[Federal Register Volume 85, Number 32 (Tuesday, February 18, 2020)]
[Rules and Regulations]
[Pages 9262-9325]
[FR Doc No: 2020-00425]

Vol. 85

Tuesday,

No. 32

February 18, 2020

Part III

Department of Transportation

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Federal Railroad Administration

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49 CFR Part 271

Risk Reduction Program; Final Rule

Federal Register / Vol. 85 , No. 32 / Tuesday, February 18, 2020 /
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 271

[Docket No. FRA-2009-0038, Notice No. 7]
RIN 2130-AC11

Risk Reduction Program

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

ACTION: Final rule.

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SUMMARY: FRA is issuing this final rule to require each Class I freight
railroad and each freight railroad with inadequate safety performance
to develop and implement a Risk Reduction Program (RRP) to improve the
safety of its operations. RRP is a comprehensive, system-oriented
approach to safety that determines a railroad operation's level of risk
by identifying and analyzing applicable hazards, and involves
developing plans to mitigate, if not eliminate, that risk. Each
railroad has flexibility to tailor an RRP to its specific railroad
operations. Each railroad shall implement its RRP under a written RRP
plan that FRA has reviewed and approved. Each railroad shall conduct an
annual internal assessment of its RRP, and FRA will audit a railroad's
RRP processes and procedures.

DATES: This final rule is effective April 20, 2020.

ADDRESSES: Docket: For access to the docket to read background
documents or comments received, go to http://www.regulations.gov at any
time or visit U.S. Department of Transportation, Docket Operations,
West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC 20590, 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, 1200 New Jersey
Avenue SE, Washington, DC 20590 (telephone:<PHONE_NUMBER>),
<EMAIL_ADDRESS>or Elizabeth Gross, Attorney Adviser, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Chief Counsel, 1200 New Jersey Avenue SE, Washington, DC 20590
(telephone:<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
    A. Statutory Authority for This Rulemaking
    B. Summary of Major Provisions
    C. Summary of Costs and Benefits
II. Abbreviations
III. Background and History
    A. What is a Risk Reduction Program?
    B. Summary of NPRM
    C. Proceedings Since the NPRM
    D. Regulatory Review
    E. Summary of Comments
    F. Update on Other Federal Safety Management System Programs
IV. Statutory Background
    A. Rail Safety Improvement Act of 2008
    B. Related System Safety and Fatigue Management Plans
Rulemakings
    C. Consultation Process Requirements
    D. Risk Reduction Information Protection
    1. Exemption From Freedom of Information Act Disclosure
    2. Discovery and Other Use of Risk Analysis Information in
Litigation
    a. The Statutory Mandate
    b. The Final Study Report and Its Conclusions
V. Discussion of General Comments
    A. Information Protection
    1. Comments Supporting the Proposed Information Protections
    2. Comments on Final Study Report
    3. Comments Against Any Information Protections
    a. Comments That the Information Protections Are Unprecedented
    b. Comments That the Information Protections Will Reduce the
Rights of Litigants
    c. Comments That the Information Protections Will Allow
Railroads To Hide Safety Hazards
    4. Comments That the RRP Final Rule Does Not Need To Limit the
Disclosure of Evidence
    5. Comments Requesting Preservation of State Tort Law Based
Claims
    6. Comments That a Judge Should Determine Information
Admissibility
    7. Comments Suggesting FRA Should Only Protect a Railroad's
Hazard Analysis Form
    8. Comments That the Information Protections Are Too Narrow
    B. Other Topics
    1. Transportation of Hazardous Materials
    2. Comments on Performance-Based Rule and Flexibility
    3. Comments on Streamlined Safety Management System (SMS)
    4. Comments on Plan Approval
    5. Comments on Fatigue Management Plans
    6. Comments on the RSAC Process
    7. Comments on the Relationship Between RRP and SSP
    8. Comments on the Short Line Safety Institute
    9. Comments on Other SMS Programs
VI. Section-by-Section Analysis
VII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13771, Congressional Review Act,
and DOT Regulatory Policies and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Federalism
    D. International Trade Impact Assessment
    E. Paperwork Reduction Act
    F. Environmental Assessment
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact

I. Executive Summary

A. Statutory Authority for This Rulemaking

    FRA's general authority to issue rules on railroad safety is 49
U.S.C. 20103(a), which establishes the authority of the Secretary of
Transportation (Secretary) to promulgate regulations for every area of
railroad safety. The Secretary has delegated such statutory
responsibilities to the Administrator of FRA. See 49 CFR 1.89. FRA is
issuing this rule to satisfy the statutory mandate in sections 103 and
109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-
432, Division A, 122 Stat. 4848 et seq., codified at 49 U.S.C. 20156
and 20118-20119. The Secretary delegated responsibility to carry out
her responsibilities under RSIA sections 103 and 109, and the general
responsibility to conduct rail safety rulemakings under 49 U.S.C.
20103(a), to the Administrator of FRA. See 49 CFR 1.89(a) and (b).

