10950 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 271 

[Docket No. FRA–2009–0038, Notice No. 1] 

RIN 2130–AC11 

Risk Reduction Program 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The Rail Safety Improvement 

Act of 2008 requires the development 

and implementation of railroad safety 

risk reduction programs. This NPRM 

proposes to implement this mandate by 

requiring each Class I railroad and each 

railroad with inadequate safety 

performance to develop and implement 

a Risk Reduction Program (RRP) to 

improve the safety of their operations. 

RRP is a comprehensive, systemoriented approach to safety that 

determines an operation’s level of risk 

by identifying and analyzing applicable 

hazards and involves developing plans 

to mitigate, if not eliminate, that risk. 

Each RRP would be statutorily required 

to include a risk analysis and a 

technology implementation plan. An 

RRP would be implemented by a written 

RRP plan that has been submitted to 

FRA for review and approval. A railroad 

would be required to conduct an annual 

internal assessment of its RRP, and a 

railroad’s RRP processes and procedures 

would be externally audited by FRA. 

DATES: Written comments must be 

received by April 28, 2015. Comments 

received after that date will be 

considered to the extent possible 

without incurring additional expense or 

delay. 

FRA anticipates being able to resolve 

this rulemaking without a public, oral 

hearing. However, if FRA receives a 

specific request for a public, oral 

hearing prior to March 30, 2015, one 

will be scheduled and FRA will publish 

a supplemental notice in the Federal 

Register to inform interested parties of 

the date, time, and location of any such 

hearing. 

ADDRESSES: Comments: Comments 

related to Docket No. FRA–2009–0038, 

Notice No. 1, may be submitted by any 

of the following methods: 

• Web site: The Federal eRulemaking 

Portal, www.regulations.gov. Follow the 

Web site’s online instructions for 

submitting comments. 

• Fax: 202–493–2251. 

• Mail: Docket Management Facility, 

U.S. Department of Transportation, 1200 

New Jersey Avenue SE., Room W12– 

140, Washington, DC 20590. 

• Hand Delivery: Docket Management 

Facility, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE., Room W12–140 on the 

Ground level of the West Building, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

Instructions: All submissions must 

include the agency name, docket name 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking (2130–AC11). Note that all 

comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal information provided. Please 

see the Privacy Act heading in the 

SUPPLEMENTARY INFORMATION section of 

this document for Privacy Act 

information related to any submitted 

comments or materials. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http://

www.regulations.gov at any time or visit 

the Docket Management Facility, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE., Room W12–140 

on the Ground level of the West 

Building, between 9 a.m. and 5 p.m., 

Monday through Friday, except Federal 

holidays. 

FOR FURTHER INFORMATION CONTACT: 

Miriam Kloeppel, Staff Director, Risk 

Reduction Program Division, U.S. 

Department of Transportation, Federal 

Railroad Administration, Office of 

Railroad Safety, Mail Stop 25, West 

Building 3rd Floor, 1200 New Jersey 

Avenue SE., Washington, DC 20590 

(telephone: 202–493–6224), 

Miriam.Kloeppel@dot.gov; or Elizabeth 

Gross, Trial Attorney, U.S. Department 

of Transportation, Federal Railroad 

Administration, Office of Chief Counsel, 

Mail Stop 10, West Building 3rd Floor, 

1200 New Jersey Avenue SE., 

Washington, DC 20590 (telephone: 202– 

493–1342), Elizabeth.Gross@dot.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Introduction 

A. Executive Summary 

B. Abbreviations 

II. Background and History 

A. What is a Risk Reduction Program? 

B. Passenger Railroads and System Safety 

Programs 

C. Other Federal Safety Management 

System Programs 

D. Risk Reducing FRA Programs 

III. Statutory Background 

A. Rail Safety Improvement Act of 2008 

B. Related System Safety Rulemaking 

C. Related Fatigue Management Plans 

Rulemaking 

IV. Proceedings to Date 

A. Advance Notice of Proposed 

Rulemaking (ANPRM) 

B. Public Hearings 

C. Railroad Safety Advisory Committee 

1. Risk Reduction Program (RRP) Working 

Group 

2. Working Group Tentative Agreement 

Vote 

V. Railroads With Inadequate Safety 

Performance 

VI. Risk Reduction Information Protection 

A. Exemption From Freedom of 

Information Act Disclosure 

B. Discovery and Other Use of Risk 

Analysis Information in Litigation 

1. The RSIA Mandate 

2. The Study and Its Conclusions 

3. FRA’s Proposal 

VII. RRP Plan Consultation Requirements 

VIII. Section-by-Section Analysis 

IX. Regulatory Impact and Notices 

A. Executive Orders 12866 and 13563 and 

DOT Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272; Initial Regulatory 

Flexibility Analysis 

C. Federalism 

D. International Trade Impact Assessment 

E. Paperwork Reduction Act 

F. Environmental Assessment 

G. Unfunded Mandates Reform Act of 1995 

H. Energy Impact 

I. Privacy Act 

I. Introduction 

A. Executive Summary 

The proposed rulemaking would add 

to FRA’s regulations a new part, which 

would require each Class I railroad and 

each railroad with inadequate safety 

performance to develop and implement 

a Risk Reduction Program (RRP). An 

RRP is a structured program with 

proactive processes and procedures 

developed and implemented by a 

railroad to identify hazards and to 

mitigate, if not eliminate, the risks 

associated with those hazards on its 

system. An RRP encourages a railroad 

and its employees to work together to 

proactively identify hazards and to 

jointly determine what action to take to 

mitigate or eliminate the associated 

risks. 

FRA understands that each railroad 

that would be subject to the RRP rule 

would have a unique operating system, 

and that not all railroads have the same 

amount of resources. Best practices for 

implementing an RRP would therefore 

differ from railroad to railroad. 

Accordingly, the proposed RRP rule 

does not establish prescriptive 

requirements that may be appropriate 

for one railroad but unworkable for 

another. Instead, the rule proposes only 

general, performance-based 

requirements. This approach would 


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provide each railroad a substantial 

amount of flexibility to tailor those 

requirements to its specific operations. 

FRA is proposing this RRP rule as part 

of its efforts to continually improve rail 

safety and to satisfy the statutory 

mandate contained in sec. 103 and sec. 

109 of the Rail Safety Improvement Act 

of 2008 (RSIA), Public Law 110–432, 

Division A, 122 Stat. 4848 et seq., 

codified at 49 U.S.C. 20156, and 20118– 

20119. The proposed RRP rule is a 

performance-based rule, and FRA seeks 

comments on all aspects of the proposed 

rule. 

Section 103 of the RSIA directs the 

Secretary of Transportation (Secretary) 

to issue a regulation requiring Class I 

railroads, railroad carriers that provide 

intercity rail passenger or commuter rail 

passenger transportation (passenger 

railroads), and railroads with 

inadequate safety performance to 

develop, submit to the Secretary for 

review and approval, and implement a 

railroad safety risk reduction program. 

The proposed rule would implement 

this mandate for Class I freight railroads 

and railroads with inadequate safety 

performance. A railroad not otherwise 

required to comply with the proposed 

rule would also be permitted to 

voluntarily submit an RRP plan for FRA 

review and approval. A separate system 

safety program (SSP) rulemaking would 

similarly implement this mandate for 

passenger railroads, and an SSP NPRM 

was published by FRA on September 7, 

2012, 77 FR 55372. 

Section 109 of the RSIA specifies that 

certain risk reduction records obtained 

by the Secretary are exempt from the 

public disclosure requirements of the 

Freedom of Information Act (FOIA). 

This exemption is subject to two 

exceptions for disclosure necessary to 

enforce or carry out any Federal law and 

disclosure when a record is comprised 

of facts otherwise available to the public 

and FRA has determined that disclosure 

would be consistent with the 

confidentiality needed for RRPs. See 49 

U.S.C. 20118. FRA therefore believes 

that railroad risk reduction records in its 

possession would generally be 

exempted from mandatory disclosure 

under FOIA. Unless one of the two 

exceptions provided by the RSIA would 

apply, FRA would withhold disclosing 

any such records in response to a FOIA 

request. See 5 U.S.C. 552(b)(3) and 49 

CFR 7.13(c)(3). 

Section 109 of the RSIA also 

authorizes the Secretary to issue a 

regulation protecting from discovery 

and admissibility into evidence in 

litigation certain information generated 

for the purpose of developing, 

implementing, or evaluating an RRP. 

Currently, the proposed rule would 

implement sec. 109 with respect to 

RRPs covered by this proposed part. If 

an SSP final rule is published before an 

RRP final rule, however, the information 

protection provisions contained in the 

SSP final rule would specifically apply 

to information generated for an RRP as 

well. 

The Secretary has delegated the 

responsibility to carry out his 

responsibilities under both sec. 103 and 

sec. 109 of RSIA, as well as the general 

responsibility to conduct rail safety 

rulemakings, codified at 49 U.S.C. 

20103, to the Administrator of FRA. See 

49 CFR 1.89(m) and (oo). 

The primary component of an RRP 

would be an ongoing risk-based hazard 

management program (risk-based HMP), 

supported by a risk-based hazard 

analysis. A properly implemented riskbased HMP would identify hazards and 

the associated risks on the railroad’s 

system, compare and prioritize the 

identified risks for mitigation purposes, 

and develop mitigation strategies to 

address the risks. An RRP would also be 

required to contain the following 

additional components: a safety 

performance evaluation; a safety 

outreach component; and a technology 

analysis and technology implementation 

plan (which would consider various 

technologies that may mitigate or 

eliminate identified hazards and the 

associated risks). A railroad would also 

be required to provide RRP training to 

employees who have significant 

responsibility for implementing and 

supporting the railroad’s RRP. 

Implementation of an RRP would be 

supported by a written risk reduction 

program plan (RRP plan) describing the 

railroad’s processes and procedures for 

implementing the requirements for an 

RRP. An RRP plan would not be 

required to contain the results of a 

railroad’s risk-based hazard analysis or 

to describe specific mitigation strategies. 

An RRP plan would also be required to 

contain certain elements that support 

the development of an RRP, such as a 

policy statement, a statement of the 

railroad’s RRP goals, a description of the 

railroad’s system, and an RRP 

implementation plan. 

An RRP could be successful only if a 

railroad engaged in a robust assessment 

of the hazards and associated risks on 

its system. However, a railroad may be 

reluctant to reveal such hazards and 

risks if there is the possibility that such 

information may be used against it in a 

court proceeding for damages. In sec. 

109 of the RSIA, Congress directed FRA 

to conduct a study to determine if it was 

in the public interest to withhold 

certain information, including the 

railroad’s assessment of its safety risks 

and its statement of mitigation 

measures, from discovery and 

admission into evidence in proceedings 

for damages involving personal injury 

and wrongful death. See 49 U.S.C. 

20119. FRA contracted with an outside 

organization to conduct this study, and 

the study concluded that it was in the 

public interest to withhold this type of 

information from these types of 

proceedings. See ‘‘Study of Existing 

Legal Protections for Safety-Related 

Information and Analysis of 

Considerations for and Against 

Protecting Railroad Safety Risk 

Reduction Program Information,’’ FRA, 

docket no. FRA–2011–0025–0031, Oct. 

21, 2011. Furthermore, Congress 

authorized FRA, by delegation from the 

Secretary, to prescribe a rule, subject to 

notice and comment, to address the 

results of the study. See 49 U.S.C. 

20119(b). The proposed rule would 

address the study’s results and set forth 

protections of certain information from 

discovery, admission into evidence, or 

use for other purposes in a proceeding 

for damages. 

An RRP could affect almost all facets 

of a railroad’s operations. To ensure that 

all employees directly affected by an 

RRP have an opportunity to provide 

input on the development, 

implementation, and evaluation of a 

railroad’s RRP, a railroad would be 

required to consult in good faith and use 

its best efforts to reach agreement with 

all of its directly affected employees on 

the contents of the RRP plan and any 

amendments to the plan. Guidance 

regarding what constitutes ‘‘good faith’’ 

and ‘‘best efforts’’ would be included in 

proposed Appendix B. 

FRA anticipates that a final RRP rule 

would become effective 60 days after 

the date of publication. However, by 

statute, the protection of certain 

information from discovery, admission 

into evidence, or use for other purposes 

in a proceeding for damages would not 

become applicable until one year after 

the publication of the final rule. 

Assuming that an SSP final rule could 

be published before an RRP final rule, 

FRA would make the SSP information 

protection provisions applicable to RRP 

programs as well. This approach would 

permit a railroad subject to the RRP rule 

to obtain information protection as soon 

as possible. A Class I railroad would be 

required to submit its RRP plan to FRA 

for review no later than 545 days after 

the publication date of the final rule. 

This deadline for submission accounts 

for the time that must pass before an 

information protection provision could 

become applicable. Similarly, railroads 

with inadequate safety performance or 


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railroads either reclassified or newly 

classified by the Surface Transportation 

Board (STB) as Class I railroads after the 

effective date of the final rule would not 

be required to submit RRP plans before 

the information protection provisions go 

into effect. These railroads would be 

required to submit an RRP plan either 

no later than 90 days after they have 

either received notification from FRA 

that they have been determined to have 

an inadequate safety performance or 

after the effective date of the STB 

classification or reclassification, or no 

later than 545 days after the publication 

date of the final rule, whichever is later. 

If an SSP final rule is published before 

an RRP final rule, permitting the 

information protection provision of SSP 

to apply to RRP information, an RRP 

final rule may require railroads to 

submit an RRP plan sooner than 545 

days after the publication date of the 

final rule. 

Within 90 days of receipt of a 

railroad’s RRP plan, FRA would review 

the plan and determine whether it meets 

all the process and procedure 

requirements set forth in the regulation. 

FRA will not be reviewing a railroad’s 

risk-based hazard analysis or selection 

of particular mitigation strategies as part 

of its RRP plan. If, during the review, 

FRA determines that the railroad’s RRP 

plan does not comply with the 

requirements, FRA would notify the 

railroad of the specific points in which 

the plan is deficient. The railroad would 

then have 60 days to correct these 

deficient points and resubmit the plan 

to FRA. Whenever a railroad decides to 

amend its RRP, it would be required to 

submit an amended RRP plan to FRA for 

approval and provide a cover letter 

describing the amendments. A similar 

approval process and timeline would 

apply whenever a railroad amends its 

RRP plan. A railroad should not begin 

implementing an RRP plan before 

obtaining FRA approval, as the 

information protection provisions 

proposed in this NPRM would not apply 

to any risk reduction information that 

was not compiled or collected pursuant 

to an FRA-approved RRP plan. 

The costs for this proposed regulation 

basically stem from the requirements for 

each railroad to which this rule would 

be applicable to have a fully developed 

and implemented RRP that is supported 

by an RRP plan. The primary costs come 

from the development of an ongoing 

risk-based HMP, the ongoing evaluation 

of safety performance, and the safety 

outreach component of the RRP. In 

addition, there are costs for the 

development of a technology 

implementation plan, the consultation 

process, and internal assessments. 

The total cost for this proposed 

regulation is $18.6 million, 

undiscounted. The discounted costs 

over 10 years are $12.7 million, using a 

7 percent discount rate, and $15.7 

million, using a 3 percent discount rate. 

The proposed rule is expected to 

improve railroad safety on Class I freight 

railroads by ensuring that railroad 

accidents/incidents, associated 

casualties, other railroad-related 

incidents and workplace injuries 

decrease through the process of 

identifying hazards, mitigating the risks 

associated with those hazards, and 

decreasing unsafe work practices. 

Decreases in unsafe behaviors or 

hazards create a decrease in railroadrelated incidents and casualties. The 

sections of the proposed RRP regulation 

that contribute most to the potential 

benefits include improved or more 

robust safety cultures, hazard 

identification and risk-based hazard 

management, allying technology with 

risk reduction, systemic evaluation of 

program and mitigation strategy 

effectiveness, and the protection of 

information provision in § 271.11. 

FRA has performed a break-even 

analysis for this proposed rule. In this 

break-even analysis, FRA has estimated 

the amount of investment (capital 

expenditure) savings or the decreases in 

costs stemming from railroad-related 

incidents (and their associated 

casualties) for Class I railroads that the 

proposed rule would need to break 

even. FRA has found that only a very 

small improvement in either safety or 

investment is sufficient to make the 

proposed rule break-even. The proposed 

rule would break even if railroad 

investments improve by less than .006% 

(6 thousandths of a percent). FRA 

believes that such an improvement 

would quite likely result from the 

adoption and implementation of RRPs 

by Class I railroads, which would lead 

to reductions in the (1) number of 

railroad accidents/incidents and 

employee injuries; (2) other railroad 

incidents and related casualties; (3) 

employee absenteeism; and (4) 

employee discipline actions. 

B. Abbreviations 

The following abbreviations are used 

in this preamble and are collected here 

for the convenience of the reader: 

CFR Code of Federal Regulations 

DOT United States Department of 

Transportation 

FMP Fatigue Management Plan 

FOIA Freedom of Information Act 

FR Federal Register 

FRA Federal Railroad Administration 

HMP Hazard Management Program 

NPRM Notice of Proposed Rulemaking 

OST Office of the Secretary, United States 

Department of Transportation 

PTC Positive Train Control 

Pub. L. Public Law 

RRP Risk Reduction Program 

RSAC Railroad Safety Advisory Committee 

RSIA Railroad Safety Improvement Act of 

2008, Public Law 110–432, Div. A, 122 

Stat. 4848 

Secretary Secretary of Transportation 

SSP System Safety Program 

U.S.C. United States Code 

II. Background and History 

A. What is a risk reduction program? 

Risk reduction is a comprehensive, 

system-oriented approach to improving 

safety by which an organization 

formally identifies and analyzes 

applicable hazards and takes action to 

mitigate, if not eliminate, the risks 

associated with those hazards. It 

provides a railroad with a set of 

decision making processes and 

procedures that can help it plan, 

organize, direct, and control its business 

activities in a way that enhances safety 

and promotes compliance with 

regulatory standards. As such, risk 

reduction is a form of safety 

management system, which is a term 

generally referring to a comprehensive, 

process-oriented approach to managing 

safety throughout an organization. 

The principles and processes of risk 

reduction are based on those of safety 

management systems developed to 

assure high safety performance in 

various industries, including aviation, 

passenger railroads, the nuclear 

industry, and other industries with the 

potential for catastrophic accidents. 

Safety management systems have 

evolved through experience to include a 

multitude of equally important elements 

without which the organization’s safety 

does not reliably improve. For ease of 

understanding, these elements are 

typically grouped into larger descriptive 

categories. For safety management 

systems, these descriptive categories 

include: (1) An organization-wide safety 

policy; (2) formal methods for 

identifying hazards, and for prioritizing 

and mitigating risks associated with 

those hazards; (3) data collection, data 

analysis, and evaluation processes to 

determine the effectiveness of 

mitigation strategies and to identify 

emerging hazards; and (4) outreach, 

education, and promotion of an 

improved safety culture within the 

organization. 

The requirements of the proposed 

RRP rule provide a framework for 

reducing safety risk. While each railroad 

subject to the proposed rule would be 

required to develop all required 

components, the scope and complexity 


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1FRA issued EO 20 in response to New Jersey 

Transit (NJT) and Maryland Rail Commuter 

accidents in early 1996. 

2FRA developed the ‘‘Collision Hazard Analysis 

Guide: Commuter and Intercity Passenger Rail 

Service’’ following a January 2005 accident in 

Glendale, CA, in which a Southern California 

Regional Rail Authority (Metrolink) commuter train 

derailed after striking an abandoned vehicle left on 

the tracks. The derailment caused the Metrolink 

train to collide with trains on both sides of it, a 

Union Pacific Railroad Company (UP) freight train 

and another Metrolink train, and resulted in the 

death of 11 people. 

3FTA’s part 659 program applies only to rapid 

transit systems or portions thereof not subject to 

FRA’s regulations. See 49 CFR 659.3 and 659.5. 

FTA amended 49 CFR part 659 in April 2005 to 

incorporate the experience and insight it had gained 

regarding the benefits of and recommended 

practices for implementing State safety oversight 

requirements. See 70 FR 22562, Apr. 29, 2005. 

of those components would vary from 

one railroad to the next, because of the 

railroads’ differing safety needs, 

capabilities, and available resources. 

Because risk reduction is inherently 

scalable, the burdens imposed by the 

proposed rule would depend upon the 

size of a railroad, the type of operations 

the railroad provides, and the strategies 

for mitigating risk that the railroad 

decides to use. 

B. Passenger Railroads and System 

Safety Programs 

Risk reduction, as a type of safety 

management system, is not a new 

concept to FRA. Specifically, FRA has 

previously worked with passenger 

railroads to implement system safety 

programs (SSP), and has published a 

separate SSP NPRM for passenger 

railroads. See System Safety Program, 

77 FR 55372 (proposed Sep. 7, 2012) (to 

be codified at 49 CFR part 270). FRA 

anticipates that an SSP final rule will be 

published before an RRP final rule. 

In 1996, FRA issued Emergency Order 

No. 20, Notice No. 1 (EO 20), which 

required, among other things, commuter 

and intercity passenger railroads to 

promptly develop interim system safety 

plans addressing the safety of operations 

that permit passengers to occupy the 

leading car in a train.1 See 61 FR 6876, 

Feb. 22, 1996. Subsequently, in 1997 

APTA and the commuter railroads, in 

conjunction with FRA and the U.S. 

DOT, developed the ‘‘Manual for the 

Development of System Safety Program 

Plans for Commuter Railroads,’’ to more 

comprehensively address the safety of 

these railroad systems. Pursuant to 

APTA’s manual, the existing commuter 

railroads developed system safety plans, 

and a triennial audit process for these 

plans began in early 1998 with FRA’s 

participation. A majority of commuter 

railroads still participate in APTA’s 

program. 

FRA has also developed a ‘‘Collision 

Hazard Analysis Guide’’ to assist 

passenger rail operators in conducting 

collision hazard assessments.2 See 

‘‘Collision Hazard Analysis Guide: 

Commuter and Intercity Passenger Rail 

Service’’ (2007), FRA, available at 

http://www.fra.dot.gov/eLib/Details/

L03191. The ‘‘Collision Hazard Analysis 

Guide’’ is based both on MIL–STD–882, 

discussed below, and the hazard 

identification/resolution processes 

described in APTA’s ‘‘Manual for the 

Development of System Safety Program 

Plans for Commuter Railroads.’’ The 

‘‘Collision Hazard Analysis Guide’’ 

provides a ‘‘step-by-step procedure on 

how to perform hazard analysis and 

how to develop effective mitigation 

strategies that will improve passenger 

rail safety.’’ See id. at 5. Although the 

‘‘Collision Hazard Analysis Guide’’ 

focuses on passenger rail collisions, the 

techniques described in the guide are 

also valid for evaluating other hazards 

or safety issues related to any type of 

operating system. See id. A railroad 

subject to the requirements of a final 

RRP rule could use the ‘‘Collision 

Hazard Analysis Guide’’ as guidance on 

how to perform a an acceptable hazard 

analysis. 

From its experience with the APTA 

program and the ‘‘Collision Hazard 

Analysis Guide,’’ FRA has gained 

substantial knowledge regarding the 

best methods for developing, 

implementing, and evaluating SSPs for 

passenger railroads. This experience is 

reflected in a recently-published NPRM, 

developed with the assistance of the 

Railroad Safety Advisory Committee 

(RSAC), that would require passenger 

railroads to develop and implement 

FRA-approved SSPs. 

C. Other Federal Safety Management 

System Programs 

Several Federal agencies have 

established or proposed safety 

management system requirements or 

guidance for regulated entities. For 

example, the Federal Transit 

Administration (FTA) has established 

regulations at 49 CFR part 659 (Rail 

Fixed Guideway Systems; State Safety 

Oversight) that implement a 

Congressional mandate for a program 

requiring State-conducted oversight of 

the safety and security of rail fixed 

guideway systems that are not regulated 

by FRA. See Intermodal Surface 

Transportation Efficiency Act of 1991, 

Public Law 102–240, sec. 3029, also 

codified at 49 U.S.C. 5330; and 60 FR 

67034, Dec. 27, 1995.3

The Federal Aviation Administration 

(FAA) has also published an NPRM 

proposing to require each certificate 

holder operating under 14 CFR part 121 

to develop and implement a safety 

management system (SMS). See 75 FR 

68224, Nov. 5, 2010; and 76 FR 5296, 

Jan. 31, 2011. An SMS ‘‘is a 

comprehensive, process-oriented 

approach to managing safety throughout 

the organization.’’ 75 FR 68224, Nov. 5, 

2010. An SMS includes: ‘‘an 

organization-wide safety policy; formal 

methods for identifying hazards, 

controlling, and continually assessing 

risk; and promotion of safety culture.’’ 

Id. Under FAA’s proposed rule, an SMS 

would have four components: Safety 

Policy, Safety Risk Management, Safety 

Assurance, and Safety Promotion. Id. at 

68225. In addition, the United States 

Coast Guard has published an NPRM 

proposing an SMS regulation for towing 

vessels. See 76 FR 49976, Aug. 11, 2011. 

Components similar to those included 

in both the FAA’s SMS regulation as 

well as the Coast Guard’s regulation are 

found in this RRP rule proposed by 

FRA. 

The U.S. Department of Defense (DoD) 

has also set forth guidelines for a system 

safety program. In July 1969, DoD 

published ‘‘System Safety Program Plan 

Requirements’’ (MIL–STD–882). MIL– 

STD–882 is DoD’s standard practice for 

system safety, with the most recent 

version, MIL–STD–882E, published on 

May 11, 2012. DoD, MIL–STD–882E, 

‘‘Department of Defense Standard 

Practice System Safety’’ (May 11, 2012). 

MIL–STD–882 is used by many 

industries in the U.S., and 

internationally, and could be useful to 

a railroad (particularly a smaller 

railroad with inadequate safety 

performance) when trying to determine 

which methods to use to comply with 

this RRP rule. In fact, MIL–STD–882 is 

cited in FRA’s safety regulations for 

railroad passenger equipment, 49 CFR 

part 238, as an example of a formal 

safety methodology to use in complying 

with certain analysis requirements in 

that rule. See 49 CFR 238.103 and 

238.603. Part 238 defines MIL–STD–882 

as a standard issued by DoD ‘‘to provide 

uniform requirements for developing 

and implementing a system safety plan 

and program to identify and then 

eliminate the hazards of a system or 

reduce the associated risk to an 

acceptable.’’ 

D. Risk Reducing FRA Programs 

FRA also has established two 

voluntary, independent programs that 

exemplify the philosophy of risk 

reduction: The Confidential Close Call 

Reporting System (C3RS) and the Clear 

Signal for Action (CSA) program. FRA 

has developed these programs in the 


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4Additional evaluations will be performed for 

other demonstration pilot sites as sufficient data 

become available. 

belief that, in addition to process and 

technology innovations, human factorsbased solutions can make a significant 

contribution to improving safety in the 

railroad industry. 

The FRA C3RS program includes: (1) 

Voluntary confidential reporting of 

close-call events by employees; (2) rootcause-analysis problem solving by a 

Peer Review Team composed of labor, 

management, and FRA; (3) 

identification and implementation of 

corrective actions; (4) tracking the 

results of change; and (5) reporting the 

results of change to employees. 

Confidential reporting and joint labormanagement-FRA root-cause problem 

solving are the most innovative of these 

characteristics for the railroad industry. 

Demonstration pilot sites for FRA C3RS 

are at the Union Pacific Railroad 

Company (UP), New Jersey Transit, 

Strasburg Railroad, and the National 

Railroad Passenger Corporation 

(Amtrak). An evaluation of one of these 

demonstration pilot sites indicated that 

a C3RS program demonstrably resulted 

in increased safety.4 See Ranney, J. and 

Raslear, T., ‘‘Derailments decrease at a 

C3RS site at midterm,’’ FRA Research 

Results: RR12–04, April 2012, available 

at http://www.fra.dot.gov/eLib/details/

L01321. 

FRA has also implemented the CSA 

program, another human factors-based 

solution shown to improve safety. The 

CSA Program includes: (1) Voluntary 

peer-to-peer feedback in the work 

environment on both safe and risky 

behaviors and conditions (data 

associated with the program are owned 

by labor and not disclosed to 

management); (2) labor Steering 

Committee root cause analysis and the 

development of behavior and conditionrelated corrective actions; (3) Steering 

Committee implementation of behaviorrelated corrective actions; (4) joint labormanagement Barrier Removal Team 

refining condition-related corrective 

actions and implementation; (5) tracking 

the results of the change; and (6) 

reporting the results of change to 

employees. Peer-to-peer feedback on 

safe and risky behaviors and conditions, 

root cause analysis, and cooperation 

between labor and management in 

corrective actions are the most 

innovative of these characteristics for 

the railroad industry. FRA considers the 

CSA program ready for broad 

implementation across the industry, as 

the completion of three demonstration 

pilots has demonstrated its applicability 

in diverse railroad work settings. One 

demonstration pilot covered Amtrak 

baggage handlers; a second covered UP 

yard crews; and a third covered UP road 

crews. See Coplen, M. Ranney, J. & 

Zuschlag, M., ‘‘Promising Evidence of 

Impact on Road Safety by Changing Atrisk Behavior Process at Union Pacific,’’ 

FRA Research Results: RR08–08, June 

2008, available at http://

www.fra.dot.gov/eLib/details/L03483; 

Coplen, M. Ranney, J., Wu, S. & 

Zuschlag, M., ‘‘Safe Practices, Operating 

Rule Compliance and Derailment Rates 

Improve at Union Pacific Yards with 

STEEL Process—A Risk Reduction 

Approach to Safety,’’ FRA Research 

Results: RR09–08, May 2009, available 

at http://www.fra.dot.gov/eLib/details/

L04248. After the completion of these 

pilot projects, BNSF Railway Company 

(BNSF) elected to participate in a peerto-peer pilot project, and UP elected to 

develop and implement a system-wide 

peer-to-peer program modeled in part 

on the CSA demonstration pilots. 

Currently, FRA is funding the 

development of low cost program 

materials to aid in its distribution 

starting with passenger rail. 

The C3RS and CSA programs embody 

many of the concepts and principles 

found in an RRP: Proactive 

identification of hazards and risks; 

analysis of those hazards and risks; and 

implementation of appropriate action to 

eliminate or mitigate the hazards and 

risks. While FRA does not intend to 

require any railroad to implement a 

C3RS or CSA program as part of its RRP, 

FRA believes that these types of 

programs would be useful for a railroad 

developing an RRP, and encourages 

railroads to include such programs as 

part of their RRPs. FRA seeks comment 

on the extent to which these programs 

might be useful in the development of 

an RRP or as a component of an RRP. 

III. Statutory Background 

A. Rail Safety Improvement Act of 2008 

In sec. 103 of the RSIA, Congress 

directed the Secretary to issue a 

regulation requiring certain railroads to 

develop, submit to the Secretary for 

review and approval, and implement a 

railroad safety risk reduction program. 

See 49 U.S.C. 20156. The Secretary has 

delegated this responsibility to the FRA 

Administrator. See 49 CFR 1.89(oo) (74 

FR 26981, Jun. 5, 2009); see also 49 

U.S.C. 103(g). The railroads required to 

comply with such a regulation include: 

(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). 

The proposed rule would implement 

this railroad safety risk reduction 

mandate for Class I freight railroads and 

railroads with inadequate safety 

performance. See 49 U.S.C. 20156(a)(1). 

Generally, these railroads would be 

required to assess and manage risk and 

develop proactive risk mitigation 

strategies to promote safety 

improvement. The proposed rule would 

also implement the Congressional 

mandate permitting a railroad not 

required to develop and implement an 

RRP to voluntarily submit an RRP plan 

meeting the requirements of any final 

RRP rule to FRA for review and 

approval. See 49 U.S.C. 20156(a)(4). As 

proposed, a railroad voluntarily 

submitting an RRP plan for FRA 

approval would be required to 

implement the plan in accordance with 

FRA’s requirements and could be 

subject to civil penalties for 

noncompliance. The proposed rule 

would also implement other specific 

safety risk reduction program 

requirements found in sec. 103, such as 

the requirement that a railroad consult 

with, employ good faith and use its best 

efforts to reach agreement with all of its 

directly affected employees (including 

any non-profit employee labor 

organization representing a class or craft 

of directly affected employees) on the 

contents of the railroad’s RRP plan. 

The proposed rule would also 

respond to sec. 109 of the RSIA, which 

addresses the protection of information 

in railroad safety risk analyses. See 49 

U.S.C. 20118. In sec. 109, Congress 

specified that certain risk reduction 

records obtained by the Secretary are 

exempt from the public disclosure 

requirements of the Freedom of 

Information Act (FOIA). See 49 U.S.C. 

20118. Section 109 also directed FRA to 

complete a study evaluating whether it 

is in the public interest (including 

public safety and the legal rights of 

persons injured in railroad accidents) to 

withhold from discovery or admission 

into evidence in a Federal or State court 

proceeding for damages involving 

personal injury or wrongful death 

against a railroad certain risk reduction 

information, including a railroad’s 

analysis of its safety risks and its 

statement of the mitigation measures 

with which it will address those risks. 

See 49 U.S.C. 20119(a). Based upon 

authority granted by Congress in sec. 

109, the proposed rule contains 

provisions responding to the results of 

this study, which found that it is in the 

public interest to protect certain risk 

reduction information from discovery or 

admission into evidence in a Federal or 


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5There is only one Class I railroad that also 

qualifies as a passenger railroad: Amtrak. Amtrak 

would be required to comply with the proposed 

requirements of the SSP rule. So long as Amtrak 

remains in compliance with the requirements of an 

SSP rule, Amtrak would be deemed to be in 

compliance with an RRP rule. This same approach 

will be taken for any passenger railroad that also 

becomes designated as a Class I railroad. 

State court proceeding for damages. See 

49 U.S.C. 20119(b). The study and its 

results will be discussed in greater 

depth later in this preamble. 

B. Related System Safety Rulemaking 

A separate SSP rulemaking, as 

discussed above, would implement the 

sec. 103 and sec. 109 RSIA mandates for 

passenger railroads. See 49 U.S.C. 

20156(a). On September 7, 2012, FRA 

published an NPRM proposing an SSP 

rule in the Federal Register. See 77 FR 

55372. Establishing separate safety risk 

reduction rules for passenger railroads 

and the Class I freight railroads 5 would 

allow these rules to account for 

significant differences between 

passenger and freight operations. For 

example, freight railroads may generate 

risks uniquely associated with the 

transportation of hazardous materials. 

The proposed RRP rule can be 

specifically tailored to these types of 

risks, which are not independently 

generated by passenger railroads. 

Some overlap would exist between 

certain components of the proposed SSP 

and RRP rules. Most significantly, the 

RRP and SSP rules would contain 

essentially identical provisions 

implementing the consultation 

requirements of sec. 103(g) and 

responding to the information 

protection study mandated under sec. 

109 of the RSIA. There was significant 

discussion during the RRP and SSP 

RSAC processes on how to implement 

these provisions of the RSIA. FRA 

worked with the General Passenger 

Safety Task Force’s System Safety Task 

Group and the RRP Working Group to 

receive input regarding how information 

protection and the consultation process 

should be addressed, with the 

understanding that the same language 

would be included in both the SSP and 

RRP NPRMs for review and comment. 

The consultation and information 

protection provisions proposed in this 

NPRM, therefore, are essentially 

identical to those proposed in the 2012 

SSP NPRM. 

In response to the SSP NPRM, FRA 

has received a number of comments 

addressing the proposed consultation 

and information protection provisions. 

While FRA intends to discuss these 

comments further as part of the ongoing 

RRP and SSP RSAC processes, FRA has 

decided not to respond to the SSP 

comments on the consultation and 

information protection provisions in 

this NPRM. Any comments submitted to 

the SSP NPRM regarding these 

provisions, however, will be considered 

applicable to the RRP NPRM as well and 

will be considered before publication of 

an RRP final rule. Ultimately, FRA 

anticipates that the consultation and 

information protection provisions of the 

SSP and RRP rules will be essentially 

identical. 

Furthermore, FRA intends to make 

any information protection provision in 

a final SSP rule applicable to any 

railroad safety risk reduction program 

required under chapter II of subtitle B 

of title 49, Code of Federal Regulations, 

such as an RRP. When Congress granted 

FRA authority to issue a rule based 

upon the results of the study, it also 

specified that any such rule could not 

become effective until one year after its 

adoption. See 49 U.S.C. 20119(b). 

Making an SSP information protection 

provision applicable to any RRP 

program would allow RRP information 

to be protected from use in certain 

litigation sooner. This would allow a 

railroad subject to the proposed RRP 

rule to begin developing its RRP earlier, 

without having to wait an entire year for 

the information protection provisions to 

become effective. 

In addition to the proposed 

consultation and information protection 

sections, some overlap would exist 

between various other RRP and SSP 

provisions (e.g., certain definitions, the 

process for amending plans, etc.). The 

requirements in this proposed NPRM 

generally follow those in the SSP 

NPRM, and do not reflect any comments 

FRA has received in response to the SSP 

NPRM. FRA recognizes that drafting 

proposals on related topics 

simultaneously can give the appearance 

of overlapping or duplicative 

requirements. As these rulemakings 

progress, we will work to minimize any 

overlapping or duplicative 

requirements. 

C. Related Fatigue Management Plans 

Rulemaking 

Section 103(f) of the RSIA states that 

an RRP must include a fatigue 

management plan meeting certain 

requirements. See 49 U.S.C. 20156(d)(2) 

and 20156(f). This proposed RRP 

rulemaking does not address this 

mandate, however, because it is 

currently being considered by a separate 

rulemaking process. 

On December 8, 2011, the RSAC voted 

to establish a Fatigue Management Plans 

Working Group (FMP Working Group). 

The purpose of the FMP Working Group 

is to provide ‘‘advice regarding the 

development of implementing 

regulations for Fatigue Management 

Plans and their deployment under the 

Rail Safety Improvement Act of 2008.’’ 

‘‘Railroad Safety Advisory Committee 

Task Statement: Fatigue Management 

Plans,’’ Task No.: 11–03, Dec. 8, 2011. 

(A copy of this statement will be placed 

in the public docket for this RRP 

rulemaking.) Specifically, the FMP 

Working Group is tasked to: ‘‘review the 

mandates and objectives of the [RSIA] 

related to the development of Fatigue 

Management Plans, determine how 

medical conditions that affect alertness 

and fatigue will be incorporated into 

Fatigue Management Plans, review 

available data on existing alertness 

strategies, consider the role of 

innovative scheduling practices in the 

reduction of employee fatigue, and 

review the existing data on fatigue 

countermeasures.’’ Id. 

