
underlying conditions that contribute to unsafe events. This knowledge 
will then provide a means to effectively prevent those unsafe events. 
When fully implemented, FRA intends that its

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broad risk reduction initiative will help identify systemic factors 
that can address multiple railroad safety problems. Risk reduction will 
also help to identify, track, and evaluate corrective actions taken by 
railroads, and could help reveal previously hidden safety information 
for analysis and problem solving.

A. Voluntary Risk Reduction Programs

    Before the passage of RSIA, FRA worked with railroads and labor 
organizations to develop voluntary proactive safety programs designed 
to improve railroad safety and build strong safety cultures. Various 
programs, such as the Confidential Close Call Reporting Systems 
(C\3\RS) (OMB No. 2130-0574), Crew Resource Management model training 
programs, and Clear Signal for Action (CSA) behavior-based safety 
programs (as well as many others), contained elements that made them 
(or other programs like them) appropriate for consideration as 
voluntary programs under the risk reduction umbrella. These elements 
include commitments from all stakeholders; voluntary, confidential, and 
non-punitive participation; systematic and objective data gathering, 
analysis, and reporting; problem-solving and corrective actions; and 
long-term sustaining mechanisms. FRA's risk reduction initiative will 
continue to encourage the development and implementation of voluntary 
programs focusing on proactive risk mitigation.

B. FRA's Internal Risk Reduction Program

    As a regulator, FRA recognizes that the presence of a strong 
internal safety culture increases its ability to improve railroad 
safety. A strong internal safety culture enables the agency to overcome 
institutional ``stovepipe'' barriers that inhibit the free flow of 
information within the agency and can help the entire agency focus 
effectively on railroad safety issues. To help the agency identify new 
processes or methods for improving railroad safety, FRA is developing 
its own internal risk reduction program. This program will provide 
support and guidance to several FRA teams working on internal pilot 
studies that would address specific railroad safety issues.

C. Risk Reduction Pilot Programs

    The RSIA authorized FRA to conduct research and pilot programs 
related to risk reduction. See 49 U.S.C. 20156(a)(2). FRA intends to 
use the information and experience gathered through these pilot 
programs to develop the RRP regulation. Id.
    On May 29, 2009, FRA published a Broad Agency Announcement (BAA) 
soliciting proposals for risk reduction pilot programs. See Department 
of Transportation (Federal Railroad Administration), ``Limited 
Competition of the Federal Railroad Administration Risk Reduction 
Program/Broad Agency Announcement,'' Special Notice, Solicitation 
Number: DTFR53-09-M-0000, available at: https://www.fbo.gov/index?s=opportunity&mode=form&id=0ea229f12915fda77cfc84b4dbc6ef9a&tab=core&_cview=0. FRA limited competition under the BAA to Class I 
railroads, many of which were already developing proactive safety 
programs. This allowed FRA to increase the speed of generating pilot 
projects results to help develop the RRP regulation required by RSIA. 
The BAA requested proposals from the Class I railroads for pilot 
projects that targeted operations, equipment, or systems that posed the 
greatest risk to operational and personal safety. FRA evaluated the 
proposals and announced in September 2009 that Risk Reduction Pilot 
Program Grant Awards had been awarded to the National Railroad 
Passenger Corporation (Amtrak); BNSF Railway Company; Canadian Pacific 
Railway; CSX Transportation, Inc.; Norfolk Southern Corporation; and 
Union Pacific Railroad Company.
    FRA is currently monitoring these pilot programs and gathering 
information and results that will assist in the development of the 
subject RRP regulation. FRA anticipates that many of these pilot 
projects will have a life span beyond the publication of the final risk 
reduction regulation, and many of them may ultimately become part of a 
railroad's FRA-approved RRP.

V. Advance Notice of Proposed Rulemaking

    In accordance with the RSIA mandate, this ANPRM announces the 
initiation of an RRP rulemaking. This ANPRM requests written comments 
in response to the questions presented. FRA also welcomes any 
additional information that may be helpful in considering a risk 
reduction framework for railroad carriers. FRA is not proposing any 
specific regulatory language in this ANPRM. After a review of all the 
comments submitted in response to this ANPRM, FRA will likely issue a 
notice of proposed rulemaking (NPRM) proposing specific risk reduction 
program regulations. Interested persons will have the opportunity to 
comment on a proposed regulation prior to the adoption of any final 
regulation regarding risk reduction.