B. Summary of Major Provisions

    FRA is issuing this RRP rule as part of its efforts to continually
improve rail safety and to satisfy the statutory mandate in RSIA
sections 103 and 109 requiring each Class I freight railroad and each
freight railroad with inadequate safety performance to develop and
implement an RRP.\1\ A railroad not otherwise required to comply with
the rule may also voluntarily submit an RRP plan for FRA review and
approval. On August 12, 2016, 81 FR 53850, FRA published a separate
system safety program (SSP) rule implementing this mandate for commuter
and intercity passenger railroads.
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    \1\ FRA understands that each railroad subject to this RRP rule
has a unique operating system, and not all railroads have the same
amount of resources. Best practices for implementing an RRP will
therefore differ from railroad to railroad. Accordingly, this rule
does not establish prescriptive requirements that may be appropriate
for one railroad but unworkable for another. Instead, the rule
establishes general, performance-based requirements. This approach
provides each railroad flexibility to tailor those requirements to
its specific operations.
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    An RRP is implemented by a written risk reduction program plan (RRP
plan). The RRP rule sets forth various elements that a railroad's RRP
plan must contain to properly implement an RRP. As part of its RRP
plan, a railroad must also

describe the various procedures and processes for implementing this
rule's requirements. This includes procedures and processes for, but
not limited to, the following RRP components: Risk-based hazard
management program; safety performance evaluation; safety outreach;
technology implementation plan; RRP employee/contractor training;
railroad employee involvement; and internal assessment.
    The main components of an RRP are the risk-based hazard management
program and risk-based hazard analysis. A properly implemented risk-
based hazard management program and risk-based hazard analysis will
identify the hazards and resulting risks on the railroad's system,
develop methods to mitigate or eliminate (if practicable) these hazards
and risks, and set forth a plan to implement these methods. As part of
its RRP, a railroad will also consider various technologies that may
mitigate or eliminate the identified hazards and risks.
    An RRP will affect almost all facets of a railroad's operations. To
ensure all railroad employees an RRP directly affects have an
opportunity to provide input on the development, implementation, and
evaluation of a railroad's RRP, the rule requires railroads to consult
in good faith, and use their best efforts to reach agreement with, such
employees on the RRP plan contents and any substantive amendments to
the plan. Appendix A to the rule contains guidance on what constitutes
good faith and best efforts.
    An RRP can be successful only if a railroad engages in a systematic
assessment of the hazards and resulting risks on its system. However, a
railroad may be reluctant to reveal such hazards and risks if there is
the possibility that such information may be used against it in a court
proceeding for damages. Congress directed FRA to conduct a study to
determine if it was in the public interest to withhold certain
information, including the railroad's assessment of its safety risks
and its statement of mitigation measures, from discovery and admission
into evidence in proceedings for damages involving personal injury and
wrongful death. See 49 U.S.C. 20119. Further, 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). FRA contracted to have the study performed, and the RRP
notice of proposed rulemaking (NPRM) addressed the study's results and
set forth proposed protections for certain information from discovery,
admission into evidence, or use for other purposes in a proceeding for
damages. See 80 FR 10963-10966 (Feb. 27, 2015).
    To minimize the information protected, information a railroad
compiles or collects solely to plan, implement, or evaluate an RRP is
protected from discovery, admissibility into evidence, or use for other
purposes in a proceeding for damages involving personal injury,
wrongful death, or property damage. The rule also preempts State
discovery rules and sunshine laws which could be used to require the
disclosure of protected information in such proceedings. This rule does
not protect information a railroad compiles or collects for a purpose
unrelated to the railroad's RRP. Under section 20119(b), the
information protection provision is not effective until one year after
its publication. All other provisions of this final rule will become
effective 60 days after the date of publication.
    Section 20118 also specifies that certain risk reduction records
the Secretary obtains are exempt from the Freedom of Information Act
(FOIA) public disclosure requirements. This exemption is subject to two
exceptions for disclosure (1) necessary to enforce or carry out any
Federal law and (2) when a record is comprised of facts otherwise
available to the public and FRA determines disclosure would be
consistent with the confidentiality needed for RRPs. See 49 U.S.C.
20118. Unless an RSIA exception applies, FRA would not disclose such
records in response to a FOIA request. See 5 U.S.C. 552(b)(3) and 49
CFR 7.23(c)(3). Therefore, FRA concludes railroad risk reduction
records in FRA's possession would be exempted from mandatory disclosure
under FOIA unless one of the two exceptions applies.
    The rule requires a Class I railroad to submit its RRP plan to FRA
for review no later than August 16, 2021. This submission deadline
accounts for the statutory one-year delay before the information
protection provision becomes effective. Similarly, the rule does not
require railroads with inadequate safety performance (ISP railroads) or
railroads the Surface Transportation Board (STB) either reclassifies or
newly classifies as Class I railroads after the effective date of the
final rule to submit RRP plans before the information protection
provisions go into effect. An ISP railroad must submit an RRP plan
either 180 days after receiving notice FRA determined the ISP railroad
had inadequate safety performance or no later than August 16, 2021,
whichever is later. A railroad the STB reclassifies or newly classifies
as a Class I railroad must submit its RRP either no later than 90 days
following the effective date of the classification or reclassification
or no later than August 16, 2021, whichever is later.
    Within 90 days of receipt of a railroad's RRP plan, FRA will review
the plan and determine if it meets the requirements of the rule. If FRA
determines the railroad's RRP plan does not comply with the rule, FRA
will notify the railroad of how the plan is deficient. The railroad
will then have 90 days to correct the deficiencies and resubmit the
plan to FRA. Whenever a railroad amends its RRP plan, it must submit
the amended plan to FRA for approval and provide a cover letter
describing the amendments. (FRA approval is not required for amendments
limited to adding or changing a name, title, address, or telephone
number of a person, although a railroad must still file the amendment
with FRA.) A similar approval process and timeline will apply whenever
a railroad substantively amends its RRP.