FRA notes that the RRP Working 

Group recommended including a 

placeholder in the proposed RRP rule 

text that would require a railroad, as 

part of its RRP, to develop a fatigue 

management plan no later than three 

years after the effective date of the final 

rule, or three years after commencing 

operations, whichever is later. This 

placeholder did not contain any 

additional substantive requirements, 

however, and was intended merely to be 

an acknowledgement of the RSIA fatigue 

management plan mandate. FRA has 

elected to not include this placeholder; 

however, because it may create 

confusion regarding the separate FMP 

Working Group process and the ongoing 

fatigue management plans rulemaking. 

Rather, FRA will address the 

substantive requirements of the fatigue 

management plan mandate in the 

separate rulemaking that FRA has 

initiated. FRA would approve an RRP 

plan without the fatigue management 

plan component prior to the issuance of 

fatigue management final rule, provided 

the plan met all other applicable RRP 

requirements. Until the fatigue 

management plan final rule is effective, 

a railroad could use the processes and 

procedures in its RRP to address fatiguerelated issues. 

IV. Proceedings to Date 

A. Advance Notice of Proposed 

Rulemaking (ANPRM) 

On December 8, 2010, FRA published 

an ANPRM soliciting public comment 

on how FRA could best develop and 

implement a risk reduction regulation 

based upon the requirements of the 

RSIA. See 75 FR 76345–76351. 


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6The following 18 entities were signatories to 

comments in response to the ANPRM: Amtrak; 

Association of American Railroads (AAR); 

Association of Railways Museums, Inc. (ARM); 

American Public Transportation Association 

(APTA); American Short Line and Regional 

Railroad Association (ASLRRA); American Train 

Dispatchers Association (ATDA); Behavioral 

Science Technology (BST); Brotherhood of 

Locomotive Engineers and Trainmen (BLET/IBT); 

Brotherhood of Maintenance of Way Employees 

Division (BMWED/IBT); Brotherhood of Railroad 

Signalmen (BRS); Metrolink; New York State 

Metropolitan Transportation Authority (NYSMTA); 

Patrick J. Coyle (Chemical Facility Security News); 

Southern Pennsylvania Transportation Authority 

(SEPTA); Transport Workers Union of America 

(TWU); Transportation Communications Union 

(TCU); Trinity Railway Express; Tourist Railway 

Association (TRA); and United Transportation 

Union (UTU). 

7The AAR is comprised of members including 

the following entities: BNSF Railway Company 

(BNSF); Canadian National Railway Company (CN); 

Canadian Pacific Railway (CP); CSX Transportation, 

Inc. (CSXT); Iowa Interstate Railroad, Ltd. (IAIS); 

Kansas City Southern (KCS); Metra Electric District; 

Norfolk Southern Corporation (NS); and UP. 

Comments were due by February 7, 

2011. 

FRA received 11 written comments in 

response to the ANPRM from a variety 

of entities, including railroads, industry 

organizations, non-profit employee 

labor organizations, a consulting firm, 

and a private citizen.6 Many of the 

questions and issues raised by 

commenters were subsequently 

discussed in depth during the RSAC 

process. This NPRM, therefore, will 

contain only a very brief overview of the 

comments. Written comments submitted 

in response to the ANPRM are in the 

public docket for this proceeding and 

can be viewed and downloaded at 

www.regulations.gov. 

Many of the ANPRM commenters 

identified similar issues or questions. 

Two commenters recommended that 

FRA develop a performance-based risk 

reduction rule, in order to encourage 

railroads to find flexible and creative 

solutions to safety risks. These 

commenters also stressed the 

importance of protecting risk reduction 

information from disclosure and use in 

litigation. Other commenters requested 

clarification on the relationship between 

risk reduction and system safety, or 

expressed concerns related to how a risk 

reduction rule would address issues 

such as contractors or training 

requirements. Commenters also 

provided recommendations on how 

FRA should identify railroads with 

inadequate safety performance. Several 

labor organizations also submitted a 

joint comment strongly emphasizing the 

importance of the sec. 103(g) 

consultation requirements. Issues such 

as the above were subsequently 

discussed at length with both industry 

and labor organization representatives 

during the RSAC process. 

B. Public Hearings 

Following publication of the ANPRM 

and close of the comment period, FRA 

also held two public hearings that 

provided interested persons an 

opportunity to discuss the development 

of a risk reduction regulation in 

response to the ANPRM. Interested 

persons were invited to present oral 

statements and to proffer information 

and views at the hearings. The first 

public hearing was held on July 19, 

2011 in Chicago, IL, and the second 

public hearing was held on July 21, 

2011 in Washington, DC. See 76 FR 

40320, July 8, 2011. During the hearings, 

testimony was given by representatives 

of the AAR, ASLRRA, Rail World, Inc., 

and the Teamsters Rail Conference (the 

BLET/IBT and BMWED/IBT). As with 

the comments in response to the 

ANPRM, the hearing testimony focused 

almost exclusively on topics that 

continued to be discussed during the 

RSAC process. Significant topics of 

discussion included the following: The 

identification of railroads with 

inadequate safety performance; the 

consultation requirements of sec. 103(g); 

the role of contractors within a 

railroad’s RRP; the information 

protection study mandated by sec. 109; 

retention of RRP records; and FRA 

review of a railroad’s RRP. Transcripts 

of the public hearings are in the public 

docket for this proceeding and can be 

viewed and downloaded at 

www.regulations.gov. 

C. Railroad Safety Advisory Committee 

(RSAC) 

Following the close of the ANPRM 

comment period and the public 

hearings, FRA decided that additional 

input regarding the development of a 

risk reduction regulation would be 

beneficial. FRA therefore placed the risk 

reduction rulemaking into a modified 

RSAC process, which discussed many of 

the questions and concerns that 

appeared in the ANPRM and in 

responses thereto. 

1. Risk Reduction Program (RRP) 

Working Group 

FRA proposed Task No. 11–04 to the 

RSAC on December 8, 2011. The RSAC 

accepted the task, and formed the Risk 

Reduction Program (RRP) Working 

Group (Working Group) for the purpose 

of developing and implementing RRP 

under the RSIA. The Working Group is 

comprised of members from the 

following organizations: 

• AAR; 7

• Amtrak; 

• APTA; 

• ASLRRA; 

• BLET; 

• BMWED; 

• BRS; 

• FRA; 

• Long Island Rail Road (LIRR); 

• Metro-North Commuter Railroad 

Company (Metro-North); 

• National Association of Railroad 

Passengers (NARP); 

• National Railroad Construction and 

Maintenance Association; 

• National Transportation Safety 

Board (NTSB); 

• SEPTA; 

• TRA; and 

• UTU. 

The Working Group completed its 

work after four in-person meetings and 

several conference calls. The first 

meeting of the Working Group took 

place on January 31 and February 1, 

2012, in Cambridge, Massachusetts. At 

that meeting the group discussed the 

appropriate scope of a risk reduction 

regulation and heard several 

presentations from stakeholders 

regarding the requirements of the RSIA 

and current risk reduction practices on 

railroads. Subsequent meetings were 

held in Washington, DC on April 10, 

2012; May 16, 2012; and June 13, 2012. 

At the April, May, and June meetings, 

the group discussed a document entitled 

‘‘Recommendations to the 

Administrator,’’ which provided FRA 

advice to consider in developing a risk 

reduction rule. The document was 

updated after each meeting to reflect the 

Working Group’s discussions. 

2. Working Group Tentative Agreement 

Vote 

At the conclusion of the Working 

Group’s last meeting on June 13, 2012, 

the Working Group obtained tentative 

agreement on the ‘‘Recommendations to 

the Administrator’’ document. This 

document did not include advice 

regarding railroads with inadequate 

safety performance, as this was 

developed further during subsequent 

conference calls. The document was 

also not put before the full RSAC for 

vote, and therefore does not represent 

formal RSAC consensus. FRA utilized 

the comments and documents from the 

Working Group when developing the 

proposed rule text, although it has 

streamlined and reorganized suggestions 

from the Working Group in order to 

make the rule’s requirements as clear as 

possible. FRA has also attempted to note 

in this NPRM areas in which the 

proposed rule text substantively differs 

from the Working Group’s suggestions. 

Ultimately, however, language 

contained in this proposed rule reflects 


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8 In 2009, Congress amended 5 U.S.C. 552(b)(3) to 

require Exemption 3 statutes to specifically cite to 

sec. 552(b)(3). See OPEN FOIA Act of 2009, Public 

Law 111–83, 123 Stat. 2142, 2184 (Oct. 28, 2009). 

Because this requirement applies only to statutes 

enacted after October 29, 2009, however, it does not 

apply to section 109 of the RSIA, which was 

enacted in October of 2008. 

the RSIA statutory requirements and the 

Working Group’s tentative agreement on 

how the requirements should be 

applied. 

V. Railroads With Inadequate Safety 

Performance 

As previously discussed, sec. 103 of 

the RSIA directs FRA to require 

railroads with inadequate safety 

performance (as determined by FRA) to 

develop and implement an RRP. FRA 

discussed potential definitions of 

inadequate safety performance during 

the April, May, and June 2012 RSAC 

Working Group meetings, and also 

conducted several conference calls 

discussing the issue after the final June 

2012 Working Group meeting. These 

meetings and conference calls 

developed and refined a general 

approach to determining inadequate 

safety performance, and discussed 

several specific concerns of the 

ASLRRA, whose member railroads are 

those most likely to be affected by FRA’s 

approach. For example, participants in 

the conference calls expressed concerns 

regarding the need for consistent 

nationwide application of FRA’s 

approach to determining inadequate 

safety performance. FRA achieved 

tentative agreement on the proposed 

approach, but did not seek consensus. 

As a result of these discussions and 

tentative agreement, FRA developed an 

annual process, involving two phases, 

for determining whether a railroad’s 

safety performance may be inadequate. 

This process would only evaluate 

railroads that were not already 

complying with an SSP or RRP rule, 

including voluntarily-compliant 

railroads. In the first phase, FRA would 

conduct a statistical quantitative 

analysis to determine a railroad’s safety 

performance index, using the three most 

recent full calendar years’ historical 

data maintained by FRA. The 

quantitative analysis would utilize the 

following four factors: (1) Fatalities; (2) 

FRA reportable injury/illness rate; (3) 

FRA reportable accident/incident rate; 

and (4) FRA violation rate. Railroads 

that had either a fatality, or that were at 

or above the 95th percentile in at least 

two of the three other factors (FRA 

reportable injury/illness, FRA reportable 

accident/incident, or FRA violation 

rate), would be further examined in a 

qualitative assessment. FRA would 

notify the railroads identified for further 

examination in a qualitative assessment, 

and would give them an opportunity to 

comment and provide evidence 

explaining why they should or should 

not be required to develop an RRP. A 

railroad would also be required to 

inform its employees that it had 

received the notification from FRA and 

that employees could submit 

confidential comments on the matter 

directly to FRA. For the second phase of 

its analysis, FRA would consider the 

comments from the railroads, and any 

comments from the railroad’s 

employees, as well as any other 

pertinent evidence, in a qualitative 

review of the railroad’s safety 

performance. Following the qualitative 

review, FRA would notify the affected 

railroads regarding whether or not they 

must develop an RRP. 

Based on Working Group input and 

results from the C3RS and CSA projects, 

FRA also determined appropriate 

timeframes for compliance, and 

deadlines for various notices and 

submissions. A railroad with inadequate 

safety performance would have to 

comply with this part 271 for a period 

of at least five years, after which it could 

petition FRA for removal from the 

program. These provisions are discussed 

further in the section-by-section 

analysis. 

During discussions, the RSAC 

Working Group advised FRA to allow a 

railroad with inadequate safety 

performance to choose to establish 

either an RRP in compliance with this 

proposed part 271 or an SSP in 

compliance with proposed part 270. For 

reasons discussed further in the sectionby-section analysis for § 271.13, FRA 

has not included this suggestion in the 

NPRM, but could ultimately include it 

in a final rule. 

VI. Risk Reduction Information 

Protection 

Section 109 of the RSIA (codified at 

49 U.S.C. 20118–20119) authorizes FRA 

to issue a rule protecting risk analysis 

information generated by railroads. 

These provisions would apply to 

information generated by passenger 

railroads pursuant to the proposed 

system safety rulemaking and to any 

railroad safety risk reduction programs 

required by FRA for Class I railroads 

and railroads with inadequate safety 

performance. 

As previously discussed, the 

information protection provisions 

proposed in this NPRM are essentially 

identical to provisions in the proposed 

SSP rule, as there was significant 

discussion during the SSP and RRP 

RSAC processes on how to implement 

this provision of the RSIA. FRA worked 

with the System Safety Task Group and 

the Risk Reduction Program Working 

Group to receive input regarding how 

information protection should be 

addressed, with the understanding that 

the same language would be included in 

both the SSP and RRP NPRMs for 

review and comment. While the 

language proposed in this NPRM does 

not respond to comments already 

received in response to the SSP NPRM, 

FRA will consider comments submitted 

to both the SSP and RRP NPRMs 

regarding the information protection 

provisions when developing an RRP 

final rule. 

A. Exemption From Freedom of 

Information Act Disclosure 

In sec. 109 of the RSIA (codified at 49 

U.S.C. 20118–20119), Congress 

determined that for risk reduction 

programs to be effective, the risk 

analyses must be shielded from 

production in response to Freedom of 

Information Act (FOIA) requests. See 49 

U.S.C. 20118. FOIA is a Federal statute 

establishing certain requirements for the 

public disclosure of records held by 

Federal agencies. See 5 U.S.C. 552. 

Formal rules for making FOIA requests 

to DOT agencies are set forth in 49 CFR 

part 7. Generally, FOIA requires a 

Federal agency to make most records 

available upon request, unless a record 

is protected from mandatory disclosure 

by one of nine exemptions. One of those 

exemptions, known as Exemption 3, 

applies to records that are specifically 

exempted from disclosure by statute, if 

the statute requires that matters be 

withheld from the public in such a 

manner as to leave no discretion on the 

issue or establishes particular criteria 

for withholding or refers to particular 

types of matters to be withheld. See 5 

U.S.C. 552(b)(3) and 49 CFR 7.13(c)(3).8

Section 109(a) of the RSIA specifically 

provides that a record obtained by FRA 

pursuant to a provision, regulation, or 

order related to a risk reduction program 

or pilot program is exempt from 

disclosure under FOIA. The term 

‘‘record’’ includes, but is not limited to, 

‘‘a railroad carrier’s analysis of its safety 

risks and its statement of the mitigation 

measures it has identified with which to 

address those risks.’’ Id. This FOIA 

exemption would also apply to records 

made available to FRA for inspection or 

copying pursuant to a risk reduction 

program or pilot program. Section 

109(c) also gives FRA the discretion to 

prohibit the public disclosure of risk 

analyses or risk mitigation analyses 

obtained under other FRA regulations if 

FRA determines that the prohibition of 


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public disclosure is necessary to 

promote public safety. 

FRA believes that sec. 109 of the RSIA 

qualifies as an Exemption 3 statute 

under FOIA. FRA therefore believes that 

railroad risk reduction records in its 

possession would generally be 

exempted from mandatory disclosure 

under FOIA, unless one of two 

exceptions provided by the RSIA would 

apply. See 49 U.S.C. 20118(a)–(b). The 

first exception permits disclosure when 

it is necessary to enforce or carry out 

any Federal law. The second exception 

permits disclosure when a record is 

comprised of facts otherwise available 

to the public and when FRA, in its 

discretion, has determined that 

disclosure would be consistent with the 

confidentiality needed for a risk 

reduction program or pilot program. 

B. Discovery and Other Use of Risk 

Analysis Information in Litigation 

1. The RSIA Mandate 

The RSIA also addressed the 

disclosure and use of risk analysis 

information in litigation. Section 109 

directed FRA to conduct a study to 

determine whether it was in the public 

interest to withhold from discovery or 

admission into evidence in a Federal or 

State court proceeding for damages 

involving personal injury or wrongful 

death against a carrier any information 

(including a railroad’s analysis of its 

safety risks and its statement of the 

mitigation measures with which it will 

address those risks) compiled or 

collected for the purpose of evaluating, 

planning, or implementing a risk 

reduction program. See 49 U.S.C. 

20119(a). In conducting this study, the 

RSIA required FRA to solicit input from 

railroads, railroad non-profit employee 

labor organizations, railroad accident 

victims and their families, and the 

general public. See id. The RSIA also 

states that upon completion of the 

study, if in the public interest, FRA may 

prescribe a rule to address the results of 

the study (i.e., a rule to protect risk 

analysis information from disclosure 

during litigation). See 49 U.S.C. 

20119(b). The RSIA prohibits any such 

rule from becoming effective until one 

year after its adoption. See id. 

2. The Study and Its Conclusions 

FRA contracted with a law firm, Baker 

Botts L.L.P., to conduct the study on 

FRA’s behalf. Various documents 

related to the study are available for 

review in public docket number FRA– 

2011–0025, which can be accessed 

online at www.regulations.gov. As a first 

step, the contracted law firm prepared a 

comprehensive report identifying and 

evaluating other Federal safety programs 

that protect risk reduction information 

from use in litigation. See ‘‘Report on 

Federal Safety Programs and Legal 

Protections for Safety-Related 

Information,’’ FRA, docket no. FRA– 

2011–0025–0002, April 14, 2011. Next, 

as required by sec. 109 of the RSIA, FRA 

published a Federal Register notice 

seeking public comment on the issue of 

whether it would be in the public 

interest to protect certain railroad risk 

reduction information from use in 

litigation. See 76 FR 26682, May 9, 

2011. Comments received in response to 

this notice may be viewed in the public 

docket. 

On October 21, 2011, the contracted 

law firm produced a final report on the 

study. See ‘‘Study of Existing Legal 

Protections for Safety-Related 

Information and Analysis of 

Considerations For and Against 

Protecting Railroad Safety Risk 

Reduction Program Information’’ 

(Study), FRA, docket no. FRA–2011– 

0025–0031, Oct. 21, 2011. The final 

report contained analyses of other 

Federal programs that protect similar 

risk reduction data, the public 

comments submitted to the docket, and 

whether it would be in the public 

interest, including the interests of 

public safety and the legal rights of 

persons injured in railroad accidents, to 

protect railroad risk reduction 

information from disclosure during 

litigation. The final report concluded 

that it would be within FRA’s authority 

and in the public interest for FRA to 

promulgate a regulation protecting 

certain risk analysis information held by 

the railroads from discovery and use in 

litigation and makes recommendations 

for the drafting and structuring of such 

a regulation. See id. at 63–64. 

3. FRA’s Proposal 

In response to the final study report, 

this NPRM is proposing to protect any 

information compiled or collected 

solely for the purpose of developing, 

implementing or evaluating an RRP 

from discovery, admission into 

evidence, or consideration for other 

purposes in a Federal or State court 

proceeding for damages involving 

personal injury, wrongful death, and 

property damage. The information 

protected would include a railroad’s 

identification of its safety hazards, 

analysis of its safety risks, and its 

statement of the mitigation measures 

with which it would address those risks 

and could be in the following forms or 

other forms: Plans, reports, documents, 

surveys, schedules, lists, or data. 

Additional specifics regarding this 

proposal will be discussed in the 

section-by-section analysis of this 

NPRM. 

VII. RRP Plan Consultation 

Requirements 

Section 103(g)(1) of the RSIA states 

that a railroad required to establish a 

safety risk reduction program must 

‘‘consult with, employ good faith and 

use its best efforts to reach agreement 

with, all of its directly affected 

employees, including any non-profit 

employee labor organization 

representing a class or craft of directly 

affected employees of the railroad 

carrier, on the contents of the safety risk 

reduction program.’’ 49 U.S.C. 

20156(g)(1). Section 103(g)(2) of the 

RSIA further provides that if a ‘‘railroad 

carrier and its directly affected 

employees, including any nonprofit 

employee labor organization 

representing a class or craft of directly 

affected employees of the railroad 

carrier, cannot reach consensus on the 

proposed contents of the plan, then 

directly affected employees and such 

organizations may file a statement with 

the Secretary explaining their views on 

the plan on which consensus was not 

reached.’’ 49 U.S.C. 20156(g)(2). The 

RSIA requires FRA to consider these 

views during review and approval of a 

railroad’s RRP plan. 

FRA is proposing to implement this 

mandate by requiring each railroad 

required to establish an RRP to consult 

with its directly affected employees 

(using good faith and best efforts) on the 

contents of its RRP plan. A railroad 

would have to include a consultation 

statement in its submitted plan 

describing how it consulted with its 

employees. If a railroad and its 

employees were not able to reach 

consensus, directly affected employees 

could file a statement with FRA 

describing their views on the plan. 

Additional specifics regarding this 

proposal are discussed in the sectionby-section analysis of this NPRM for 

proposed §§ 271.207 and 271.209. 

As with this NPRM’s information 

protection provisions, the proposed 

language is essentially identical to 

provisions proposed in the 2012 SSP 

NPRM, since there was significant 

discussion during the SSP and RRP 

RSAC processes on how to implement 

this provision of the RSIA. FRA worked 

with the System Safety Task Group to 

receive input regarding how the 

consultation process should be 

addressed, with the understanding that 

the same language would be included in 

both the SSP and RRP NPRMs for 

review and comment. While the 

language proposed in this NPRM does 

not respond to comments already 


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received in response to the SSP NPRM, 

FRA will consider comments submitted 

to both the SSP and RRP NPRMs 

regarding consultation requirements 

when developing an RRP final rule. 

VIII. Section-by-Section Analysis 

FRA proposes to add a new part 271 

to chapter 49 of the CFR. Part 271 would 

satisfy the RSIA requirements regarding 

safety risk reduction programs for Class 

I railroads and railroads with 

inadequate safety performance. See 49 

U.S.C. 20156(a)(1). Part 271 would also 

protect certain information compiled or 

collected pursuant to a safety risk 

reduction program from admission into 

evidence or discovery during court 

proceedings for damages. See 49 U.S.C. 

20119. 

The proposed rule would require a 

risk reduction program that is a 

somewhat streamlined version of a 

safety management system. To adhere as 

closely as possible to the requirements 

of the RSIA, FRA has not proposed to 

include a number of program and plan 

components that are common to many 

safety management systems. For 

example, FRA is not proposing to 

include a requirement for a description 

of the railroad management and 

organizational structure (including 

charts or other visual representations), 

but instead asks for a less specific 

system description. The RRP plan is 

also not required to contain a 

description of the processes and 

procedures used for maintenance and 

repair of infrastructure and equipment, 

rules compliance and procedures 

review, workplace safety, workplace 

safety assurance, or public safety 

outreach. FRA is also not proposing to 

require an RRP to establish processes 

ensuring that safety concerns are 

addressed during the procurement 

process. As additional examples, a full 

safety management system would also 

require: (1) Development and 

implementation of processes to manage 

emergencies; (2) processes and 

procedures for the railroad to manage 

changes that have a significant effect on 

railroad safety; (3) processes and 

permissions for making configuration 

changes to the railroad; and (4) safety 

certification prior to initiation of 

operations or implementation of major 

projects. The proposed RRP rule does 

not currently include such 

requirements. FRA is specifically 

seeking public comments regarding 

whether any or all of these elements 

should be considered essential in order 

for RRP to function effectively, and 

requirements for such additional 

elements may be included in the final 

rule. 

The proposed rule contains various 

filing and communication requirements. 

FRA is generally requesting public 

comment on whether any provision 

imposing a filing or communication 

requirement should permit a railroad to 

comply with that requirement 

electronically. 

Subpart A—General 

Subpart A of the proposed rule would 

contain general provisions, including a 

formal statement of the rule’s purpose 

and scope, and provisions limiting the 

discovery and admissibility of certain 

RRP information. 

Section 271.1—Purpose and Scope 

Proposed § 271.1 would set forth the 

purpose and scope of the proposed rule. 

Paragraph (a) would state that the 

purpose of this part is to improve 

railroad safety through structured, 

proactive processes and procedures 

developed and implemented by 

railroads. The proposed rule would 

require each affected railroad to 

establish an RRP that systematically 

evaluates railroad safety hazards on its 

system and manages the risks generated 

by those hazards in order to reduce the 

number and rates of railroad accidents/ 

incidents, injuries, and fatalities. The 

proposed rule would not require an RRP 

to address every safety hazard on a 

railroad’s system. For example, rather 

than identifying every safety hazard on 

its system, a large railroad could take a 

more focused and project-specific view 

of safety hazard identification. 

Paragraph (b) would state that the 

proposed rule prescribes minimum 

Federal safety standards for the 

preparation, adoption, and 

implementation of RRPs. A railroad 

would not be restricted from adopting 

and enforcing additional or more 

stringent requirements that are not 

inconsistent with a rule arising from 

this proposed rule. 

Paragraph (c) would state that the 

proposed rule protects information 

generated solely for the purpose of 

developing, implementing, or evaluating 

an RRP. FRA may decide not to include 

this provision in the final rule if an SSP 

final rule is published significantly 

before an RRP final rule, so that the SSP 

information protection provision could 

be made applicable to RRPs. 

Paragraph (d) would contain a 

clarifying statement indicating that 

RRPs are not intended to address certain 

areas of employee safety. While FRA is 

always concerned with the safety of 

railroad employees performing their 

duties, employee safety in maintenance 

and servicing areas generally falls 

within the jurisdiction of the United 

States Department of Labor’s 

Occupational Safety and Health 

Administration (OSHA). It is not FRA’s 

intent in this rule to displace OSHA’s 

jurisdiction with regard to the safety of 

employees while performing 

inspections, tests, and maintenance, 

except where FRA has already 

addressed workplace safety issues, such 

as blue signal protection in 49 CFR part 

218. Similar provisions are found in 

other rules, clarifying that FRA does not 

intend to displace OSHA’s jurisdiction 

over certain subject matters. See, e.g., 49 

CFR 238.107(c). FRA requests public 

comment on whether this statement 

clearly indicates the relationship 

between RRPs and OSHA’s jurisdiction. 

Similarly, while FRA is concerned 

with environmental damage that could 

result from the violation of Federal 

railroad safety laws and regulations, 

FRA does not intend this rule to address 

environmental hazards and risks that 

are unrelated to railroad safety and that 

would fall within the jurisdiction of the 

Environmental Protection Agency 

(EPA). For example, FRA would not 

expect a railroad’s RRP to address 

environmental hazards regarding 

particulate emissions from locomotives 

that otherwise comply with FRA’s safety 

regulations. FRA seeks public comment 

on whether it is necessary for this 

section to contain a clarifying statement 

regarding any such subject matter that 

this proposed part may affect, whether 

potentially implicating the jurisdiction 

of OSHA, EPA, or another agency of the 

Federal government. 

Section 271.3—Application 

The RSIA directs FRA to require each 

Class I railroad, railroad carrier that has 

inadequate safety performance, and 

railroad that provides intercity rail 

passenger or commuter rail passenger 

transportation to establish a railroad 

safety risk reduction program. See 49 

U.S.C. 20156(a)(1). This proposed rule 

sets forth requirements related to a 

railroad safety risk reduction program 

for Class I freight railroads and railroads 

with inadequate safety performance. 

Safety risk reduction programs for 

railroads that provide intercity rail 

passenger or commuter rail passenger 

transportation are being addressed in a 

separate SSP rulemaking. 

Paragraph (a) would state that, except 

as provided in paragraph (b) of this 

section, this part applies to Class I 

railroads, railroads determined to have 

inadequate safety performance pursuant 

to proposed § 271.13, and railroads that 

voluntarily comply with the part 271 

requirements pursuant to § 271.15 

(voluntarily-compliant railroads). 


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FRA proposes to exempt certain 

railroads from the proposed rule’s 

applicability. The applicability 

exemptions proposed in paragraphs 

(b)(1) through (4) are general 

exemptions found in many FRA 

regulations. The first exemption, 

proposed in paragraph (b)(1), would 

apply to rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation. Paragraph (b)(1) is 

intended merely to clarify the 

circumstances under which rapid transit 

operations would not be subject to FRA 

jurisdiction under the proposed rule. It 

should be noted, however, that some 

rapid transit type operations, given their 

links to the general system, are within 

FRA’s jurisdiction, and FRA would 

specifically intend for part 271 to apply 

to those rapid transit type operations. 

Paragraph (b)(2) proposes an 

exemption for operations commonly 

described as tourist, scenic, historic, or 

excursion service, whether on or off the 

general railroad system of 

transportation. Tourist, scenic, historic, 

or excursion rail operations are defined 

by proposed § 271.5, and this exemption 

is consistent with other FRA 

regulations. See 49 CFR 227.3(b)(4), 

232.3(c)(5), 238.3(c)(3) and 239.3(b)(3). 

FRA has also proposed to exempt tourist 

operations, whether on or off the general 

railroad system of transportation, from 

the proposed SSP rule. It should be 

noted, however, that this exemption 

would not cover any freight operations 

conducted by a railroad that also 

performed tourist operations. A railroad 

with both freight and tourist operations 

may be required to establish an RRP 

covering the freight operations if the 

railroad is determined to have 

inadequate safety performance. The 

railroad’s tourist operations would also 

have to be addressed by the RRP to the 

extent that they created hazards 

affecting the freight operations. If the 

tourist operations are conducted by a 

separate entity, they would have to be 

addressed by a railroad’s RRP as 

required by proposed § 271.101(d), 

which would require a railroad to 

ensure that any persons utilizing or 

providing safety-sensitive services 

support and participate in the railroad’s 

RRP. FRA specifically requests public 

comment on this exemption and how an 

RRP final rule should address tourist 

operations that may create hazards for 

freight operations. 

Paragraph (b)(3) would clarify that the 

requirements of the proposed rule do 

not apply to the operation of private 

passenger train cars, including business 

or office cars and circus train cars. 

While FRA believes that a private 

passenger car operation should be held 

to the same basic level of safety as other 

passenger train operations, such 

operations were not specifically 

identified in the RSIA mandate, and 

FRA is taking into account the potential 

burden that would be imposed by 

requiring private passenger car owners 

and operators to conform to the 

requirements of this part. FRA is also 

proposing to exempt private passenger 

train cars from the SSP rule, which 

would implement the RSIA mandate for 

passenger railroads. 

Paragraph (b)(4) proposes an 

exemption for railroads that operate 

only on track inside an installation that 

is not part of the general railroad system 

of transportation (i.e., plant railroads, as 

defined in § 271.5). Plant railroads are 

typified by operations such as those in 

steel mills that do not go beyond the 

plant’s boundaries and that do not 

involve the switching of rail cars for 

entities other than themselves. 

Generally, safety issues on a plant 

railroad are factually unique, limited to 

a single operation, and can be addressed 

with targeted safety measures. An RRP 

is designed to address systemic safety 

issues on a railroad’s operations through 

proactive processes and procedures. 

Due to the difference in the type of 

safety issues plant railroads typically 

encounter and the complexity of safety 

issues an RRP is designed to address, 

plant railroads are exempt from 

implementing an RRP. 

Paragraph (b)(5) would exempt from 

the proposed RRP rule any commuter or 

intercity passenger railroad that is 

already subject to an FRA SSP rule. As 

RRP and SSP rules would both 

implement the RSIA mandate for 

railroad safety risk reduction programs, 

FRA believes that requiring a commuter 

or intercity passenger railroad to 

maintain two separate safety risk 

reduction programs would be an 

unnecessary and duplicative burden. 

FRA is therefore proposing to exempt 

commuter or intercity passenger 

railroads required to comply with the 

SSP rule from the RRP rule’s 

requirements. Railroads should note 

that this proposal would not exempt 

freight operations conducted by another 

railroad on the same track as a 

commuter or intercity passenger 

railroad. A railroad with both freight 

and passenger operations would be 

required to account for its freight 

operations in its SSP. FRA is 

specifically requesting public comment 

on this proposal and may elect in the 

final rule to require railroads with both 

freight and passenger operations to 

implement both an RRP and SSP, or to 

implement an RRP accounting for 

passenger operations. 

Section 271.5—Definitions 

Proposed § 271.5 would contain a set 

of definitions clarifying the meaning of 

important terms used in the proposed 

rule. The proposed definitions are 

carefully worded in an attempt to 

minimize potential misinterpretation of 

the regulations. FRA requests public 

comment regarding the terms defined in 

this section and whether other terms 

should also be defined. 

‘‘Accident/incident’’ means (1) any 

impact between railroad on-track 

equipment and a highway user 

(including automobiles, buses, trucks, 

motorcycles, bicycles, farm vehicles, 

pedestrians, and all other modes of 

surface transportation motorized and 

un-motorized, at a highway-rail grade 

crossing); (2) any collision, derailment, 

fire, explosion, act of God, or other 

event involving operation of railroad ontrack equipment (standing or moving) 

that results in reportable damages 

greater than the current reporting 

threshold identified in 49 CFR part 225 

to railroad on-track equipment, signals, 

track, track structures, and roadbed; and 

(3) each death, injury, or occupational 

illness that is a new case and meets the 

general reporting criteria listed in 49 

CFR 225.19(d)(1) through (6) if any 

event or exposure arising from the 

operation of a railroad is a discernible 

cause of a significant aggravation to a 

pre-existing injury or illness. Regarding 

item (3), the event or exposure arising 

from the operation of a railroad need 

only be one of the discernible causes; it 

need not be the sole or predominant 

cause. The proposed definition is 

identical to the definition for ‘‘accident/ 

incident’’ contained in FRA’s accident/ 

incident reporting regulations at 49 CFR 

part 225. 

‘‘Administrator’’ means the 

Administrator of the Federal Railroad 

Administration or his or her delegate. 

‘‘FRA’’ means the Federal Railroad 

Administration. 

‘‘FRA Associate Administrator’’ 

means the Associate Administrator for 

Railroad Safety/Chief Safety Officer, 

Federal Railroad Administration, or the 

Associate Administrator’s delegate. 

‘‘Fully implemented’’ means that all 

RRP elements, as described in an RRP 

plan, have been established and applied 

to the safety management of the 

railroad. 

‘‘Hazard’’ means any real or potential 

condition that can cause injury, illness, 

or death; damage to or loss of a system, 

equipment, or property; or damage to 

the environment. Because the proposed 

definition would be limited to hazards 


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identified in a railroad’s risk-based 

hazard analysis, discussed in proposed 

§ 271.103, this would include hazards 

related to ‘‘infrastructure; equipment; 

employee levels and work schedules; 

operating rules and practices; 

management structure; employee 

training; and other areas impacting 

railroad safety that are not covered by 

railroad safety laws or regulations or 

other Federal laws or regulations.’’ FRA 

does not intend this definition to 

include hazards that are completely 

unrelated to railroad safety and that 

would fall exclusively under the 

jurisdiction of either OSHA or the EPA. 

The proposed definition is identical to 

the SSP NPRM’s proposed definition for 

‘‘hazard’’ and is based on an existing 

definition of the term found in 49 CFR 

part 659, which contains FTA’s 

regulations regarding system safety 

program plans. See 49 CFR 659.5. The 

RSAC RRP Working Group advised FRA 

to specify that the ‘‘system’’ referenced 

by the definition of ‘‘hazard’’ was a 

‘‘safety system.’’ FRA decided not to 

follow this suggestion, however, in 

order to maintain consistency between 

the proposed RRP and SSP rules. FRA 

also believes that the descriptor ‘‘safety’’ 

would improperly limit the scope of the 

proposed definition. An RRP should 

address hazards that could result in 

damage or loss to any system related to 

the railroad’s operations, and not merely 

safety systems. 

‘‘Inadequate safety performance’’ 

means safety performance that FRA has 

determined to be inadequate based on 

the analysis described in proposed 

§ 271.13. 

‘‘Mitigation strategy’’ means an action 

or program to reduce or eliminate the 

risk generated by a hazard. 

‘‘Person’’ means an entity of any type 

covered under 1 U.S.C. 1, including, but 

not limited to, the following: A railroad; 

a manager, supervisor, official, or other 

employee or agent of a railroad; any 

owner, manufacturer, lessor, or lessee of 

railroad equipment, track, or facilities; 

any independent contractor or 

subcontractor providing goods or 

services to a railroad; and any employee 

of such owner, manufacturer, lessor, 

lessee, or independent contractor or 

subcontractor. 

‘‘Pilot project’’ means a limited scope 

project used to determine whether 

quantitative proof suggests that a 

particular system or mitigation strategy 

has potential to succeed on a full-scale 

basis. 

‘‘Plant railroad’’ means a type of 

operation that has traditionally been 

excluded from the application of FRA 

regulations because it is not part of the 

general railroad system of 

transportation. Under § 271.3, FRA has 

chosen to exempt plant railroads, as 

defined in this proposed section, from 

the proposed rule. In the past, FRA has 

not defined the term ‘‘plant railroad’’ in 

other regulations that it has issued 

because FRA assumed that its 

‘‘Statement of Agency Policy 

Concerning Enforcement of the Federal 

Railroad Safety Laws, The Extent and 

Exercise of FRA’s Safety Jurisdiction’’, 

49 CFR part 209, Appendix A (FRA’s 

Policy Statement or the Policy 

Statement), provided sufficient 

clarification as to the definition of that 

term. However, it has come to FRA’s 

attention that certain rail operations 

believed that they met the 

characteristics of a plant railroad, as set 

forth in the Policy Statement, when, in 

fact, their rail operations were part of 

the general railroad system of 

transportation (general system) and 

therefore did not meet the definition of 

a plant railroad. FRA would like to 

avoid any confusion as to what types of 

rail operations qualify as plant railroads. 

FRA would also like to save interested 

persons the time and effort needed to 

cross-reference and review FRA’s Policy 

Statement to determine whether a 

certain operation qualifies as a plant 

railroad. Consequently, FRA has 

decided to define the term ‘‘plant 

railroad’’ in this part 271. 

The proposed definition would clarify 

that when an entity operates a 

locomotive to move rail cars in service 

for other entities, rather than solely for 

its own purposes or industrial 

processes, the services become public in 

nature. Such public services represent 

the interchange of goods, which 

characterizes operation on the general 

system. As a result, even if a plant 

railroad moves rail cars for entities other 

than itself solely on its property, the rail 

operations will likely be subject to 

FRA’s safety jurisdiction because those 

rail operations bring plant trackage into 

the general system. 

The proposed definition of the term 

‘‘plant railroad’’ is consistent with 

FRA’s longstanding policy that it will 

exercise its safety jurisdiction over a rail 

operation that moves rail cars for 

entities other than itself because those 

movements bring the track over which 

the entity is operating into the general 

system. See 49 CFR part 209, Appendix 

A. Indeed, FRA’s Policy Statement 

provides that ‘‘operations by the plant 

railroad indicating it [i]s moving cars on 

. . . trackage for other than its own 

purposes (e.g., moving cars to 

neighboring industries for hire)’’ brings 

plant track into the general system and 

thereby subjects it to FRA’s safety 

jurisdiction. 49 CFR part 209, Appendix 

A. Additionally, this interpretation of 

the term ‘‘plant railroad’’ has been 

upheld in litigation before the U.S. 

