Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Proposed Rules 76345 

analysis of improved energy security, 

monetized benefits of CO2 reductions, 

impacts of other pollutants, an 

assessment of the societal costs and 

benefits of potential standards, an 

assessment of potential safety impacts, 

an assessment of impacts on automobile 

sales, an assessment of employment 

impacts, an assessment of the regulatory 

program’s key design elements and 

flexibility mechanisms, and related 

issues. 

Finally, as discussed in the September 

NOI, EPA is currently in the process of 

conducting an assessment of the 

potential need for additional controls on 

light-duty vehicles’ non-greenhouse gas 

emissions and gasoline fuel quality. 

EPA expects to coordinate the timing of 

any final action on new non-greenhouse 

gas emissions regulations for light-duty 

vehicles and gasoline with the final 

action on greenhouse gas emissions and 

CAFE regulations discussed in this 

Supplemental NOI. 

In his May 21, 2010 Memorandum, 

the President highlighted the 

opportunity for the U.S. to lead the 

world in developing a new generation of 

clean cars and trucks, to spur economic 

growth and to create high-quality jobs. 

In developing the proposal, the agencies 

will continue to gather input from 

stakeholders, including the OEMs and 

labor unions, on the potential impacts of 

standards on worker productivity, jobs, 

the automotive sector, and the 

opportunities for economic growth. 

B. Anticipated Rulemaking Schedule 

The May 21, 2010 Presidential 

Memorandum called for EPA and 

NHTSA to include in the September 

Notice of Intent a ‘‘schedule for setting 

those standards as expeditiously as 

possible, consistent with providing 

sufficient leadtime to vehicle 

manufacturers.’’ As we indicated in the 

September NOI, the agencies expect to 

issue a joint Notice of Proposed 

Rulemaking (NPRM) by September 30, 

2011, and a final rule by July 31, 2012. 

As required by the National 

Environmental Policy Act (NEPA), and 

by NHTSA and Council of 

Environmental Quality (CEQ) 

regulations, NHTSA will be developing 

a Draft Environmental Impact Statement 

(DEIS), to inform the upcoming NPRM. 

In the coming months, NHTSA will 

issue a scoping notice to request 

comment on the regulatory options that 

the DEIS should consider. A Final EIS 

(FEIS) will be issued at least 30 days 

prior to the release of the final rule. 

As with any notice-and-comment 

rulemaking process, the agencies will 

provide full opportunity for the public 

to participate in the rulemaking process, 

consistent with EPCA/EISA, the Clean 

Air Act, Administrative Procedure Act, 

other applicable law, and 

Administration policies on openness 

and transparency in government. Upon 

publication of the NPRM, the agencies 

will open a public comment period for 

receiving written comments and expect 

to hold at least one joint public hearing 

to receive oral comments. We will 

describe all of these opportunities for 

public involvement in the NPRM which 

will be published in the Federal 

Register, and we will post this 

information on each agency’s Web site 

associated with this rulemaking. 

Dated: November 30, 2010. 

Ray LaHood, 

Secretary, Department of Transportation. 

Dated: November 30, 2010. 

Lisa P. Jackson, 

Administrator, Environmental Protection 

Agency. 

[FR Doc. 2010–30631 Filed 12–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

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). 

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: 

• Online: Comments should be filed 

at the Federal eRulemaking Portal, 

http://www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. DOT, 1200 New Jersey Avenue, 

SE., W12–140, Washington, DC 20590. 

• 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), 

miriam.kloeppel@dot.gov. 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), 

elizabeth.gross@dot.gov. 

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 


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1The 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. 

2The 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. 

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 FRAapproved 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. 

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: 

• Operating rules and practices; 

• Infrastructure; 

• Equipment; 

• Employee staffing levels and 

schedules; 

• Management structure; 

• Employee training; and 

• 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: 

• 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). 

• 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 


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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 safetyrelated 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: 

• 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. 

• Opportunities for identification, 

diagnosis, and treatment of any medical 

condition that may affect alertness or 

fatigue, including sleep disorders. 

• 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. 

• 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. 

• 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. 

• Alertness strategies, such as 

policies on napping, to address acute 

drowsiness and fatigue while an 

employee is on duty. 