C. Summary of Costs and Benefits

    The rule requires each Class I freight railroad and each ISP
railroad to develop and implement an RRP in accordance with a written
RRP plan approved by FRA. The rule sets forth required elements that
must be included in a railroad's RRP. FRA estimates that the rule's
costs for these elements include: Developing a risk-based hazard
management program (HMP); documenting an RRP plan and any RRP plan
amendments; consulting with directly affected employees and preparing
consultation statements; conducting a safety performance evaluation;
conducting safety outreach; conducting a technology analysis and
developing a technology implementation plan; ensuring employee
involvement; providing RRP training; retaining RRP records; and
conducting internal assessments. FRA did not estimate the full
incremental costs of railroads conducting additional and systematic
hazard and risk analyses or implementing actions to mitigate identified
hazards and risks. FRA lacks information to reliably estimate such
costs because FRA cannot predict the level of hazards and risks on
impacted railroads nor the means these railroads will use to mitigate
these risks.
    Costs begin in the first year of analysis. The below tables
summarize the rule's total costs over a ten-year period based on Class
I railroads having a 43-percent pre-compliance rate and ISP railroads
having no pre-compliance, with a total cost of $40.2 million, using a
7-percent discount rate (present value (PV), 7-percent) (Table 1) and
$51.0

million, using a 3-percent discount rate (PV, 3-percent) (Table 2). The
annualized costs are $5.7 million (PV, 7-percent) and $5.9 million (PV,
3-percent).