Court of Appeals for the Fifth Circuit. 

See Port of Shreveport-Bossier v. 

Federal Railroad Administration, No. 

10–60324 (5th Cir. 2011) (unpublished 

per curium opinion). 

‘‘Positive train control’’ means a 

system designed to prevent train-to-train 

collisions, overspeed derailments, 

incursions into established work zone 

limits, and the movement of a train 

through a switch left in the wrong 

position, as described in subpart I of 49 

CFR part 236. 

‘‘Railroad’’ means: (1) Any form of 

non-highway ground transportation that 

runs on rails or electromagnetic 

guideways, including— 

(i) Commuter or other short-haul rail 

passenger service in a metropolitan or 

suburban area and commuter railroad 

service that was operated by the 

Consolidated Rail Corporation on 

January 1, 1979; and 

(ii) High speed ground transportation 

systems that connect metropolitan areas, 

without regard to whether those systems 

use new technologies not associated 

with traditional railroads, but does not 

include rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation; and 

(2) A person or organization that 

provides railroad transportation, 

whether directly or by contracting out 

operation of the railroad to another 

person. 

The definition of ‘‘railroad’’ is based 

upon 49 U.S.C. 20102(1) and (2), and 

encompasses any person providing 

railroad transportation directly or 

indirectly, including a commuter rail 

authority that provides railroad 

transportation by contracting out the 

operation of the railroad to another 

person, as well as any form of nonhighway ground transportation that runs 

on rails or electromagnetic guideways, 

but excludes urban rapid transit not 

connected to the general system. 

‘‘Risk’’ means the combination of the 

probability (or frequency of occurrence) 

and the consequence (or severity) of a 

hazard. 

‘‘Risk-based HMP’’ means a risk-based 

hazard management program. 

‘‘Risk reduction’’ means the formal, 

top-down, organization-wide approach 

to managing safety risk and assuring the 

effectiveness of safety risk mitigation 

strategies. It includes systematic 

procedures, practices, and policies for 

the management of safety risk. 

‘‘RRP’’ means a Risk Reduction 

Program. 


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‘‘RRP plan’’ means a Risk Reduction 

Program plan. 

‘‘Safety culture’’ means the shared 

values, actions, and behaviors that 

demonstrate a commitment to safety 

over competing goals and demands. 

FRA is proposing this definition 

because the RSIA requires a railroad’s 

RRP to address safety culture. See 49 

U.S.C. 20156(c). Because there was 

significant discussion in the RRP 

Working Group as to whether this 

definition was needed, however, FRA 

specifically requests public comment on 

the necessity and content of the 

proposed definition. 

The proposed ‘‘safety culture’’ 

definition was discussed in the sectionby-section analysis of the SSP NPRM. 

See 77 FR 55382. This definition is 

based on a research paper published by 

the DOT Safety Council. See U.S. Dep’t 

of Transp., Safety Council, ‘‘Safety 

Culture: A Significant Driver Affecting 

Safety in Transportation 2’’ (2011), 

available at http://safetycouncil.dot.gov/ 

publications/safety-research-paper.pdf. 

The DOT Safety Council developed this 

definition after extensive review of 

definitions used in a wide range of 

industries and organizations over the 

past two decades. 

FRA acknowledges that this proposed 

definition is different than the one 

recommended by the RRP Working 

Group, and that railroads may have a 

different understanding of what 

constitutes safety culture. During RRP 

Working Group discussions, for 

example, some participants expressed 

the concern that the language ‘‘over 

competing goals and demands’’ would 

require a railroad to make safety the 

ultimate priority to the exclusion of all 

other concerns, without providing 

flexibility for a railroad to balance the 

concerns of profit and efficiency. FRA 

believes it is important, however, to 

utilize in this rule a definition that has 

been formulated by the DOT Safety 

Council. Furthermore, the proposed 

definition would not require a railroad 

to always prioritize safety concerns over 

competing goals and demands (i.e., it 

would not require a railroad to have a 

perfect safety culture). Rather, the 

definition merely expresses how a safety 

culture can be evaluated by measuring 

the extent to which a railroad 

emphasizes safety over competing goals 

and demands, without imposing any 

such requirement. 

‘‘Safety performance’’ means a 

realized or actual safety 

accomplishment relative to stated safety 

objectives. 

‘‘Safety outreach’’ means the 

communication of safety information to 

support the implementation of an RRP 

throughout a railroad. 

‘‘Senior management’’ means 

personnel at the highest level of a 

railroad’s management who are 

responsible for making major policy 

decisions and long-term business plans 

regarding the operation of the railroad. 

‘‘STB’’ means the Surface 

Transportation Board of the United 

States. 

‘‘Tourist, scenic, historic, or excursion 

operations’’ means railroad operations 

that carry passengers, often using 

antiquated equipment, with the 

conveyance of the passengers to a 

particular destination not being the 

principal purpose. Train movements of 

new passenger equipment for 

demonstration purposes are not tourist, 

scenic, historic, or excursion operations. 

This definition is consistent with FRA’s 

other regulations. See 49 CFR 238.5 and 

239.5. 

The RSAC RRP Working Group 

recommended including definitions for 

the following terms: safety performance 

index and safety performance threshold. 

FRA determined that these definitions 

did not provide any additional clarity 

and were unnecessary. FRA requests 

public comment regarding whether any 

of these definitions or any other 

definitions should be added to the final 

rule. 

Section 271.7—Waivers 

Proposed § 271.7 would explain the 

process for requesting a waiver from a 

provision of the rule. FRA has 

historically entertained waiver petitions 

from parties affected by an FRA 

regulation. In reviewing such requests, 

FRA conducts investigations to 

determine if a deviation from the 

general regulatory criteria is in the 

public interest and can be made without 

compromising or diminishing railroad 

safety. 

The rules governing the FRA waiver 

process are found in 49 CFR part 211. 

In general, these rules state that after a 

petition for a waiver is received by FRA, 

a notice of the waiver request is 

published in the Federal Register, an 

opportunity for public comment is 

provided, and an opportunity for a 

hearing is afforded the petitioning or 

other interested party. After reviewing 

information from the petitioning party 

and others, FRA would grant or deny 

the petition. In certain circumstances, 

conditions may be imposed on the grant 

of a waiver if FRA concludes that the 

conditions are necessary to assure safety 

or if they are in the public interest, or 

both. 

Section 271.9—Penalties and 

Responsibility for Compliance 

Proposed § 271.9 would contain 

provisions regarding the proposed 

penalties for failure to comply with the 

proposed rule and the responsibility for 

compliance. 

Paragraph (a) would identify the civil 

penalties that FRA may impose upon 

any person that violates or causes a 

violation of any requirement of the 

proposed rule. These penalties would be 

authorized by 49 U.S.C. 20156(h), 

21301, 21302, and 21304. The proposed 

penalty provision parallels penalty 

provisions included in numerous other 

safety regulations issued by FRA. 

Essentially, any person that violates any 

requirement of the rule arising from this 

rulemaking or causes the violation of 

any such requirement would be subject 

to a civil penalty of at least $650 and not 

more than $25,000 per violation. Civil 

penalties would be assessed against 

individuals only for willful violations. 

Where a grossly negligent violation or a 

pattern of repeated violations creates an 

imminent hazard of death or injury to 

individuals, or causes death or injury, a 

penalty not to exceed $105,000 per 

violation could be assessed. In addition, 

each day a violation continues would 

constitute a separate offense. Maximum 

penalties of $25,000 and $105,000 are 

required by the Federal Civil Penalties 

Inflation Adjustment Act of 1990, Public 

Law 101–410, 28 U.S.C. 2461, note, as 

amended by the Debt Collection 

Improvement Act of 1996, Public Law 

104–134, 110 Stat. 1321–373 (April 26, 

1996), which requires each agency to 

regularly adjust certain civil monetary 

penalties in an effort to maintain their 

remedial impact and promote 

compliance with the law. Furthermore, 

a person could be subject to criminal 

penalties under 49 U.S.C. 21311 for 

knowingly and willfully falsifying 

reports required by these regulations. 

FRA believes that the inclusion of 

penalty provisions for the failure to 

comply with the regulations is 

important in ensuring that compliance 

is achieved. The proposed rule does not 

include a schedule of civil penalties, but 

a final rule would contain such a 

schedule. 

Proposed paragraph (b) would clarify 

that any person, including but not 

limited to a railroad, contractor, or 

subcontractor for a railroad, or a local or 

state governmental entity that performs 

any function covered by the proposed 

rule, must perform that function in 

accordance with the requirements of 

part 271. 


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Section 271.11—Discovery and 

Admission as Evidence of Certain 

Information 

As discussed in section VI of the 

preamble, above, an RSIA-mandated 

study by FRA concluded that it is in the 

public interest to protect certain 

information generated by railroads from 

discovery or admission into evidence in 

litigation. Section 109 of the RSIA 

provides FRA with the authority to 

promulgate a regulation if FRA 

determines that it is in the public 

interest, including public safety and the 

legal rights of persons injured in 

railroad accidents, to prescribe a rule 

that addresses the results of the study. 

Following the issuance of the study, 

the RSAC met and reached consensus 

on recommendations regarding the 

discovery and admissibility of 

information for the proposed SSP rule, 

with the understanding that an identical 

provision would be included in a 

proposed RRP rule. RSAC 

recommended that FRA issue a rule that 

would protect documents generated 

solely for the purpose of developing, 

implementing, or evaluating an RRP 

from: (1) Discovery, or admissibility into 

evidence, or considered for other 

purposes in a Federal or State court 

proceeding for damages involving 

property damage, personal injury, or 

wrongful death; and (2) State discovery 

rules and sunshine laws that could be 

used to require the disclosure of such 

information. As previously discussed in 

section III.B of the preamble, FRA 

published an SSP NPRM on September 

7, 2012, and the information protection 

language contained in this RRP NPRM 

is essentially identical to that proposed 

by the SSP NPRM. See 77 FR 55390– 

55392. While this RRP NPRM does not 

respond to comments already received 

in response to the SSP NPRM, FRA will 

consider comments submitted to both 

the SSP and RRP NPRMs regarding the 

information protection provisions when 

developing an RRP final rule. 

Also, sec. 109 of the RSIA mandates 

that the effective date of a rule 

prescribed pursuant to that section must 

be one year after the publication of that 

rule. FRA believes that the public 

interest considerations for the 

protections in § 271.11 are the same for 

the SSP rule for passenger railroads. 

Therefore, assuming that an SSP final 

rule might be published before an RRP 

final rule, FRA would likely make the 

SSP information protection provisions 

applicable to RRP programs as well. The 

effect of this proposal is that the 

information protection for RRP would 

become applicable one year after 

publication of an SSP final rule, 

permitting a railroad subject to the RRP 

rule to obtain information protection as 

soon as possible. FRA requests public 

comment regarding this approach. 

In this § 271.11, FRA proposes 

discovery and admissibility protections 

that are based on the study’s results and 

the RSAC recommendations. FRA 

modeled this proposed section after 23 

U.S.C. 409. In sec. 409, Congress 

enacted statutory protections for certain 

information compiled or collected 

pursuant to Federal highway safety or 

construction programs. See 23 U.S.C. 

409. Section 409 protects both data 

compilations and raw data. A litigant 

may rely on sec. 409 to withhold certain 

documents from a discovery request, in 

seeking a protective order, or as the 

basis to object to a line of questioning 

during a trial or deposition. Section 409 

extends protection to information that 

may never have been in any Federal 

entity’s possession. 

Section 409 was enacted by Congress 

in response to concerns raised by the 

States that compliance with the Federal 

road hazard reporting requirements 

could reveal certain information that 

would increase the States’ risk of 

liability. Without confidentiality 

protections, States feared that their 

‘‘efforts to identify roads eligible for aid 

under the Program would increase the 

risk of liability for accidents that took 

place at hazardous locations before 

improvements could be made.’’ Pierce 

County v. Guillen, 537 U.S. 129, 133–34 

(2003) (citing H.R. Doc. No. 94–366, p. 

36 (1976)). 

In Guillen, the Court considered the 

application of sec. 409 to documents 

created pursuant to the Hazard 

Elimination Program, which is a Federal 

highway program that provides funding 

to State and local governments to 

improve the most dangerous sections of 

their roads. Id. at 133. To be eligible for 

the program, the State or local 

government must (1) maintain a 

systematic engineering survey of all 

roads, with descriptions of all obstacles, 

hazards, and other dangerous 

conditions; and (2) create a prioritized 

plan for improving those conditions. Id. 

The Court held that sec. 409 protects 

information actually compiled or 

collected by any government entity for 

the purpose of participating in a Federal 

highway program, but does not protect 

information that was originally 

compiled or collected for purposes 

unrelated to the Federal highway 

program, even if the information was at 

some point used for the Federal 

highway program. Guillen at 144. The 

Court took into consideration Congress’s 

desire to make clear that the Hazard 

Elimination Program ‘‘was not intended 

to be an effort-free tool in litigation 

against state and local governments.’’ Id. 

at 146. However, the Court also noted 

that the text of sec. 409 ‘‘evinces no 

intent to make plaintiffs worse off than 

they would have been had section 152 

[Hazard Management Program] funding 

never existed.’’ Id. The Court also held 

that sec. 409 was a valid exercise of 

Congress’s powers under the Commerce 

Clause because sec. 409 ‘‘can be viewed 

as legislation aimed at improving safety 

in the channels of commerce and 

increasing protection for the 

instrumentalities of interstate 

commerce.’’ Id. 

A comparison of the text of sec. 409 

with sec. 109, which was added to the 

U.S. Code by the RSIA, shows that 

Congress used similar language in both 

provisions. Given the similar language 

and concept of the two statutes, and the 

Supreme Court’s expressed 

acknowledgement of the 

constitutionality of sec. 409, FRA views 

sec. 409 as an appropriate model for 

proposed § 271.11. 

FRA proposes that under certain 

circumstances, information (including 

plans, reports, documents, surveys, 

schedules, lists, or data) would not be 

subject to discovery, admitted into 

evidence, or considered for other 

purposes in a Federal or State court 

proceeding for damages. This 

information may not be used in such 

litigation for any purpose when it is 

compiled or collected solely for the 

purpose of developing, implementing, 

or evaluating an RRP, including the 

railroad’s analysis of its safety risks 

conducted pursuant to proposed 

§ 271.103(b) and any identification of 

the mitigation measures with which it 

would address those risks pursuant to 

proposed § 271.103(c). Proposed 

§ 271.11(a) applies to information that 

may not be in the Federal government’s 

possession; rather, it may be 

information the railroad has as part of 

its RRP but would not be required to 

provide to the Federal government 

under this part. 

The RSIA identifies reports, surveys, 

schedules, lists, and data as the forms of 

information that should be included as 

part of FRA’s Study. See 49 U.S.C. 

20119(a). However, FRA does not 

necessarily view this as an exclusive 

list. In the statute, Congress directed 

FRA to consider the need for protecting 

information that includes a railroad’s 

analysis of its safety risks and its 

statement of the mitigation measures 

with which it would address those risks. 

Therefore, FRA deems it necessary to 

include ‘‘documents’’ and ‘‘plans’’ in 

this proposed provision to effectuate 

Congress’ directive in sec. 109 of the 


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RSIA. Notwithstanding, FRA does not 

propose protecting all documents and 

plans that are part of an RRP. Rather, as 

proposed in § 271.11(a), the document 

has to be ‘‘compiled or collected solely 

for the purpose of developing, 

implementing, or evaluating an RRP 

under this part.’’ The meaning of 

‘‘compiled or collected solely for the 

purpose of developing, implementing, 

or evaluating an RRP under this part’’ is 

discussed below. 

As discussed previously, the 

proposed regulation would require a 

railroad to implement its RRP through 

an RRP plan. While the railroad will not 

provide in the RRP plan that it submits 

to FRA the results of the risk-based 

hazard analysis and the specific 

mitigation strategies it will be 

implementing, its own RRP plan may 

contain this information while it is in 

the possession of the railroad. 

Therefore, to adequately protect this 

type of information, the term ‘‘plan’’ is 

added to cover a railroad’s RRP plan 

and any hazard elimination or 

mitigation plans. 

It is important to note that these 

proposed protections will only extend 

to information (including plans, reports, 

documents, surveys, schedules, lists, or 

data) that is ‘‘compiled or collected 

solely for the purpose of developing, 

implementing, or evaluating an RRP.’’ 

The term ‘‘compiled and collected’’ is 

taken directly from the RSIA. FRA 

recognizes that railroads may be 

reluctant to compile or collect extensive 

and detailed information regarding the 

safety hazards and associated risks on 

their system if this information could 

potentially be used against them in 

litigation. The term ‘‘compiles’’ refers to 

information that is generated by the 

railroad for the purposes of an RRP; 

whereas the term ‘‘collected’’ refers to 

information that is not necessarily 

generated for the purposes of the RRP, 

but is assembled in a collection for use 

by the RRP. It is important to note that 

the collection is protected; however, 

each separate piece of information that 

is not originally compiled for use by the 

RRP remains subject to discovery and 

admission into evidence subject to any 

other applicable provision of law or 

regulation. 

The information has to be compiled or 

collected solely for the purpose of 

developing, implementing, or evaluating 

an RRP. The use of the term ‘‘solely’’ 

means that the original purpose of 

compiling or collecting the information 

is exclusively for the railroad’s RRP. A 

railroad cannot compile or collect the 

information for one purpose and then 

try to use proposed paragraph (a) to 

protect that information simply because 

it also uses that information for its RRP. 

The railroad’s original and primary 

purpose of compiling or collecting the 

information must be for developing, 

implementing, or evaluating its RRP in 

order for the protections to be extended 

to that information. 

Information a railroad had previously 

compiled or collected for non-RRP 

purposes would also not be protected, 

even if the railroad continued to 

compile or collect that information as 

part of its RRP. This is because RSIA 

limits the protections to information 

that is compiled or collected pursuant to 

a risk reduction program required by the 

statute; therefore, the proposed 

protections cannot be extended to 

information that was compiled or 

collected prior to the proposed rule 

because that information was not 

collected pursuant to a risk reduction 

program required by RSIA. As discussed 

above, when interpreting section 409, 

the Supreme Court held that there is no 

reason to interpret the protections as 

protecting information plaintiffs would 

have been free to obtain prior to the 

enactment of the Hazard Elimination 

Program. Consistent with the Court’s 

ruling in Guillen, the proposed 

protections would not protect 

information that plaintiffs would have 

been free to obtain prior to the 

enactment of the proposed rule. 

Furthermore, a single type of record, 

plan, document, etc., could contain both 

information that would be protected 

under the proposed provision and 

information that would not be 

protected. In other words, an entire 

railroad document or record would not 

be protected simply because it 

contained a single piece of information 

that was protected. For example, if a 

railroad began collecting a new type of 

information as part of its accident 

investigations, and that information was 

being collected solely for the purpose of 

developing, implementing, or evaluating 

its RRP, that specific information would 

be protected. The information that had 

been historically collected as part of the 

railroad’s accident investigation 

program, however, would remain 

unprotected. FRA stresses that the 

intent of the proposed provisions is to 

leave neither railroads nor plaintiffs 

worse off than before the 

implementation of an RRP rule. 

Additionally, if the railroad is 

required by another provision of law or 

regulation to collect the information, the 

protections of proposed paragraph (a) do 

not extend to that information because 

it is not being compiled or collected 

solely for the purpose of developing, 

implementing, or evaluating an RRP. 

For example, information that a railroad 

must compile pursuant to FRA’s 

accident/incident reporting regulations 

would not be protected. 

The information protections would 

also not apply to information generated 

by safety risk reduction programs that 

do not fully comply with all the 

requirements of a final RRP rule. 

Section 109 extends protection to 

information generated by a safety risk 

reduction program that includes all the 

required elements of an RRP; a program 

that includes one or more, but not all, 

of the required elements of an RRP 

would not satisfy these statutory 

requirements. For example, FRA 

supports the development of the Short 

Line Safety Institute (see http://

www.fra.dot.gov/eLib/details/L15890) to 

promote the safety of short line and 

regional railroad operations, 

information generated by such an 

institute as part of a short line or 

regional railroad’s risk reduction 

program would only be protected if: (1) 

The railroad uses the information 

generated by the institute in a fullyimplemented RRP, and (2) that 

information meets the other 

requirements in § 109 to receive 

protection. It is important to note, 

however, that RRP is scalable by design. 

Full compliance with the RRP 

regulation by a short line or regional 

railroad is therefore not likely to be as 

complex and comprehensive as it would 

be for a larger railroad, and a short line 

or regional railroad that voluntarily 

complies with an RRP final rule will 

receive information protection. FRA 

therefore believes it would be both 

unnecessary and not authorized by the 

RSIA to extend the proposed 

information protection provisions to 

safety risk reduction programs that did 

not fully comply with a final RRP rule. 

FRA invites public comment on this 

approach. 

The information must be compiled or 

collected solely for the purpose of 

developing, implementing, or evaluating 

an RRP. These three terms are taken 

directly from the RSIA. They cover the 

necessary uses of the information 

compiled or collected solely for the 

RRP. To develop an RRP, a railroad will 

need to conduct a risk-based hazard 

analysis to evaluate and identify the 

safety hazards and associated risks on 

its system. This type of information is 

essential and is information that a 

railroad does not necessarily already 

have. In order for the railroad to 

conduct a robust risk-based hazard 

analysis to develop its RRP, the 

protections from discovery and 

admissibility are extended to the RRP 

development stage. Based on the 

information generated by the risk-based 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 10965 

hazard analysis, the railroad would 

implement measures to mitigate or 

eliminate the risks identified. To 

properly implement these measures, the 

railroad will need the information 

regarding the hazards and risks on the 

railroad’s system identified during the 

development stage. Therefore, the 

protection of this information is 

extended to the implementation stage. 

Finally, the railroad would be required 

to evaluate whether the measures it 

implements to mitigate or eliminate the 

hazards and risks identified by the riskbased hazard analysis are effective. To 

do so, it will need to review the 

information developed by the risk-based 

hazard analysis and the methods it has 

used to implement the elimination/

mitigation measures. The use of this 

information in the evaluation of the 

railroad’s RRP is protected. 

The proposed protections would not 

apply to the fact that a railroad 

ultimately implemented a particular 

mitigation strategy, although the 

protections would apply to the 

information informing the railroad’s 

decision as part of its RRP. For example, 

a railroad may elect to implement a new 

type of technology, such as new track 

inspection vehicles, as part of its 

technology implementation plan. Once 

the railroad is using these new track 

inspection vehicles, the fact that the 

railroad is using them is not protected 

by the proposed provision, as the track 

inspection vehicles are now serving a 

purpose other the development, 

implementation, or evaluation of the 

railroad’s RRP (i.e., they are being used 

for railroad operational purposes). The 

manner in which the railroad is using 

these track inspection vehicles would 

also not necessarily be protected (e.g., is 

the railroad operating the track 

inspection vehicles properly?). 

Information from the technology 

analysis and technology implementation 

plan regarding the adopted track 

inspection vehicles, however, would 

remain protected. For example, an 

analysis of the track inspection vehicles’ 

likely effectiveness in mitigating an 

identified hazard, as opposed to other 

mitigation strategies, would remain 

protected, as would any analyses 

regarding investment decisions related 

to the vehicles as opposed to alternative 

mitigations. Information regarding other 

technologies that had been analyzed but 

were not selected as mitigation 

strategies would also be protected. 

Information regarding the track 

inspection vehicles’ ultimate 

effectiveness in addressing the 

identified hazard and risk would also be 

protected. FRA specifically requests 

public comment on this discussion. 

The information covered by this 

proposed section shall not be subject to 

discovery, admitted into evidence, or 

considered for other purposes in a 

Federal or State court proceeding that 

involves a claim for damages involving 

personal injury, wrongful death, or 

property damage. The protections apply 

to discovery, admission into evidence, 

or consideration for others purposes. 

The first two situations come directly 

from the RSIA; however, FRA 

determined that for the protections to be 

effective they must also apply to any 

other situation where a litigant might try 

to use the information in a Federal or 

State court proceeding that involves a 

claim for damages involving personal 

injury, wrongful death, or property 

damage. For example, under proposed 

§ 271.11, a litigant would be prohibited 

from admitting into evidence a 

railroad’s risk-based hazard analysis. 

However, without the additional 

language, the railroad’s risk-based 

hazard analysis could be used by a party 

for the purpose of refreshing the 

recollection of a witness or by an expert 

witness to support an opinion. The 

additional language, ‘‘or considered for 

other purposes,’’ ensures that the 

protected information remains out of a 

proceeding completely. The protections 

would be useless if a litigant is able to 

use the information in the proceeding 

for another purpose. To encourage 

railroads to perform the necessary 

vigorous risk analysis and to implement 

truly effective hazard elimination or 

mitigation measures, the protections 

should be extended to any use in a 

proceeding. 

FRA further notes that this proposed 

section applies to Federal or State court 

proceedings that involve a claim for 

damages involving personal injury, 

wrongful death, or property damage. 

This means, for example, if a proceeding 

has a claim for personal injury and a 

claim for property damage, the 

protections are extended to that entire 

proceeding; therefore, a litigant cannot 

use any of the information protected by 

this section as it applies to either the 

personal injury or property damage 

claim. While sec. 109 of the RSIA only 

required the study to consider 

proceedings that involve a claim for 

damages involving personal injury or 

wrongful death, the RSAC (which 

includes both railroad and labor 

representation) recommended that FRA 

extend the information protection 

provisions to proceedings involving 

claims for property damage as well. 

FRA believes it is advisable to follow 

this RSAC recommendation because 

extending the proposed information 

protections to property damage claims is 

consistent with the goal of encouraging 

railroads to engage in a robust and 

candid hazard analysis and to develop 

meaningful mitigation measures. The 

typical railroad accident resulting in 

injury or death also involves some form 

of property damage. Without protecting 

proceedings that involve a claim for 

property damage, a litigant could bring 

two separate claims arising from the 

same incident in two separate 

proceedings, the first for property 

damages and the second one for 

personal injury or wrongful death, and 

be able to conduct discovery regarding 

the railroad’s risk analysis and to 

introduce this analysis in the property 

damage proceeding but not in the 

personal injury or wrongful death 

proceeding. This means that a railroad’s 

risk analysis could be used against the 

railroad in a proceeding for damages. If 

this is the case, a railroad will be 

hesitant to engage in a robust and 

candid hazard analysis and develop 

meaningful mitigation measures. FRA 

also believes that expanding the 

information protection provisions to 

property damage claims would be 

supported by the same considerations 

underlying the study’s conclusion that 

protecting risk reduction information 

from use in civil litigation claims for 

personal injuries or wrongful death 

would serve the broader public interest. 

FRA’s proposed approach would also 

mitigate potential confusion from the 

application of different discovery and 

evidential standards for personal injury, 

wrongful death, and property damage 

claims all potentially arising from the 

same event. 

Proposed paragraph (b) would ensure 

that the proposed protections set forth 

in paragraph (a) do not extend to 

information compiled or collected for a 

purpose other than that specifically 

identified in paragraph (a). This type of 

information shall continue to be 

discoverable, admissible into evidence, 

or considered for other purposes if it 

was discoverable, admissible, or 

considered for other purposes prior to 

the existence of this section. This 

includes information compiled or 

collected for a purpose other than that 

specifically identified in paragraph (a) 

that either: (1) Existed prior to 365 days 

after the publication date of a final rule; 

(2) was compiled or collected prior to 

365 days after the publication date of a 

final rule and continues to be compiled 

or collected; or (3) is compiled and 

collected after 365 days after the 

publication date of a final rule. 

Proposed paragraph (b) affirms the 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
10966 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

9 During RRP Working Group discussions, the 

ASLRRA expressed concern that use of FRA 

violation data to determine safety performance 

might be inappropriate, because FRA’s 

prosecutorial discretion may result in different 

railroads receiving more or fewer violations. FRA 

believes that a railroad identified during the 

quantitative analysis could raise such a concern 

during the qualitative assessment, and FRA would 

consider that concern when making the final 

determination regarding the railroad’s safety 

performance. 

10Railroads use Form 6180.55a to report on-duty 

employee injuries and occupational illnesses. 

11Railroads use Form 6180.55 to report the 

number of employee hours. 

intent behind the use of the term 

‘‘solely’’ in paragraph (a), in that a 

railroad could not compile or collect 

information for a different purpose and 

then expect to use paragraph (a) to 

protect that information just because the 

information is also used in its RRP. If 

the information was originally compiled 

or collected for a purpose unrelated to 

the railroad’s RRP, then it is 

unprotected and would continue to be 

unprotected. 

Examples of the types of information 

that proposed paragraph (b) applies to 

may be records related to prior 

incidents/accidents and reports 

prepared in the normal course of 

business (such as inspection reports). 

Generally, this type of information is 

often discoverable, may be admissible in 

Federal and State proceedings, or 

considered for other purposes, and 

should remain discoverable, admissible, 

or considered for other purposes where 

it is relevant and not unduly prejudicial 

to a party after the implementation of 

this part. However, FRA recognizes that 

evidentiary decisions are based on the 

facts of each particular case; therefore, 

FRA does not intend this to be a 

definitive and authoritative list. Rather, 

FRA merely provides these as examples 

of the types of information that 

paragraph (a) is not intended to protect. 

Proposed paragraph (c) clarifies that a 

litigant cannot rely on State discovery 

rules, evidentiary rules, or sunshine 

laws that could be used to require the 

disclosure of information that is 

protected by paragraph (a). This 

provision is necessary to ensure the 

effectiveness of the Federal protections 

established in paragraph (a) in 

situations where there is a conflict with 

State discovery rules or sunshine laws. 

The concept that Federal law takes 

precedence where there is a direct 

conflict between State and Federal law 

should not be controversial as it derives 

from the constitutional principal that 

‘‘the Laws of the United States . . . 

shall be the supreme Law of the Land.’’ 

U.S. Const., Art. VI. Additionally, FRA 

notes that 49 U.S.C. 20106 is applicable 

to this section, as FRA’s study 

concluded that a rule ‘‘limiting the use 

of information collected as part of a 

railroad safety risk reduction program in 

discovery or litigation’’ furthers the 

public interest by ‘‘ensuring safety 

through effective railroad safety risk 

reduction program plans.’’ See Study at 

64. FRA concurs in this conclusion. 

Section 20106 provides that States may 

not adopt or continue in effect any law, 

regulation, or order related to railroad 

safety or security that covers the subject 

matter of a regulation prescribed or 

order issued by the Secretary of 

Transportation (with respect to railroad 

safety matters) or the Secretary of 

Homeland Security (with respect to 

railroad security matters), except when 

the State law, regulation, or order 

qualifies under the ‘‘essentially local 

safety or security hazard’’ exception to 

sec. 20106. 

Section 271.13—Determination of 

Inadequate Safety Performance 

Proposed § 271.13 would describe 

FRA’s methodology for determining 

which railroads must comply with this 

part because they have inadequate 

safety performance. Overall, this section 

describes how FRA’s analysis would 

have two phases: A statistically-based 

quantitative analysis phase followed by 

a qualitative assessment phase. Only 

railroads identified as possibly having 

inadequate safety performance in the 

quantitative analysis would continue on 

to the qualitative assessment, as 

discussed further below. 

Proposed paragraph (a) describes 

FRA’s methodology as a two-phase 

annual analysis, comprised of both a 

quantitative analysis and a qualitative 

assessment. This analysis would not 

include railroads excluded under 

proposed § 271.3(b) (e.g., commuter or 

intercity passenger railroads that would 

be subject to FRA SSP requirements), 

railroads otherwise required to comply 

with part 271 (i.e., Class I railroads and 

railroads previously determined to have 

inadequate safety performance under 

this section), railroads that voluntarily 

comply with this part under proposed 

§ 271.15, and new railroads that have 

reported accident/incident data to FRA 

for fewer than three years, except that 

new railroads formed through an 

amalgamation of operations (for 

example, railroads formed through 

consolidations, mergers, or acquisitions 

of control) will be included in the 

analysis using the combined accident/

incident data of the pre-amalgamation 

entities. FRA is requesting public 

comment on whether and, if so, how, it 

should also exclude from the analysis 

railroads formed by splitting off from a 

larger railroad. 

FRA specifically requests comment on 

whether railroads that comply 

voluntarily under § 271.15 should be 

included in FRA’s analysis, and FRA’s 

final rule may elect to include 

voluntarily-compliant railroads in the 

analysis. 

Paragraph (b) would describe the 

quantitative analysis, which would 

make a threshold identification of 

railroads that might have inadequate 

safety performance. Paragraph (b)(1) 

would specify that the quantitative 

analysis would be statistically-based 

and would include each railroad within 

the scope of the analysis, using 

historical safety data maintained by 

FRA for the three most recent full 

calendar years. The quantitative 

analysis would identify four factors 

regarding a railroad’s safety 

performance: (1) Fatalities; (2) FRA 

reportable injury/illness rate; (3) FRA 

reportable accident/incident rate; and 

(4) FRA violation rate.9

The first factor, described in proposed 

paragraph (b)(1)(i), is a railroad’s 

number of on-duty employee fatalities 

during the three-year period, 

determined using Worker on DutyRailroad Employee (Class A) 

information reported on FRA Form 

6180.55a 10 pursuant to FRA’s accident/ 

incident reporting regulations in part 

225. FRA is requesting public comment 

on whether this factor should include 

fatalities to other classes of persons 

reported on FRA Form 6180.55a, such 

as Railroad Employee Not On Duty 

(Class B), Worker on Duty-Contractor 

(Class F), Nontrespassers-On Railroad 

Property (Class D), etc. 

The second factor, described in 

proposed paragraph (b)(1)(ii), is a 

railroad’s FRA on-duty employee 

injury/illness rate, calculated using 

‘‘Worker on Duty-Railroad Employee’’ 

information reported on FRA Form 

6180.55a and Form 6180.55 11 pursuant 

to FRA’s accident/incident reporting 

regulations in part 225. This rate would 

be calculated with the following 

formula: 

Injury/Illness Rate = (Total FRA Reportable 

On-Duty Employee Injuries + Total FRA 

Reportable On-Duty Employee 

Occupational Illnesses over a 3-year 

period) ÷ (Total Employee Hours over a 

3-year period/200,000) 

This calculation would give the rate of 

employee injuries and occupational 

illnesses per 200,000 employee hours 

calculated over a 3-year period. FRA is 

requesting public comment on whether 

this factor should include injuries/

illnesses to other classes of persons 

reported on FRA Form 6180.55a, such 

as Railroad Employee Not On Duty 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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12Railroads use Form 6180.54 to report 

accidents/incidents and Form 6180.55 to report 

total train miles. 

(Class B), Worker on Duty-Contractor 

(Class F), Nontrespassers-On Railroad 

Property (Class D), etc. 

The third factor, described in 

proposed paragraph (b)(1)(iii), is a 

railroad’s FRA reportable rail equipment 

accident/incident rate, calculated using 

information reported on FRA Form 

6180.54 and Form 6180.55.12 This rate 

would be calculated with the following 

formula: 

Rail Equipment Accident/Incident Rate = 

Total FRA Reportable Rail Equipment 

Accidents/Incidents over a 3-year period 

÷ (Total Train Miles over a 3-year period/ 

1,000,000) 

This calculation would give the rate of 

rail equipment accidents/incidents per 

1,000,000 train miles calculated over a 

3-year period. FRA is not proposing to 

exclude rail equipment accident/

incidents occurring at highway-rail 

grade crossings from this calculation, as 

highway-rail grade crossings present a 

significant safety issue for many 

railroads. FRA requests public comment 

on whether it should consider excluding 

rail equipment accidents/incidents 

occurring at highway-rail grade 

crossings from this calculation. 

The fourth factor, described in 

proposed paragraph (b)(1)(iv), is a 

railroad’s FRA violation rate, calculated 

using FRA’s field inspector data system, 

which captures the number of violations 

and is made available to each railroad. 

The calculation also uses information 

reported to FRA on Form 6180.55. This 

rate would be calculated with the 

following formula: 

Violation Rate = Total FRA Violations over 

a 3-year period ÷ (Total Train Miles over 

a 3-year period ÷ 1,000,000) 

This calculation gives the rate of 

violations issued by FRA to a railroad 

per 1,000,000 train miles calculated 

over a 3-year period. 

Proposed paragraph (b)(2) states that 

the quantitative analysis would identify 

a railroad as possibly having inadequate 

safety performance if at least one of two 

conditions were met. Identified 

railroads would be examined further in 

the qualitative assessment, described 

below. 

The first condition would be whether 

a railroad has had one or more fatalities. 

FRA considers an on-duty employee 

fatality a strong indication of inadequate 

safety performance. If a railroad has at 

least one fatality within the 3-year 

period of the quantitative analysis, that 

railroad will be examined further in the 

qualitative assessment. 

The second condition would be 

whether a railroad was at or above the 

95th percentile in at least two of the 

three factors described in proposed 

paragraphs (b)(1)(ii) through (iv) of this 

section (e.g., a railroad’s FRA injury/

illness rate, FRA accident/incident rate, 

and FRA violation rate). For example, if 

the scope of data includes a set of 100 

railroads, the railroads with the five 

highest injury/illness rates, accident/

incident rates, or violation rates would 

be flagged. Those railroads flagged in 

two or more of these factors would be 

examined further in the qualitative 

assessment. Preliminary analyses 

estimate that FRA’s proposed approach 

would identify approximately 42 

railroads over a five year period, which 

FRA believes is a reasonable pool of 

potential railroads to examine further in 

the qualitative analysis. Lowering the 

threshold to railroads in the 90th 

percentile would identify approximately 

84 railroads, and lowering the threshold 

further to the 80th percentile would 

identify approximately about 167 

railroads. While FRA believes these 

lower thresholds would yield a pool too 

large and unwieldy to address 

comprehensively in the qualitative 

analysis, FRA requests public comment 

on whether it should consider flagging 

railroads at a threshold either above or 

below the 95th percentile in two or 

more of the identified factors. 

Proposed paragraph (c) would 

describe FRA’s qualitative assessment of 

railroads identified in the quantitative 

analysis as possibly having inadequate 

safety performance. During the 

qualitative assessment, FRA would 

consider input from both a railroad and 

the railroad’s employees, as well as any 

other pertinent information. FRA 

believes such input would be helpful in 

determining whether the quantitative 

analysis accurately identified a problem 

with the railroad’s safety performance. 