A. Identifying Railroads With an Inadequate Safety Record

    FRA is particularly interested in soliciting input regarding how to 
determine whether a railroad has an ``inadequate safety record'' under 
49 U.S.C. 20156(a)(1) and thus would be required to develop and 
implement an RRP. The RSIA does not provide guidance on how this 
determination should be made. FRA is currently considering an approach 
in which a variety of safety factors would be analyzed and weighed when 
making the determination. Such possible factors could include:
    <bullet> The railroad's safety performance within the last five (5) 
years, as measured by the number of occurrences per million train-miles 
of the following:
    [cir] Fatal accidents/incidents reportable under 49 CFR part 225 
(not including accidents/incidents occurring at highway-rail grade 
crossings, unless caused by a railroad's failure to comply with a 
railroad operating rule or a Federal statute or regulation).
    [cir] The number, severity, and types (e.g., head-on collisions 
between pieces of on-track equipment) of accidents/incidents reportable 
under 49 CFR part 225.
    [cir] Non-accident hazardous materials releases.
    [cir] FRA safety violations/deficiencies.
    <bullet> How the railroad's measured safety performance compares 
with other railroads of similar size and operations.
    <bullet> Any serious accident/incident involving hazardous 
materials and whether any such accident/incident led to an evacuation, 
environmental damage, or a personal injury/fatality.
    <bullet> Any recommendations made by an FRA Regional Administrator 
(with detailed supporting reasons provided) identifying a railroad with 
an inadequate safety record.
    <bullet> The proportion of the railroad's territory that is 
excepted track under 49 CFR 213.4. Railroads may designate a segment of 
track as excepted track subject to certain conditions. Id. For example, 
on excepted track a railroad may not operate trains in excess of ten 
miles an hour, operate occupied passenger trains, or operate freight 
trains containing more than five cars containing hazardous materials. 
See Sec.  213.4(e)(1)-(e)(3). Excepted track is then subject to less 
stringent track safety standards. See 49 CFR 213.5.
    FRA does not anticipate that all these factors would necessarily be 
weighted equally. Additionally, a determination relating to the 
adequacy of a railroad's safety record could be based upon any number 
of factors, depending upon the

[[Page 76349]]

severity of the safety concern involved. FRA would likely consider such 
factors as fatalities, accidents/incidents, non-accident hazmat 
releases, and FRA safety violations/deficiencies, using statistical 
models that compare the railroad's performance to the industry average 
or an FRA threshold established on a periodic basis (e.g., yearly). 
Rates above a certain threshold would then likely cause FRA to 
determine that a railroad has an inadequate safety record. In order for 
FRA to determine that a railroad no longer has an inadequate safety 
record, the railroad may then need to be below all applicable 
thresholds for a set period of time (e.g., three years).
    Additional factors to be considered may include the increased risk 
level due to operating conditions specific to an individual railroad. 
In other words, factors presenting a greater than usual risk or hazard 
would weigh in favor of determining that a railroad has an inadequate 
safety record. Such factors might include the following:
    <bullet> Share of a railroad's revenue from the shipment of 
hazardous materials;
    <bullet> Share of a railroad's revenue from the shipment of 
hazardous materials in a major metropolitan area;
    <bullet> Whether the railroad shares trackage rights with a 
railroad engaged in passenger operations; and
    <bullet> Whether a passenger operation crosses the railroad's 
right-of-way at grade, otherwise known as a diamond crossing.
    As this document is an ANPRM, the above ideas are not intended to 
constitute FRA's final position regarding the definition of 
``inadequate safety record.'' Rather, they are intended to elicit 
discussion and comment from interested parties. FRA anticipates that 
any approach proposed in a future NPRM could differ significantly from 
the above. Nevertheless, FRA believes that the approach presented above 
provides a good starting point for discussion. As discussed further 
below in the Request for Information section, FRA is interested in 
receiving any comments, questions, or concerns about the above 
approach, as well as any suggestions for alternate methods of 
determining when a railroad has an ``inadequate safety record.''