 Table 1--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 7-Percent
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                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
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Subpart A: General..............................................  ..............          $7,000          $7,000
Subpart B: RR Programs..........................................      35,725,000       2,216,000      37,941,000
Subpart C: RRP Plans............................................         656,000       1,053,000       1,709,000
Subpart D: Review and Approval of Plans.........................           2,000           7,000           9,000
Subpart E: Internal Assessments.................................         171,000         312,000         483,000
Subpart F: External Audits......................................          28,000          32,000          60,000
                                                                 -----------------------------------------------
    Total Cost, 7% present value................................      36,582,000       3,627,000      40,209,000
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Annualized, 7%..................................................       5,210,000         516,000       5,726,000
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 Table 2--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 3-Percent
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                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
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Subpart A: General..............................................  ..............          $9,000          $9,000
Subpart B: RR Programs..........................................      45,156,000       3,011,000      48,167,000
Subpart C: RRP Plans............................................         771,000       1,329,000       2,100,000
Subpart D: Review and Approval of Plans.........................           2,000           8,000          10,000
Subpart E: Internal Assessments.................................         230,000         413,000         643,000
Subpart F: External Audits......................................          37,000          43,000          80,000
                                                                 -----------------------------------------------
    Total Cost, 3% present value................................      46,197,000       4,813,000      51,000,000
                                                                 -----------------------------------------------
Annualized, 3%..................................................       5,416,000         564,000       5,979,000
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    Benefits that come from the final rule will vary from railroad to
railroad. These benefits are based on each railroad's organizational
structure, the ability for labor and management to collaborate, and the
steps the railroad takes to implement hazard analysis and mitigation.
FRA could not reliably predict the specific risks that each freight
railroad will identify, the actions each freight railroad will take to
mitigate such risks, or the success rate of such actions. Therefore,
this analysis qualitatively describes benefits. Details on the
estimated benefits of this final rule can be found in the rule's
Regulatory Impact Analysis (RIA), which FRA has prepared and placed in
the docket (docket no. FRA-2009-0038).\2\
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    \2\ Document inspection and copying facilities are available at
Room W12-140 on the ground level of the West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590. The docket for this
rulemaking is also available online at www.regulations.gov under
docket no. FRA-2009-0038.
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    FRA expects that the final rule will increase the effectiveness of
railroad hazard mitigation strategies, which will reduce the frequency
of accidents and incidents on the general railroad system. FRA also
expects that the final rule will result in increased employee morale
and improved working conditions, which will improve railroad
productivity. These benefits will result because the final rule:
    (1) Ensures that railroads keep their RRPs current and in place;
    (2) Improves safety culture;
    (3) Requires ongoing employee involvement and proactive
collaboration between labor and management; and
    (4) Provides information protection which allows for a systematic
risk-based hazard analysis.
    The final rule requires each Class I railroad to have a fully
implemented RRP within five years of the rule's effective date and
requires the first set of ISP railroads to implement all portions of
their RRPs within six years after the final rule's effective date.\3\
FRA anticipates that railroads may implement some components of their
RRP plan before the required implementation dates specified in the
final rule. Therefore, this analysis estimates that the final rule will
start generating benefits in the fourth year (year 2022), when Class I
railroads will have substantially implemented their RRPs. As previously
discussed, Class I railroads have in place existing activities related
to the final rule's required components. The existing levels of pre-
rule compliance reduce the size of potential benefits that follow from
issuing the final rule.
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    \3\ An ISP railroad should begin to realize benefits
approximately three years after FRA approves its RRP plan, the point
when the final rule requires the ISP railroad to have fully
implemented its RRP. The final rule requires each ISP railroad that
is part of the first group of ISP railroads to implement in full an
RRP by the sixth year.
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II. 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

III. 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 railroad operations
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 safety
management systems (SMS) 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. SMS methodologies have evolved through
experience to include a multitude of equally important elements without
which the organization's safety performance does not reliably improve.
These SMS elements are typically grouped into the following larger
descriptive categories: (1) An organization-wide safety policy; (2)
formal methods for identifying hazards and 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.

B. Summary of NPRM

    On February 27, 2015, FRA published the NPRM proposing to require
each Class I freight railroad and each freight railroad with inadequate
safety performance to develop and implement an RRP to improve the
safety of their railroads operations. See 80 FR 10950. The NPRM
proposed the following RRP components: (1) A risk-based hazard
management program; (2) safety performance evaluation; (3) safety
outreach; (4) technology analysis and technology implementation plan;
(5) implementation and support training; (6) internal assessments; and
(7) external audits. The NPRM also proposed requiring a railroad to
submit its RRP plan to FRA for review and approval and to consult in
good faith and use its best efforts to reach agreement with all its
directly affected employees on the contents of the RRP plan. Finally,
the NPRM proposed to protect certain RRP information from discovery,
admission into evidence, or use for other purposes in a proceeding for
damages.
    In addition to these specific proposals, the NPRM contained a
general background discussion of risk reduction programs and discussed
FRA's experience with risk reduction programs, such as passenger
railroads that have implemented system safety programs. The NPRM also
summarized the rulemaking proceedings that occurred before NPRM
publication, including publication of an advanced notice of proposed
rulemaking (ANPRM) and related proceedings of the RSAC RRP Working
Group. FRA is providing relevant updates to these discussions below.