Paragraph (c)(1) would state that FRA 

would provide initial written 

notification to railroads identified in the 

threshold quantitative analysis as 

possibly having inadequate safety 

performance. Paragraph (c)(1)(i) would 

further specify that a notified railroad 

must inform its employees of FRA’s 

notice within 15 days of receiving 

notification. This employee notification 

would have to be posted at all locations 

where a railroad reasonably expects its 

employees to report for work and have 

an opportunity to observe the notice. 

The notice must be continuously 

displayed until 45 days following FRA’s 

initial notice. A railroad must use other 

means to notify employees who do not 

have a regular on-duty point to report 

for work, consistent with the railroad’s 

standard practice for communicating for 

employees. Such a notification could 

take place by email, for example. The 

notification must inform employees that 

they may submit confidential comments 

to FRA regarding the railroad’s safety 

performance, and must contain 

instructions for doing so. Any such 

employee comments must be submitted 

within 45 days of FRA’s initial notice. 

Likewise, paragraph (c)(1)(ii) would 

provide railroads 45 days from FRA’s 

initial notice to provide FRA 

documentation supporting any claim 

that the railroad does not have 

inadequate safety performance. For 

example, if a fatality on railroad 

property was determined to be due to 

natural causes (such as cardiac arrest), 

or an accident/incident due to an act of 

God, the railroad’s chief safety officer 

could provide a signed letter attesting to 

the facts, and asserting the railroad’s 

reasons for believing that it should not 

be found to have inadequate safety 

performance. A railroad could also 

submit information regarding any 

extenuating circumstances of an 

incident or the severity of an injury (for 

example, a bee sting may not be as 

serious a safety concern as a broken 

bone). FRA will also consider 

explanations regarding FRA-issued 

violations, as well as any mitigating 

action taken by the railroad to remedy 

the violations. 

Paragraph (c)(2) would generally 

describe the qualitative assessment of 

railroads identified by the quantitative 

analysis. During the qualitative 

assessment, FRA would consider any 

information provided by a railroad or its 

employees pursuant to paragraph (c)(1) 

of this section, as well as any other 

pertinent information. FRA may 

communicate with the railroad during 

the assessment to clarify its 

understanding of any information the 

railroad may have submitted. Based 

upon the qualitative assessment, FRA 

would make a final determination 

regarding whether a railroad has 

inadequate safety performance no later 

than 90 days following FRA’s initial 

notice to the railroad. 

Paragraph (d) would state that FRA 

will provide a final notification to each 

railroad given an initial notification 

pursuant to paragraph (c) of this section, 

informing the railroad whether or not it 

has been found to have inadequate 

safety performance. A railroad with 

inadequate safety performance must 

develop and implement an RRP 

compliant with the proposed rule and 

must provide FRA an RRP plan no later 

than 90 days after receiving the final 

notification, as provided by proposed 

§ 271.301(a). 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
10968 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

The RRP Working Group advised FRA 

to allow a railroad with inadequate 

safety performance to choose to 

establish either an RRP in compliance 

with proposed part 271 or an SSP in 

compliance with proposed part 270. The 

Working Group believed that some 

railroads (particularly smaller railroads 

more in need of formal structures to 

help them improve safety) would elect 

to develop, with FRA assistance, an SSP 

rather than an RRP. While FRA supports 

providing additional flexibility to 

railroads with inadequate safety 

performance, this provision has not 

been included in the current rule text 

because an SSP rule has not yet taken 

effect. If the SSP rule goes into effect 

before the publication of an RRP final 

rule, FRA would review this section and 

could provide for the choice in the final 

rule, as advised by the Working Group. 

FRA is also soliciting additional public 

comment on such an approach. 

Paragraph (e) would state that a 

railroad with inadequate safety 

performance would have to comply 

with the requirements of part 271 for at 

least five years, running from the date 

on which FRA approves the railroad’s 

RRP plan. FRA believes a five-year 

compliance period provides the 

minimum amount of time necessary for 

an RRP to have a substantive effect on 

a railroad’s safety performance, 

particularly if, pursuant to proposed 

§ 271.221, the railroad has taken 36 

months (3 years) to fully implement its 

RRP. An evaluation of an FRA C3RS 

demonstration site showed the 

following safety improvements after two 

and a half years: (1) A 31-percent 

increase in the number of cars moved 

between incidents; (2) improved labormanagement relationships and 

employee engagement (i.e., an improved 

safety culture); and (3) a reduction in 

discipline cases. FRA believes this 

evaluation shows that risk-reductiontype programs can successfully yield 

positive impacts within a period of only 

a few years. See Ranney, J. and Raslear, 

T., ‘‘Derailments decrease at a C3RS site 

at midterm,’’ FRA Research Results: 

RR12–04, April 2012, available at 

http://www.fra.dot.gov/eLib/details/

L01321. The five-year minimum 

compliance period should create the 

time necessary to determine whether 

safety improvements achieved upon 

implementation of the RRP are 

sustainable. Furthermore, the initial 

development and implementation of an 

RRP requires the expenditure of 

resources, and as discussed in the 

Regulatory Impact Analysis for this 

proposed rule, FRA does not expect an 

RRP to create a full level of benefits 

until the RRP is fully implemented or 

no later than the fourth year after the 

implementation of the rule. A minimum 

five-year compliance period, therefore, 

provides time for a railroad to begin 

receiving the full benefits of its RRP 

investment, although fewer overall 

benefits could be received if the railroad 

had elected to take the entire three years 

provided to fully implement its RRP. 

At the end of the five-year period, 

under proposed paragraph (f), the 

railroad could petition FRA, according 

to the procedures for waivers in 49 CFR 

part 211, for approval to discontinue 

compliance with part 271. Upon 

receiving a petition, FRA would 

evaluate the railroad’s safety 

performance in order to determine 

whether the railroad’s RRP has resulted 

in significant safety improvements, and 

whether these measured improvements 

are likely to be sustainable in the long 

term. FRA’s evaluation would include a 

quantitative analysis as described in 

proposed paragraph (b). FRA would also 

examine qualitative factors and review 

information from FRA RRP audits and 

other relevant sources. 

Analysis of the railroad’s safety 

performance for purpose of deciding 

whether its petition should be granted 

will be driven by the unique 

characteristics of the railroad and its 

RRP; for this reason it is not possible to 

enumerate the types of data that will be 

examined in the context of a petition to 

discontinue compliance. In general, 

FRA would look at information to 

determine whether real and lasting 

changes to the operational safety and to 

the organizational safety culture had 

been made. The Safety Board will use 

staff recommendations and other 

information it deems necessary to make 

a final determination about whether 

granting a petition is in the interest of 

public safety. FRA seeks comment, 

however, on whether it should specify 

various factors, criteria, and data that 

should be considered to determine 

whether a waiver should be granted. If 

so, what should those factors, criteria, 

and data be? FRA may include any such 

standards in a final rule. 

After completing the evaluation, FRA 

would notify the railroad in writing 

whether or not it would be required to 

continue compliance with part 271. 

FRA specifically requests public 

comment on whether railroads with 

inadequate safety performance should 

be required to comply with part 271 

permanently. In general, RRPs are 

strategies for gradually improving 

railroad safety over the long-term. If a 

railroad discontinues an implemented 

RRP, this could result in the loss of 

many future safety improvements. 

Additionally, the development and 

implementation of an RRP require the 

expenditure of railroad resources. If an 

RRP is ended too soon, this might result 

in a railroad not obtaining the greatest 

benefit possible from its RRP 

investment. Requiring permanent 

compliance for railroads with 

inadequate safety performance, 

therefore, could maximize both the 

safety improvement and benefits of an 

RRP over the long-term. Furthermore, an 

inadequate safety performance railroad 

required to comply with part 271 

permanently would also continue to 

receive the information protections 

provided for in proposed § 271.11. FRA 

requests comment on this approach and 

could elect to require continued 

compliance for inadequate safety 

performance railroads in a final rule. 

FRA also specifically requests public 

comment on whether the five-year 

compliance period in proposed 

paragraph (e) should run from the date 

that the railroad’s RRP is fully 

implemented—rather than the date on 

which FRA approved the railroad’s RRP 

plan—in order to provide more time for 

the RRP to have a significant effect on 

the railroad’s safety and for FRA to 

obtain more information in order to 

determine whether it should consider 

granting a petition for approval to 

discontinue compliance with this part. 

This alternative approach would also 

provide an incentive for a railroad to 

implement its RRP quickly, as doing so 

would then allow the railroad to 

terminate its RRP sooner as well. 

FRA also specifically requests public 

comment on what should happen when 

FRA denies an inadequate safety 

performance railroad’s petition to 

discontinue compliance with part 271. 

Should the railroad be permitted to 

submit a new petition as soon as it 

wishes, or should the regulations 

impose a new mandatory compliance 

period upon the railroad? In other 

words, should FRA permit the railroad 

to submit a new petition immediately or 

only after a certain period of time, such 

as one year or five years? 

Railroads should note that § 271.223 

proposes to give each affected railroad 

36 months, running from the date FRA 

approves the railroad’s RRP plan, to 

fully implement its RRP. If the final rule 

ultimately adopts this proposal, FRA 

anticipates that a petition for approval 

to discontinue compliance would most 

likely be unsuccessful if an inadequate 

safety performance railroad took the 

entire 36 months to achieve full 

implementation. In such a scenario, 

FRA would likely find that a petition 

could not be granted because it had only 

two years’ worth of data to determine 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 10969 

whether the fully implemented RRP had 

been successful in improving the 

railroad’s safety performance. FRA 

would be more likely to grant a petition, 

however, if the railroad had fully 

implemented its RRP before the 36- 

month deadline. FRA anticipates that 

many inadequate safety performance 

railroads, with systems significantly 

smaller than those of Class I railroads, 

would not require the full 36 months to 

implement an RRP. 

FRA would encourage a railroad with 

inadequate safety performance to 

continue its RRP even if FRA grants its 

petition to discontinue compliance with 

part 271. If a railroad does continue its 

RRP, it could be considered a 

voluntarily-compliant railroad under 

proposed § 271.15, which would allow 

proposed § 271.11 to continue to protect 

information that continues to be 

compiled or collected pursuant to the 

railroad’s RRP from discovery and 

admission as evidence in litigation. If a 

railroad decides not to continue with a 

part 271-compliant RRP, information 

that had been compiled or collected 

pursuant to the part 271-compliant RRP 

would remain protected under § 271.11. 

Any information compiled or collected 

pursuant to a non-compliant RRP, 

however, would not be protected under 

§ 271.11. 

Section 271.15—Voluntary Compliance 

The RSIA provides that railroads not 

required to establish a railroad safety 

risk reduction program may 

nevertheless voluntarily submit for FRA 

approval a plan meeting the 

requirements of the statute. See 49 

U.S.C. 20156(a)(4). Proposed § 271.15(a) 

would implement this language by 

permitting a railroad not otherwise 

subject to the proposed rule to 

voluntarily comply by establishing and 

fully implementing an RRP that meets 

the requirements of this part 271. Any 

such voluntary RRP must be supported 

by an RRP plan that has been submitted 

to FRA for approval pursuant to the 

requirements of proposed subpart D. 

Paragraph (a) would also clarify that 

following FRA’s approval of the RRP 

plan for a voluntarily-compliant 

railroad, the railroad could be subject to 

civil penalties or other enforcement 

action if it then failed to comply with 

the part 271 requirements. It is 

important to ensure that voluntarilycompliant railroads meet the regulatory 

requirements because information 

compiled or collected pursuant to a 

voluntarily-compliant RRP would be 

protected from discovery or disclosure 

in litigation under proposed § 271.11. If 

the RRP information for a voluntarilycompliant railroad is protected, FRA 

believes such a railroad should be 

subject to civil penalties or other 

enforcement action for failing to comply 

with part 271. FRA specifically requests 

public comment on this proposal. 

Paragraph (b) would specify that a 

voluntarily-compliant railroad would be 

required to comply with this part 271’s 

requirements for a minimum period of 

five years, running from the date on 

which FRA approves the railroad’s RRP 

plan. As explained above regarding 

railroads with inadequate safety 

performance, FRA believes that a 

minimum five-year period may provide 

time for a railroad to realize the safety 

improvements and benefits associated 

with its RRP investment. Under 

proposed paragraph (c), a voluntarilycompliant railroad would be able to 

petition FRA for approval to 

discontinue compliance with this part 

after the end of this five-year period. 

Any such petition would have to be 

filed in accordance with the procedures 

for waivers contained in 49 CFR part 

211. This NPRM is not proposing any 

specific standards for the granting of 

such petitions other than what are 

currently found in part 211. FRA 

requests public comment, however, on 

whether it should establish such 

standards and, if so, what those 

standards should consist of. 

Furthermore, as with inadequate safety 

performance railroads, FRA specifically 

requests public comment on whether 

the minimum five-year compliance 

period should run from the date that a 

railroad’s RRP is fully implemented, in 

order to provide more time for the RRP 

to have a significant effect on the 

railroad’s safety. 

Paragraph (d) would provide that the 

information protection provisions of 

proposed § 271.11 (Discovery and 

admission as evidence of certain 

information) would not apply to 

information that was compiled or 

collected pursuant to a voluntarilycompliant RRP that was not conducted 

in accordance with the provisions of 

this part 271. As discussed in the 

section-by-section analysis for § 271.11, 

voluntary risk reduction programs (such 

programs generated as part of a Short 

Line Safety Institute) would have to 

fully comply with an RRP final rule in 

order for the information generated to be 

protected from discovery and use as 

evidence in litigation. 

During the RSAC process, FRA and 

the RRP Working Group discussed the 

possibility of permitting Class II or Class 

III railroads not otherwise required to 

comply with this proposed rule to 

voluntarily comply with an SSP rule 

instead of an RRP rule. While not 

proposed in this NPRM, as an SSP rule 

has not been finalized, FRA is 

specifically requesting public comment 

on whether railroads should be 

permitted to voluntarily comply with an 

SSP rule. The FRA may elect to either 

include such an approach in an RRP 

final rule or to amend an SSP final rule 

to provide for such. 

Subpart B—Risk Reduction Program 

Requirements 

Subpart B would contain the basic 

elements of an RRP required by the 

proposed rule. The proposed rule would 

provide a railroad significant flexibility 

in developing and implementing an 

RRP. 

Section 271.101—Risk Reduction 

Programs 

Proposed § 271.101 would contain 

general requirements regarding RRPs. 

Paragraph (a)(1) would require railroads 

to establish and fully implement an RRP 

meeting the requirements of this part 

271. As specified by the RSIA, an RRP 

must systematically evaluate safety 

hazards on a railroad’s system and 

manage risks associated with those 

hazards to reduce the number and rates 

of railroad accidents/incidents, injuries, 

and fatalities. See 49 U.S.C. 

20156(a)(1)(A). FRA intends for an RRP 

to be scalable based upon the size of a 

railroad. For example, a large railroad 

would not be expected to identify every 

safety hazard on its system, but could 

take a more focused and project specific 

view of safety hazard identification. A 

railroad with a smaller system (e.g., a 

Class II or III railroad determined to 

have inadequate safety performance), 

however, might be asked to take a closer 

look at specific safety hazards. 

Paragraph (a) also clarifies that an 

RRP must be an ongoing program that 

supports continuous safety 

improvement. A railroad that conducts 

a one-time risk-based hazard analysis 

and does nothing further after 

addressing the results of that analysis 

will not have established a compliant 

RRP. Paragraph (a) would also list the 

necessary components that an RRP must 

contain, including: (1) A risk-based 

hazard management program (described 

in § 271.103); (2) a safety performance 

evaluation component (described in 

§ 271.105); (3) a safety outreach 

component (described in § 271.107); (4) 

a technology analysis and technology 

implementation plan (described in 

§ 271.109); and (5) RRP implementation 

and support training (described in 

§ 271.111). 

Paragraph (b) would require a 

railroad’s RRP to be supported by an 

RRP plan, meeting the requirements of 


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10970 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

proposed subpart C, that has been 

approved by FRA. 

Paragraph (c) would address railroads 

subject to the RRP rule that host 

passenger train service for passenger 

railroads subject to the requirements of 

the proposed SSP rule. Under 

§ 270.103(a)(2) of the proposed SSP rule, 

a passenger railroad must communicate 

with each host railroad to coordinate the 

portions of its SSP plan that are 

applicable to the host railroad. 

Paragraph (c) would require a host 

railroad, as part of its RRP, to participate 

in this communication and coordination 

with the passenger railroad. 

Paragraph (d) would require a railroad 

to ensure that persons utilizing or 

performing on its behalf a significant 

safety-related service support and 

participate in the railroad’s RRP. Such 

persons would include entities such as 

host railroads, contract operators, 

shared track/corridor operators, or other 

contractors utilizing or performing 

significant safety-related services, and 

must be identified by the railroad in its 

RRP plan pursuant to proposed 

§ 271.205(b). 

Section 271.103—Risk-Based Hazard 

Management Program 

This proposed section would contain 

the requirements for each risk-based 

hazard management program (HMP). 

Proposed § 271.103(a)(1) would require 

a railroad’s RRP to include a risk-based 

HMP that proactively identifies hazards 

and mitigates the risks associated with 

those hazards. A risk-based HMP must 

be integrated, system-wide, and 

ongoing. The scope of a risk-based HMP 

would be scalable based upon the size 

and extent of the railroad’s system. 

Paragraph (a)(2) proposes that a riskbased HMP must be fully implemented 

(i.e., activities initiated) within 36 

months after FRA approves a railroad’s 

RRP plan. Full implementation means 

that a railroad should have completed 

its risk analysis and begun mitigation 

strategies within 36 months of plan 

approval. If a railroad elects to test a 

mitigation strategy in a pilot project (as 

permitted by proposed § 271.103(c)(2)), 

‘‘fully implemented’’ means that the 

pilot project must be fully operational 

within 36 months. 

Paragraph (b) would state that a 

railroad must conduct a risk-based 

hazard analysis as part of its risk-based 

HMP. The types of principles and 

processes that inform a successful riskbased hazard analysis have already been 

well-established by programs previously 

discussed in this preamble, such as 

MIL–STD–882, APTA’s ‘‘Manual for the 

Development of System Safety Program 

Plans for Commuter Railroads’’, and 

FRA’s ‘‘Collision Hazard Analysis 

Guide.’’ A railroad subject to a final RRP 

rule could use any of these programs for 

guidance on how to conduct a riskbased hazard analysis, pursuant to 

FRA’s approval of the processes in the 

railroad’s RRP plan under proposed 

§ 271.211. As described in the 

‘‘Collision Hazard Analysis Guide,’’ a 

risk-based hazard analysis is performed 

to identify hazardous conditions for the 

purpose of mitigation, and could 

include several analysis techniques 

applied throughout the lifetime of an 

RRP. See ‘‘Collision Hazard Analysis 

Guide’’ at 8. A full hazard analysis 

could consist of various analyses, 

including a Preliminary Hazard 

Analysis, Failure Modes and Effects 

Analysis, Operating Hazard Analysis, 

and others, although existing operations 

already designed, built, and operating 

may not require all these analyses. Id. 

FRA specifically requests public 

comment regarding what type of 

additional guidance would help 

railroads comply with the requirements 

of this proposed section. 

Paragraph (b) specifies that, at a 

minimum, a risk-based hazard analysis 

must address the following components 

of a railroad’s system: Infrastructure; 

equipment; employee levels and work 

schedules; operating rules and practices; 

management structure; employee 

training; and other areas impacting 

railroad safety that are not covered by 

railroad safety laws or regulations or 

other Federal laws or regulations. 

While the RSIA directed railroads to 

address safety culture in their risk-based 

hazard analyses, FRA chose not to be 

prescriptive regarding this requirement, 

as prescribing how risk-based hazard 

analysis would identify hazards 

generated by a safety culture would be 

difficult. FRA would require railroads to 

measure their safety culture, however, 

in proposed § 271.105(a), and believes 

that this proposed approach would 

adequately address any related safety 

concerns presented by a railroad’s safety 

culture. With respect to measuring 

safety culture, the proposed rule would 

permit railroads to identify the safety 

culture measurements methods that 

they find most effective and appropriate 

to their local conditions. When 

measuring safety culture, FRA would 

expect a railroad to use a method that 

was capable of correlating a railroad’s 

safety culture with actual safety 

outcomes. For example, such 

measurement methods could include 

surveys that assess safety culture using 

validated scales, or some other method 

or measurement that accurately 

identifies aspects of the railroad’s safety 

culture that correlate to safety outcomes. 

Ultimately, FRA would expect a railroad 

to demonstrate that improvements in 

the measured aspects of safety culture 

would reliably lead to reductions in 

accidents, injuries, and fatalities. FRA 

requests public comment on how a 

railroad should measure its safety 

culture as part of its RRP. 

As further described in paragraph (b), 

a risk-based hazard analysis must 

identify hazards by analyzing the 

following: (1) Various aspects of the 

railroad’s system (including any 

operational changes, system extensions, 

or system modifications); and (2) 

accidents/incidents, injuries, fatalities, 

and other known indicators of hazards 

(such as data compiled from a close call 

reporting program). A railroad must 

then calculate risk by determining and 

analyzing the likelihood and severity of 

potential events associated with the 

identified hazards. These risks must 

then be compared and prioritized for the 

purpose of mitigation. 

Paragraph (c)(1) would require a 

railroad, based on its risk-based HMP, to 

design and implement mitigation 

strategies that improve safety by 

mitigating or eliminating aspects of a 

railroad’s system that increase risks 

identified in the risk-based hazard 

analysis and enhancing aspects of a 

railroad’s system that decrease risks 

identified in the risk-based hazard 

analysis. As provided in proposed 

paragraph (c)(2), a railroad could use 

pilot projects (including those 

conducted by other railroads) to 

determine whether quantitative data 

suggests that a particular mitigation 

strategy has potential to succeed on a 

full-scale basis. FRA anticipates that 

railroads will design and implement 

mitigation strategies that are either costbeneficial or cost-neutral. FRA requests 

public comment on this assumption. 

FRA is specifically interested in the 

experience of any railroads that may 

have already utilized risk reduction 

strategies, and whether or not such 

railroads have realized cost benefits 

from the design and implementation of 

risk mitigation strategies. In railroads’ 

experiences, how much have mitigation 

strategies related to risk reduction 

activities cost? 

As discussed above in the analysis of 

the purpose and scope provisions of 

proposed § 271.1, FRA does not intend 

the proposed regulation to address 

hazards and risks that are completely 

unrelated to railroad safety and that 

would fall directly under the 

jurisdiction of either OSHA or the EPA. 

FRA would not, therefore, expect a riskbased HMP to address hazards and risks 

that go beyond the limits of FRA’s 

railroad safety jurisdiction. A risk-based 


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13 If a railroad elected to use a reporting system 

that was non-punitive in nature, FRA would expect 

it to contain certain limitations that would prevent 

the system from becoming a way for railroad 

employees to completely avoid culpability for any 

type of wrongdoing, such as willful misconduct. 

For example, FRA’s C3RS pilot programs do not 

protect an employee from discipline under certain 

circumstances, including when: The employee’s 

action or lack of action was intended to damage 

property, injure individuals, or place others in 

danger; the employee’s action or lack of action 

involved a criminal defense; and the event resulted 

in an identifiable release of hazardous materials. 

FRA would expect any railroad non-punitive 

reporting system to have similar limitations. 

HMP should, however, include railroad 

safety hazards and risks that could 

result in damage to the environment, 

such as a derailment that could result in 

a hazardous materials release. In such 

situations, the underlying hazard or risk 

would fall within FRA’s railroad safety 

jurisdiction. FRA seeks public comment 

on whether this section should include 

a statement clarifying the railroad safety 

scope of the risk-based HMP. 

Additionally, the proposed regulation 

does not define a level of risk that 

railroads must target with their riskbased HMPs. FRA’s Passenger 

Equipment Safety Standards require 

passenger railroads, however, when 

procuring new passenger cars and 

locomotives, to ensure that fire safety 

considerations and features in the 

design of the equipment reduce the risk 

of personal injury caused by fire to an 

acceptable level using a formal safety 

methodology such as MIL–STD–882. 

See 49 CFR 238.103(c). Passenger 

railroads operating Tier II passenger 

equipment are also required to eliminate 

or reduce risks posed by identified 

hazards to an acceptable level. See 49 

CFR 238.603(a)(3). FRA seeks comment 

on whether a final RRP rule should 

define levels of risks that a railroad’s 

risk-based HMP must target. 

Section 271.105—Safety Performance 

Evaluation 

This section would contain 

requirements for safety performance 

evaluations. Safety performance 

evaluation is a necessary part of a 

railroad’s RRP because it determines 

whether the RRP is effectively reducing 

risk. It also monitors the railroad’s 

system to identify emerging or new 

risks. In this sense, it is essential for 

ensuring that a railroad’s RRP is an 

ongoing process, and not merely a onetime exercise. 

Paragraph (a) would require a railroad 

to develop and maintain ongoing 

processes and systems for evaluating the 

safety performance of a railroad’s 

system. A railroad must also develop 

and maintain processes and systems for 

measuring its safety culture. For 

example, a railroad could measure its 

safety culture by surveying employees 

and management to establish an initial 

baseline safety culture, and then 

comparing that initial baseline to 

subsequent surveys. FRA would give a 

railroad substantial flexibility, however, 

to decide which safety culture 

measurement was the best fit for the 

organization. FRA’s primary concern 

would be that the selected measurement 

would provide a way to demonstrate 

that an improvement in the safety 

culture measurement would reliably 

lead to a corresponding improvement in 

safety. Overall, a safety performance 

evaluation would consist of both a 

safety monitoring and a safety 

assessment component. 

Paragraph (b) would establish the 

safety monitoring component by 

requiring a railroad to monitor the safety 

performance of its system. At a 

minimum, a railroad must do so by 

establishing processes and systems for 

acquiring safety data and information 

from the following sources: (1) 

Continuous monitoring of operational 

processes and systems (including any 

operational changes, system extensions, 

or system modifications); (2) periodic 

monitoring of the operational 

environment to detect changes that may 

generate new hazards; (3) investigations 

of accidents/incidents, injuries, 

fatalities, and other known indicators of 

hazards; (4) investigations of reports 

regarding potential non-compliance 

with Federal railroad safety laws or 

regulations, railroad operating rules and 

practices, or mitigation strategies 

established by the railroad; and (5) a 

reporting system through which 

employees can report safety concerns 

(including, but not limited to, hazards, 

issues, occurrences, and incidents) and 

propose safety solutions and 

improvements. The requirement for a 

reporting system would not require a 

railroad to establish an extensive 

program like FRA’s Confidential Close 

Call Reporting System (C3RS). Rather, a 

railroad would have substantial 

flexibility to design a reporting system 

best suited to its own organization (or, 

if a railroad already has some sort of 

reporting system, to modify it to meet 

the needs of the railroad’s RRP). For 

example, a railroad could decide 

whether or not it wanted its reporting 

system to be confidential or nonpunitive.13 Or, in the alternative, the 

reporting system could be something as 

simple as a suggestion box made 

available to employees. 

Paragraph (c) would establish the 

safety assessment component, the 

purpose of which is to assess the need 

for changes to a railroad’s mitigation 

strategies or overall RRP. To do so, a 

railroad must establish processes to 

analyze the data and information 

collected pursuant to the safety 

monitoring component of this section, 

as well as any other relevant data 

regarding the railroad’s operations, 

products, and services. At a minimum, 

this safety assessment must: (1) Evaluate 

the overall effectiveness of the railroad’s 

RRP in reducing the number and rates 

of railroad accidents/incidents, injuries, 

and fatalities; (2) evaluate the 

effectiveness of the railroad’s RRP in 

meeting the goals described in its RRP 

plan pursuant to proposed § 271.203(c); 

(3) evaluate the effectiveness of risk 

mitigations in reducing the risk 

associated with an identified hazard 

(any hazards associated with ineffective 

mitigation strategies would be required 

to be reevaluated through the railroad’s 

risk-based HMP); and (4) identify new, 

potential, or previously unknown 

hazards, which shall then be evaluated 

by the railroad’s risk-based HMP. 

Section 271.107—Safety Outreach 

This section contains requirements 

regarding the safety outreach 

component of an RRP. Under proposed 

paragraph (a), an RRP must include a 

safety outreach component that 

communicates RRP safety information 

to railroad personnel (including 

contractors) as that information is 

relevant to their positions. At a 

minimum, a safety outreach program 

must: (1) Convey safety-critical 

information; (2) explain why RRPrelated safety actions are taken; and (3) 

explain why safety procedures are 

introduced or changed. 

Railroads should note that this section 

imposes only a general education and 

communication requirement (similar to 

a briefing), and not a training 

curriculum requirement that would 

require railroads to test and qualify 

employees on the information 

conveyed. The focus of this section 

would be limited to outreach and safety 

awareness. A limited one-time RRP 

training requirement for railroad 

employees who have significant 

responsibility for implementing and 

supporting a railroad’s RRP is contained 

in proposed § 271.111, discussed below. 

Furthermore, this section would only 

require a railroad to communicate RRP 

safety information that is relevant to an 

employee’s position. For example, a 

railroad could be expected to notify 

railroad employees of a mitigation 

strategy that is being implemented that 

requires employee participation (e.g., a 

close call program). A railroad would 

also have to communicate safety 

information to employees who worked 


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in the implementation and support of 

the RRP, in addition to providing these 

employees the implementation and 

support training proposed in § 271.111. 

For example, a railroad would be 

expected to communicate the effect the 

RRP was having on the railroad’s overall 

safety performance to employees who 

implemented and supported the 

railroad’s RRP. This section would not, 

however, require a railroad to train all 

employees on RRP requirements and 

principles. This section would also not 

require a railroad to provide employees 

any sort of job-specific training. 

Paragraph (b) would require a railroad 

to report the status of risk-based HMP 

activities to railroad senior management 

on an ongoing basis. A railroad would 

have flexibility in its RRP plan to 

specify what ‘‘ongoing basis’’ means. 

Section 271.109—Technology Analysis 

and Technology Implementation Plan 

This section would implement the 

RSIA requirement that an RRP include 

a technology analysis and a technology 

implementation plan. See 49 U.S.C. 

20156(e). 

Paragraph (a) would require a Class I 

railroad to conduct a technology 

analysis and to develop and adopt a 

technology implementation plan no 

later than three years after the 

publication date of the final rule. A 

railroad with inadequate safety 

performance shall conduct a technology 

analysis and develop and adopt a 

technology implementation plan no 

later than three years after receiving 

final written notification from FRA that 

it shall comply with this part, pursuant 

to § 271.13(e), or no later than three 

years after the publication date of the 

final rule, whichever is later. A railroad 

that the STB reclassifies or newly 

classifies as a Class I railroad shall 

conduct a technology analysis and 

develop or adopt a technology 

implementation plan no later than three 

years following the effective date of the 

classification or reclassification or no 

later than three years after the effective 

date of the final rule, whichever is later. 

A voluntarily-compliant railroad shall 

conduct a technology analysis and 

develop and adopt a technology 

implementation plan no later than three 

years after FRA approves the railroad’s 

RRP plan. It is important to note that the 

technology implementation plan needs 

to be adopted within three years of the 

various events described in paragraph 

(a), not necessarily the actual 

technology. FRA understands that 

certain technologies may take longer 

than three years to properly implement, 

and the three year timeline in paragraph 

(a) does not apply to this technology. 

FRA would, however, expect a railroad 

to implement technology in a timely 

manner consistent with its 

implementation plan. Further, as 

addressed by paragraph (d), if a railroad 

implements technology pursuant to 49 

CFR part 236, subpart I (Positive Train 

Control Systems), the railroad is 

required to comply with the timeline set 

forth in RSIA. 

Under paragraph (b), a technology 

analysis must evaluate current, new, or 

novel technologies that may mitigate or 

eliminate hazards and the resulting risks 

identified through the risk-based hazard 

management program. The railroad 

would analyze the safety impact, 

feasibility, and costs and benefits of 

implementing technologies that will 

mitigate or eliminate hazards and the 

resulting risks. At a minimum, a 

technology analysis must consider 

processor-based technologies, positive 

train control (PTC) systems, 

electronically-controlled pneumatic 

brakes, rail integrity inspection systems, 

rail integrity warning systems, switch 

position monitors and indicators, 

trespasser prevention technology, and 

highway-rail grade crossing warning 

and protection technology. FRA 

specifically requests public comment on 

whether a technology analysis should be 

required to consider additional 

technologies, or whether some of the 

proposed technologies do not need to be 

addressed by the technology analysis. 

Under paragraph (c), a railroad must 

develop, and periodically update as 

necessary, a technology implementation 

plan that contains a prioritized 

implementation schedule describing the 

railroad’s plan for development, 

adoption, implementation, 

maintenance, and use of current, new, 

or novel technologies on its system over 

a 10-year period to reduce safety risks 

identified in the railroad’s risk-based 

HMP. A railroad would not be required 

to include a certain number or type of 

technology in its plan, as this will 

depend upon the identified hazards. As 

proposed, the phrase ‘‘periodically 

update as necessary’’ means that a 

railroad’s plan must be ongoing and 

continuous, rather than a one-time 

exercise. When a railroad updates its 

plan, it would be required to do so in 

a way that extended the plan 10 years 

from the date of the update. FRA is 

specifically requesting public comment 

on whether the phrase ‘‘as necessary’’ 

should be replaced by a definite 

requirement for a railroad to update its 

plan after a specific period of time. If so, 

how long should this time period be? 

For example, should a railroad be 

required to update its technology 

implementation plan annually? 

Paragraph (d) would state that, except 

as required by 49 CFR part 236, subpart 

I (Positive Train Control Systems), if a 

railroad decides to implement a PTC 

system as part of its technology 

implementation plan, the railroad shall 

set forth and comply with a schedule 

that would implement the system no 

later than December 31, 2018, as 

required by the RSIA. See 49 U.S.C. 

20156(e)(4)(B). However, this paragraph 

would not, in itself, require a railroad to 

implement a PTC system. In addition, 

FRA specifically seeks public comment 

on whether a railroad electing to 

implement a PTC system would find it 

difficult to meet the December 31, 2018 

implementation deadline. If so, what 

measures could be taken to assist a 

railroad struggling to meet the deadline 

and achieve the safety purposes of the 

statute? 

Section 271.111—Implementation and 

Support Training 

This proposed section would require 

a railroad to provide RRP training to 

each employee who has significant 

responsibility for implementing and 

supporting the railroad’s RRP. This 

proposed training requirement would 

apply to any employee with such 

responsibility, including an employee of 

a person identified by a railroad’s RRP 

plan under proposed § 271.205(a)(3) as 

utilizing or performing significant 

safety-related services on the railroad’s 

behalf. While railroads will have some 

flexibility in identifying which 

employees have significant RRP 

responsibilities, the following two 

categories of employees are examples of 

who should be included: (1) Employees 

who hold positions of safety leadership 

(e.g., corporate safety and operations 

officers); and (2) employees whose job 

duties primarily relate to developing 

and implementing an RRP (e.g., 

employees tasked with conducting the 

mandatory risk-based hazard analysis or 

implementing mitigation measures). 

Railroad operating employees whose 

jobs are only tangentially related to RRP, 

such as locomotive engineers or 

dispatchers, would not be expected to 

have RRP training. FRA specifically 

requests public comment regarding 

which railroad employees should be 

provided RRP training. 

This training would help ensure that 

personnel with significant RRP 

responsibilities are familiar with the 

elements of the railroad’s program and 

have the knowledge and skills needed to 

fulfill their responsibilities. While this 

training requirement was not contained 

in the ‘‘Recommendations to the 

Administrator’’ document voted on by 

the RSAC RRP Working Group, FRA 


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14A training component is also included in the 

SSP NPRM, published September 7, 2012. See 77 

FR 55386–55387, 55404–55405. While the proposed 

RRP training requirement shares similarities with 

the SSP proposal, it has been modified to reflect 

what FRA believes to be the different training needs 

of the freight railroad industry. 

15Furthermore, even if an RRP employee 

performed duties that fell within the proposed 

definition of ‘‘safety-related railroad employee,’’ the 

training standards NPRM only proposed to require 

training for a safety-related railroad employee to the 

extent that he or she is required to comply with a 

Federal mandate. See 77 FR 6420. For example, a 

railroad employee who is expected to perform any 

of the inspections, tests, or maintenance required by 

49 CFR part 238 would be required to be trained 

in accordance with all Federal requirements for that 

work. Id. Because the RRP regulation proposed in 

this NPRM is performance-based and focuses on 

process, FRA would not consider it as containing 

specific mandates for the way in which a railroad 

employee with significant RRP responsibility has to 

perform his or her RRP duties. Therefore, even if 

an RRP employee also qualified as a ‘‘safety-related 

railroad employee’’ under the proposed training 

standards rule, the proposed training standards rule 

would not subject the employee to any additional 

RRP training requirement. FRA believes it would be 

inconsistent to apply the proposed training 

standards rule to some RRP employees and not 

others, based solely upon whether the employee 

performed safety-related duties that were subject to 

the training standards rule but otherwise unrelated 

to RRP. 

believes the requirement is necessary to 

ensure the effectiveness of a railroad’s 

RRP.14 A railroad’s RRP can be 

successful only if those who are 

responsible for implementing and 

supporting the program understand the 

requirements and goals of the program. 

Including an RRP training component in 

this NPRM is also necessary because 

such RRP training would not otherwise 

be required by FRA’s training standards 

rule, published on November 7, 2014. 

See 79 FR 66460. In general, the training 

standards rule requires a railroad to 

develop and submit for FRA approval a 

training program for ‘‘safety-related 

railroad employees.’’ Id. Section 243.5 

defines a ‘‘safety-related railroad 

employee’’ as follows: 

Safety-related railroad employee means an 

individual who is engaged or compensated 

by an employer to: (1) Perform work covered 

under the hours of service laws found at 49 

U.S.C. 21101, et seq.; (2) Perform work as an 

operating railroad employee who is not 

subject to the hours of service laws found at 

49 U.S.C. 21101, et seq.; (3) In the application 

of parts 213 and 214 of this chapter, inspect, 

install, repair, or maintain track, roadbed, 

and signal and communication systems, 

including a roadway worker or railroad 

bridge worker as defined in § 214.7 of this 

chapter; (4) Inspect, repair, or maintain 

locomotives, passenger cars or freight cars; 

(5) Inspect, repair, or maintain other railroad 

on-track equipment when such equipment is 

in a service that constitutes a train movement 

under part 232 of this chapter; (6) Determine 

that an on-track roadway maintenance 

machine or hi-rail vehicle may be used in 

accordance with part 214, subpart D of this 

chapter, without repair of a non-complying 

condition; (7) Directly instruct, mentor, 

inspect, or test, as a primary duty, any person 

while that other person is engaged in a 

safety-related task; or (8) Directly supervise 

the performance of safety-related duties in 

connection with periodic oversight in 

accordance with § 243.205. 