• Opportunities to obtain restful sleep 

at lodging facilities, including employee 

sleeping quarters provided by the 

railroad carrier. 

• 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. 

• Avoidance of abrupt changes in rest 

cycles for employees. 

• 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 (C3RS) (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=0ea229f12915fda77cfc84b4dbc6

ef9a&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: 

• 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: 

Æ 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). 

Æ 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. 

Æ Non-accident hazardous materials 

releases. 

Æ FRA safety violations/deficiencies. 

• How the railroad’s measured safety 

performance compares with other 

railroads of similar size and operations. 

• Any serious accident/incident 

involving hazardous materials and 

whether any such accident/incident led 

to an evacuation, environmental 

damage, or a personal injury/fatality. 

• Any recommendations made by an 

FRA Regional Administrator (with 

detailed supporting reasons provided) 

identifying a railroad with an 

inadequate safety record. 

• 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 

§ 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 


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severity of the safety concern involved. 

FRA would likely consider such factors 

as fatalities, accidents/incidents, nonaccident 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: 

• Share of a railroad’s revenue from 

the shipment of hazardous materials; 

• Share of a railroad’s revenue from 

the shipment of hazardous materials in 

a major metropolitan area; 

• Whether the railroad shares 

trackage rights with a railroad engaged 

in passenger operations; and 

• 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 riskbased 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 riskbased hazard analysis and an RRPP 

might contain. For example, FRA could 

propose the following requirements for 

public comment: 

• A railroad’s risk-based hazard 

analysis may be required to: 

Æ Utilize certain demonstrated 

methodologies; 

Æ Be of a certain scope; 

Æ Contain a comprehensive 

description of the railroad’s system; 

Æ Address the risks posed both by 

and to contractors who work for the 

railroad; and 

Æ Address the risks posed by joint 

operations between railroads. 

• 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 riskbased hazard analysis. 

• A railroad’s RRPP may be required 

to include defined roles and 

responsibilities for contractors working 

for the railroad, as well as employees. 

• A railroad’s RRPP may be required 

to provide for periodic risk reduction 

training to specific railroad employees 

and contractors. 

• 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. 

• 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. 

• 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 


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76350 Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Proposed Rules 

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 riskbased 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 riskbased 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 riskbased 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 


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Federal Register / Vol. 75, No. 235 / Wednesday, December 8, 2010 / Proposed Rules 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 100526227–0256–01] 

RIN 0648–AY71 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; Atlantic 

Surfclam (Surfclam) and Ocean 

Quahog Fishery 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; withdrawal. 

SUMMARY: NMFS withdraws the 

proposed rule published on June 30, 

2010, which proposed to open a portion 

of the Georges Bank (GB) Closed Area to 

the harvest of surfclams and ocean 

quahogs. The previously published 

proposed rule will not be issued as a 

final rule and will not become effective 

or enforceable. The current GB Closed 

Area remains in effect. 

DATES: The withdrawal of the proposed 

rule to open a portion of the GB Closed 

Area to the harvest of surfclams and 

ocean quahogs (75 FR 37745, June 30, 

2010) is effective December 8, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Anna Macan, Fishery Management 

Specialist, phone (978) 281–9165, fax 

(978) 281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

NMFS is withdrawing a proposed rule 

to open a portion of the GB Closed Area 

to the harvest of surfclams and ocean 

quahogs that was published on June 30, 

2010 (75 FR 37745), with public 

comments accepted through July 30, 

2010. The background and full details 

on the development of the June 30, 2011 

proposed rule are contained in the 

preamble of the proposed rule and are 

only summarized here. 

The GB Closed Area, located in the 

Exclusive Economic Zone east of 69°00’ 

W. long. and south of 42°20′ N. lat., has 

been closed to the harvest of surfclams 

and ocean quahogs since 1990 due to 

red tide blooms that cause paralytic 

shellfish poisoning (PSP). The closure 

was implemented based on advice from 

the U.S. Food and Drug Administration 

(FDA), after samples tested positive for 

toxins (saxotoxins) that cause PSP. PSP 

toxins are produced by the alga, 

Alexandrium fundyense, which can 


jlentini on DSKJ8SOYB1PROD with PROPOSALS