C. Proceedings Since the NPRM

    The comment period for the NPRM closed on April 28, 2015. As
several commenters requested, FRA held a public meeting on August 27,
2015 and invited interested parties to present oral statements and to
offer information and views on the proposed rulemaking at the hearing.
FRA placed the transcript for the public hearing in the docket for this
rulemaking. FRA also reopened the public comment period from July 30,
2015 through September 10, 2015 and from September 15, 2015 through
September 18, 2015 to accommodate the public hearing and to allow
interested parties to submit comments in response to views and
information provided at the public hearing.
    On September 29, 2015, the RSAC RRP Working Group met to review and
discuss comments received in response to both the NPRM and the public
hearing. FRA then reopened the comment period for this rulemaking from
October 7, 2015 through October 21, 2015 to allow interested parties to
submit written comments in response to views or information provided at
the RRP Working Group meeting.

D. Regulatory Review

    DOT has invited the public to provide input on existing rules and
other agency actions that are good candidates for repeal, replacement,
suspension, or modification. See 82 FR 45750 (Oct. 2, 2017). As
appropriate, this final rule responds to comments submitted in response
to DOT's regulatory review initiative that address railroad safety risk
reduction programs under the RSIA.

E. Summary of Comments

    FRA received 80 comments in response to the NPRM, the public
hearing, and the RRP Working Group Meeting. Some interested parties
submitted multiple comments. FRA received comments from a variety of
entities, including railroads, trade associations, non-profit employee
labor organizations, State elected representatives, non-profit advocacy
organizations, and private citizens.\4\ Various interested labor
organizations (Labor Organizations I) jointly filed a comment in
response to the NPRM,\5\ and a different group of labor organizations
(Labor Organizations II) also filed a comment in response to
information presented at the RRP Working Group meeting.\6\ Finally,
some organizations also filed a joint comment (Group Letter).\7\
Additionally, in response to DOT's regulatory review initiative,
American Short Line and

Regional Railroad Association (ASLRRA) and the Virginia Railway Express
(VRE) each submitted a comment discussing railroad safety risk
reduction programs under the RSIA.
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    \4\ Commenters included: Academy of Railroad Labor Attorneys;
American Association of Justice; American Public Transportation
Association; American Short Line and Regional Railroad Association;
Association of American Railroads; Association of Tourist Railroads
and Railway Museums; Bureau of Locomotive Engineers and Trainmen
(BLET); California State Senator (3rd District) Lois Wolk;
Chesapeake Climate Action Network; City of Portland, Oregon; DNV GL
Oil & Gas Risk Advisory Services; Friends of the Earth;
International Association of Sheet Metal, Air, Rail and
Transportation Workers--Transportation Division (SMART
Transportation Division); Mountain Watershed Association; National
Safety Council; New Jersey Work Environment Council; North Platte
Peer Review Team; Orion's Angels; Public Citizen Texas; Rancho Rail
Line; State of Washington Representative (46th Legislative District)
Jessyn Farrell; Toxics Use Reduction Institute; Transport Action
Canada; Union Pacific Railroad; and 45 individuals.
    \5\ These included: American Train Dispatchers Association
(ATDA); BLET; Brotherhood of Maintenance of Way Employes Division
(BMWED); Brotherhood of Railroad Signalmen (BRS); Brotherhood
Railway Carmen Division TCU/IAM; SMART Transportation Division; and
Transport Workers Union of America (TWU).
    \6\ These included: BLET; BMWED; BRS; SMART Transportation
Division; and Transportation Communication Union (TCU).
    \7\ Group Letter organizations were: Alliance for Justice; Bay
Area Refinery Corridor Coalition; Blue Ridge Environmental Defense
League; Center for Effective Government; Center for Justice and
Democracy; Citizens Acting for Rail Safety; Citizens for a Clean
Harbor; Crockett-Rodeo United to Defend the Environment; Benicians
for a Safe and Healthy Community; Delaware Riverkeeper Network;
Forest Ethics; Friends of Grays Harbor; Friends of the Earth; Idaho
Conservation League; Milwaukee Riverkeeper; Protect All Children's
Environment; Public Citizen; United Steelworkers; US PIRG;
Sciencecorps; Sierra Club; The SunFlower Alliance; Yolo MoveOn; and
Youghiogheny Riverkeeper, Mountain Watershed Association.
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    Generally, all commenters were in favor of RRP. While the comments
contained varying suggestions on the structure and breadth of an RRP,
most commenters agreed a properly implemented RRP would increase the
safety of railroad operations. Many commenters, however, expressed
concern about the FRA proposal to limit the use of some RRP information
in legal proceedings for damages. FRA discusses this and other specific
comments in further detail below.