Because this definition focuses on 

railroad operating employees and those 

who directly train and supervise them, 

FRA assumes that it would not include 

the typical railroad employee who has 

significant responsibility for 

implementing and supporting a 

railroad’s RRP, as FRA believes it is 

unlikely that employees with significant 

RRP responsibilities would also be 

engaged in performing operational 

duties or directly training or supervising 

those who do.15 Therefore, railroad 

employees with significant RRP 

responsibilities are not likely to be 

covered by the requirements in the 

training standards final rule. 

FRA is specifically requesting public 

feedback on this proposed RRP 

implementation and support training 

requirement. What topics should RRP 

implementation and support training 

cover? (For example, should employees 

with significant RRP responsibilities be 

trained in the principles and 

requirements of a final rule?) Also, 

should periodic or refresher training be 

provided? 

Subpart C—Risk Reduction Program 

Plan Requirements 

Subpart C would contain proposed 

requirements for RRP plans. 

Section 271.201—General 

Proposed § 271.201 would require a 

railroad to adopt and implement its RRP 

through a written RRP plan meeting the 

requirements of subpart C. This plan 

must be approved by FRA according to 

the requirements of subpart D. 

Section 271.203—Policy, Purpose and 

Scope, and Goals 

Proposed § 271.203 would contain 

requirements for policy, purpose and 

scope, and goals statements for an RRP 

plan. Under paragraph (a), an RRP plan 

must contain a policy statement, signed 

by the railroad’s chief official (e.g., Chief 

Executive Officer), endorsing the 

railroad’s RRP. This signature 

endorsement would indicate that the 

railroad’s chief official has reviewed 

and supports the policy statement, 

thereby demonstrating the importance 

of safety to the railroad. The RSAC 

Working Group recommended that FRA 

allow the safety policy statement to be 

signed by the railroad’s chief safety 

officer. Prior experience with effective 

risk management programs, however, 

has demonstrated to FRA the 

importance of the active involvement of 

the highest officials in improving safety 

and safety culture. For this reason, FRA 

has determined that the chief official at 

the railroad should sign the safety 

policy. The policy statement should 

endorse the railroad’s RRP and include 

a commitment to implement and 

maintain the RRP, as well as a 

commitment to the management of 

safety risk and a commitment to 

continuously seek improvements in the 

level of safety. 

Paragraph (b) would require an RRP 

plan to include a statement describing 

the purpose and scope of the railroad’s 

RRP. This statement must describe the 

railroad’s safety philosophy and safety 

culture. A safety philosophy is what a 

railroad thinks about safety, while a 

safety culture is the railroad’s practices 

and behaviors with respect to safety. 

This statement must also describe how 

the railroad promotes improvements to 

its safety culture, the roles and 

responsibilities of railroad personnel 

(including management) within the 

railroad’s RRP, and how any person 

utilizing or performing on a railroad’s 

behalf significant safety-related services 

(including host railroads, contract 

operators, shared track/corridor 

operators, or other contractors) will 

support and participate in the railroad’s 

RRP. 

Under paragraph (c), an RRP plan 

must contain a statement defining the 

railroad’s goals for an RRP and 

describing clear strategies for reaching 

those goals. The central goal of an RRP 

is to manage or eliminate hazards and 

the resulting risks to reduce the number 

and rates of railroad accidents, 

incidents, injuries, and fatalities. FRA 

believes one way to achieve this central 

goal is for a railroad to set forth goals 

that are designed in such a way that 

when the railroad achieves these goals, 

the central goal is achieved as well. 

These goals may not be merely vague 

aspirations towards general safety 

improvement. Rather, as described 

further below, the goals must be longterm, meaningful, measurable, and 

focused on the mitigation of risks 

associated with identified safety 

hazards. 

• Long-term: Goals must be long-term 

so that they are relevant to the railroad’s 

RRP. This does not mean that goals 

cannot have relevance in the short-term. 

Rather, goals must have significance 

beyond the short-term and must 

continue to contribute to the RRP. 

• Meaningful: Goals must be 

meaningful so that they are not so broad 


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that they cannot be attributed to specific 

aspects of the railroad’s operations. The 

desired results must be specific and 

must have a meaningful impact on 

safety. 

• Measurable: Goals must be 

measurable so that they are designed in 

such a way that it is easily determined 

whether each goal is achieved or at least 

progress is being made to achieve the 

goal. A measurable goal is one which is 

supported by specific measurable 

objectives, which address activities and 

outcomes that help achieve the goals. 

• The goals must be consistent with 

the overall goal of the RRP, in that they 

must be focused on the mitigation of 

risks arising from identified safety 

hazards. 

For example, a railroad could have 

goals such as reducing the number of 

incidents involving run-through 

switches, reducing the number of 

injuries due to distraction, increasing 

the number of days between minor 

derailments, or identifying and 

eliminating or mitigating hazardous 

conditions with a railroad’s processes 

and operations. Such goals must be 

supported by specific, measurable 

objectives. For example, the goal of 

identifying and eliminating or 

mitigating hazardous conditions with a 

railroad’s processes and operations 

could be supported by the following 

objectives: (1) Increase safety hazard 

reporting by 10 percent over the next 

year; and (2) initiate mitigation of all 

unacceptable hazards within a certain 

numbers of months following the riskbased hazard analysis. Whatever the 

goal, there should be a specific 

measurable objective associated with it, 

and once mitigation has enabled a 

railroad to reach that goal, resources 

should be allowed to shift from 

mitigation to maintenance. This goal 

specificity is necessary so that a railroad 

may be able to determine whether its 

RRP is meeting these goals and 

effectively improving safety. 

Furthermore, the statement required by 

proposed paragraph (c) must describe 

clear strategies on how the railroad will 

achieve these goals. These strategies 

will be the railroad’s opportunity to 

provide its vision on how these 

particular goals will ultimately reduce 

the number and rates of railroad 

accidents, incidents, injuries, and 

fatalities. 

Section 271.205—System Description 

This section would require an RRP 

plan to include a statement describing 

the characteristics of the railroad 

system. This section would not, 

however, require a railroad to describe 

every facet of its system in minute 

detail. Rather, the description should be 

sufficient to support the identification 

of hazards by establishing a basic 

understanding of the scope of the 

railroad’s system. For example, the 

description should contain information 

such as the general geographic scope of 

the railroad’s system, the total miles of 

track that the railroad operates, and 

which track segments the railroad 

shares with other railroads. More 

specifically, the statement must describe 

the following: 

• A brief history of the railroad, 

including when and how the railroad 

was established and the major 

milestones in the railroad’s history. 

Safety culture, operating rules, and 

practices have been affected by railroad 

mergers and other significant events, 

and this information will provide 

background as to the railroad’s 

organizational history and how it may 

have shaped the way in which the 

railroad addresses safety risk; 

• The railroad’s operations (including 

any host operations), including the 

roles, responsibilities, and organization 

of the railroad operating departments; 

• The scope of the service the railroad 

provides, including the number of 

routes, the major types of freight the 

railroad transports (including 

intermodal and hazardous materials), 

and their respective traffic proportions. 

The railroad may also provide a system 

map; 

• The physical characteristics of the 

railroad, including the number of miles 

of track the railroad operates over, the 

number and types of grade crossings the 

railroad operates over, and which track 

segments the railroad shares with other 

railroads; 

• A brief description of the railroad’s 

maintenance activities and the type of 

maintenance required by the railroad’s 

operations and facilities; 

• Identification of the size and 

location of the railroad’s physical plant, 

including major physical assets such as 

maintenance facilities, offices, and large 

classification yards; and 

• Any other aspects of the railroad 

pertinent to the railroad’s operations. 

The system description must also 

identify all persons that utilize or 

perform on the railroad’s behalf 

significant safety-related services 

(including entities such as host 

railroads, contract operations, shared 

track/corridor operators, or other 

contractors). FRA would give a railroad 

significant discretion to identify which 

persons utilize or provide on its behalf 

significant safety-related services. In 

interpreting this proposed provision, 

emphasis would be placed upon the 

words ‘‘significant’’ and ‘‘safetyrelated.’’ FRA does not expect a railroad 

to identify every contractor that 

provides services. For example, a 

railroad would be expected to identify 

a signal contractor that routinely 

performed services on its behalf, but not 

a contractor hired on a one-time basis to 

pave a grade crossing. Generally, this 

section would require identification of 

those persons whose significant safetyrelated services or utilization would be 

affected by the railroad’s RRP. 

Section 271.207—Consultation Process 

Description 

Section 271.207 would implement 

section 103(g)(1) of the RSIA, which 

states that a railroad required to 

establish an RRP must ‘‘consult with, 

employ good faith and use its best 

efforts to reach agreement with, all of its 

directly affected employees, including 

any non-profit employee labor 

organization representing a class or craft 

of directly affected employees of the 

railroad carrier, on the contents of the 

safety risk reduction program.’’ 49 

U.S.C. 20156(g)(1). This section would 

also implement section 103(g)(2) of the 

RSIA, which further provides that if a 

‘‘railroad carrier and its directly affected 

employees, including any nonprofit 

employee labor organization 

representing a class or craft of directly 

affected employees of the railroad 

carrier, cannot reach consensus on the 

proposed contents of the plan, then 

directly affected employees and such 

organizations may file a statement with 

the Secretary explaining their views on 

the plan on which consensus was not 

reached.’’ 49 U.S.C. 20156(g)(2). The 

RSIA requires FRA to consider these 

views during review and approval of a 

railroad’s RRP plan. 

As discussed above in section III.B of 

the preamble, the proposed language is 

essentially identical to that proposed in 

the separate SSP NPRM, published on 

September 7, 2012, except that it 

contains additional language applying 

specifically to the unique situations of 

railroads with inadequate safety 

performance, railroads that have been 

reclassified or newly classified as Class 

I railroads by the STB, and voluntarilycompliant railroads. While the RSAC 

did not provide recommended language 

for this section, FRA worked with the 

System Safety Task Group to receive 

input regarding how the consultation 

process should be addressed, with the 

understanding that the language would 

be provided in both the RRP and SSP 

NPRMs for review and comment. 

Therefore, FRA seeks comment on this 

rule’s proposal regarding the 

consultation requirement set forth in 

sec. 103(g) of the RSIA. Furthermore, 


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while this NPRM does not respond to 

comments already received in response 

to the already-published SSP NPRM, 

FRA will consider comments submitted 

to both the SSP and RRP NPRMs 

regarding the consultation process 

requirements when developing an RRP 

final rule. FRA requests comments on 

all aspects of the proposed provisions, 

and is specifically interested in 

comment regarding the proposed 

timelines for meeting with directly 

affected employees. 

Paragraph (a)(1) would implement 

sec. 103(g)(1) of the RSIA by requiring 

a railroad to consult with its directly 

affected employees on the contents of its 

RRP plan, including any non-profit 

employee labor organization 

representing a class or craft of the 

railroad’s directly affected employees. 

As part of that consultation, a railroad 

must utilize good faith and best efforts 

to reach agreement with its directly 

affected employees on the contents of its 

plan. 

Paragraph (a)(2) would specify that a 

railroad that consults with a non-profit 

employee labor organization is 

considered to have consulted with the 

directly affected employees represented 

by that organization. 

Paragraph (a)(3) would require a Class 

I railroad to meet with its directly 

affected employees to discuss the 

consultation process no later than 240 

days after the publication date of the 

final rule. This meeting will be the Class 

I railroads’ and directly affected 

employees’ opportunity to schedule, 

plan, and discuss the consultation 

process. FRA does not expect a Class I 

railroad to discuss any substantive 

material until the information 

protection provisions of § 271.11 

become applicable. Rather, this initial 

meeting should be more administrative 

in nature so that both parties 

understand the consultation process as 

they go forward and so that they may 

engage in substantive discussions as 

soon as possible after the applicability 

date of § 271.11. This will also be an 

opportunity to educate the directly 

affected employees on risk reduction 

and how it may affect them. The Class 

I railroad will be required to provide 

notice to the directly affected employees 

no less than 60 days before the meeting 

is scheduled. 

Paragraph (a)(4) would require a 

railroad with inadequate safety 

performance to meet no later than 30 

days following FRA’s notification with 

its directly affected employees to 

discuss the consultation process. The 

inadequate safety performance railroad 

would have to notify the employees of 

this meeting no less than 15 days before 

it is scheduled. Under paragraph (a)(5), 

a railroad reclassified or newly 

classified by the STB would have to 

meet with its directly affected 

employees to discuss the consultation 

process no later than 30 days following 

the effective date of the classification or 

reclassification. The reclassified or 

newly classified Class I railroad would 

also be required to notify its directly 

affected employees of the meeting no 

less than 15 days before it is scheduled. 

FRA specifically requests public 

comment on whether this schedule 

allows railroads with inadequate safety 

performance or reclassified or newly 

classified Class I railroads sufficient 

time to consult with directly affected 

employees. 

Paragraph (a)(6) would clarify that 

while a voluntarily-compliant railroad 

must also consult with its directly 

affected employees using good faith and 

best efforts, there are no timeline 

requirements governing when such 

meetings must take place. 

Paragraph (a)(7) would direct readers 

to proposed appendix B for additional 

guidance on how a railroad might 

comply with the consultation 

requirements of this section. Appendix 

B is discussed later in this preamble. 

Paragraph (b) would require a railroad 

to submit, together with its RRP plan, a 

consultation statement. The purpose of 

this consultation statement would be 

twofold: (1) To help FRA determine 

whether the railroad has complied with 

§ 271.207(a) by, in good faith, consulting 

and using its best efforts to reach 

agreement with its directly affected 

employees on the contents of its RRP 

plan; and (2) to ensure that the directly 

affected employees with which the 

railroad has consulted were aware of the 

railroad’s submission of its RRP plan to 

FRA for review. The consultation 

statement must contain specific 

information described in proposed 

paragraphs (b)(1) through (4) of this 

section. 

Paragraph (b)(1) would require a 

consultation statement to contain a 

detailed description of the process the 

railroad utilized to consult with its 

directly affected employees. This 

description should contain information 

such as (but not limited to) the 

following: (1) How many meetings the 

railroad held with its directly affected 

employees; (2) what materials the 

railroad provided its directly affected 

employees regarding the draft RRP plan; 

and (3) how input from directly affected 

employees was received and handled 

during the consultation process. 

If the railroad is unable to reach 

agreement with its directly affected 

employees on the contents of its RRP 

plan, paragraph (b)(2) would require 

that the consultation statement identify 

any areas of non-agreement and provide 

the railroad’s explanation for why it 

believed agreement was not reached. A 

railroad could specify, in this portion of 

the statement, whether it was able to 

reach agreement on the contents of its 

RRP plan with certain directly affected 

employees, but not others. 

If the RRP plan would affect a 

provision of a collective bargaining 

agreement between the railroad and a 

non-profit employee labor organization, 

paragraph (b)(3) would require the 

consultation statement to identify any 

such provision and explain how the 

railroad’s RRP plan would affect it. 

Under proposed paragraph (b)(4), the 

consultation statement must include a 

service list containing the names and 

contact information for the 

international/national president of any 

non-profit employee labor organization 

representing directly affected employees 

and any directly affected employee not 

represented by a non-profit employee 

labor organization who significantly 

participated in the consultation process. 

If an international/national president 

did not participate in the consultation 

process, the service list must also 

contain the name and contact 

information for a designated 

representative who participated on his 

or her behalf. This paragraph would also 

require a railroad (at the same time it 

submits its proposed RRP plan and 

consultation statement to FRA) to 

provide individuals identified in the 

service list a copy of the RRP plan and 

consultation statement. Railroads could 

provide the documents to the identified 

individuals electronically, or using 

other means of service reasonably 

calculated to succeed (e.g., sending 

identified individuals a hyperlink to a 

copy of the submitted RRP plan). This 

service list would help FRA determine 

whether the railroad had complied with 

the § 271.207(a) requirement to consult 

with its directly affected employees. 

Requiring the railroad to provide 

individuals identified in the service list 

with a copy of its submitted plan and 

consultation statement would also 

notify those individuals that they now 

have 60 days under § 271.207(c)(2) 

(discussed below) to submit a statement 

to FRA if they are not able to come to 

reach agreement with the railroad on the 

contents of the RRP plan. 

Paragraph (c)(1) would implement 

sec. 103(g)(2) of the RSIA by providing 

that, if a railroad and its directly 

affected employees cannot reach 

agreement on the proposed contents of 

an RRP plan, then a directly affected 

employee may file a statement with the 


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FRA Associate Administrator for 

Railroad Safety/Chief Safety Officer 

explaining his or her views on the plan 

on which agreement was not reached. 

See 49 U.S.C. 20156(g)(2). The FRA 

Associate Administrator for Railroad 

Safety/Chief Safety Officer will consider 

any such views during the plan review 

and approval process. 

Paragraph (c)(2) would specify, as also 

provided in § 271.301(a)(1), that a 

railroad’s directly affected employees 

have 60 days following the railroad’s 

submission of its proposed RRP plan to 

submit the statement described in 

paragraph (c)(1) of this section. FRA 

believes 60 days would provide directly 

affected employees sufficient time to 

review a railroad’s proposed RRP plan 

and to draft and submit to FRA a 

statement if they were not able to come 

to agreement with the railroad on the 

contents of that plan. In order to provide 

directly affected employees the 

opportunity to submit a statement, FRA 

would not approve or disapprove a 

railroad’s proposed RRP plan before the 

conclusion of this 60-day period. 

Section 271.209—Consultation on 

Amendments 

This section would describe the 

consultation requirements for 

amendments to a railroad’s RRP plan. 

Under this section, an RRP plan would 

be required to include a description of 

the process the railroad will use to 

consult with its directly affected 

employees on any substantive 

amendments to the railroad’s RRP plan. 

Examples of substantive amendments 

could include the following: the 

addition of new stakeholder groups (or 

the removal of a stakeholder group); 

major changes to the processes 

employed, including changes to the 

frequency of governing body meetings; 

or changing the organizational level of 

the manager responsible for the RRP 

(e.g., changing from the Chief Safety 

Officer to someone who reports to the 

Chief Safety Officer). Non-substantive 

amendments could include changes that 

update any names or addresses included 

in the plan. As with its initial RRP plan, 

a railroad would be required to use good 

faith and best efforts to reach agreement 

with directly affected employees on any 

substantive amendments to that plan. 

Requiring a railroad to detail that 

process in its plan would facilitate the 

consultation by establishing a known 

path to be followed. A railroad that did 

not follow this process when 

substantively amending its RRP plan 

could then be subject to penalties for 

failing to comply with the provisions of 

its plan. This requirement would not 

apply to non-substantive amendments 

(e.g., amendments updating names and 

addresses of railroad personnel). 

Section 271.211—Risk-Based Hazard 

Management Program Process 

This section would require an RRP 

plan to describe the railroad’s process 

for conducting an HMP. As previously 

discussed, railroads could look to wellestablished safety management systems 

for guidance on how to describe the 

process for conducting an HMP, such as 

MIL–STD–882, APTA’s Manual for the 

Development of System Safety Program 

Plans for Commuter Railroads, and 

FRA’s Collision Hazard Analysis Guide. 

While FRA understands that railroads 

subject to a final RRP rule would likely 

need to develop processes unique to 

their own operations, FRA would expect 

a railroad’s HMP process to use 

techniques similar to those used by 

these types of current safety 

management systems. FRA specifically 

requests public comment on what 

type(s) of guidance could help a railroad 

comply with the requirements of this 

proposed section. 

This section also specifies certain 

information that must be contained in 

an RRP plan’s description of a railroad’s 

HMP process. Under paragraph (a), this 

description must specify: (1) The 

railroad’s processes for identifying 

hazards and the risks associated with 

those hazards; (2) the sources the 

railroad will use to support the ongoing 

identification of hazards and the risks 

associated with those hazards; and (3) 

the railroad’s processes for comparing 

and prioritizing the identified risks for 

mitigation purposes. 

Paragraph (b) would require an RRP 

plan to describe the railroad’s processes 

for identifying and selecting mitigation 

strategies and for monitoring an 

identified hazard through the mitigation 

of the risk associated with that hazard. 

Section 271.213—Safety Performance 

Evaluation Process 

This section would require an RRP 

plan to describe the railroad’s processes 

for measuring its safety culture pursuant 

to § 271.105, monitoring safety 

performance pursuant to § 271.105(b), 

and conducting safety assessments 

pursuant to § 271.105(c). Regarding the 

requirement for a railroad to describe its 

processes for measuring safety culture, 

this would require a railroad’s plan to 

explain its definition of safety culture 

and how the railroad measures whether 

that definition is being achieved. For 

example, a railroad could define the 

parameters by which it measures its 

safety culture, and then measure 

changes to its safety culture relative to 

that initial baseline. Overall, FRA would 

give a railroad substantial flexibility in 

determining what safety culture 

definition and measurement processes 

worked best for its organization. 

Section 271.215—Safety Outreach 

Process 

This section would require an RRP 

plan to describe a railroad’s process for 

communicating safety information to 

railroad personnel and management 

pursuant to § 271.107. 

Section 271.217—Technology 

Implementation Plan Process 

This section would require an RRP 

plan to describe a railroad’s processes 

for conducting a technology analysis 

pursuant to § 271.109(b) and for 

developing a technology 

implementation plan pursuant to 

§ 271.109(c). 

Section 271.219—Implementation and 

Support Training Plan 

Paragraph (a) of this section would 

require an RRP plan to contain a 

training plan describing the railroad’s 

processes for training, pursuant to 

§ 271.111, employees with significant 

responsibility for implementing and 

supporting the RRP (including 

employees of a person identified 

pursuant to § 271.205(a)(3) as utilizing 

or performing significant safety-related 

services on the railroad’s behalf who 

have significant responsibility for 

implementing and supporting the 

railroad’s RRP). 

Paragraph (b) would require the 

training plan to specifically describe the 

frequency and content of the RRP 

training for each position or job function 

identified pursuant to § 271.223(b)(3) as 

having significant responsibilities for 

implementing the RRP. 

Section 271.221—Internal Assessment 

Process 

Paragraph (a) of this section would 

require an RRP plan to describe a 

railroad’s processes for conducting an 

internal assessment of its RRP pursuant 

to proposed subpart E. At a minimum, 

this description must contain the 

railroad’s processes for: (1) Conducting 

an internal RRP assessment; (2) 

internally reporting the results of its 

internal assessment to railroad senior 

management; and (3) developing 

improvement plans, including 

developing and monitoring 

recommended improvements (including 

any necessary revisions or updates to its 

RRP plan) for fully implementing its 

RRP, complying with the implemented 

elements of the RRP plan, or achieving 

the goals identified in the railroad’s RRP 


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plan pursuant to § 271.203(c). Paragraph 

(b) would be reserved. 

Section 271.223—RRP Implementation 

Plan 

Paragraph (a) of this section would 

require an RRP plan to describe how the 

railroad would implement its RRP. A 

railroad may implement its RRP in 

stages, so long as the RRP is fully 

implemented within 36 months of 

FRA’s approval of the plan. Under 

paragraph (b), this implementation plan 

must cover the entire implementation 

period and contain a timeline 

(beginning with the date FRA approved 

the railroad’s RRP plan) describing 

when certain specific and measurable 

implementation milestones will be 

achieved. The implementation plan 

must also describe the roles and 

responsibilities of each position or job 

function with significant responsibility 

for implementing the railroad’s RRP or 

any changes to the railroad’s RRP 

(including any such positions or job 

functions held by an entity or contractor 

that utilizes or performs on the 

railroad’s behalf significant safetyrelated services). An implementation 

plan must also describe how significant 

changes to the railroad’s RRP will be 

made. 

Subpart D—Review, Approval, and 

Retention of Risk Reduction Program 

Plans 

The RSIA requires a railroad to 

submit its RRP, including any of the 

required plans, to the Administrator (as 

delegate of the Secretary) for review and 

approval. See 49 U.S.C. 20156(a)(1)(B). 

Subpart D, Review, Approval, and 

Retention of System Safety Program 

Plans, would contain requirements 

addressing this mandate. 

Section 271.301—Filing and Approval 

This section would contain 

requirements for the filing of an RRP 

plan and FRA’s approval process. 

Paragraph (a) would require a Class I 

railroad to submit one copy of its RRP 

plan to the FRA Associate 

Administrator for Railroad Safety/Chief 

Safety Officer no later than 545 days 

after the publication date of the RRP 

final rule. A railroad with inadequate 

safety performance would be required to 

submit its RRP plan no later than 90 

days after it receives final written 

notification from FRA that it is required 

to comply with the RRP rule pursuant 

to proposed § 271.13(e), or no later than 

545 days after the publication date of 

the RRP final rule, whichever is later. A 

railroad that the STB reclassifies or 

newly classifies as a Class I railroad 

shall submits its RRP plan no later than 

90 days following the effective date of 

the classification or reclassification, or 

no later than 545 days after the 

publication date of the RRP final rule, 

whichever is later. A voluntarilycompliant railroad could submit an RRP 

plan at any time. FRA specifically 

requests public comment on whether 

electronic submission of an RRP plan 

should be permitted and, if so, what 

type of process FRA should use to 

accept such submissions. 

A railroad would be required to 

provide certain additional information 

as part of its submission. Under 

paragraph (a)(1), a submitted RRP plan 

would be required to include the 

signature, name, title, address, and 

telephone number of the chief official 

responsible for safety and who bears the 

primary managerial authority for 

implementing the submitting railroad’s 

safety policy. By signing, the chief 

official responsible for safety is 

certifying that the contents of the RRP 

plan are accurate and that the railroad 

will implement the contents of the 

program as approved by FRA. 

Paragraph (a)(2) would require a 

submitted RRP plan to contain the 

contact information for the primary 

person responsible for managing the 

RRP for the railroad. This person may be 

the same person as the chief official 

responsible for safety and who bears the 

primary managerial authority for 

implementing the submitting railroad’s 

safety policy. If it is not the same 

person, however, the contact 

information for both must be provided. 

The contact information for the primary 

person managing the RRP is necessary 

so that FRA knows who to contact 

regarding any issues with the railroad’s 

RRP. 

Under paragraph (a)(3), the submitted 

RRP plan would have to contain the 

contact information for the senior 

representatives of the persons that the 

railroad has determined utilize or 

provide significant safety-related 

services (including entities such as host 

railroads, contract operators, shared 

track/corridor operators, and other 

contractors). This contact information is 

necessary so that FRA is aware of which 

persons will be involved in 

implementing and supporting the 

railroad’s RRP. 

Finally, paragraph (a)(4) would 

reference proposed § 271.207(b) and 

require a railroad to submit the 

consultation statement describing how 

it consulted with its directly affected 

employees on the contents of the RRP 

plan. When the railroad provides the 

consultation statement to FRA, 

proposed § 271.207(b)(4) would also 

require the railroad to provide a copy of 

the statement to directly affected 

employees identified in a service list. 

Directly affected employees could then 

file a statement within 60 days after the 

railroad filed its consultation statement, 

as discussed in proposed § 271.207(c). 

Paragraph (b) would describe FRA’s 

process for approving a railroad’s RRP 

plan. Within 90 days of receipt of an 

RRP plan, or within 90 days of receipt 

of each RRP plan submitted prior to the 

commencement of railroad operations, 

FRA would review the proposed RRP 

plan to determine if the elements 

required by part 271 are sufficiently 

addressed, and whether the processes 

and resources described by the plan are 

sufficient to support effective 

implementation of the required RRP 

elements. This review would also 

consider any statement submitted by 

directly affected employees pursuant to 

proposed § 271.207(c). This process 

would involve continuous 

communication between FRA and the 

railroad, and FRA intends to work with 

a railroad when reviewing its plan and 

to keep directly affected employees 

informed of this process. If this 

communication process results in 

substantively significant changes to the 

railroad’s submitted RRP plan, FRA may 

direct the railroad to consult further 

with its directly affected employees 

before FRA approves the plan. 

Railroads should note the FRA will 

not be approving specific mitigation 

measures as part of a railroad’s RRP 

plan. Rather, a railroad’s RRP plan 

should only describe the processes and 

procedures the railroad will use to 

develop and implement its RRP, 

including the processes and procedures 

that will be used to identify and 

mitigate or eliminate hazards and risks. 

FRA does not expect railroads to have 

already identified and analyzed hazards 

and risks, and to have developed 

specific mitigation strategies, at the time 

FRA approves the railroad’s RRP plan. 

Once FRA determines whether a 

railroad’s RRP plan complies with the 

requirements of part 271, FRA would 

provide the railroad’s primary contact 

person written notification of whether 

the railroad’s RRP plan is approved or 

not. If FRA does not approve a plan, it 

would inform the railroad of the specific 

points in which the plan is deficient. 

FRA would also provide written 

notification to each individual 

identified in the service list 

accompanying the consultation 

statement required under proposed 

§ 271.207(b)(4). If a railroad receives 

notification that the plan is not 

approved (including notification of the 

specific points in which the plan is 

deficient), the railroad would have 60 


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days to correct all of the deficiencies 

and resubmit the plan to FRA. If these 

corrections are substantively significant, 

FRA will inform the railroad that it 

must consult further with its directly 

affected employees about the 

corrections and submit an updated 

consultation statement with its 

corrected RRP plan. Directly affected 

employees would also be afforded the 

opportunity to submit a statement in 

response to the substantively significant 

corrections. Directly affected employees 

would not be given a second 

opportunity, however, to address plan 

provisions that were unrelated to the 

substantively significant corrections. 

Paragraph (c) would specify that all 

documents required to be submitted to 

FRA under this part may be submitted 

electronically pursuant to the 

procedures in proposed appendix C to 

this part. 

Section 271.303—Amendments 

This section would address the 

process a railroad must follow whenever 

it amends its FRA-approved RRP plan, 

regardless of whether the amendments 

are substantive or non-substantive. If a 

railroad makes substantive 

amendments, however, it would be 

required to follow the process described 

in its RRP plan (pursuant to § 271.209) 

for consulting with its directly affected 

employees. A railroad must submit the 

amended RRP plan to FRA not less than 

60 days prior to the proposed effective 

date of the amendment(s). Along with 

the amended RRP plan, the railroad 

must also file a cover letter outlining the 

proposed change(s) to the original, 

approved RRP plan. The cover letter 

should provide enough information so 

that FRA knows what is being added or 

removed from the original approved 

RRP. These requirements would not 

apply if the proposed amendment is 

limited to adding or changing a name, 

title, address, or telephone number of a 

person, although the railroad would still 

be required to file the amended RRP 

plan with FRA’s Associate 

Administrator for Railroad Safety/Chief 

Safety Officer. Such amendments would 

be implemented by the railroad upon 

filing with FRA. 

FRA would review the proposed 

amended RRP plan within 45 days of 

receipt. FRA would then notify the 

railroad’s primary contact person 

whether the amended plan has been 

approved. If the amended plan is not 

approved, FRA would inform the 

railroad of the specific points in which 

the proposed amendment is deficient. In 

some instances, FRA may not be able to 

complete its review in 45 days. In these 

cases, if FRA fails to timely notify the 

railroad, the railroad may implement 

the amendment(s) to the plan, which 

may be subject to change once FRA 

completes its review. Within 60 days of 

receiving notification from FRA that a 

proposed amendment has not been 

approved, a railroad must provide FRA 

either a corrected copy of the 

amendment, addressing all deficiencies 

noted by FRA, or notice that the railroad 

is retracting the amendment. (Railroads 

should note that a retracted amendment 

would be covered by the information 

protections provisions of proposed 

§ 271.11, as the amendment would have 

been information compiled for the sole 

purpose of developing an RRP.) 

Through its general oversight, FRA may 

also determine that amendments to the 

RRP plan are necessary. In these cases, 

the FRA would follow the process set 

forth in proposed § 271.305. 

This section does not propose a 

provision for amendments that a 

railroad may deem safety-critical. 

Because a railroad’s RRP plan would 

only explain the processes and 

procedures for the program, FRA is 

uncertain whether a railroad would ever 

need to amend the plan in order to 

address a specific safety-critical 

concern. Rather, FRA believes that any 

such safety-critical concern would 

require changes in the way the RRP is 

implemented and maintained, rather 

than changes in the processes and 

procedures outlined in the plan. FRA is 

specifically requesting public comment, 

however, on whether an RRP plan 

would ever need to be amended in a 

way that is safety-critical, so that it 

would be impractical for a railroad to 

submit the amendment 60 days before 

its proposed effective date. If so, FRA 

would likely include in a final rule a 

provision stating that a railroad must 

provide FRA a safety-critical 

amendment as soon as possible, instead 

of 60 days before its proposed effective 

date. 

Section 271.305—Reopened Review 

Proposed § 271.305 would provide 

that, for cause stated, FRA could reopen 

consideration of an RRP plan or 

amendment (in whole or in part) after 

approval of the plan or amendment. For 

example, FRA could reopen review if it 

determines that the railroad has not 

been complying with its plan/

amendment or if information has been 

made available that was not available 

when FRA originally approved the plan 

or amendment. The determination of 

whether to reopen consideration would 

be solely within FRA’s discretion and 

made on a case-by-case basis. 

Section 271.307—Retention of RRP 

Plans 

Proposed § 271.307 would contain 

requirements related to a railroad’s 

retention of its RRP plan. A railroad 

would be required to retain at its system 

and various division headquarters a 

copy of its RRP plan and a copy of any 

amendments to the plan. A railroad may 

comply with this requirement by 

making an electronic copy available. 

The railroad must make the plan and 

any amendments available to 

representatives of FRA or States 

participating under part 212 of this 

chapter for inspection and copying 

during normal business hours. 

In its tentative agreement document, 

the RSAC Working Group advised FRA 

to permit only specific RRP-trained FRA 

representatives to have the authority to 

request access to a railroad’s RRP plan. 

FRA is not including this suggestion in 

the proposed rule, however, because it 

has concerns regarding how it could be 

implemented. For example, how could 

a railroad know whether or not an FRA 

representative has been trained in RRP? 

FRA also believes that rule text may not 

be the appropriate place for such a 

distinction, as the question of which 

inspectors have authority to conduct 

inspections is an internal FRA matter. 

FRA nevertheless is specifically 

requesting public comment on both the 

proposed rule text and the Working 

Group’s suggestion, and the final rule 

may contain the Working Group’s 

suggestion. FRA would also be 

interested in any suggested alternate 

approaches that may be included in the 

final rule. 

Subpart E—Internal Assessments 

In order to help ensure that an RRP is 

properly implemented and effective, a 

railroad would need to evaluate its 

program on an annual basis. Subpart E 

would contain provisions requiring a 

railroad to conduct an internal 

assessment of its RRP. 

Section 271.401—Annual Internal 

Assessments 

This section would describe the 

processes a railroad must use to 

evaluate its RRP. Because this 

evaluation is an internal assessment, a 

railroad could tailor the processes to its 

specific operations, and FRA would 

work with the railroad to determine the 

best method to internally measure the 

implementation and effectiveness of the 

railroad’s RRP. 

Paragraph (a) would require a railroad 

to conduct an annual (once every 

calendar year) internal assessment of its 

RRP. If desired, a railroad could audit 


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its program more than once a year. This 

internal assessment must begin in the 

first calendar year after the calendar 

year in which FRA approves the 

railroad’s RRP plan. The internal 

assessment would determine the extent 

to which the railroad has: (1) Achieved 

the implementation milestones 

described in its RRP plan pursuant to 

proposed § 271.223(b); (2) complied 

with the elements of its approved RRP 

plan that have already been 

implemented; (3) achieved the goals 

described in its RRP plan pursuant to 

proposed § 271.203(c); (4) implemented 

previous internal assessment 

improvement plans pursuant to 

proposed § 271.403; and (5) 

implemented previous external audit 

improvement plans pursuant to 

§ 271.503. A properly executed internal 

assessment would provide the railroad 

with detailed knowledge of the status of 

its program implementation and the 

degree to which the program is 

effectively reducing risk. The railroad 

would be required to ensure that the 

results of the assessment of these 

various elements are internally reported 

to the railroad’s senior management. 

Section 271.403—Internal Assessment 

Improvement Plans 

Paragraph (a) of this section would 

require a railroad, within 30 days of 

completing its internal assessment, to 

develop an improvement plan 

addressing the results of its internal 

assessment. Paragraph (b) would require 

the improvement plan to have at least 

four elements. First, the improvement 

plan must describe the recommended 

improvements that address the findings 

of the internal assessment for fully 

implementing the railroad’s RRP, 

complying with the elements of the RRP 

that are already implemented, or 

achieving the goals identified in the 

RRP plan pursuant to § 271.203(c). 

These improvements would include any 

necessary revisions or updates to the 

RRP plan, which would have to be made 

pursuant to the amendment process in 

proposed § 271.303. Second, the 

improvement plan must identify by 

position title the individual who is 

responsible for carrying out the 

recommended improvements. Third, the 

improvement plan must set forth a 

timeline that establishes when specific 

and measurable milestones for 

implementing the recommended 

improvements would be achieved. 

Finally, the improvement plan must 

specify the process for monitoring and 

evaluating the effectiveness of the 

recommended improvements. FRA 

believes that if a railroad’s internal 

assessment improvement plan contains 

these four elements, the railroad would 

effectively identify any areas in which 

the RRP is either improperly 

implemented or ineffective at reducing 

risk, and could adequately address those 

deficiencies. 

Section 271.405—Internal Assessment 

Reports 

Paragraph (a) of this section would 

require a railroad to submit a copy of its 

internal assessment report to the FRA 

Associate Administrator for Railroad 

Safety/Chief Safety Officer. The railroad 

must submit this report within 60 days 

of completing its internal assessment. 

Under paragraph (b), the report must be 

signed by the railroad’s chief official 

responsible for safety who bears primary 

managerial authority for implementing 

that railroad’s safety policy and contain 

at least four elements. First, the report 

must describe the railroad’s internal 

assessment, including a description of 

how the railroad satisfied the 

requirements set forth in proposed 

§ 271.401(b)(1) through (3). Second, the 

report must describe the findings of the 

internal assessment. Third, the report 

must specifically describe the 

recommended improvements set forth 

in the railroad’s improvement plan 

pursuant to proposed § 271.403. Fourth, 

the report must describe the status of 

the recommended improvements that 

were set forth in the railroad’s recent 

internal assessment improvement plan 

and any outstanding recommended 

improvements from previous internal 

assessment improvement plans. 

Subpart F—External Audits 

This subpart would address FRA’s 

process for conducting audits of the 

railroad’s RRP and establish 

requirements regarding the actions a 

railroad must take in response to FRA’s 

audits. FRA’s audits would focus on 

reviewing the railroad’s RRP process 

and ensuring that the railroad is 

following the processes and procedures 

described in its FRA-approved RRP 

plan. 