B. RRP Requirements and Implementation

    As discussed above, the RSIA requires a railroad's RRP to include 
certain minimum core components: A risk-based hazard analysis and an 
RRPP (which must include a TIP and an FMP). FRA anticipates that a risk 
reduction proposed rule would provide further specification regarding 
what a risk-based hazard analysis and an RRPP might contain. For 
example, FRA could propose the following requirements for public 
comment:
    <bullet> A railroad's risk-based hazard analysis may be required 
to:
    [cir] Utilize certain demonstrated methodologies;
    [cir] Be of a certain scope;
    [cir] Contain a comprehensive description of the railroad's system;
    [cir] Address the risks posed both by and to contractors who work 
for the railroad; and
    [cir] Address the risks posed by joint operations between 
railroads.
    <bullet> A railroad may be required to update its risk-based hazard 
analysis on a periodic basis. Additionally, certain events or 
occurrences may trigger a mandatory update of a railroad's risk-based 
hazard analysis.
    <bullet> A railroad's RRPP may be required to include defined roles 
and responsibilities for contractors working for the railroad, as well 
as employees.
    <bullet> A railroad's RRPP may be required to provide for periodic 
risk reduction training to specific railroad employees and contractors.
    <bullet> A railroad's RRPP may be required to specify how the 
railroad will periodically review the design and implementation of its 
RRP utilizing valid mathematical tests or methods that conform to the 
standards of the American Evaluation Association.
    <bullet> A railroad may be required to maintain certain risk 
reduction documentation and records and to make that information 
available upon request to the FRA for auditing purposes.
    <bullet> A railroad may be required to develop and submit a risk-
based hazard analysis and an RRPP for approval six months after the 
publication of the final rule, and to fully implement the RRP six 
months after the hazard analysis and the RRPP have been approved by the 
FRA.

C. Request for Information

    In general, FRA seeks comments on the broad areas outlined within 
this ANRPM, and approaches FRA can take to integrate existing FRA 
requirements into a comprehensive risk reduction program that meets the 
requirements set forth in RSIA. FRA seeks comments on how a risk 
reduction program could be implemented to meet the requirements of the 
law in a manner that maximizes benefits without imposing excessive, 
unjustified, or unnecessary costs.
    FRA also seeks input from the public on the following specific 
questions. Comments will be used by FRA to make decisions regarding the 
content and direction of any future public meetings on the risk 
reduction rulemaking and the contents of the NPRM. Each commenting 
party should refer to the number of the specific question(s) to which 
it is responding. FRA also requests additional comments and information 
not addressed by these questions that would promote an understanding of 
the implications of imposing an RRP regulatory requirement. FRA does 
not expect that every commenter will be able to answer every question. 
Please respond to those questions you feel able to answer or that 
address your particular issue. FRA encourages responses from all 
interested entities, not only railroads. Each comment filed by a party, 
other than railroads or their representatives, should explain its 
interest in risk reduction and how its comments may assist in the 
development of an RRP rulemaking.
Risk Reduction Program
    1. If you are not in the railroad industry, please tell us about 
your organization and your interest in risk reduction.
    2. What should be the scope of applicability for the final risk 
reduction rule? Should certain types of railroads (such as tourist 
railroads) be exempted from the regulation?
    3. The RSIA requires a railroad with an ``inadequate safety 
record'' to develop and implement an FRA-approved RRP. This ANPRM 
proposes a list of factors that FRA could consider when determining 
whether a railroad has an ``inadequate safety record.''
    a. Is FRA asking the right questions to determine the adequacy of a 
safety record? Please comment on the various factors FRA has 
identified. What other questions should FRA be asking?
    b. What additional factors not discussed above should FRA consider?
    4. An RRP must be designed to improve safety by reducing the number 
and rates of accidents, incidents, injuries, and fatalities. An RRP 
will accomplish this by using a safety improvement process that 
identifies accident precursors and mitigates hazards on an ongoing 
basis.
    a. What should an effective RRP include to accomplish this mandate?
    b. How should a railroad go about adequately demonstrating that its 
RRP is effective for addressing safety concerns identified in the risk-
based hazard analysis?
    c. How can a railroad utilize risk reduction to improve its 
corporate safety culture?
    5. Each railroad required to develop and implement an FRA-approved 
RRP must include defined roles and responsibilities for contractors. 
FRA