E. Update on Other Federal Safety Management System Programs

    The RRP NPRM discussed other Federal agencies that had established
or proposed safety management system requirements or guidance for
regulated entities. Specifically, the NPRM discussed Federal Transit
Administration regulations, regulations the Federal Aviation
Administration (FAA) proposed, and guidelines the U.S. Department of
Defense published. See 80 FR 10953 (Feb. 27, 2015). For a discussion of
post-NPRM developments with these programs and new Federal safety
management system initiatives please see the SSP final rule at 81 FR
53853-53854 (Aug. 12, 2016).

IV. Statutory Background

A. Rail Safety Improvement Act of 2008

    RSIA section 103(a) directs the 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. RSIA section 103(a)(4) also
states that railroads not required to comply with this rule may
voluntarily submit to FRA for approval an RRP plan meeting the
requirements. Section 20156 codifies these provisions.
    This RRP rule implements section 20156 as it applies to Class I
freight railroads, freight railroads with inadequate safety
performance, and voluntarily-compliant railroads. The RRP rule is a
risk reduction program in that it requires subject railroads to assess
and manage risk and to develop proactive hazard management methods to
promote safety improvement. The rule contains provisions that, while
not explicitly required by the statutory safety risk reduction program
mandate, are necessary to properly implement the mandate and are
consistent with the intent behind the mandate.

B. Related System Safety and Fatigue Management Plans Rulemakings

    This RRP final rule addresses the RSIA sections 103 and 109 RRP
mandate for Class I freight railroads and freight railroads with
inadequate safety performance. Two separate rulemakings address the
mandate for passenger railroads and for Fatigue Management Plans. The
NPRM discussed both these rulemakings and how they related to the RRP
rulemaking. See 80 FR at 10955. FRA published an SSP final rule for
passenger railroads on August 12, 2016. See 81 FR 53850.\8\
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    \8\ On August 30, 2019, FRA issued a final rule extending a stay
of the SSP rule's requirements to March 4, 2020. See 84 FR 45683
(2019). FRA issued the stay to develop its response to various
petitions for reconsideration of the SSP final rule. Id.
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    Section 20156(d)(2) states an RRP must include a fatigue management
plan (FMP) that meets the requirements of section 20156(f). However,
this RRP final rule does not implement this mandate because FRA is
addressing FMPs in a separate rulemaking. The RSAC Fatigue Management
Plans Working Group (FMP Working Group), which completed its work in
September 2013, submitted its recommendations to FRA for further
consideration. FRA is currently drafting an FMP NPRM.
    Once FRA publishes an FMP rule, FRA will consider any FMP a
railroad develops and implements under that rule part of a railroad's
RRP or SSP. Before FRA issues an FMP final rule, FRA will approve RRP
plans that do not contain an FMP component, if the RRP plan meets all
other applicable RRP requirements. A railroad may still, however, elect
to use processes and procedures in its RRP plan to address fatigue-
related railroad safety issues.

C. Consultation Process Requirements

    Section 20156(g)(1) 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.'' Section 20156(g)(2) further provides that if a
railroad and its directly affected employees ``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.'' Section 20156(g)(2) further provides that FRA must consider
these views during review and approval of a railroad's RRP plan.
    As proposed in the NPRM, the rule implements 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 must also include a
consultation statement in its submitted plan describing how it
consulted with its employees. If a railroad and its employees cannot
reach consensus, directly affected employees may file a statement with
FRA describing their views on the plan.
    Like the information protection provisions discussed below, the RRP
and SSP rules have essentially identical provisions regarding the
consultation process requirements because there was significant
discussion during the SSP and RRP RSAC processes on how to implement
section 20156(g). FRA worked with the General Passenger Safety Task
Force's System Safety Task Group to receive input on how to address the
consultation process, with the understanding that FRA would include the
same language in both the SSP and RRP NPRMs for review and comment. The
minor differences between the consultation provisions in the RRP and
SSP rules are discussed in the section-by-section analysis for Sec.
271.207.