Section 271.501—External Audits 

As described in this section, FRA 

would conduct (or cause to be 

conducted) external audits of a 

railroad’s RRP. These audits would 

focus on RRP process, evaluating the 

railroad’s compliance with the RRP 

elements required by this part, as 

supported by the railroad’s approved 

RRP plan. Because the railroad’s RRP 

plan and any amendments would have 

already been approved by FRA, this 

section would permit FRA to focus on 

the extent to which the railroad is 

complying with the processes and 

procedures in its own plan. 

Similar to the review process for RRP 

plans, FRA would not audit a railroad’s 

RRP in a vacuum. Rather, FRA would 

communicate with the railroad during 

the audit and attempt to resolve any 

issues before its completion. Once the 

audit is completed, FRA would provide 

the railroad with written notification of 

the audit results. For example, these 

results would identify any areas where 

the railroad was not properly complying 

with its RRP plan, any areas that needed 

to be addressed by the railroad’s RRP 

but were not, or any other areas in 

which FRA found that the railroad and 

its program were not in compliance 

with this part. 

Section 271.503—External Audit 

Improvement Plans 

This section would establish 

requirements for railroad improvement 

plans responding to the results of FRA’s 

external audit. If the results of the audit 

require the railroad to take any 

corrective action, paragraph (a) would 

provide the railroad 60 days to submit 

for FRA approval an improvement plan 

addressing any such instances of 

deficiency or non-compliance. At a 

minimum, paragraph (b) would require 

the improvement plan to: (1) Describe 

the improvements the railroad would 

implement to address the audit findings; 

(2) identify by position title the 

individual who would be responsible 

for carrying out the improvements 

necessary to address the audit findings; 

and (3) contain a timeline describing 

when specific and measurable 

milestones for implementing the 

recommended improvements would be 

achieved. Specification of milestones is 

important because it would allow the 

railroad to determine the appropriate 

progress of the improvements, while 

also allowing FRA to gauge the 

railroad’s compliance with its 

improvement plan. 

Under paragraph (c), if FRA does not 

approve a railroad’s improvement plan, 

FRA would notify the railroad of the 

plan’s specific deficiencies. The railroad 

would then have no more than 30 days 

to amend the improvement plan to 

correct the deficiencies identified by 

FRA and provide FRA a copy of the 

amended improvement plan. Paragraph 

(d) would require a railroad to provide 

FRA for review, upon the request of the 

FRA Associate Administrator for 

Railroad Safety/Chief Safety Office, a 

status report on the implementation of 

the improvements contained in the 

improvement plan. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
10980 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

Appendix A to Part 271—Schedule of 

Civil Penalties 

Appendix A to part 271 would 

contain a schedule of civil penalties for 

use in connection with this part. 

Because such penalty schedules are 

statements of agency policy, notice and 

comment are not required prior to their 

issuance. See 5 U.S.C. 553(b)(3)(A). 

Nevertheless, commenters are invited to 

submit suggestions to FRA describing 

the types of actions or omissions for 

each proposed regulatory section that 

would subject a person to the 

assessment of a civil penalty. 

Commenters are also invited to 

recommend what penalties may be 

appropriate, based upon the relative 

seriousness of each type of violation. 

Appendix B to Part 271—Federal 

Railroad Administration Guidance on 

the Risk Reduction Program 

Consultation Process 

Appendix B would contain guidance 

on how a railroad could comply with 

§ 271.207, which states that a railroad 

must in good faith consult with and use 

its best efforts to reach agreement with 

all of its directly affected employees on 

the contents of the RRP plan. The 

appendix begins with a general 

discussion of the terms ‘‘good faith’’ and 

‘‘best efforts,’’ explaining that they are 

separate terms and that each has a 

specific and distinct meaning. For 

example, the good faith obligation is 

concerned with a railroad’s state of 

mind during the consultation process, 

and the best efforts obligation is 

concerned with the specific efforts made 

by the railroad in an attempt to reach 

agreement with its directly affected 

employees. The appendix also explains 

that FRA will determine a railroad’s 

compliance with the § 271.207 

requirements on a case-by-case basis 

and outlines the potential consequences 

for a railroad that fails to consult with 

its directly affected employees in good 

faith and using best efforts. 

The appendix also contains specific 

guidance on the process a railroad may 

use to consult with its directly affected 

employees. This guidance would not 

establish prescriptive requirements with 

which a railroad must comply, but 

would provide a road map for how a 

railroad may conduct the consultation 

process. The guidance also 

distinguishes between employees who 

are represented by a non-profit 

employee labor organization and 

employees who are not, as the processes 

a railroad may use to consult with 

represented and non-represented 

employees could differ significantly. 

Overall, however, the appendix stresses 

that there are many compliant ways in 

which a railroad may choose to consult 

with its directly affected employees and 

that FRA believes, therefore, that it is 

important to maintain a flexible 

approach to the § 271.207 consultation 

requirements, so a railroad and its 

directly affected employees may consult 

in the manner best suited to their 

specific circumstances. 

Appendix C to Part 271—Procedures for 

Submission of Railroad Risk Reduction 

Program Plans and Statements From 

Directly Affected Employees 

Proposed Appendix C would provide 

railroads and directly affected 

employees the option to file RRP plans 

or consultation statements 

electronically. FRA intends to create a 

secure document submission site and 

would need basic information from 

railroads or directly affected employees 

before setting up a user’s account. In 

order to provide secure access, 

information regarding the points of 

contact would be required. It is 

anticipated that FRA would be able to 

approve or disapprove all or part of a 

program and generate automated 

notifications by email to a railroad’s 

points of contact. Thus, FRA would 

want each point of contact to 

understand that by providing any email 

addresses, the railroad would be 

consenting to receive approval and 

disapproval notices from FRA by email. 

Railroads that allow notice from FRA by 

email would gain the benefit of 

receiving such notices quickly and 

efficiently. FRA specifically requests 

public comment on whether to allow 

electronic submission, and on what 

electronic formats might be practical 

and acceptable. 

While the proposed appendix would 

request the names and contact 

information for two individuals who 

would be the railroad’s or directly 

affected employees’ points of contact 

and who would be the only individuals 

allowed access to FRA’s document 

submission site, FRA specifically 

requests public comment on whether 

this is a sufficient number of points of 

contact, or whether more would be 

necessary, particularly for railroads with 

multiple non-profit labor organizations. 

Those railroads that would choose to 

submit printed materials to FRA would 

be required to deliver them directly to 

the specified address. Some railroads 

may choose to deliver a CD, DVD, or 

other electronic storage format to FRA 

rather than requesting access to upload 

the documents directly to the secure 

electronic database. Although that 

would be an acceptable method of 

submission, FRA would encourage each 

railroad to utilize the electronic 

submission capabilities of the system. 

Of course, if FRA does not have the 

capability to read the type of electronic 

storage format sent, FRA would be able 

to reject the submission. 

FRA may be able to develop a secure 

document submission site so that 

confidential materials would be 

identified and not shared with the 

general public. However, FRA does not 

expect the information in an RRP plan 

to be of such a confidential or 

proprietary nature, particularly since 

each railroad is required to share the 

submitted RRP plan with individuals 

identified in the service list pursuant to 

§ 271.107(b)(4). RRP records in FRA’s 

possession are also exempted from 

disclosure under the Freedom of 

Information Act pursuant to sec. 109(a) 

of the RSIA, and FRA is proposing in 

§ 271.11 of this NPRM to protect any 

information compiled or collected 

solely for the purpose of developing, 

implementing, or evaluating an RRP 

from discovery, admission into 

evidence, or consideration for other 

purposes in a Federal or State court 

proceeding for damages involving 

personal injury, wrongful death, and 

property damage. Accordingly, FRA 

does not at this time believe it is 

necessary to develop a document 

submission system which addresses 

confidential materials at this time. 

IX. Regulatory Impact and Notices 

A. Executive Orders 12866 and 13563 

and DOT Regulatory Policies and 

Procedures 

This NPRM has been evaluated in 

accordance with existing policies and 

procedures, and determined to be 

significant under Executive Order 

12866, Executive Order 13563, and DOT 

policies and procedures. See 44 FR 

11034 (Feb. 26, 1979). FRA has prepared 

and placed in the docket a regulatory 

impact analysis (RIA) addressing the 

economic impact of this NPRM. 

This NPRM directly responds to the 

Congressional mandate of sec. 103 of the 

RSIA, which states that FRA shall 

require each Class I railroad and 

railroads with inadequate safety 

performance to establish a railroad 

safety risk reduction program. See 49 

U.S.C. 20156(a)(1). This NPRM proposes 

to implement this mandate by requiring 

each Class I railroad and railroad with 

inadequate safety performance to 

develop and implement a RRP to 

improve the safety of their operations. 

FRA believes that all of the 

requirements of the NPRM are directly 

or implicitly required by the RSIA. 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
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16See DOT/FRA—‘‘Positive Train Control 

Systems, Final Rule, Regulatory Impact Analysis,’’ 

Document FRA 2008–0132–0060, available at 

http://www.regulations.gov/#!documentDetail;

D=FRA-2008-0132-0060. The RIA for FRA’s Positive 

Train Control System final rule originally found 

that the total societal cost of serious accidents and 

incidents is at least 2.33 times the fatality costs. Due 

to the revised approach for assessing VSL over time 

in accordance with DOT’s Guidance, discussed 

above, this number has been revised to 1.97 times 

the fatality costs. 

The costs for this proposed regulation 

basically stem from the requirements to 

have a fully developed and 

implemented RRP that is supported by 

an RRP plan. The primary costs come 

from the development of an ongoing 

risk-based HMP, the ongoing evaluation 

of safety performance, and the safety 

outreach component of the RRP. In 

addition, there are costs for the 

development of a technology 

implementation plan, the consultation 

process, and internal assessments. 

In analyzing this proposed rule, FRA 

has applied DOT’s updated ‘‘Guidance 

on the Economic Value of a Statistical 

Life in US Department of Transportation 

Analyses,’’ published in March 2013. 

This policy updated the Value of a 

Statistical Life (VSL) from $6.2 million 

to $9.1 million and revised guidance 

used to compute benefits based on 

injury and fatality avoidance in each 

year of the analysis based on forecasts 

from the Congressional Budget Office of 

a 1.07 percent annual growth rate in 

median real wages over a 30 year period 

(2013–2043). FRA also adjusted wage 

based labor costs in each year of the 

analysis accordingly. Real wages 

represent the purchasing power of 

nominal wages. Non-wage inputs are 

not impacted. The primary cost and 

benefit drivers for this analysis are labor 

costs and avoided injuries and fatalities, 

both of which in turn depend on wage 

rates. 

The total cost for this proposed 

regulation is $18.6 million, 

undiscounted. The discounted costs 

over 10 years are $12.7 million, using a 

7 percent discount rate, and $15.7 

million, using a 3 percent discount rate. 

The annualized costs are $1.81 million 

at a 7% discount rate and $1.84 million 

at a 3% discount rate. 

TABLE 1—COSTS (10 YEARS) 

RRP NPRM 

Costs Class I railroads 

Railroads with 

inadequate 

safety 

performance 

Total for all 

railroads Annualized 

Subpart A: General .................................................................. $0 $10,194 $10,194 ..............................

Subpart B: RR Programs ......................................................... 14,352,029 2,008,553 16,360,582 ..............................

Subpart C: RRP Plans ............................................................. 791,776 743,231 1,535,007 ..............................

Subpart D: Review and Approval of Plans .............................. 2,387 6,362 8,750 ..............................

Subpart E: Internal Assessments ............................................ 253,369 388,140 641,509 ..............................

Subpart F: External Audits ...................................................... 42,647 25,690 68,337 ..............................

Total Cost ......................................................................... 15,442,208 3,182,169 18,624,377 $1,862,438 

(PV 7) ........................................................................ 10,699,013 2,039,639 12,738,652 1,813,698 

(PV 3) ........................................................................ 13,095,827 2,610,750 15,706,578 1,841,290 

RRPs create benefits through several 

mechanisms. RRPs identify potential 

hazards at an early stage, so that 

expenditures can be made with a view 

to avoiding the hazards, making 

expenditures more effective. Because of 

these characteristics RRPs identify a 

wide array of potential safety issues, 

and potential solutions, so that railroads 

can use their available resources where 

the effect will be most beneficial per 

dollar spent. In addition, RRPs help 

maintain safety gains over time. When 

railroads adopt countermeasures to 

safety problems, they may over time 

lose the focus that made those 

countermeasures effective. With RRP 

plans, those safety gains are likely to 

continue for longer time periods. 

Because of these characteristics of RRP, 

safety is improved, while at the same 

time costs of countermeasures are 

reduced. RRPs can also be instrumental 

in addressing hazards that are not welladdressed through conventional safety 

programs, such as minor injuries and 

incidents, or risks that occur because 

safety equipment is not used correctly 

or continuously. 

It is difficult, if not impossible, to 

segregate totally railroad expenses that 

go to enhance safety from other railroad 

expenses. Track, vehicle, and signal 

maintenance expenses all contribute to 

safety on a railroad. Every operational 

and maintenance employee, as well as 

track or signal inspector, performs 

duties with few functions that do not 

work to enhance safety. Every capital 

expenditure is likely to have a safety 

component, whether for equipment, 

right-of-way, signal, or facility. RRPs 

can increase the safety return on any 

investment related to the operation and 

maintenance of the railroad. FRA 

believes a very conservative estimate of 

investment expenditures by all Class I 

railroads is $42.7 billion per year. For 

purposes of this analysis, FRA assumes 

that RRPs will not create benefits until 

they are fully implemented by the 

railroad, after the third year, and so 

cannot improve the effectiveness of 

investments until Year 4, after which 

they will affect investments through 

Year 10. Improved effectiveness of 

investment benefits can reasonably be 

expected to impact between $188 billion 

(discounted at 7 percent) and $244 

billion (discounted at 3 percent) over 

the next ten years. 

Another way to look at the benefits 

that might accrue from RRPs is to look 

at total Class I freight operation-related 

accident/incident costs. For the timeperiod 2001–2010 the total number of 

accidents/incidents (excluding grade 

crossing incidents and platform 

accidents/incidents) involving Class I 

freight railroads was 66,116, which 

resulted in 6,956 fatalities and 42,289 

injuries. For purposes of this NPRM’s 

RIA, FRA used the averages from 2008– 

2010 which had 5,325 incidents, 602 

fatalities and 3,428 injuries. Of course, 

these accidents/incidents also caused 

damage to other property, delays on 

both railroads and highways, response 

costs, and many other costs. Applying 

the same methodology used in other 

analyses, FRA has found that the total 

societal cost of a serious accident/ 

incident is at least 1.97 times the fatality 

costs.16 Societal accident costs include 

fatality costs, injury costs, delay costs, 

response costs, damage to equipment, 

damage to track and structures, and 

equipment clearing, although there may 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
10982 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

17FRA’s estimates follow Office of Management 

and Budget (OMB) guidance in OMB Circular A– 

94 to use real discount rates of 7 and 3 percent for 

regulatory analysis. 

be other societal costs not accounted for. 

Those accidents/incidents that are 

serious enough to result in fatalities can 

result in broader societal costs, as noted 

above. Further, some accidents/ 

incidents, such as grade crossing 

accidents, can be quite severe, resulting 

in very serious injuries but not a fatality, 

resulting in costs per fatality of grade 

crossing accidents being more than the 

costs of those accidents that result only 

in fatalities. FRA believes multiplying 

societal costs of fatalities times a factor 

of 1.97 to derive total societal cost of 

serious accidents/incidents is 

conservative. In this case, if the fatality 

costs are $9.1 million per fatality, and 

the average number of fatalities per year 

is 602, then the societal cost of fatalities 

is $5.5 billion per year, and the total 

societal cost of freight operation related 

serious accidents/incidents is $10.8 

billion for the base year of 2012. 

According to the DOT Guidance issued 

in March 2013, the VSL is expected to 

increase annually based on an expected 

1.07 percent annual growth rate in 

median real wages. As noted above, for 

purposes of this analysis, FRA assumes 

that RRP implementation will not result 

in benefits until railroads are required to 

fully implement their RRPs, after the 

third year, and so cannot reduce 

accidents until Year 4, and then will 

affect accidents through Year 10. Total 

ten-year accident safety costs total 

between $77.7 billion (discounted at 7 

percent) and $102.3 billion (discounted 

at 3 percent). 

FRA analyzed what percentage of the 

potential accident reduction benefit 

pools would have to be saved in order 

for the NPRM to have accident 

reduction benefits at least equal to costs 

that apply to existing Class I railroads. 

The results are presented in Table 2 

below, which shows the percentage of 

the total benefit pools that would need 

to be saved in order for the rule to break 

even. FRA believes that such savings are 

more than attainable. Please note that 

the rule would break even if it met 

either percentage by itself, and that the 

rule would not need to meet both 

percentages. 

TABLE 2—TEN-YEAR COSTS AS PERCENT OF BENEFIT POOLS FOR CLASS I FREIGHT RAILROADS

Benefit pool Current dollar 

value 

Discounted value 

7% 

Discounted value 

3% 

Railroad Investment ................................................................................................... 0.0062 0.0068 0.0065 

Railroad Incidents ...................................................................................................... 0.0146 0.0164 0.0154 

With the new VSL policy, DOT also 

recommends a sensitivity analysis be 

considered using a VSL of $5.2 million 

and $12.9 million. Using a VSL of $5.2 

million, FRA estimates the break-even 

point is less than 3 hundredths of a 

percent, and using a VSL of $12.9 

million the break-even point is 

approximately 1.1 hundredths of a 

percent. 

In conclusion, FRA is confident that 

the accident reduction and cost 

effectiveness benefits together would 

justify the $12.7 million (discounted at 

7 percent) to $15.7 million (discounted 

at 3 percent) implementation cost over 

the first ten years of the rule as 

proposed. 

B. Regulatory Flexibility Act and 

Executive Order 13272; Initial 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461, Aug. 16, 

2002) require agency review of proposed 

and final rules to assess their impacts on 

small entities. An agency must prepare 

an initial regulatory flexibility analysis 

(IRFA) unless it determines and certifies 

that a rule, if promulgated, would not 

have a significant economic impact on 

a substantial number of small entities. 

FRA has not determined whether this 

proposed rule would have a significant 

economic impact on a substantial 

number of small entities. Therefore, 

FRA is publishing this IRFA to aid the 

public in commenting on the potential 

small business impacts of the 

requirements in this NPRM. FRA invites 

all interested parties to submit data and 

information regarding the potential 

economic impact on small entities that 

would result from the adoption of the 

proposals in this NPRM. FRA will 

consider all information and comments 

received in the public comment process 

when making a determination regarding 

the economic impact on small entities 

in the final rule. 

For the railroad industry over a 10- 

year period, FRA estimates that the total 

cost for the proposed rule will be $18.6 

million, undiscounted; $12.7 million, 

discounted at 7 percent; or $15.7 

million, discounted at 3 percent.17

Based on information currently 

available, FRA estimates that less than 

17 percent of the total railroad costs 

associated with implementing the 

proposed rule would be borne by small 

entities. 

A Class II or III railroad may be 

brought under FRA’s proposed RRP 

regulation if FRA determines that the 

railroad has inadequate safety 

performance. This determination would 

be made according to proposed § 271.13. 

Based on an initial review and 

evaluation, FRA estimates that 

approximately 10 railroads that are 

considered small entities for the 

purpose of this analysis would be found 

to have inadequate safety performance 

in the initial year of the rule, and would 

therefore be required to comply with 

FRA’s RRP requirements. On average, 

FRA estimates that five additional Class 

III railroads with inadequate safety 

performance would be added 

incrementally per annum after the first 

full year of implementation, and that the 

number of railroads with inadequate 

safety performance would reach a 

maximum of 40 to 45 railroads around 

the tenth year of the rule. Together, 

these railroads do not compose a 

substantial number of the 629 Class III 

railroads, which potentially fall under 

this proposed rule and would be 

evaluated for inadequate safety 

performance, and a minor percentage of 

the railroad operations impacted 

directly by this proposed regulation, as 

measured by total employees. Thus, a 

very few number of small entities in this 

sector would be impacted. In order to 

get a better understanding of the total 

costs for the entire freight railroad 

industry (which forms the basis for the 

estimates in this IRFA), or for more cost 

detail on any specific requirement, 

please see the Regulatory Impact 

Analysis (RIA) that FRA has placed in 

the docket for this rulemaking. 

In accordance with the Regulatory 

Flexibility Act, an IRFA must contain: 

1. A description of the reasons why 

action by the agency is being 

considered. 

2. A succinct statement of the 

objectives of, and the legal basis for, the 

proposed rule. 

3. A description—and, where feasible, 

an estimate of the number—of small 


tkelley on DSK3SPTVN1PROD with PROPOSALS3
Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 10983 

18As discussed elsewhere in this NPRM, the 

RSIA mandate to require safety risk reduction 

programs for passenger railroads is being addressed 

in a separate SSP rulemaking. 

entities to which the proposed rule will 

apply. 

4. A description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule, including an estimate of 

the classes of small entities that will be 

subject to the requirement and the type 

of professional skills necessary for 

preparation of the report or record. 

5. Identification, to the extent 

practicable, of all relevant Federal rules 

that may duplicate, overlap, or conflict 

with the proposed rule. 

1. Reasons for Considering Agency 

Action 

FRA has proposed this part 271 in 

order to comply with sec. 103 and sec. 

109 of the RSIA. The RSIA states, in 

part, that FRA shall require each Class 

I railroad and railroad with ‘‘inadequate 

safety performance’’ to establish a 

railroad safety risk reduction 

program.18 See 49 U.S.C. 20156, 20118, 

and 20119. This proposed rule sets forth 

RRP requirements for Class I freight 

railroads and railroads with inadequate 

safety performance. 

2. The Proposed Rule: Objectives and 

Legal Basis 

The purpose of this proposed rule is 

to improve railroad safety through 

structured, proactive processes and 

procedures developed and implemented 

by railroad operators. The proposed rule 

would require a railroad to establish an 

RRP that systematically evaluates 

railroad safety hazards on its system and 

manages those risks in order to reduce 

the number and rates of railroad 

accidents/incidents, injuries, and 

fatalities. 

The proposed rule would prescribe 

minimum Federal safety standards for 

the preparation, adoption, and 

implementation of RRPs. The proposed 

rule does not restrict railroads from 

adopting and enforcing additional or 

more stringent requirements not 

inconsistent with this proposed rule. 

The Secretary has delegated the 

responsibility to carry out his 

responsibilities under both sec. 103 and 

sec. 109 of RSIA, as well as the general 

responsibility to conduct rail safety 

rulemakings, codified at 49 U.S.C. 

20103, to the Administrator of FRA. See 

49 CFR 1.89(m) and (oo). 

The proposed rulemaking would add 

to FRA’s regulations a new part 271. 

Part 271 would satisfy the RSIA 

mandate that FRA require safety risk 

reduction programs for Class I freight 

railroads and railroads with inadequate 

safety performance. See 49 U.S.C. 

20156(a)(1). It would also include 

protection from admission or discovery 

of certain information compiled or 

collected pursuant to a safety RRP. See 

49 U.S.C. 20119. 

3. Descriptions and Estimates of Small 

Entities to Which the Proposed Rule 

Would Apply 

The universe of the entities 

considered in an IRFA generally 

includes only those small entities that 

can reasonably expect to be directly 

regulated by the proposed action. Small 

railroads are the types of small entities 

potentially affected by this proposed 

rule. 

A ‘‘small entity’’ is defined in 5 U.S.C. 

601(3) as having the same meaning as 

‘‘small business concern’’ under sec. 3 

of the Small Business Act. This includes 

any small business concern that is 

independently owned and operated, and 

is not dominant in its field of operation. 

Title 49 U.S.C. 601(4) likewise includes 

within the definition of small entities 

non-profit enterprises that are 

independently owned and operated, and 

are not dominant in their field of 

operation. 

The U.S. Small Business 

Administration (SBA) stipulates in its 

size standards that the largest a ‘‘forprofit’’ railroad business firm may be, 

and still be classified as a small entity, 

is 1,500 employees for ‘‘line haul 

operating railroads’’ and 500 employees 

for ‘‘switching and terminal 

establishments.’’ Additionally, 5 U.S.C. 

601(5) defines as small entities 

governments of cities, counties, towns, 

townships, villages, school districts, or 

special districts with populations less 

than 50,000. 

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority, FRA has 

published a final Statement of Agency 

Policy that formally establishes small 

entities or small businesses as being 

railroads, contractors, and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR 1201.1–1, which is $20 

million or less in inflation-adjusted 

annual revenues, and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less. See 68 FR 24891, May 9, 

2003 (codified as appendix C to 49 CFR 

part 209). The $20 million limit is based 

on the Surface Transportation Board’s 

revenue threshold for a Class III 

railroad. Railroad revenue is adjusted 

for inflation by applying a revenue 

deflator formula in accordance with 49 

CFR 1201.1–1. This definition is what 

FRA is proposing to use for the 

rulemaking. 

Railroads 

Class I freight railroads and railroads 

with inadequate safety performance 

would have to comply with all of the 

proposed provisions of part 271. 

However, the amount of effort to comply 

with the proposed rule is commensurate 

with the size of the entity. 

In the universe of railroads for 

potential compliance under this 

proposed rule, there are 7 Class I 

railroads, 10 Class II railroads (1 of 

which is classified as a passenger 

railroad that would be excepted from 

the proposed rule), and 629 Class III 

freight railroads. Railroads with tourist 

operations are excluded, and these 

comprise approximately 90 of the total 

719 Class III railroads. 

To identify the non-Class I railroads 

that must comply with the proposed 

rule, FRA will annually conduct a twophase analysis to determine which 

railroads have inadequate safety 

performance. This is accomplished by 

the following: (1) A statistically-based 

quantitative analysis of fatalities, FRAreportable injuries/illnesses, FRAreportable accidents/incidents, and FRA 

safety violations; and (2) a qualitative 

assessment that includes input from 

affected railroads and their employees. 

(See § 271.13 of the proposed rule for a 

full description of the process used to 

determine inadequate safety 

performance.) 

As FRA’s initial inadequate safety 

performance analysis would occur at 

least one year after an RRP final rule 

goes into effect, it is impossible to tell 

how many railroads with inadequate 

safety performance would be required to 

comply with the RRP regulation, and 

consequently how many of those might 

be small businesses. However, using a 

recent 3-year rolling average of safety 

data to test the selection analytical 

process, and accounting for those that 

might seek relief through the qualitative 

review process, FRA would expect 

between 7 and 13 Class III railroads to 

qualify initially for the program, or a 

simple average of 10; and between 3 and 

7, incrementally, per annum thereafter, 

or a simple average of 5. FRA expects 

the number of inadequate safety 

performance railroads to grow each year 

by 4 or 5 to a maximum of 40 to 45 by 

year 9 or 10, at which point it should 

flatten out or actually decline. This 

declining involvement is due to several 

factors: (1) Safety performance will 

improve; (2) after 7 years, some 

railroads will seek and receive relief 


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10984 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

from being in the program; (3) the size 

of the railroad pool being examined for 

inadequate safety performance would 

shrink as more railroads are required to 

comply with part 271; and (4) railroads 

will observe the positive behaviors and 

results of those railroads with RRPs and 

will embrace the better safety practices 

of those railroads as a model. FRA does 

not find this number of small railroads 

to be a substantial number of small 

entities when compared with the 629 

small railroads that could potentially be 

impacted (i.e., Class III railroads) in the 

industry. 

FRA intends to provide assistance to 

railroads, including small business 

entities, in the development of their 

RRPs, starting at the planning phase and 

continuing through the implementation 

phase. The proposed rule is also 

scalable in nature, and FRA would 

provide assistance to those railroads so 

that the scope and content of their RRPs 

are proportionate to their size and the 

nature of their operation. 

As indicated above, FRA would assist 

a small entity in preparing its RRP 

program and plan. FRA anticipates that 

the RRP plan for such an entity would 

be a very concise and brief document. 

FRA requests comments on these 

findings and conclusions. 

Contractors 

Some railroads use contractors to 

perform many different functions on 

their railroads. For some of these 

railroads, contractors perform safetyrelated functions, such as operating 

trains. For the purpose of assessing the 

impact of an RRP, contractors fall into 

two groups: Larger contractors who 

perform a primary operating or 

maintenance function for the railroads, 

and smaller contractors who perform 

ancillary functions to the primary 

operations. Larger contractors are 

typically large private companies, such 

as Sperry Rail Service, or part of an 

international conglomerate such as 

Balfour Beatty. Smaller contractors may 

perform such duties as brush clearing, 

painting facilities, etc. 

Safety-related policies, work rules, 

guidelines, and regulations are imparted 

to the small contractors today as part of 

their contractual obligations and 

qualification to work on the Class I 

freight railroads, and potentially to work 

for railroads with inadequate safety 

performance. FRA sees minimal 

additional burden to imparting the same 

type of information under each 

railroad’s RRP. A very small 

administrative burden may result. 

Under the proposed rule, contractors 

(small or large) who provide significant 

safety-related services are not required 

to do anything under the rule. While the 

proposed rule requires the railroad to 

involve the persons that provide 

significant safety-related services in the 

railroad’s RRP, it doesn’t require the 

entity to do any training. Thus, any 

burdens imposed on contractors would 

be indirect or taken into account in the 

contract with the pertinent railroad or 

both. FRA requests comment on these 

findings and conclusions. 

4. Description of the Projected 

Reporting, Recordkeeping, and Other 

Compliance Requirements of the Rule 

There are reporting, recordkeeping, 

and compliance costs associated with 

the proposed regulation. 

FRA believes that the added burden is 

marginal due to the proposed NPRM 

requirements. The total 10-year cost of 

this proposed rulemaking is $18.6 

million, of which FRA estimates $3.2 

million or less will be attributable to 

small entities ($3.2 million in current 

dollars, $2 million at a 7-percent 

discount rate, or $2.6 million at a 3- 

percent discount rate.) Based on FRA’s 

RIA, which has been placed in the 

docket for this proposed rulemaking, the 

average railroad with inadequate safety 

performance would incur an average of 

$13,500 (non-discounted) of burden per 

year. If on average railroads with 

inadequate safety performance were in 

the RRP for eight years, then the lifetime cost would be approximately 

$108,000. Previously, FRA sampled 

small railroads and found that revenue 

averaged approximately $4.7 million 

(not discounted) in 2006. One percent of 

average annual revenue per small 

railroad, or $47,000, is more than three 

times the average annual cost that these 

railroads will incur because of this 

proposed rule. FRA realizes that some 

railroads will have lower revenue than 

$4.7 million. However, FRA believes 

that this average provides a good 

representation of the small railroads, in 

general. 

Overall, FRA believes that the 

proposed regulation would not be a 

significant economic burden for small 

entities. However, due to the small 

number of small railroads that are 

estimated to be impacted by this 

proposed rule, the cost per railroad 

could be found to be significant. For a 

thorough presentation of cost estimates, 

please refer to the RIA, which has been 

placed in the docket for this proposed 

rulemaking. FRA expects that most of 

the skills necessary to comply with the 

proposed regulation would be 

professional hazard assessment 

personnel, and recordkeeping and 

reporting personnel. 

The following section outlines the 

potential additional burden on small 

railroads for each subpart of the 

proposed rule: 

• Subpart A—General: Risk Reduction 

Program Regulation 

The policy, purpose, and definitions 

outlined in subpart A, alone, would not 

impose a significant burden on small 

railroads. However, there is the small 

requirement for notifying employees of 

the railroad that FRA has found that the 

railroad may have inadequate safety 

performance. This subpart of the 

proposed rule would impose less than 1 

percent of the total burden for small 

entities. 

• Subpart B—Risk Reduction Program 

Requirements 

Subpart B of the proposed rule would 

have a more or less proportional effect 

directly related to the size and 

complexity of a railroad. This subpart of 

the proposed rule would impose 

approximately 63 percent of the total 

burden for small entities. The proposed 

requirements in this subpart describe 

what must be developed and placed in 

the RRP to properly implement the RRP. 

More specifically, it requires the 

development of the risk-based hazard 

analysis, risk-based hazard management 

processes, and technology 

implementation plans. Because of the 

scalable nature of the proposed rule, the 

requirements of an RRP would be much 

less complex for a small railroad than 

they would be for a Class I railroad. This 

is due to several characteristics of small 

railroads, such as the concentrated 

geography of operation in a small area, 

the short distance of operation, and a 

non-fragmented and non-diffused work 

force (in other words, most employees 

of a small railroad are located in one 

place). Hence, the number and types of 

hazards for a small railroad should be 

limited. Also, such RRP requirements as 

technology plans should not be 

burdensome. A small railroad is very 

limited in the investments it can place 

in new technologies, and what they do 

invest in would quite likely be a triedand-true technology that has been 

thoroughly tested elsewhere. 

• Subpart C—Risk Reduction Program 

Plan Requirements 

Subpart C of the proposed rule would 

have a more or less proportional effect 

directly related to the size and 

complexity of a railroad. In other words, 

it would have less impact on small 

entities than it would on Class I 

railroads. This subpart of the proposed 

rule would impose approximately 23 

percent of the total burden for small 


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entities. These proposed requirements 

describe what must be developed and 

placed in the RRP plan to properly 

implement the RRP. Specifically, it 

requires a plan statement on each 

element of the RRP, including safety 

policy and goals, system description, 

consultation process, risk-based hazard 

management processes, technology 

plans, internal assessment process, and 

an RRP implementation plan. This 

proposed subpart is primarily the 

paperwork or written plan that supports 

the processes and programs in the RRP. 

• Subpart D—Review, Approval, and 

Retention of Risk Reduction Program 

Plans 

Subpart D of the proposed rule would 

impose less than 1 percent of the total 

burden for small entities. The proposed 

requirements of this subpart are for the 

initial delivery and review of the RRP 

plan, as well as delivery of any ongoing 

amendments. Since this is initially only 

expected to have 10 small railroads 

submitting plans for approval and 

approximately 5 railroads each year 

thereafter, this subpart should have a 

very small economic impact. 

• Subpart E—Internal Assessments 

Subpart E of the proposed rule would 

impose approximately 12 percent of the 

total burden for small entities. This 

burden is for the ongoing cost for the 

small railroads to perform an internal 

assessment and report on internal audits 

on annual basis. As noted above, 

initially very few small railroads would 

be performing internal assessments, 

which would serve to minimize the 

economic impact on small railroads. 

• Subpart F—External Audits 

Subpart F of the proposed rule would 

impose approximately 1 percent of the 

total burden for small entities. This 

burden is for the ongoing cost for the 

small railroads to host an external audit 

by FRA or its designees on a periodic 

basis. This includes the burden to 

produce an improvement plan if such 

were required as a result of the external 

audit findings. FRA does not expect 

more than five of these railroads to 

receive an external audit for any given 

year. 

Market and Competition Considerations 

The railroad industry has several 

significant barriers to entry, such as the 

need to own or otherwise obtain access 

to rights-of-way and the high capital 

expenditure needed to purchase a fleet, 

as well as track and equipment. 

Furthermore, the small railroads under 

consideration would potentially be 

competing only with the trucking 

industry and typically deal with the 

transport of commodities or goods that 

are not truck-friendly. Thus, while this 

proposed rule would have an economic 

impact on Class I freight railroads and 

railroads with inadequate safety 

performance, it should not have an 

impact on the competitive position of 

small railroads. FRA requests comment 

on these findings and conclusions. 

5. Identification of Any Duplicative, 

Overlapping, or Conflicting Federal 

Rules 

FRA is not aware of any relevant 

Federal rules that may duplicate, 

overlap, or conflict with the proposed 

rule. In fact, the rule would support 

most other safety regulations for railroad 

operations. 

The Federal Transit Administration 

(FTA) first implemented requirements 

similar to an RRP in 49 CFR part 659 in 

1995, and its requirements can be much 

more systemic and encompassing. 

However, FTA’s part 659 program 

applies to only rapid transit systems, or 

portions thereof, that are not subject to 

FRA’s rules. See 49 CFR 659.3 and 

659.5. Therefore, FTA’s part 659 does 

not apply to any of the railroads that are 

within the scope of the proposed RRP 

rule. 

FRA invites all interested parties to 

submit data and information regarding 

the potential economic impact on small 

entities that would result from the 

adoption of the proposals in this NPRM. 

As noted above FRA has estimated that 

railroads with inadequate safety 

performance would incur less than 12 

percent of the total cost of this proposed 

rule. Based on FRA’s RIA, the average 

railroad with inadequate safety 

performance would incur an average of 

$13,500 (non-discounted) of burden per 

year. If on average railroads with 

inadequate safety performance were in 

the RRP for eight years, then the lifetime cost would be approximately 

$108,000. Previously, FRA sampled 

small railroads and found that revenue 

averaged approximately $4.7 million 

(not discounted) in 2006. One percent of 

average annual revenue per small 

railroad, or $47,000, is more than three 

times the average annual cost that these 

railroads will incur because of this 

proposed rule. FRA realizes that some 

railroads will have lower revenue than 

$4.7 million. However, FRA believes 

that this average provides a good 

representation of the small railroads, in 

general. FRA specifically requests 

comments as to whether small railroads 

would incur a significant economic 

impact from this proposed rule. FRA 

will consider all comments received in 

the public comment process when 

making a final determination regarding 

the economic impact on small entities. 

C. Federalism 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. Where a 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This NPRM has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

proposed rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that this proposed rule 

will not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

This NPRM proposes to add part 271, 

Risk Reduction Programs. FRA is not 

aware of any State having regulations 

similar to proposed part 271. However, 

FRA notes that this part could have 

preemptive effect by the operation of 

law under a provision of the former 

Federal Railroad Safety Act of 1970, 

repealed and codified at 49 U.S.C. 

20106 (Sec. 20106). Sec. 20106 provides 

that States may not adopt or continue in 

effect any law, regulation, or order 

related to railroad safety or security that 

covers the subject matter of a regulation 

prescribed or order issued by the 


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Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘essentially 

local safety or security hazard’’ 

exception to Sec. 20106. Although FRA 

is proposing to specify in proposed 

§ 271.11(c) that state discovery rules and 

sunshine laws that could be used to 

require the disclosure of information 

protected by § 271.11(a) are preempted, 

the purpose of this language is only to 

clarify the preemptive effect of Sec. 

20106, and is not intended to have 

preemptive effect that goes beyond the 

operation of Sec. 20106. The proposed 

information protection provisions 

clearly relate to matters of railroad 

safety because, as previously discussed, 

49 U.S.C. 20119(b) authorizes FRA to 

issue a rule governing the discovery and 

use of risk analysis information in 

litigation. 