[[Page 76350]]

will likely hold a railroad responsible for ensuring that a contractor 
fulfills these roles and responsibilities.
    a. What are the different ways an RRP can incorporate contractors 
performing work for a railroad?
    b. How would you determine which contractors should be included in 
a railroad's RRP? Should a railroad's RRP be required to incorporate 
only contractors who perform safety-sensitive service for the railroad? 
Who should be excluded? Explain.
    c. Should a railroad or FRA (or both) be responsible for ensuring 
that contractors working for a railroad are fulfilling their RRP roles 
and responsibilities?
    6. An RRP must take into account the risks and hazards associated 
with joint operations between railroads.
    a. How should FRA define joint operations in the context of an RRP 
regulation?
    b. What are the different ways an RRP can incorporate risks and 
hazards associated with joint operations?
    7. Should all railroads be required to submit risk-based hazard 
analyses and RRPPs of identical scope and depth that meet uniform 
rigorous standards? If not, how can FRA craft a scalable regulation 
that applies fairly to both large and small railroads? Are there ways 
to make risk reduction programs scalable and flexible, dependent upon 
the size and flexibility of the railroad?
    8. Risk reduction is an ongoing, dynamic approach to identifying 
and mitigating risks. How can a railroad use an RRPP to promote safety 
improvement and to maintain an acceptable level of safety?
    9. What risk reduction activities are already in place at 
railroads, and, how could those activities be incorporated into a 
future proposed rule?
    10. Are there ways to achieve greater benefits at a lower cost 
through alternative methods of implementation?
Risk-Based Hazard Analysis
    11. The RSIA requires each railroad to develop and implement an RRP 
that systematically ``evaluates railroad safety risks on its system.'' 
How can a risk-based hazard analysis accomplish this mandate?
    a. What methodologies should FRA require that a railroad use when 
conducting its risk-based hazard analysis?
    b. What should be excluded from the scope of a risk-based hazard 
analysis? What should be included in that scope?
    c. How should a risk-based hazard analysis determine what is and 
what is not an acceptable level of risk?
    d. What are various methods for determining whether a railroad has 
effectively applied a risk-based hazard analysis to its entire system?
    12. FRA will likely require a risk-based hazard analysis to address 
the risks presented both by and to contractors working for the 
railroad. What elements would need to be present to ensure risks 
relevant to contractors are addressed?
    a. Is there a particular set of contractors that FRA should focus 
on, or, conversely, contractors that have little impact on overall 
risk?
    13. When approving a railroad's RRPP, FRA will likely consider the 
railroad's approach to updating its risk-based hazard analysis.
    a. At a minimum, how often should a railroad update a risk-based 
hazard analysis? Why have you recommended this time span?
    b. In what ways is a risk-based hazard analysis an on-going process 
supporting safety improvements?
    c. What type of events or occurrences might trigger an update of a 
railroad's risk-based hazard analysis?
Risk Reduction Program Plan
    14. The RSIA requires a railroad to include a TIP and an FMP in its 
RRPP. FRA may require an RRPP to have additional elements, such as a 
comprehensive description of the railroad's system. What other basic 
elements should an RRPP be required to contain?
    15. Based on the information provided in this ANPRM, what would the 
potential burden on railroads be for developing and maintaining an 
RRPP, TIP, and FMP? Are particular elements more burdensome than 
others? Are there ways for FRA to reduce the burden on railroads 
(including, but not limited to, reduction of burden on small entities)?
    16. All conclusions reached or positions taken by a railroad should 
have supporting data that a reviewer can understand and follow in order 
to reach the same conclusions. What additional supporting 
documentation, data, or other information should a railroad be required 
to include in the RRPP package it submits for FRA approval?
    17. Are there risk management standards or guidelines that FRA 
should apply when approving a railroad's RRPP?
    18. Are there standards, analyses, or other considerations that FRA 
should apply when deciding whether a railroad with an inadequate safety 
record must submit a TIP providing for the implementation of a PTC 
system?
    19. The RSIA requires a railroad to consider whether its FMP should 
address certain elements. Are there additional elements that FRA should 
require a railroad's FMP to consider? What are the likely costs of 
implementing specific elements of an FMP, and, what are the expected 
benefits of implementing these elements?
Training
    20. A railroad will likely be required to develop a risk reduction 
training program (submitted as part of the railroad's RRPP) that 
introduces the concept of safety risk reduction and the elements of the 
railroad's RRP. What specific material should be included in or 
excluded from a railroad's training?
    21. Which employees or classes of employees should a railroad be 
required to train on various RRP policies and procedures? Who should be 
excluded from this training? Explain.
    22. How often should risk reduction training be required? Why?
Recordkeeping and Program Audits
    23. FRA may require railroads to maintain RRP records related to 
input and output data, safety outcomes, evaluation protocols, manuals, 
training programs, policies, procedures, standard operating procedures, 
etc. Would retaining these records be appropriate? Are there other 
records FRA should propose that railroads maintain? What would be the 
practical utility of collecting and maintaining this information? What 
would the potential burden of these activities be? Are there ways for 
FRA to reduce burden related to recordkeeping and auditing 
requirements?
    24. In addition to a records review, FRA's annual review will 
probably include field inspections, interviews, surveys, and other 
evaluative data collection efforts. FRA may also inspect data 
indicating whether the program has been effective in reducing risk. Are 
these effective evaluation measures? What other tools could FRA 
incorporate into its annual review effort?
    25. As provided by the RSIA, FRA will review a railroad's RRP 
annually. Should FRA's annual review:
    a. Address a railroad's entire RRP?
    b. Focus primarily on certain RRP components, with a maximum of two 
years between audits for any single program component?
    c. Target certain issues identified by accident/incident, 
inspection, or complaint data?
    26. How should a railroad provide FRA access to proprietary or 
sensitive data?
    27. FRA will likely require covered railroads to periodically 
evaluate their RRP to ensure that it is effectively