D. Risk Reduction Information Protection

1. Exemption From Freedom of Information Act Disclosure
    In section 20118, Congress exempted railroad safety analysis
records from public disclosure in response to FOIA requests. 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, Exemption 3, applies to
records specifically exempted from disclosure by statute if the statute
requires the 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). See also 49 CFR 7.23(c)(3). The NPRM explains
FRA's conclusion that section 20118 is a FOIA Exemption 3 statute and,
therefore, exempts RRP records in FRA's possession from mandatory
disclosure under FOIA, unless one of

the two RSIA exceptions discussed above applies. See 80 FR at 10957-
10958. FRA did not receive any comments questioning its conclusion so
FRA refers interested readers to the NPRM's analysis of this
conclusion. Id.
2. Discovery and Other Use of Risk Analysis Information in Litigation
a. The Statutory Mandate
    Section 20119(a) directed FRA to conduct a study to determine
whether it is 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. Section 20119(a)
required FRA to solicit input from railroads, railroad non-profit
employee labor organizations, railroad accident victims and their
families, and the general public for the study. Section 20119(b) also
states that upon completion of the study, if in the public interest,
FRA could prescribe a rule addressing the results of the study. Section
20119(b) states any such rule is not effective until one year after its
adoption.
b. The Final Study Report and Its Conclusions
    FRA contracted with a law firm, Baker Botts L.L.P. (Baker Botts),
to conduct the study for FRA. Various study documents are available for
review in public docket no. FRA-2011-0025, which interested parties can
access online at www.regulations.gov. First, Baker Botts prepared an
initial report identifying and evaluating other Federal safety programs
that protect safety-related 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 section 20119(a) requires, FRA published a Federal
Register document seeking public comment on 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). Interested
parties may view comments received in response to this document in the
public docket.
    On October 21, 2011, Baker Botts 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 (Final Study
Report), FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011. The Final
Study Report contains analyses of other Federal programs that protect
similar safety-related information, 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 Study Report determines that substantial support exists
for the conclusion that a rule that protects ``railroad safety risk
information from use in civil litigation involving claims for personal
injuries or wrongful death would serve the broader public interest.''
Final Study Report at 63. The Final Study Report highlights that, in
the past, with similar programs, Congress deemed it is in the public's
interest to place statutory limitations on disclosing or using certain
information used by the Federal Government. Id. The safety risk
reduction programs that RSIA mandates, according to the Final Study
Report, involve public interest considerations similar to the ones
Congress has protected through statutory limitations, and courts have
upheld these limitations. The Final Study Report explains that many of
the public comments submitted to the docket agree that limiting the use
of information collected for a safety risk reduction program mandated
by RSIA in discovery or litigation would serve the broad public
interest by encouraging and facilitating the timely and complete
disclosure of safety-related information to FRA. Further, the Final
Study Report underscores FRA's statutory duty to protect the broader
public interest in ensuring rail safety and concludes that this public
interest outweighs the individual interests of future litigants who may
bring damage claims against railroads. Therefore, the Final Study
Report concludes that

after balancing all of the considerations that bear upon the public
interest . . . the balance weighs in favor of adopting rules
prohibiting the admissibility or discovery of information compiled
or collected for FRA railroad safety risk reduction programs in a
civil action where a plaintiff seeks damages for personal injury or
wrongful death.

Id. at 64.
    In response to the Final Study Report, the RRP NPRM proposed in
Sec.  271.11 to protect any information compiled or collected for the
sole 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, or property damage. The NPRM clarified that the
protected information would include a railroad's identification of
safety hazards, analysis of safety risks, and statement of the
mitigation measures for addressing those risks. Protected information
could be in the form of plans, reports, documents, surveys, schedules,
lists, data, or any other form. FRA received multiple comments in
response to the information protections that both the SSP and RRP NPRM
proposed and has modified its approach based on these comments. These
changes are discussed further in the discussion of comments section and
the corresponding section-by-section analysis.

V. Discussion of General Comments

    This section discusses general comments FRA received on the RRP
NPRM relating to the proposed information protections and the overall
nature of the proposed rule. The section-by-section analysis discusses
all other comments as they relate to specific sections, including any
changes to the rule text FRA made in response.

A. Information Protection

    FRA received numerous comments regarding the proposed information
protections and has modified the proposed information protections based
on both the received comments and the information protection provisions
in the SSP final rule. As discussed in the NPRM, this RRP final rule
contains an information protection provision substantively identical to
the information protection provision in the SSP final rule.\9\ See 81
FR 53900 (Aug. 12, 2016). FRA believes different RRP and SSP provisions
governing information protection would be confusing. Further, the SSP
and RRP RSAC processes significantly discussed how to implement the
information protections. FRA worked with both the General Passenger
Safety Task Force's System Safety Task Group and the RRP Working Group
to receive input on how

the SSP and RRP rules should address information protection, with the
understanding that both rules would likely contain the same language.
---------------------------------------------------------------------------