In sum, FRA has analyzed this 

proposed rule in accordance with the 

principles and criteria contained in 

Executive Order 13132. As explained 

above, FRA has determined that this 

proposed rule has no federalism 

implications, other than preemption of 

State laws under 49 U.S.C. 20106 and 

20119. Accordingly, FRA has 

determined that preparation of a 

federalism summary impact statement 

for this proposed rule is not required. 

D. International Trade Impact 

Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. This rulemaking is 

purely domestic in nature and is not 

expected to affect trade opportunities 

for U.S. firms doing business overseas or 

for foreign firms doing business in the 

United States. 

E. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule are 

being submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections that contain the new 

information collection requirements are 

duly designated, and the estimated time 

to fulfill each requirement is as follows: 

CFR section/subject Respondent universe Total annual responses Average time per 

response 

Total 

annual 

burden 

hours 

271.7—Waiver Petitions to FRA ................................ 22 railroads ............... 1 petition ...................... 80 hours ..................... 80 

271.13—Determination of Inadequate Safety Performance (ISP)—Notice to Employees of ISP 

Designation by FRA.

22 railroads ............... 120 notices .................. 30 minutes ................. 60 

—Employee Confidential Comments to FRA regarding RR ISP Designation.100 employees .......... 10 comments ............... 30 minutes ................. 5 

—RR Documentation to FRA Refuting ISP Designation.10 railroads ............... 10 document ................ 8 hours ....................... 80 

271.101(a)—Risk Reduction Programs (RRPs)— 

Class I Railroads.

7 railroads ................. 7 RRPs ........................ 6,987 hours ................ 48,910 

—Risk Reduction Programs (RRPs)—Inadequate Safety Performance (ISP) Railroads.10 railroads ............... 10 RRPs ...................... 343 hours ................... 3,430 

(c)—Communication by RRs that host passenger train service with Class I RRs subject 

to FRA System Safety Program Requirements.

7 railroads ................. 40 consults .................. 2 hours ....................... 80 

(d)—RR Identification/Communication with railroads performing significant safety-related 

services—Class I RRs.

7 railroads ................. 318 consults ................ 2 hours ....................... 636 

—RR Identification/Communication with contractors performing significant safety related 

services.

7 railroads ................. 1,488 consult ............... 1 hour ........................ 1,488 

(d)—ISP RRs identification/communication w/

entities performing significant safety-related 

services.

10 railroads ............... 10 consults .................. 4 hours ....................... 40 

271.107—Reporting to management risk-based 

HMP Activities—Class I.

7 railroads ................. 84 reports .................... 30 minutes ................. 42 

—Reporting to management—ISP RRs ............. 10 railroads ............... 120 reports .................. 3 hours ....................... 360 

271.111—Implementation Training.

—Employee RRP training—Class I RR ............. 150,000 employees ... 1,400 worker ................ 2 hours ....................... 2,800 

—Replacement/new employees: Class I ............ 150,000 employees ... 140 workers ................. 2 hours ....................... 280 

—Employee RRP training—ISP RRs ................. 1,000 employees ....... 100 workers ................. 2 hours ....................... 200 

—Employee RRP training records (Class I RRs 

+ ISP RRs).

17 railroads ............... 1,640 records .............. 3 minutes ................... 82 

271.201/203—Written Risk Reduction Plans 

(RRPs)—Adoption and Implementation of RRP 

Plans—Class I.

7 railroads ................. 7 RRP Plans ................ 1,152 hours ................ 8,064 

—Written RRP Plans—ISP RRs ........................ 10 railroads ............... 10 RRP Plans .............. 240 hours ................... 2,400 

271.207—RR Good Faith Consultation w/Directly Affected Employees—Class I RRs.7 Railroads ................ 7 consults .................... 200 hours ................... 1,400 

—RR Good Faith Consultations—ISP RRs ....... 10 Railroads .............. 10 consults .................. 20 hours ..................... 200 

—RR Notification to Employees of Consultation 

Meeting—Class I RRs.

7 Railroads ................ 2 notices ...................... 8 hours ....................... 16 

—ISP RR Notification to Employees .................. 10 Railroads .............. 1 notice ........................ 30 minutes ................. 1 


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CFR section/subject Respondent universe Total annual responses Average time per 

response 

Total 

annual 

burden 

hours 

—Voluntarily compliant RR consultation with directly affected employees on RRP Plan contents.72 railroads ............... 1 consult/statement ..... 20 hours ..................... 20 

—Copy of RRP Plan/Consultation Statement to 

General Chair of Labor Union and to Individuals Identified in RRP Plan Service List.

7 Railroads ................ 380 plan copies + 380 2 minutes ................... 25 

—Statements from Directly Affected Employees—Class I RRs.10 Labor Unions ....... 3 statements ................ 6 hours ....................... 18 

271.209—Substantive Amendments to RRP Plan— 

Class I RRs.

7 Railroads ................ 7 amended plans ......... 40 hours ..................... 280 

Substantive Amendments to RRP Plan—ISP 

RRs.

10 Railroads .............. 10 amended plans ....... 4 hours ....................... 40 

271.301—Filing of RRP Plan w/FRA—Class I RRs + 

ISP RRs.

17 railroads ............... 17 filed plans ............... 2 hours ....................... 34 

—Class I RR corrected RRP Plan ..................... 7 railroads ................. 2 RRP plans ................ 2 hours ....................... 4 

—FRA requested Class I RR consultation with 

directly affected employees regarding substantive corrections/changes to RRP Plan.

7 railroads ................. 2 consulting statements 3 hours ....................... 6 

271.303—Amendments Consultation w/Directly Affected Employees on Substantive Amendments to 

RRP Plan—Class I RRs + ISP RRs.

17 railroads ............... 2 consults .................... 60 minutes ................. 2 

—Amended RRP Plan—Class I RRs ................. 7 railroads ................. 7 plans ......................... 6 hours ....................... 42 

—Amended RRP Plan—ISP RRs ...................... 10 railroads ............... 1 plan ........................... 1 hour ........................ 1 

—Amended RRP Plan Disapproved by FRA 

and Requiring Correction.

7 Railroads ................ 1 corrected RRP Plan 80 hours ..................... 80 

271.307—Retention of RRP Plans—Copies of RRP 

Plan/Amendments by RR at System/Division 

Headquarters.

17 railroads ............... 34 plan copies ............. 10 minutes ................. 6 

217.401/403—RR Internal Assessment/Improvement 

Plans—Class I RRs.

7 railroads ................. 7 plans ......................... 120 hours ................... 840 

—ISP RR Improvement Plans ............................ 10 railroads ............... 10 plans ....................... 32 hours ..................... 320 

271.405—Internal Assessment Report Copy to 

FRA—Class I RRs.

7 railroads ................. 7 reports/copies ........... 8 hours ....................... 56 

—Internal Assessment Report Copy to FRA— 

ISP RRs.

10 railroads ............... 10 reports/copies ......... 2 hours ....................... 20 

271.503—External Audit Improvement Plans—Submission of Improvement Plans upon FRA Written 

Notice of Agency Audit Results—Class I RRs.

7 railroads ................. 2 plans ......................... 40 hours ..................... 80 

—External Audit Improvement Plans—Submission of Improvement Plans upon FRA Written 

Notice of Agency Audit Results—Class I RRs.

10 railroads ............... 1 plan ........................... 4 hours ....................... 4 

—Submission of Amended Improvement Plan 

after FRA Disapproval.

7 railroads ................. 1 plan ........................... 8 hours ....................... 8 

—Status Report Requested by FRA concerning 

Implementation of Improvements in Improvement Plan.

7 railroads ................. 1 status report ............. 8 hours ....................... 8 

Appendix B—Request by FRA for Additional Information/Documents to determine whether Railroad 

has met Good Faith and Best Efforts Consultation 

Requirements of Section 271.207.

7 railroads ................. 3 documents ................ 40 hours ..................... 120 

—Further Railroad Consultation w/employees 

after determination by FRA that railroad did 

not use Good Faith/Best Efforts.

7 railroads ................. 1 consult ...................... 8 hours ....................... 8 

—Meeting to discuss Administrative Details of 

Consultation Process during the time between Initial Meeting and Applicability Date— 

Class I RRs.

7 railroads ................. 7 meetings/consults ..... 2 hours ....................... 14 

—Meeting to discuss Administrative Details of 

Consultation Process during the time between Initial Meeting and Applicability Date 

–ISP RRs.

10 railroads ............... 10 meetings/consults ... 1 hour ........................ 10 

—Draft RRP Plan Proposal to Employees—ISP 

RRs.

10 railroads ............... 2 proposals/copies ...... 20 hours ..................... 40 

—Employee comments on RRP Plan Draft Proposal.100 Employees ......... 6 comments ................. 1 hour ........................ 6 

The estimates in this table are based 

upon FRA’s general experience and 

expertise regarding the railroad industry 

and the development of plans. All 

estimates include the time for reviewing 

instructions; searching existing data 

sources; gathering or maintaining the 

needed data; and reviewing the 

information. Pursuant to 44 U.S.C. 


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3506(c)(2)(B), FRA solicits comments 

concerning: whether these information 

collection requirements are necessary 

for the proper performance of the 

functions of FRA, including whether the 

information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. 

Kimberly Toone at 202–493–6132. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Kimberly Toone, Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE., 3rd Floor, 

Washington, DC 20590. Comments may 

also be submitted via email to Mr. 

Brogan or Ms. Toone at the following 

address: Robert.Brogan@dot.gov; 

Kim.Toone@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

F. Environmental Assessment 

FRA has evaluated this proposed rule 

in accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

See 64 FR 28547, May 26, 1999. Section 

4(c)(20) reads as follows: ‘‘(c) Actions 

categorically excluded. Certain classes 

of FRA actions have been determined to 

be categorically excluded from the 

requirements of these Procedures as 

they do not individually or 

cumulatively have a significant effect on 

the human environment. * * * The 

following classes of FRA actions are 

categorically excluded: * * * (20) 

Promulgation of railroad safety rules 

and policy statements that do not result 

in significantly increased emissions or 

air or water pollutants or noise or 

increased traffic congestion in any mode 

of transportation.’’ 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed rule is not a major Federal 

action significantly affecting the quality 

of the human environment. 

G. Unfunded Mandates Reform Act of 

1995 

Pursuant to sec. 201 of the Unfunded 

Mandates Reform Act of 1995 (Public 

Law 104–4, 2 U.S.C. 1531), each Federal 

agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. For the year 2010, this monetary 

amount of $100,000,000 has been 

adjusted to $143,100,000 to account for 

inflation. This proposed rule would not 

result in the expenditure of more than 

$143,100,000 by the public sector in any 

one year, and thus preparation of such 

a statement is not required. 

H. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355, May 22, 

2001. Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates, or is expected to lead to 

the promulgation of, a final rule or 

regulation (including a notice of 

inquiry, advance notice of proposed 

rulemaking, and notice of proposed 

rulemaking) that (1)(i) is a significant 

regulatory action under Executive Order 

12866 or any successor order and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this NPRM in accordance 

with Executive Order 13211. FRA has 

determined that this NPRM will not 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

Consequently, FRA has determined that 

this regulatory action is not a 

‘‘significant energy action’’ within the 

meaning of Executive Order 13211. 

I. Privacy Act Statement 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, including any personal information 

the commenter provides, to 

www.regulations.gov, as described in 

the system of records notice (DOT/ALL– 

14 FDMS), which can be reviewed at 

www.dot.gov/privacy. 

List of Subjects in 49 CFR Part 271 

Penalties; Railroad safety; Reporting 

and recordkeeping requirements; and 

Risk reduction. 

The Proposal 

In consideration of the foregoing, FRA 

proposes to add part 271 to chapter II, 

subtitle B of title 49, Code of Federal 

Regulations, to read as follows: 

PART 271—RISK REDUCTION 

PROGRAM 

Subpart A—General 

Sec. 

271.1 Purpose and scope. 

71.3 Application. 

71.5 Definitions. 

271.7 Waivers. 


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271.9 Penalties and responsibility for 

compliance. 

271.11 Discovery and admission as 

evidence of certain information. 

271.13 Determination of inadequate safety 

performance. 

271.15 Voluntary compliance. 

Subpart B—Risk Reduction Program 

Requirements 

271.101 Risk reduction programs. 

271.103 Risk-based hazard management 

program. 

271.105 Safety performance evaluation. 

271.107 Safety outreach. 

271.109 Technology analysis and 

technology implementation plan. 

271.111 Implementation and support 

training. 

Subpart C—Risk Reduction Program Plan 

Requirements 

271.201 General. 

271.203 Policy, purpose and scope, and 

goals. 

271.205 System description. 

271.207 Consultation process description. 

271.209 Consultation on amendments. 

271.211 Risk-based hazard management 

program process. 

271.213 Safety performance evaluation 

process. 

271.215 Safety outreach process. 

271.217 Technology implementation plan 

process. 

271.219 Implementation and support 

training plan. 

271.221 Internal assessment process. 

271.223 RRP implementation plan. 

Subpart D—Review, Approval, and 

Retention of Risk Reduction Program Plans 

271.301 Filing and approval. 

271.303 Amendments. 

271.305 Reopened review. 

271.307 Retention of RRP plans. 

Subpart E—Internal Assessments 

271.401 Annual internal assessments. 

271.403 Internal assessment improvement 

plans. 

271.405 Internal assessment reports. 

Subpart F—External Audits 

271.501 External audits. 

271.503 External audit improvement plans. 

Appendix A to Part 271—Schedule of Civil 

Penalties [Reserved] 

Appendix B to Part 271—Federal Railroad 

Administration Guidance on the Risk 

Reduction Program Consultation Process 

Appendix C to Part 271—Procedures for 

Submission of Risk Reduction Program 

Plans and Statements from Directly 

Affected Employees 

Authority: 49 U.S.C. 20103, 20106–20107, 

20118–20119, 20156, 21301, 21304, 21311; 

28 U.S.C. 2461, note; and 49 CFR 1.89. 

Subpart A—General 

§ 271.1 Purpose and scope. 

(a) The purpose of this part is to 

improve railroad safety through 

structured, proactive processes and 

procedures developed and implemented 

by railroads. Each railroad subject to 

this part must establish a Risk 

Reduction Program (RRP) that 

systematically evaluates railroad safety 

hazards on its system and manages the 

risks associated with those hazards in 

order to reduce the number and rates of 

railroad accidents/incidents, injuries, 

and fatalities. 

(b) This part prescribes minimum 

Federal safety standards for the 

preparation, adoption, and 

implementation of RRPs. This part does 

not restrict railroads from adopting and 

enforcing additional or more stringent 

requirements not inconsistent with this 

part. 

(c) This part prescribes the protection 

of information generated solely for the 

purpose of developing, implementing, 

or evaluating an RRP under this part. 

(d) An RRP required by this part is not 

intended to address and should not 

address the safety of employees while 

performing inspections, tests, and 

maintenance, except where FRA has 

already addressed workplace safety 

issues, such as blue signal protection in 

part 218 of this chapter. FRA does not 

intend to approve any specific portion 

of an RRP plan that relates to employee 

working conditions. 

§ 271.3 Application. 

(a) Except as provided in paragraph 

(b) of this section, this part applies to— 

(1) Class I railroads; 

(2) Railroads determined to have 

inadequate safety performance pursuant 

to § 271.13; and 

(3) Railroads that voluntarily comply 

with the requirements of this part 

pursuant to § 271.15. 

(b) This part does not apply to: 

(1) Rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation; 

(2) Tourist, scenic, historic, or 

excursion operations, whether on or off 

the general railroad system of 

transportation; 

(3) Operation of private cars, 

including business/office cars and 

circus trains; 

(4) Railroads that operate only on 

track inside an installation that is not 

part of the general railroad system of 

transportation (i.e., plant railroads, as 

defined in § 271.5); and 

(5) Commuter or intercity passenger 

railroads that are subject to Federal 

system safety program requirements. 

§ 271.5 Definitions. 

As used in this part only— 

Accident/incident means— 

(1) Any impact between railroad ontrack equipment and a highway user at 

a highway-rail grade crossing. The term 

‘‘highway user’’ includes automobiles, 

buses, trucks, motorcycles, bicycles, 

farm vehicles, pedestrians, and all other 

modes of surface transportation 

(motorized and un-motorized); 

(2) Any collision, derailment, fire, 

explosion, act of God, or other event 

involving operation of railroad on-track 

equipment (standing or moving) that 

results in reportable damages greater 

than the current reporting threshold 

identified in part 225 of this chapter to 

railroad on-track equipment, signals, 

track, track structures, and roadbed; 

(3) Each death, injury, or occupational 

illness that is a new case and meets the 

general reporting criteria listed in 

§ 225.19(d)(1) through (6) of this chapter 

if any event or exposure arising from the 

operation of a railroad is a discernible 

cause of a significant aggravation to a 

pre-existing injury or illness. The event 

or exposure arising from the operation 

of a railroad need only be one of the 

discernible causes; it need not be the 

sole or predominant cause. 

Administrator means the 

Administrator of the Federal Railroad 

Administration or the Administrator’s 

delegate. 

FRA means the Federal Railroad 

Administration. 

FRA Associate Administrator means 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer, Federal 

Railroad Administration, or the 

Associate Administrator’s delegate. 

Fully implemented means that all 

elements of an RRP as described in the 

RRP plan are established and applied to 

the safety management of the railroad. 

Hazard means any real or potential 

condition that can cause injury, illness, 

or death; damage to or loss of a system, 

equipment, or property; or damage to 

the environment. 

Inadequate safety performance means 

safety performance that FRA has 

determined to be inadequate based on 

the criteria described in § 271.13. 

Mitigation strategy means an action or 

program intended to reduce or eliminate 

the risk associated with a hazard. 

Person means an entity of any type 

covered under 1 U.S.C. 1, including, but 

not limited to, the following: A railroad; 

a manager, supervisor, official, or other 

employee or agent of a railroad; any 

owner, manufacturer, lessor, or lessee of 

railroad equipment, track, or facilities; 

any independent contractor or 

subcontractor providing goods or 

services to a railroad; and any employee 

of such owner, manufacturer, lessor, 

lessee, or independent contractor or 

subcontractor. 

Pilot project means a limited scope 

project used to determine whether 


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quantitative proof suggests that a 

particular system or mitigation strategy 

has potential to succeed on a full-scale 

basis. 

Plant railroad means a plant or 

installation that owns or leases a 

locomotive, uses that locomotive to 

switch cars throughout the plant or 

installation, and is moving goods solely 

for use in the facility’s own industrial 

processes. The plant or installation 

could include track immediately 

adjacent to the plant or installation if 

the plant railroad leases the track from 

the general system railroad and the lease 

provides for (and actual practice entails) 

the exclusive use of that trackage by the 

plant railroad and the general system 

railroad for purposes of moving only 

cars shipped to or from the plant. A 

plant or installation that operates a 

locomotive to switch or move cars for 

other entities, even if solely within the 

confines of the plant or installation, 

rather than for its own purposes or 

industrial processes, is not considered a 

plant railroad because the performance 

of such activity makes the operation 

part of the general railroad system of 

transportation. 

Positive train control system means a 

system designed to prevent train-to-train 

collisions, overspeed derailments, 

incursions into established work zone 

limits, and the movement of a train 

through a switch left in the wrong 

position, as described in subpart I of 

part 236 of this chapter. 

Railroad means— 

(1) Any form of non-highway ground 

transportation that runs on rails or 

electromagnetic guideways, including— 

(i) Commuter or other short-haul rail 

passenger service in a metropolitan or 

suburban area and commuter railroad 

service that was operated by the 

Consolidated Rail Corporation on 

January 1, 1979; and 

(ii) High speed ground transportation 

systems that connect metropolitan areas, 

without regard to whether those systems 

use new technologies not associated 

with traditional railroads, but does not 

include rapid transit operations in an 

urban area that are not connected to the 

general railroad system of 

transportation; and 

(2) A person or organization that 

provides railroad transportation, 

whether directly or by contracting out 

operation of the railroad to another 

person. 

Risk means the combination of the 

probability (or frequency of occurrence) 

and the consequence (or severity) of a 

hazard. 

Risk-based HMP means a risk-based 

hazard management program. 

Risk reduction means the formal, topdown, organization-wide approach to 

managing safety risk and assuring the 

effectiveness of safety risk mitigation 

strategies. It includes systematic 

procedures, practices, and policies for 

the management of safety risk. 

RRP means a Risk Reduction Program. 

RRP plan means a Risk Reduction 

Program plan. 

Safety culture means the shared 

values, actions, and behaviors that 

demonstrate a commitment to safety 

over competing goals and demands. 

Safety performance means a realized 

or actual safety accomplishment relative 

to stated safety objectives. 

Safety outreach means the 

communication of safety information to 

support the implementation of an RRP 

throughout a railroad. 

Senior management means personnel 

at the highest level of a railroad’s 

management who are responsible for 

making major policy decisions and longterm business plans regarding the 

operation of the railroad. 

STB means the Surface 

Transportation Board of the United 

States. 

Tourist, scenic, historic, or excursion 

operations means railroad operations 

that carry passengers, often using 

antiquated equipment, with the 

conveyance of the passengers to a 

particular destination not being the 

principal purpose. Train movements of 

new passenger equipment for 

demonstration purposes are not tourist, 

scenic, historic, or excursion operations. 

§ 271.7 Waivers. 

(a) A person subject to a requirement 

of this part may petition the 

Administrator for a waiver of 

compliance with such requirement. The 

filing of such a petition does not affect 

that person’s responsibility for 

compliance with that requirement while 

the petition is being considered. 

(b) Each petition for a waiver under 

this section shall be filed in the manner 

and contain the information required by 

part 211 of this chapter. 

(c) If the Administrator finds that a 

waiver of compliance is in the public 

interest and is consistent with railroad 

safety, the Administrator may grant the 

waiver subject to any conditions the 

Administrator deems necessary. 

§ 271.9 Penalties and responsibility for 

compliance. 

(a) Any person that violates any 

requirement of this part or causes the 

violation of any such requirement is 

subject to a civil penalty of at least $650 

and not more than $25,000 per 

violation, except that: Penalties may be 

assessed against individuals only for 

willful violations, and, where a grossly 

negligent violation or a pattern of 

repeated violations has created an 

imminent hazard of death or injury to 

individuals, or has caused death or 

injury, a penalty not to exceed $105,000 

per violation may be assessed. Each day 

a violation continues shall constitute a 

separate offense. Any person that 

knowingly and willfully falsifies a 

record or report required by this part 

may be subject to criminal penalties 

under 49 U.S.C. 21311 (formerly 

codified in 45 U.S.C. 438(e)). Appendix 

A to this part contains a schedule of 

civil penalty amounts used in 

connection with this part. 

(b) Although the requirements of this 

part are stated in terms of the duty of 

a railroad, when any person, including 

a contractor or subcontractor to a 

railroad, performs any function covered 

by this part, that person (whether or not 

a railroad) shall perform that function in 

accordance with this part. 

§ 271.11 Discovery and admission as 

evidence of certain information. 

(a) Any information (including plans, 

reports, documents, surveys, schedules, 

lists, or data) compiled or collected for 

the sole purpose of developing, 

implementing, or evaluating an RRP 

under this part, including a railroad 

carrier’s analysis of its safety risks 

conducted pursuant to § 271.103(b) and 

a statement of the mitigation measures 

with which it would address those risks 

created pursuant to § 271.103(c), shall 

not be subject to discovery, admitted 

into evidence, or considered for other 

purposes in a Federal or State court 

proceeding for damages involving 

personal injury, wrongful death, or 

property damage. 

(b) This section does not affect the 

discovery, admissibility, or 

consideration for other purposes of 

information (including plans, reports, 

documents, surveys, schedules, lists, or 

data) compiled or collected for a 

purpose other than that specifically 

identified in paragraph (a) of this 

section. Such information shall 

continue to be discoverable, admissible 

into evidence, or considered for other 

purposes if it was discoverable, 

admissible, or considered for other 

purposes prior to the existence of this 

section. This includes such information 

that either: 

(1) Existed prior to [365 DAYS AFTER 

THE DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER]; 

(2) Was compiled or collected prior to 

[365 DAYS AFTER THE DATE OF 

PUBLICATION OF THE FINAL RULE 


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IN THE FEDERAL REGISTER] and that 

continues to be compiled or collected; 

or 

(3) Is compiled or collected after [365 

DAYS AFTER THE DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER]. 

(c) State discovery rules and sunshine 

laws that could be used to require the 

disclosure of information protected by 

paragraph (a) of this section are 

preempted. 

§ 271.13 Determination of inadequate 

safety performance. 

(a) General. (1) This section describes 

FRA’s methodology for determining 

which railroads are required to establish 

an RRP because they have inadequate 

safety performance. FRA’s methodology 

will consist of a two-phase annual 

analysis, comprised of both a 

quantitative analysis and qualitative 

assessment, which will include all 

railroads except for: 

(i) Railroads excluded from this part 

under § 271.3(b); 

(ii) Railroads already required to 

comply with this part; 

(iii) Railroads that are voluntarily 

complying with this part under 

§ 271.15; and 

(iv) Except as provided in paragraph 

(a)(2) of this section, new start-up 

railroads that have reported accident/

incident data to FRA pursuant to part 

225 of this chapter for fewer than three 

years. 

(2) Notwithstanding paragraph 

(a)(1)(iv) of this section, railroads 

formed through amalgamation of 

operations (for example, railroads 

formed through consolidations, mergers, 

or acquisitions of control) will be 

included in the analysis using the 

combined data of the pre-amalgamation 

entities. 

(b) Quantitative analysis. (1) 

Methodology. The first phase of FRA’s 

annual analysis will be a statisticallybased quantitative analysis of each 

railroad within the scope of the 

analysis, using historical safety data 

maintained by FRA for the three most 

recent full calendar years. The purpose 

of the quantitative analysis is to make a 

threshold identification of railroads that 

possibly have inadequate safety 

performance. This quantitative analysis 

will calculate the following four factors: 

(i) A railroad’s number of on-duty 

employee fatalities during the 3-year 

period, calculated using ‘‘Worker on 

Duty-Railroad Employee (Class A)’’ 

information reported on FRA Form 

6180.55a pursuant to FRA’s accident/

incident reporting regulations in part 

225 of this chapter; 

(ii) A railroad’s on-duty employee 

injury/illness rate, calculated using 

‘‘Worker on Duty-Railroad Employee 

(Class A)’’ information reported on FRA 

Forms 6180.55a and 6180.55 pursuant 

to FRA’s accident/incident reporting 

regulations in part 225 of this chapter. 

This rate will be calculated using the 

following formula, which gives the rate 

of employee injuries and occupational 

illnesses per 200,000 employee hours 

over a 3-year period: 

Injury/Illness Rate = (Total FRA Reportable 

On-Duty Employee Injuries + Total FRA 

Reportable On-Duty Employee 

Occupational Illnesses over a 3-year 

period) ÷ (Total Employee Hours over a 

3-year period/200,000) 

(iii) A railroad’s rail equipment 

accident/incident rate, calculated using 

information reported on FRA Forms 

6180.54 and 6180.55 pursuant to FRA’s 

accident/incident reporting regulations 

in part 225 of this chapter. This rate will 

be calculated using the following 

formula, which gives the rate of rail 

equipment accidents/incidents per 

1,000,000 train miles over a 3-year 

period: 

Rail Equipment Accident/Incident Rate = 

Total FRA Reportable Rail Equipment 

Accidents/Incidents over a 3-year period 

÷ (Total Train Miles over a 3-year period/ 

1,000,000) 

(iv) A railroad’s violation rate. This 

rate will be calculated using the 

following formula, which gives the rate 

of violations issued by FRA to a railroad 

per 1,000,000 train miles over a 3-year 

period: 

Violation Rate = Total FRA Violations over 

a 3-year period ÷ (Total Train Miles over a 

3-year period/1,000,000) 

(2) Identification. The quantitative 

analysis will identify railroads as 

possibly having inadequate safety 

performance if at least one of the 

following two conditions exists within 

the scope and timeframe of the analysis: 

(i) A railroad has one or more fatality; 

or 

(ii) A railroad is at or above the 95th 

percentile in at least two of three factors 

described in paragraphs (b)(1)(ii) 

through (iv) of this section. 

(c) Qualitative assessment. The 

second phase of FRA’s analysis will be 

a qualitative assessment of railroads 

identified in the quantitative analysis as 

possibly having inadequate safety 

performance. 

(1) Notification and railroad/

employee comment. FRA will notify a 

railroad in writing if it will be subject 

to a qualitative assessment because it 

was identified in the quantitative 

analysis as possibly having inadequate 

safety performance. 

(i) No later than 15 days after 

receiving FRA’s written notice, a 

railroad shall notify its employees of 

FRA’s written notice. This employee 

notification shall be posted at all 

locations where the railroad reasonably 

expects its employees to report and to 

have an opportunity to observe the 

notice. The notification shall be posted 

and remain continuously displayed 

until 45 days after FRA’s initial written 

notice. Employees who do not have a 

regular on-duty point for reporting to 

work shall be notified by other means, 

in accordance with the railroad’s 

standard practice for communicating 

with employees. The notification shall 

inform railroad employees that they 

may confidentially submit comments to 

FRA regarding the railroad’s safety 

performance for a period of 45 days 

following FRA’s initial written notice, 

and shall contain instructions for doing 

so. 

(ii) No later than 45 days after 

receiving FRA’s written notice, a 

railroad may provide FRA 

documentation supporting any claims 

that the railroad does not have 

inadequate safety performance. 

(2) Methodology. No later than 90 

days after providing the initial notice to 

a railroad identified by the quantitative 

analysis, FRA will conduct a qualitative 

assessment of the identified railroad and 

make a final determination regarding 

whether it has inadequate safety 

performance. The qualitative assessment 

will consider any documentation 

provided by the railroad, comments 

submitted by railroad employees, and 

any other pertinent information. 

(d) Final notification and compliance. 

FRA will provide a final written notice 

to each railroad that receives an initial 

written notice, informing the railroad 

whether or not FRA determines that the 

railroad has demonstrated inadequate 

safety performance. A railroad with 

inadequate safety performance shall 

develop and implement an RRP meeting 

the requirements of this part. As 

provided by § 271.301(a), a railroad with 

inadequate safety performance shall 

submit to FRA an RRP plan no later 

than 90 days after receiving final written 

notice from FRA that it shall comply 

with this part, or no later than [545 

DAYS AFTER DATE OF PUBLICATION 

OF THE FINAL RULE IN THE 

FEDERAL REGISTER], whichever is 

later. 

(e) Compliance. A railroad with 

inadequate safety performance shall 

comply with the requirements of this 

part for a minimum period of five years, 

running from the date on which FRA 

approves the railroad’s RRP plan 

pursuant to subpart D of this part. 


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(f) Petition. After the five-year 

compliance period, the railroad may 

petition FRA for approval to 

discontinue compliance with this part. 

A petition shall be filed according to the 

procedures for waivers contained in part 

211 of this chapter. Upon receiving a 

petition, FRA will reevaluate the 

railroad’s safety performance for the 

purpose of determining whether the 

railroad’s RRP has resulted in 

significant and sustained safety 

improvements, and whether these 

measured improvements are likely 

sustainable in the long term. FRA’s 

evaluation will include a quantitative 

analysis as described in paragraph (b) of 

this section. FRA will also examine 

qualitative factors and review 

information from FRA RRP audits and 

other relevant sources. After completing 

its evaluation, FRA will notify the 

railroad in writing whether or not it 

shall be required to continue 

compliance with this part. 

§ 271.15 Voluntary compliance. 

(a) General. A railroad not otherwise 

subject to this part may voluntarily 

comply by establishing and fully 

implementing an RRP meeting the 

requirements of this part. A voluntary 

RRP shall be supported by an RRP plan 

that has been submitted to FRA for 

approval pursuant to the requirements 

of subpart D of this part. After FRA has 

approved its RRP plan, a voluntarilycompliant railroad could be subject to 

civil penalties or other enforcement 

action for failing to comply with the 

requirements of this part. 

(b) Duration. A voluntarily-compliant 

railroad will be required to comply with 

the requirements of this part for a 

minimum period of five years, running 

from the date on which FRA approves 

the railroad’s plan pursuant to subpart 

D of this part. 

(c) Petition. After this five-year 

period, a voluntarily-compliant railroad 

may petition FRA for approval to 

discontinue compliance with this part. 

This petition shall be filed according to 

the procedures for waivers contained in 

part 211 of this chapter. 

(d) Discovery and admission as 

evidence of certain information. The 

information protection provisions found 

in § 271.11 apply only to information 

compiled or collected pursuant to a 

voluntary RRP that is conducted in 

accordance with the requirements of 

this part. 

Subpart B—Risk Reduction Program 

Requirements 

§ 271.101 Risk reduction programs. 

(a) Program required. Each railroad 

shall establish and fully implement an 

RRP meeting the requirements of this 

part. An RRP shall systematically 

evaluate safety hazards on a railroad’s 

system and manage the resulting risks to 

reduce the number and rates of railroad 

accidents/incidents, injuries, and 

fatalities. An RRP is not a one-time 

exercise, but an ongoing program that 

supports continuous safety 

improvement. An RRP shall include the 

following: 

(1) A risk-based hazard management 

program, as described in § 271.103; 

(2) A safety performance evaluation 

component, as described in § 271.105; 

(3) A safety outreach component, as 

described in § 271.107; 

(4) A technology analysis and 

technology implementation plan, as 

described in § 271.109; and 

(5) RRP implementation and support 

training, as described in § 271.111. 

(b) RRP plans. A railroad’s RRP shall 

be supported by an FRA-approved RRP 

plan meeting the requirements of 

subpart C of this part. 

(c) Host railroads and system safety 

programs. As part of its RRP, each 

railroad that hosts passenger train 

service for a railroad subject to FRA 

system safety program requirements 

shall communicate with the railroad 

that provides or operates such passenger 

service and coordinate the portions of 

the system safety program applicable to 

the railroad hosting the passenger train 

service. 

(d) Persons that utilize or perform 

significant safety-related services. Under 

§ 271.205(b), a railroad’s RRP plan shall 

identify persons utilizing or performing 

on the railroad’s behalf significant 

safety-related services (including 

entities such as host railroads, contract 

operators, shared track/corridor 

operators, or other contractors utilizing 

or performing significant safety-related 

services). A railroad shall ensure that 

these persons utilizing or performing 

significant safety-related services on its 

behalf support and participate in its 

RRP. 

§ 271.103 Risk-based hazard management 

program. 

(a) General. (1) An RRP shall include 

an integrated, system-wide, and ongoing 

risk-based hazard management program 

(HMP) that proactively identifies 

hazards and mitigates the risks resulting 

from those hazards. 

(2) A risk-based HMP shall be fully 

implemented (i.e., activities initiated) 

within 36 months after FRA approves a 

railroad’s RRP plan pursuant to 

§ 271.301(b). 

(b) Risk-based hazard analysis. As 

part of its risk-based HMP, a railroad 

shall conduct a risk-based hazard 

analysis that addresses, at a minimum, 

the following aspects of a railroad’s 

system: Infrastructure; equipment; 

employee levels and work schedules; 

operating rules and practices; 

management structure; employee 

training; and other areas impacting 

railroad safety that are not covered by 

railroad safety laws or regulations or 

other Federal laws or regulations. A 

railroad shall make the results of its 

risk-based hazard analysis available to 

FRA upon request. At a minimum, a 

risk-based hazard analysis shall: 

(1) Identify hazards by analyzing: 

(i) Aspects of the railroad’s system, 

including any operational changes, 

system extensions, or system 

modifications; and 

(ii) Accidents/incidents, injuries, 

fatalities, and other known indicators of 

hazards; 

(2) Calculate risk by determining and 

analyzing the likelihood and severity of 

potential events associated with 

identified risk-based hazards; and 

(3) Compare and prioritize the 

identified risks for mitigation purposes. 

(c) Mitigation strategies. (1) As part of 

its risk-based HMP, a railroad shall 

design and implement mitigation 

strategies that improve safety by: 

(i) Mitigating or eliminating aspects of 

a railroad’s system that increase risks 

identified in the risk-based hazard 

analysis; and 

(ii) Enhancing aspects of a railroad’s 

system that decrease risks identified in 

the risk-based hazard analysis. 

(2) A railroad may use pilot projects, 

including pilot projects conducted by 

other railroads, to determine whether 

quantitative data suggests that a 

particular mitigation strategy has 

potential to succeed on a full-scale 

basis. 

§ 271.105 Safety performance evaluation. 

(a) General. As part of its RRP, a 

railroad shall develop and maintain 

ongoing processes and systems for 

evaluating the safety performance of its 

system and measuring its safety culture. 

A railroad’s safety performance 

evaluation shall consist of both a safety 

monitoring and a safety assessment 

component. 

(b) Safety monitoring. A railroad shall 

monitor the safety performance of its 

system by, at a minimum, establishing 

processes and systems to acquire safety 

data and information from the following 

sources: 


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(1) Continuous monitoring of 

operational processes and systems 

(including any operational changes, 

system extensions, or system 

modifications); 

(2) Periodic monitoring of the 

operational environment to detect 

changes that may generate new hazards; 

(3) Investigations of accidents/

incidents, injuries, fatalities, and other 

known indicators of hazards; 

(4) Investigations of reports regarding 

potential non-compliance with Federal 

railroad safety laws or regulations, 

railroad operating rules and practices, or 

mitigation strategies established by the 

railroad; and 

(5) A reporting system through which 

employees can report safety concerns 

(including, but not limited to, hazards, 

issues, occurrences, and incidents) and 

propose safety solutions and 

improvements. 

(c) Safety assessment. For the purpose 

of assessing the need for changes to a 

railroad’s mitigation strategies or overall 

RRP, a railroad shall establish processes 

to analyze the data and information 

collected pursuant to paragraph (b) of 

this section (as well as any other 

relevant data regarding its operations, 

products, and services). At a minimum, 

this assessment shall: 

(1) Evaluate the overall effectiveness 

of the railroad’s RRP in reducing the 

number and rates of railroad accidents/ 

incidents, injuries, and fatalities; 

(2) Evaluate the effectiveness of the 

railroad’s RRP in meeting the goals 

described by its RRP plan (see 

§ 271.203(c)); 

(3) Evaluate the effectiveness of risk 

mitigations in reducing the risk 

associated with an identified hazard. 

Any hazards associated with ineffective 

mitigation strategies shall be 

reevaluated through the railroad’s riskbased HMP, as described in § 271.103; 

and 

(4) Identify new, potential, or 

previously unknown hazards, which 

shall then be evaluated by the railroad’s 

risk-based HMP, as described in 

§ 271.103. 

§ 271.107 Safety outreach. 