[[Page 76351]]

reducing risk. Covered railroads will be specifically required to 
evaluate components of the program that were not audited by FRA that 
year. These evaluations will likely be required to utilize valid 
mathematical tests or methods that conform to the standards of the 
American Evaluation Association.
    a. How often should a railroad be required to evaluate the 
effectiveness of its RRP?
    b. What other standards could a railroad use to evaluate the 
effectiveness of its RRP?
    28. Should FRA allow a railroad to hire a contractor to evaluate 
its RRP? If so, what qualifications or certifications should this 
contractor have?
    29. What documentation/certification must a railroad maintain so 
that FRA can verify that the railroad has properly evaluated the 
effectiveness of its RRP?
Cost/Benefits
    30. What are the initial and recurrent costs of establishing and 
maintaining RRP processes (e.g., internal auditing and evaluation, data 
collection, employee training, computer software, personnel hiring and 
training)?
    31. How could railroads maximize benefits associated with a risk 
reduction program without unjustified or unnecessary costs?
    32. What new knowledge, skills, and abilities would your 
organization need, if any, to operate successfully within a risk 
reduction framework?
    33. What are practical ways a small business could apply the 
elements of an RRP?
    34. What business benefits are created by a risk reduction program?
    35. Are there special costs or loss of benefits of scale for small 
businesses? If so, how can they be minimized?
General/Background
    36. FRA may require a railroad to develop and submit an RRPP for 
approval six months after publication of the final rule. Is this 
timeline appropriate? If not, why? What additional problems does the 
six month deadline create?
    37. FRA may require a railroad to establish a full initial 
implementation of an RRP six months after the RRPP has been approved by 
FRA.
    a. Is this timeline appropriate? If not, explain why it is not 
appropriate.
    b. Should FRA permit a railroad to implement its RRP in phases? 
What should those phases be? Explain.
    38. Has your organization implemented an official safety risk 
reduction program (or other programs that could qualify as risk 
reduction)? Please describe your implementation experience.
    a. How has this program impacted organizational safety and 
compliance with existing Federal statutes and regulations?
    b. How have the resources required to implement and maintain the 
program affected your organization?
    c. If you do not represent a railroad, how do you think your risk 
reduction activities would apply in a railroad context?
    d. How has this program improved your organization's corporate 
safety culture?
    39. Has your railroad undertaken a risk reduction pilot project? If 
so, please tell us how successful that pilot project has been and how 
any data or information obtained through the project could assist in 
the development of an RRP regulation.
    40. What areas of FRA's current regulations do you believe already 
incorporate risk reduction principles? How would you suggest the FRA 
avoid any duplicative requirements in any risk reduction rulemaking 
effort?
Public Meetings
    41. After the ANPRM comment period has closed, FRA may hold one or 
more public hearings on the announced risk reduction rulemaking. 
Decisions regarding public meetings will be made based upon the content 
of the comments. As such, all interested entities should, to the best 
of their ability, respond fully in writing to the questions presented 
in this ANPRM.
    a. How many public meetings, if any, should FRA hold?
    b. Where should any public meeting(s) be held? Are there certain 
meeting locations that would increase participation?

    Issued in Washington, DC, on December 2, 2010.
Karen J. Hedlund,
Chief Counsel, Federal Railroad Administration.
[FR Doc. 2010-30836 Filed 12-7-10; 8:45 am]
BILLING CODE 4910-06-P


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