(a) Outreach. An RRP shall include a 

safety outreach component that 

communicates RRP safety information 

to railroad personnel (including 

contractors) as that information is 

relevant to their positions. At a 

minimum, a safety outreach program 

shall: 

(1) Convey safety-critical information; 

(2) Explain why RRP-related safety 

actions are taken; and 

(3) Explain why safety procedures are 

introduced or changed. 

(b) Reporting to management. The 

status of risk-based HMP activities shall 

be reported to railroad senior 

management on an ongoing basis. 

§ 271.109 Technology analysis and 

technology implementation plan. 

(a) General. As part of its RRP, a Class 

I railroad shall conduct a technology 

analysis and develop and adopt a 

technology implementation plan no 

later than [1095 DAYS AFTER DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER]. A 

railroad with inadequate safety 

performance shall conduct a technology 

analysis and develop and adopt a 

technology implementation plan no 

later than three years after receiving 

final written notification from FRA that 

it shall comply with this part, pursuant 

to § 271.13(e), or no later than [1095 

DAYS AFTER DATE OF PUBLICATION 

OF THE FINAL RULE IN THE 

FEDERAL REGISTER], whichever is 

later. A railroad that the STB reclassifies 

or newly classifies as a Class I railroad 

shall conduct a technology analysis and 

develop and adopt a technology 

implementation plan no later than three 

years following the effective date of the 

classification or reclassification or no 

later than [1155 DAYS AFTER DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER], 

whichever is later. A voluntarilycompliant railroad shall conduct a 

technology analysis and develop and 

adopt a technology implementation plan 

no later than three years after FRA 

approves the railroad’s RRP plan. 

(b) Technology analysis. A technology 

analysis shall evaluate current, new, or 

novel technologies that may mitigate or 

eliminate hazards and the resulting risks 

identified through the risk-based hazard 

management program. The railroad shall 

analyze the safety impact, feasibility, 

and costs and benefits of implementing 

technologies that will mitigate or 

eliminate hazards and the resulting 

risks. At a minimum, the technologies a 

railroad shall consider as part of its 

technology analysis are: processor-based 

technologies, positive train control 

systems, electronically-controlled 

pneumatic brakes, rail integrity 

inspection systems, rail integrity 

warning systems, switch position 

monitors and indicators, trespasser 

prevention technology, and highwayrail grade crossing warning and 

protection technology. 

(c) Technology implementation plan. 

A railroad shall develop, and 

periodically update as necessary, a 

technology implementation plan that 

contains a prioritized implementation 

schedule describing the railroad 

carrier’s plan for development, 

adoption, implementation, 

maintenance, and use of current, new, 

or novel technologies on its system over 

a 10-year period to reduce safety risks 

identified in the railroad’s risk-based 

hazard management program. 

(d) Positive train control. Except as 

required by subpart I of part 236 of this 

chapter, if a railroad decides to 

implement positive train control 

systems as part of its technology 

implementation plan, the railroad shall 

set forth and comply with a schedule for 

implementation of the positive train 

control system no later than December 

31, 2018. 

§ 271.111 Implementation and support 

training. 

(a) A railroad shall provide RRP 

training to each employee, including an 

employee of any person identified by 

the railroad’s RRP plan pursuant to 

§ 271.205(a)(3) as utilizing or 

performing significant safety-related 

services on the railroad’s behalf, who 

has significant responsibility for 

implementing and supporting the 

railroad’s RRP. This training shall help 

ensure that all personnel with 

significant responsibility for 

implementing and supporting the RRP 

understand the goals of the program, are 

familiar with the elements of the 

railroad’s program, and have the 

requisite knowledge and skills to fulfill 

their responsibilities under the program. 

(b) A railroad shall keep a record of 

training conducted under this section 

and update that record as necessary. 

(c) Training under this section may 

include, but is not limited to, interactive 

computer-based training, video 

conferencing, or formal classroom 

training. 

Subpart C—Risk Reduction Program 

Plan Requirements 

§ 271.201 General. 

A railroad shall adopt and implement 

its RRP through a written RRP plan 

containing the elements described in 

this subpart. A railroad’s RRP plan shall 

be approved by FRA according to the 

requirements contained in subpart D of 

this part. 

§ 271.203 Policy, purpose and scope, and 

goals. 

(a) Policy statement. An RRP plan 

shall contain a policy statement 

endorsing the railroad’s RRP. This 

statement shall be signed by the chief 

official at the railroad (e.g., Chief 

Executive Officer). 

(b) Purpose and scope. An RRP plan 

shall contain a statement describing the 

purpose and scope of the railroad’s RRP. 


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This purpose and scope statement shall 

describe: 

(1) The railroad’s safety philosophy 

and safety culture; 

(2) How the railroad promotes 

improvements to its safety culture; 

(3) The roles and responsibilities of 

railroad personnel (including 

management) within the railroad’s RRP; 

and 

(4) How any person that utilizes or 

provides significant safety-related 

services to a railroad (including host 

railroads, contract operators, shared 

track/corridor operators, or other 

contractors) will support and participate 

in the railroad’s RRP. 

(c) Goals. An RRP plan shall contain 

a statement that defines the specific 

goals of the RRP and describes clear 

strategies for reaching those goals. These 

goals shall be long-term, meaningful, 

measurable, and focused on the 

mitigation of risks arising from 

identified safety hazards. 

§ 271.205 System description. 

(a) An RRP plan shall contain a 

description of the characteristics of the 

railroad’s system. At a minimum, the 

system description shall: 

(1) Support the identification of 

hazards by establishing a basic 

understanding of the scope of the 

railroad’s system; 

(2) Include components briefly 

describing the railroad’s history, 

operations, scope of service, 

maintenance, physical plant, and 

system requirements; and 

(3) Identify all persons that utilize or 

perform significant safety-related 

services on the railroad’s behalf 

(including entities such as host 

railroads, contract operations, shared 

track/corridor operators, or other 

contractors). 

(b) [Reserved] 

§ 271.207 Consultation process 

description. 

(a) General duty. (1) Each railroad 

required to establish an RRP under this 

part shall in good faith consult with, 

and use its best efforts to reach 

agreement with, all of its directly 

affected employees, including any nonprofit labor organization representing a 

class or craft of directly affected 

employees, on the contents of the RRP 

plan. 

(2) A railroad that consults with a 

non-profit employee labor organization 

is considered to have consulted with the 

directly affected employees represented 

by that organization. 

(3) A Class I railroad shall meet no 

later than [240 DAYS AFTER THE 

DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER] with its directly affected 

employees to discuss the consultation 

process. The Class I railroad shall notify 

the directly affected employees of this 

meeting no less than 60 days before it 

is scheduled. 

(4) A railroad determined to have 

inadequate safety performance shall 

meet no later than 30 days following 

FRA’s notification with its directly 

affected employees to discuss the 

consultation process. The inadequate 

safety performance railroad shall notify 

the directly affected employees of this 

meeting no less than 15 days before it 

is scheduled. 

(5) A railroad that the STB reclassifies 

or newly classifies as a Class I railroad 

shall meet with its directly affected 

employees to discuss the consultation 

process no later than 30 days following 

the effective date of the classification or 

reclassification. The reclassified or 

newly classified Class I railroad shall 

notify the directly affected employees of 

this meeting no less than 15 days before 

it is scheduled. 

(6) A voluntarily-compliant railroad 

shall in good faith consult with, and use 

its best efforts to reach agreement with, 

all of its directly affected employees, 

including any non-profit labor 

organization representing a class or craft 

of directly affected employees, on the 

contents of the RRP plan. However, as 

there is no deadline for a voluntarilycompliant railroad to file an RRP plan 

with FRA, there is also no requirement 

for a voluntarily-compliant railroad to 

meet with its directly affected 

employees within a certain timeframe. 

(7) Appendix B to this part contains 

guidance on how a railroad might 

comply with the requirements of this 

section. 

(b) Railroad consultation statements. 

A railroad required to submit an RRP 

plan under § 271.301(a) shall also 

submit, together with that plan, a 

consultation statement that includes the 

following information: 

(1) A detailed description of the 

process the railroad utilized to consult 

with its directly affected employees; 

(2) If the railroad was not able to 

reach agreement with its directly 

affected employees on the contents of its 

RRP plan, identification of any known 

areas of non-agreement and an 

explanation why it believes agreement 

was not reached; 

(3) If the RRP plan would affect a 

provision of a collective bargaining 

agreement between the railroad and a 

non-profit employee labor organization, 

identification of any such provision and 

an explanation how the RRP plan would 

affect it; and 

(4) A service list containing the names 

and contact information for the 

international/national president of any 

non-profit employee labor organization 

representing a class or craft of the 

railroad’s directly affected employees 

and any directly affected employee not 

represented by a non-profit employee 

labor organization who significantly 

participated in the consultation process. 

If an international/national president 

did not participate in the consultation 

process, the service list shall also 

contain the name and contact 

information for a designated 

representative who participated on his 

or her behalf. When a railroad submits 

its RRP plan and consultation statement 

to FRA, it shall also send a copy of these 

documents to all individuals identified 

in the service list. A railroad may send 

the documents to the identified 

individuals via electronic means or 

utilizing other service means reasonably 

calculated to succeed. 

(c) Statements from directly affected 

employees. (1) If a railroad and its 

directly affected employees cannot 

reach agreement on the proposed 

contents of an RRP plan, then directly 

affected employees may file a statement 

with the FRA Associate Administrator 

explaining their views on the plan on 

which agreement was not reached. The 

FRA Associate Administrator shall 

consider any such views during the plan 

review and approval process. 

(2) As provided in § 271.301(a)(4), a 

railroad’s directly affected employees 

have 60 days following the railroad’s 

submission of a proposed RRP plan to 

submit the statement described in 

paragraph (c)(1) of this section. 

§ 271.209 Consultation on amendments. 

A railroad’s RRP plan shall include a 

description of the process the railroad 

will use to consult with its directly 

affected employees on any subsequent 

substantive amendments to the 

railroad’s system safety program. The 

requirements of this paragraph do not 

apply to non-substantive amendments 

(e.g., amendments that update names 

and addresses of railroad personnel). 

§ 271.211 Risk-based hazard management 

program process. 

(a) Risk-based hazard analysis. An 

RRP plan shall describe the railroad’s 

method for conducting its risk-based 

hazard analysis pursuant to 

§ 271.103(b). The description shall 

specify: 

(1) The processes the railroad will use 

to identify hazards and the risks 

associated with those hazards; 

(2) The sources the railroad will use 

to support the ongoing identification of 


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hazards and the risks associated with 

those hazards; and 

(3) The processes the railroad will use 

to compare and prioritize identified 

risks for mitigation purposes. 

(b) Mitigation strategies. An RRP plan 

shall describe the railroad’s processes 

for: 

(1) Identifying and selecting 

mitigation strategies; and 

(2) Monitoring an identified hazard 

through the mitigation of the risk 

associated with that hazard. 

§ 271.213 Safety performance evaluation 

process. 

An RRP plan shall describe a 

railroad’s processes for measuring its 

safety culture pursuant to § 271.105(a), 

monitoring safety performance pursuant 

to § 271.105(b), and conducting safety 

assessments pursuant to § 271.105(c). 

§ 271.215 Safety outreach process. 

An RRP plan shall describe a 

railroad’s process for communicating 

safety information to railroad personnel 

and management pursuant to § 271.107. 

§ 271.217 Technology implementation plan 

process. 

(a) An RRP plan shall contain a 

description of the railroad’s processes 

for: 

(1) Conducting a technology analysis 

pursuant to § 271.109(b); and 

(2) Developing a technology 

implementation plan pursuant to 

§ 271.109(c). 

(b) [Reserved] 

§ 271.219 Implementation and support 

training plan. 

(a) An RRP plan shall contain a 

training plan describing the railroad’s 

processes, pursuant to § 271.111, for 

training employees with significant 

responsibility for implementing and 

supporting the RRP (including 

employees of a person identified 

pursuant to § 271.205(a)(3) as utilizing 

or performing significant safety-related 

services on the railroad’s behalf who 

have significant responsibility for 

implementing and supporting the 

railroad’s RRP). 

(b) The training plan shall describe 

the frequency and content of the RRP 

training for each position or job function 

identified pursuant to § 271.223(b)(3) as 

having significant responsibilities for 

implementing the RRP. 

§ 271.221 Internal assessment process. 

(a) An RRP plan shall describe the 

railroad’s process for conducting an 

internal assessment of its RRP pursuant 

to subpart E of this part. At a minimum, 

this description shall contain the 

railroad’s processes used to: 

(1) Conduct an internal assessment of 

its RRP; 

(2) Internally report the results of its 

internal assessment to railroad senior 

management; and 

(3) Develop improvement plans, 

including developing and monitoring 

recommended improvements (including 

any necessary revisions or updates to 

the RRP plan) for fully implementing 

the railroad’s RRP, complying with the 

implemented elements of the RRP plan, 

or achieving the goals identified in the 

railroad’s RRP plan pursuant to 

§ 271.203(c). 

(b) [Reserved] 

§ 271.223 RRP implementation plan. 

(a) An RRP plan shall describe how 

the railroad will implement its RRP. A 

railroad may implement its RRP in 

stages, so long as the entire RRP is fully 

implemented within 36 months of 

FRA’s approval of the plan. 

(b) At a minimum, a railroad’s 

implementation plan shall: 

(1) Cover the entire implementation 

period; 

(2) Contain a timeline describing 

when certain implementation 

milestones will be achieved. 

Implementation milestones shall be 

specific and measurable; 

(3) Describe the roles and 

responsibilities of each position or job 

function that has significant 

responsibility for implementing the 

railroad’s RRP or any changes to the 

railroad’s RRP (including any such 

positions or job functions held by an 

entity or contractor that utilizes or 

performs on the railroad’s behalf 

significant safety-related services); and 

(4) Describe how significant changes 

to the RRP may be made. 

Subpart D—Review, Approval, and 

Retention of Risk Reduction Program 

Plans 

§ 271.301 Filing and approval. 

(a) Filing. A Class I railroad shall 

submit one copy of its RRP plan to the 

FRA Associate Administrator for 

Railroad Safety/Chief Safety Officer at 

Mail Stop 25, 1200 New Jersey Avenue 

SE., Washington, DC, 20590, no later 

than [545 DAYS AFTER THE DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER]. A 

railroad with inadequate safety 

performance shall submit its RRP plan 

no later than 90 days after receiving 

final written notification from FRA that 

it shall comply with this part, pursuant 

to § 271.13(d), or no later than [545 

DAYS AFTER THE DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER], 

whichever is later. A railroad that the 

STB reclassifies or newly classifies as a 

Class I railroad shall submit its RRP 

plan no later than 90 days following the 

effective date of the classification or 

reclassification or no later than [545 

DAYS AFTER THE DATE OF 

PUBLICATION OF THE FINAL RULE 

IN THE FEDERAL REGISTER], 

whichever is later. A voluntarilycompliant railroad may submit an RRP 

plan at any time. A railroad’s submitted 

RRP plan shall include: 

(1) The signature, name, title, address, 

and telephone number of the chief 

official responsible for safety and who 

bears the primary managerial authority 

for implementing the submitting 

railroad’s safety policy. By signing, this 

chief official is certifying that the 

contents of the RRP plan are accurate 

and that the railroad will implement the 

contents of the program as approved by 

FRA; 

(2) The contact information for the 

primary person responsible for 

managing the RRP; 

(3) The contact information for the 

senior representatives of the persons 

that the railroad has determined utilize 

or provide significant safety-related 

services (including host railroads, 

contract operators, shared track/corridor 

operators, and other contractors); and 

(4) As required by § 271.207(b), a 

statement describing how it consulted 

with its directly affected employees on 

the contents of its RRP plan. Directly 

affected employees have 60 days 

following the railroad’s submission of 

its proposed RRP plan to file a statement 

in accordance with § 271.207(c). 

(b) Approval. (1) Within 90 days of 

receipt of an RRP plan, or within 90 

days of receipt of each RRP plan 

submitted prior to the commencement 

of railroad operations, FRA will review 

the proposed RRP plan to determine if 

it sufficiently addresses the required 

elements. This review will also consider 

any statement submitted by directly 

affected employees pursuant to 

§ 271.207(c). 

(2) FRA will notify the primary 

contact person of the submitting 

railroad in writing whether FRA has 

approved the proposed plan and, if not 

approved, the specific points in which 

the RRP plan is deficient. FRA will also 

provide this notification to each 

individual identified in the service list 

accompanying the consultation 

statement required under 

§ 271.207(b)(4). 

(3) If FRA does not approve an RRP 

plan, the submitting railroad shall 

amend the proposed plan to correct all 

identified deficiencies and shall provide 

FRA a corrected copy no later than 60 


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days following receipt of FRA’s written 

notice that the submitted plan was not 

approved. If FRA determines that the 

necessary corrections are substantively 

significant, it will direct the railroad to 

consult further with its directly affected 

employees regarding the corrections. If 

the corrections are substantively 

significant, a railroad will also be 

required to include an updated 

consultation statement, along with its 

resubmitted plan, pursuant to 

§ 217.107(b). Directly affected 

employees will also have 30 days 

following the railroad’s resubmission of 

its proposed RRP plan to file a statement 

addressing the substantively significant 

changes in accordance with 

§ 271.207(c). 

(c) Electronic Submission. All 

documents required to be submitted to 

FRA under this part may be submitted 

electronically pursuant to the 

procedures in Appendix C to this part. 

§ 271.303 Amendments. 

(a) Consultation requirements. For 

substantive amendments, a railroad 

shall follow the process, described in its 

RRP plan pursuant to § 271.209, for 

consulting with its directly affected 

employees. 

(b) Filing. (1) A railroad shall submit 

any amendment(s) to its approved RRP 

plan to FRA’s Associate Administrator 

not less than 60 days prior to the 

proposed effective date of the 

amendment(s). The railroad shall file 

the amendment(s) with a cover letter 

outlining the proposed change(s) to the 

approved RRP plan. 

(2) If the proposed amendment is 

limited to adding or changing a name, 

title, address, or telephone number of a 

person, FRA approval is not required 

under the process of this section, 

although the railroad shall still file the 

amended RRP plan with FRA’s 

Associate Administrator for Railroad 

Safety/Chief Safety Officer. These 

proposed amendments may be 

implemented by the railroad upon filing 

with FRA. All other proposed 

amendments must comply with the 

formal approval process described by 

this section. 

(c) Review. (1) FRA will review a 

proposed amendment to an RRP plan 

within 45 days of receipt. FRA will then 

notify the primary contact person of the 

railroad, whether the proposed 

amendment has been approved by FRA. 

If not approved, FRA will inform the 

railroad of the specific points in which 

the proposed amendment is deficient. 

(2) If FRA has not notified the railroad 

by the proposed effective date of the 

amendment whether the amendment 

has been approved or not, the railroad 

may implement the amendment, subject 

to FRA’s decision. 

(3) If a proposed RRP plan 

amendment is not approved by FRA, no 

later than 60 days following the receipt 

of FRA’s written notice, the railroad 

shall either provide FRA a corrected 

copy of the amendment that addresses 

all deficiencies noted by FRA or notice 

that the railroad is retracting the 

amendment. 

§ 271.305 Reopened review. 

Following approval of an RRP plan or 

an amendment to such a plan, FRA may 

reopen consideration of the plan or 

amendment, in whole or in part, for 

cause stated. 

§ 271.307 Retention of RRP plans. 

(a) Railroads. A railroad shall retain at 

its system and division headquarters 

one copy of its RRP plan and each 

subsequent amendment(s) to that plan. 

A railroad may comply with this 

requirement by making an electronic 

copy available. 

(b) Inspection and copying. A railroad 

shall make a copy of the RRP plan 

available to representatives of the FRA 

or States participating under part 212 of 

this chapter for inspection and copying 

during normal business hours. 

Subpart E—Internal Assessments 

§ 271.401 Annual internal assessments. 

(a) Beginning with the first calendar 

year after the calendar year in which 

FRA approves a railroad’s RRP plan 

pursuant to § 271.301(b), the railroad 

shall annually (i.e., once every calendar 

year) conduct an internal assessment of 

its RRP. 

(b) The internal assessment shall 

determine the extent to which the 

railroad has: 

(1) Achieved the implementation 

milestones described in its RRP plan 

pursuant to § 271.223(b); 

(2) Complied with the implemented 

elements of the approved RRP plan; 

(3) Achieved the goals described in its 

RRP plan pursuant to § 271.203(c); 

(4) Implemented previous internal 

assessment improvement plans 

pursuant to § 271.403; and 

(5) Implemented previous external 

audit improvements plans pursuant to 

§ 271.503. 

(c) A railroad shall ensure that the 

results of its internal assessments are 

internally reported to railroad senior 

management. 

§ 271.403 Internal assessment 

improvement plans. 

(a) Within 30 days of completing its 

internal assessment, a railroad shall 

develop an improvement plan that 

addresses the findings of its internal 

assessment. 

(b) At a minimum, a railroad’s 

improvement plan shall: 

(1) Describe recommended 

improvements (including any necessary 

revisions or updates to the RRP plan, 

which would be made through the 

amendment process described in 

§ 271.303) that address the findings of 

the internal assessment for fully 

implementing the railroad’s RRP, 

complying with the implemented 

elements of the RRP plan, achieving the 

goals identified in the railroad’s RRP 

plan pursuant to § 271.203(c), and 

implementing previous internal 

assessment improvement plans and 

external audit improvement plans; 

(2) Identify by position title the 

individual who is responsible for 

carrying out the recommended 

improvements; 

(3) Contain a timeline describing 

when specific and measurable 

milestones for implementing the 

recommended improvements will be 

achieved; and 

(4) Specify processes for monitoring 

the implementation and evaluating the 

effectiveness of the recommended 

improvements. 

§ 271.405 Internal assessment reports. 

(a) Within 60 days of completing its 

internal assessment, a railroad shall 

submit a copy of an internal assessment 

report to the FRA Associate 

Administrator for Railroad Safety/Chief 

Safety Officer at Mail Stop 25, 1200 

New Jersey Avenue SE., Washington, 

DC, 20590. 

(b) This report shall be signed by the 

railroad’s chief official responsible for 

safety and who bears primary 

managerial authority for implementing 

the railroad’s safety policy. The report 

shall include: 

(1) A description of the railroad’s 

internal assessment; 

(2) The findings of the internal 

assessment; 

(3) A specific description of the 

recommended improvements contained 

in the railroad’s internal assessment 

improvement plan, including any 

amendments that would be made to the 

railroad’s RRP plan pursuant to 

§ 271.303; and 

(4) The status of the recommended 

improvements contained in the 

railroad’s internal assessment 

improvement plan and any outstanding 

recommended improvements from 

previous internal assessment 

improvement plans. 


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Subpart F—External Audits 

§ 271.501 External audits. 

FRA will conduct (or cause to be 

conducted) external audits of a 

railroad’s RRP. Each audit shall evaluate 

the railroad’s compliance with the 

elements of its RRP required by this 

part. FRA will provide a railroad written 

notice of the audit results. 

§ 271.503 External audit improvement 

plans. 

(a) Submission. Within 60 days of 

receiving FRA’s written notice of the 

audit results, if necessary, a railroad 

shall submit for approval an 

improvement plan addressing any 

instances of deficiency or noncompliance found in the audit to the 

FRA Associate Administrator for 

Railroad Safety/Chief Safety Officer at 

Mail Stop 25, 1200 New Jersey Avenue 

SE., Washington, DC, 20590. 

(b) Requirements. At a minimum, an 

improvement plan shall: 

(1) Describe the improvements the 

railroad will implement to address the 

audit findings; 

(2) Identify by position title the 

individual who is responsible for 

carrying out the improvements 

necessary to address the audit findings; 

and 

(3) Contain a timeline describing 

when milestones for implementing the 

recommended improvements will be 

achieved. These implementation 

milestones shall be specific and 

measurable. 

(c) Approval. If FRA does not approve 

the railroad’s improvement plan, FRA 

will notify the railroad of the plan’s 

specific deficiencies. The railroad shall 

amend the proposed plan to correct the 

identified deficiencies and provide FRA 

a corrected copy no later than 30 days 

following receipt of FRA’s notice that 

the proposed plan was not approved. 

(d) Status reports. Upon the request of 

the FRA Associate Administrator, a 

railroad shall provide FRA for review a 

status report on the implementation of 

the improvements contained in the 

improvement plan. 

Appendix A to Part 271—Schedule of 

Civil Penalties 

[Reserved] 

Appendix B to Part 271—Federal Railroad 

Administration Guidance on the Risk 

Reduction Program Consultation Process 

A railroad required to develop a risk 

reduction program (RRP) under this part 

shall in good faith consult with and use 

its best efforts to reach agreement with 

its directly affected employees on the 

contents of the RRP plan. See 

§ 271.207(a)(1). This appendix discusses 

the meaning of the terms ‘‘good faith’’ 

and ‘‘best efforts,’’ and provides 

guidance on how a railroad could 

comply with the requirement to consult 

with directly affected employees on the 

contents of its RRP plan. Specific 

guidance will be provided for 

employees who are represented by a 

non-profit employee labor organization 

and employees who are not represented 

by any such organization. 

I. The Meaning of ‘‘Good Faith’’ and 

‘‘Best Efforts’’ 

‘‘Good faith’’ and ‘‘best efforts’’ are 

not interchangeable terms representing a 

vague standard for the § 271.207 

consultation process. Rather, each term 

has a specific and distinct meaning. 

When consulting with directly affected 

employees, therefore, a railroad shall 

independently meet the standards for 

both the good faith and best efforts 

obligations. A railroad that does not 

meet the standard for one or the other 

will not be in compliance with the 

consultation requirements of § 271.207. 

The good faith obligation requires a 

railroad to consult with employees in a 

manner that is honest, fair, and 

reasonable, and to genuinely pursue 

agreement on the contents of an RRP 

plan. If a railroad consults with its 

employees merely in a perfunctory 

manner, without genuinely pursuing 

agreement, it will not have met the good 

faith requirement. A railroad may also 

fail to meet its good faith obligation if 

it merely attempts to use the RRP plan 

to unilaterally modify a provision of a 

collective bargaining agreement between 

the railroad and a non-profit employee 

labor organization. 

On the other hand, ‘‘best efforts’’ 

establishes a higher standard than that 

imposed by the good faith obligation, 

and describes the diligent attempts that 

a railroad shall pursue to reach 

agreement with its employees on the 

contents of its RRP plan. While the good 

faith obligation is concerned with the 

railroad’s state of mind during the 

consultation process, the best efforts 

obligation is concerned with the specific 

efforts made by the railroad in an 

attempt to reach agreement. This would 

include considerations such as whether 

a railroad had held sufficient meetings 

with its employees, or whether the 

railroad had made an effort to respond 

to feedback provided by employees 

during the consultation process. For 

example, a railroad would not meet the 

best efforts obligation if it did not 

initiate the consultation process in a 

timely manner, and thereby failed to 

provide employees sufficient time to 

engage in the consultation process. A 

railroad would also likely not meet the 

best efforts obligation if it presented 

employees with an RRP plan and only 

permitted the employees to express 

agreement or disagreement on the plan 

(assuming that the employees had not 

previously indicated that such a 

consultation would be acceptable). A 

railroad may, however, wish to hold off 

substantive consultations regarding the 

contents of its RRP plan until one year 

after publication of the rule in order to 

ensure that information generated as 

part of the process is protected from 

discovery and admissibility into 

evidence under § 271.11 of the rule. 

Generally, best efforts are measured by 

the measures that a reasonable person in 

the same circumstances and of the same 

nature as the acting party would take. 

Therefore, the standard imposed by the 

best efforts obligation may vary with 

different railroads, depending on a 

railroad’s size, resources, and number of 

employees. 

When reviewing RRP plans, FRA will 

determine on a case-by-case basis 

whether a railroad has met its § 271.207 

good faith and best efforts obligations. 

This determination will be based upon 

the consultation statement submitted by 

the railroad pursuant to § 271.207(b) 

and any statements submitted by 

employees pursuant to § 271.207(c). If 

FRA finds that these statements do not 

provide sufficient information to 

determine whether a railroad used good 

faith and best efforts to reach agreement, 

FRA may investigate further and contact 

the railroad or its employees to request 

additional information. (FRA also 

expects a railroad’s directly affected 

employees to utilize good faith and best 

efforts when negotiating on the contents 

of an RRP plan. If FRA’s review and 

investigation of the statements 

submitted by the railroad under 

§ 271.207(b) and the directly affected 

employees under § 271.207(c) reveal 

that the directly affected employees did 

not utilize good faith and best efforts, 

FRA could consider this as part of its 

approval process.) 

If FRA determines that a railroad did 

not use good faith and best efforts, FRA 

may disapprove the RRP plan submitted 

by the railroad and direct the railroad to 

comply with the consultation 

requirements of § 271.207. Pursuant to 

§ 271.301(b)(3), if FRA does not approve 

the RRP plan, the railroad will have 60 

days, following receipt of FRA’s written 

notice that the plan was not approved, 

to correct any deficiency identified. In 

such cases, the identified deficiency 

would be that the railroad did not use 

good faith and best efforts to consult 

and reach agreement with its directly 

affected employees. If a railroad then 

does not submit to FRA within 60 days 


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10998 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 

an RRP plan meeting the consultation 

requirements of § 271.207, the railroad 

could be subject to penalties for failure 

to comply with § 271.301(b)(3). 

II. Guidance on How a Railroad May 

Consult With Directly Affected 

Employees 

Because the standard imposed by the 

best efforts obligation will vary 

depending upon the railroad, there may 

be countless ways for various railroads 

to comply with the consultation 

requirements of § 271.207. Therefore, 

FRA believes it is important to maintain 

a flexible approach to the § 271.207 

consultation requirements, in order to 

give a railroad and its directly affected 

employees the freedom to consult in a 

manner best suited to their specific 

circumstances. 

FRA is nevertheless providing 

guidance in this appendix as to how a 

railroad may proceed when consulting 

(utilizing good faith and best efforts) 

with employees in an attempt to reach 

agreement on the contents of an RRP 

plan. FRA believes this guidance may be 

useful as a starting point for railroads 

that are uncertain about how to comply 

with the § 271.207 consultation 

requirements. This guidance 

distinguishes between employees who 

are represented by a non-profit 

employee labor organization and 

employees who are not, as the processes 

a railroad may use to consult with 

represented and non-represented 

employees could differ significantly. 

This guidance does not establish 

prescriptive requirements with which a 

railroad shall comply, but merely 

outlines a consultation process a 

railroad may choose to follow. A 

railroad’s consultation statement could 

indicate that the railroad followed the 

guidance in this appendix as evidence 

that it utilized good faith and best 

efforts to reach agreement with its 

employees on the contents of an RRP 

plan. 

(a) Employees Represented by a NonProfit Employee Labor Organization 

As provided in § 271.207(a)(2), a 

railroad consulting with the 

representatives of a non-profit employee 

labor organization on the contents of an 

RRP plan will be considered to have 

consulted with the directly affected 

employees represented by that 

organization. 

A railroad could utilize the following 

process as a roadmap for using good 

faith and best efforts when consulting 

with represented employees in an 

attempt to reach agreement on the 

contents of an RRP plan. 

(1) Pursuant to § 271.207(a)(3), a 

railroad shall meet with representatives 

from a non-profit employee labor 

organization (representing a class or 

craft of the railroad’s directly affected 

employees) within 240 days from [THE 

DATE OF PUBLICATION OF THE 

FINAL RULE IN THE FEDERAL 

REGISTER] to begin the process of 

consulting on the contents of the 

railroad’s RRP plan. A railroad should 

provide notice at least 60 days before 

the scheduled meeting. 

(2) During the time between the initial 

meeting and the applicability date of 

§ 271.11 the parties may meet to discuss 

administrative details of the 

consultation process as necessary. 

(3) Within 60 days after [365 DAYS 

AFTER THE DATE OF PUBLICATION 

OF THE FINAL RULE IN THE 

FEDERAL REGISTER], a railroad 

should have a meeting with the 

representatives of the directly affected 

employees to discuss substantive issues 

with the RRP plan. 

(4) Within 180 days after [365 DAYS 

AFTER THE DATE OF PUBLICATION 

OF THE FINAL RULE IN THE 

FEDERAL REGISTER], a railroad would 

file its RRP plan with FRA. 

(5) As provided by § 271.207(c), if 

agreement on the contents of an RRP 

plan could not be reached, a labor 

organization (representing a class or 

craft of the railroad’s directly affected 

employees) could file a statement with 

the FRA Associate Administrator 

explaining its views on the plan on 

which agreement was not reached. 

(b) Employees Who Are Not 

Represented by a Non-Profit Employee 

Labor Organization 

FRA recognizes that some (or all) of 

a railroad’s directly affected employees 

may not be represented by a non-profit 

employee labor organization. For such 

non-represented employees, the 

consultation process described for 

represented employees may not be 

appropriate or sufficient. For example, 

FRA believes that a railroad with nonrepresented employees shall make a 

concerted effort to ensure that its nonrepresented employees are aware that 

they are able to participate in the 

development of the railroad’s RRP plan. 

FRA therefore is providing the following 

guidance regarding how a railroad may 

utilize good faith and best efforts when 

consulting with non-represented 

employees on the contents of its RRP 

plan. 

(1) Within 120 days from [THE DATE 

OF PUBLICATION OF THE FINAL 

RULE IN THE FEDERAL REGISTER], a 

railroad should notify non-represented 

employees that— 

(A) The railroad is required to consult 

in good faith with, and use its best 

efforts to reach agreement with, all 

directly affected employees on the 

proposed contents of its RRP plan; 

(B) Non-represented employees are 

invited to participate in the consultation 

process (and include instructions on 

how to engage in this process); and 

(C) If a railroad is unable to reach 

agreement with its directly affected 

employees on the contents of the 

proposed RRP plan, an employee may 

file a statement with the FRA Associate 

Administrator explaining his or her 

views on the plan on which agreement 

was not reached. 

(2) This initial notification (and all 

subsequent communications, as 

necessary or appropriate) could be 

provided to non-represented employees 

in the following ways: 

(A) Electronically, such as by email or 

an announcement on the railroad’s Web 

site; 

(B) By posting the notification in a 

location easily accessible and visible to 

non-represented employees; or 

(C) By providing all non-represented 

employees a hard copy of the 

notification. 

A railroad could use any or all of 

these methods of communication, so 

long as the notification complies with 

the railroad’s obligation to utilize best 

efforts in the consultation process. 

(3) Following the initial notification 

(and before the railroad submits its RRP 

plan to FRA), a railroad should provide 

non-represented employees a draft 

proposal of its RRP plan. This draft 

proposal should solicit additional input 

from non-represented employees, and 

the railroad should provide nonrepresented employees 60 days to 

submit comments to the railroad on the 

draft. 

(4) Following this 60-day comment 

period and any changes to the draft RRP 

plan made as a result, the railroad 

should submit the proposed RRP plan to 

FRA, as required by this part. 

(5) As provided by § 271.207(c), if 

agreement on the contents of an RRP 

plan cannot be reached, then a nonrepresented employee may file a 

statement with the FRA Associate 

Administrator explaining his or her 

views on the plan on which agreement 

was not reached. 

Appendix C to Part 271—Procedures 

for Submission of Railroad Risk 

Reduction Program Plans and 

Statements From Directly Affected 

Employees 

This appendix establishes procedures 

for the submission of a railroad’s RRP 

plan and statements by directly affected 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Proposed Rules 10999 

employees in accordance with the 

requirements of this part. 

Submission by a Railroad and Directly 

Affected Employees 

(a) As provided for in § 271.101, each 

railroad must establish and fully 

implement an RRP that continually and 

systematically evaluates railroad safety 

hazards on its system and manages the 

resulting risks to reduce the number and 

rates of railroad accidents, incidents, 

injuries, and fatalities. The RRP shall be 

fully implemented and supported by a 

written RRP plan. Each railroad must 

submit its RRP plan to FRA for approval 

as provided for in § 271.201. 

(b) As provided for in § 271.207(c), if 

a railroad and its directly affected 

employees cannot come to agreement on 

the proposed contents of the railroad’s 

RRP plan, the directly affected 

employees have 30 days following the 

railroad’s submission of its proposed 

RRP plan to submit a statement to the 

FRA Associate Administrator for 

Railroad Safety/Chief Safety Officer 

explaining the directly affected 

employees’ views on the plan on which 

agreement was not reached. 

(c) The railroad’s and directly affected 

employees’ submissions shall be sent to 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer, FRA. The 

mailing address for FRA is 1200 New 

Jersey Avenue SE., Washington, DC 

20590. When a railroad submits its RRP 

plan and consultation statement to FRA 

pursuant to § 270.201, it must also 

simultaneously send a copy of these 

documents to all individuals identified 

in the service list pursuant to 

§ 271.107(b)(4). 

(d) Each railroad and directly affected 

employee is authorized to file by 

electronic means any submissions 

required under this part. Prior to any 

person submitting anything 

electronically, the person shall provide 

the Associate Administrator with the 

following information in writing: 

(1) The name of the railroad or 

directly affected employee(s); 

(2) The names of two individuals, 

including job titles, who will be the 

railroad’s or directly affected 

employees’ points of contact and will be 

the only individuals allowed access to 

FRA’s secure document submission site; 

(3) The mailing addresses for the 

railroad’s or directly affected 

employees’ points of contact; 

(4) The railroad’s system or main 

headquarters address located in the 

United States; 

(5) The email addresses for the 

railroad’s or directly affected 

employees’ points of contact; and 

(6) The daytime telephone numbers 

for the railroad’s or directly affected 

employees’ points of contact. 

(e) A request for electronic 

submission or FRA review of written 

materials shall be addressed to the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer, Federal 

Railroad Administration, 1200 New 

Jersey Avenue SE., Washington, DC 

20590. Upon receipt of a request for 

electronic submission that contains the 

information listed above, FRA will then 

contact the requestor with instructions 

for electronically submitting its program 

or statement. A railroad that 

electronically submits an initial RRP 

plan or new portions or revisions to an 

approved program required by this part 

shall be considered to have provided its 

consent to receive approval or 

disapproval notices from FRA by email. 

FRA may electronically store any 

materials required by this part 

regardless of whether the railroad that 

submits the materials does so by 

delivering the written materials to the 

Associate Administrator and opts not to 

submit the materials electronically. A 

railroad that opts not to submit the 

materials required by this part 

electronically, but provides one or more 

email addresses in its submission, shall 

be considered to have provided its 

consent to receive approval or 

disapproval notices from FRA by email 

or mail. 

Issued in Washington, DC on February 11, 

2015, under the authority provided by 49 

U.S.C. 20156. 

Sarah Feinberg, 

Acting Administrator. 

[FR Doc. 2015–03268 Filed 2–26–15; 8:45 am] 

BILLING CODE 4910–06–P 


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