    \9\ The minor differences between the RRP and SSP information
protections involve the use of ``risk reduction program'' instead of
``system safety program'' and citations to relevant provisions in
the RRP rule instead of provisions in the SSP rule. To correct a
minor typo in the SSP information protection provision, the RRP
information protection provision also uses the term ``proceeding''
instead of ``proceedings.'' No substantive difference is intended by
this correction.
---------------------------------------------------------------------------

1. Comments Supporting the Proposed Information Protections
    Several commenters agreed with FRA's conclusion that the proposed
information protections are necessary, including Association of
American Railroads (AAR), American Public Transportation Association
(APTA), ASLRRA, Union Pacific Railroad (UP), and Labor Organizations I.
These commenters support FRA's position that the litigation protections
are necessary for a railroad to engage in a thorough and candid
analysis of the hazards and resulting risks on its system. Based on
those comments, FRA believes both railroad management and railroad
labor generally agree an RRP final rule must have some form of
information protections.
2. Comments on Final Study Report
    Several commenters questioned the neutrality and the substance of
the Baker Botts Final Study Report. Commenters questioning the
neutrality of Final Study Report included American Association for
Justice (AAJ), Academy of Railroad Labor Attorneys (ARLA), Labor
Organizations I, Labor Organizations II, and several individuals. These
commenters provided several examples of Baker Botts' alleged bias,
including: (1) Citations to Baker Botts' website; (2) a book by William
G. Thomas titled Lawyering for the Railroad: Business, Law, and Power
in the South (Louisiana State University Press, 1999), which describes
Baker Botts' historical representation of Southern Pacific Railroad
beginning in the later 1800s until sometime in the 1900s; (3) a Baker
Botts associate's prior employment with Norfolk Southern Corporation;
and (4) a website indicating that Baker Botts was involved in
litigation related to the July 6, 2013 rail accident in Lac-
M[eacute]gantic, Quebec. The commenters did not provide a specific
example of Baker Botts representing a railroad in litigation involving
claims for damages at the time of the study.
    After evaluating these comments, FRA concludes that it complied
with all legal requirements, including the RSIA and the Federal
Acquisitions Regulations (FAR), in selecting Baker Botts and conducting
the study. See section 20119 and FAR 48 CFR 9.505 through 9.505-4 and
9.508. Further, FRA has not found any conflict or representation
indicating that Baker Botts had a bias in favor of railroad management
at the time of the study. For example, any involvement of Baker Botts
in Lac-M[eacute]gantic-related litigation occurred after the firm
completed the study in October 2011. FRA also reviewed Lawyering for
the Railroad: Business, Law, and Power in the South. Although the book
correctly states that Baker Botts represented Southern Pacific railroad
beginning in the late 1800s until sometime in the 1900s, the book does
not have an example of Baker Botts representing a railroad at the time
of the study.
    Baker Botts also conducted its own conflict check when submitting
its bid in response to FRA's request for proposal (RFP) \10\ and only
found one matter involving advice it provided to a railroad on
environmental issues, not rail safety. Further, Baker Botts, as a law
firm, must comply with the legal ethical standards of the appropriate
State or risk discipline or disbarment of its attorneys.
---------------------------------------------------------------------------

    \10\ FRA's RFP, Solicitation Number DTFR-53-10-R-00008, is
available at https://www.fbo.gov/index?s=opportunity&mode=form&id=56e2462fb07daa6e45155c3be66ddf02&tab=core&tabmode=list.
---------------------------------------------------------------------------

    AAJ, ARLA, and Labor Organizations II also submitted comments
arguing that the Final Study Report did not give adequate consideration
to the interests of railroad accident victims, their families, and the
general public. For example, ARLA and Labor Organizations II assert the
report only focuses on the railroads' alleged interests and why FRA
should protect risk reduction information. FRA disagrees and believes
the Final Study Report adequately considered the interests of railroad
accident victims, their families, and the general public. As section
20119(a) required, FRA solicited input for the report from railroads,
railroad nonprofit employee labor organizations, railroad accident
victims and their families, and the general public, including AAJ. See
76 FR 26682 (May 9, 2011) and Letters Dated May 12, 2011, to
Stakeholders Inviting Comments (FRA-2011-0025-0006). In response, FRA
received 22 comments representing 25 affected entities, including
railroads, AAJ, Public Citizen (a non-profit public interest
organization), various railroad non-profit employee labor
organizations, and individuals. The Final Study Report summarizes
comments both supporting and opposing a rule that would protect risk
reduction information. See generally Final Study Report at 37-46. The
Final Study Report also analyzes the relevant public interest
considerations, including considerations opposing a rule limiting
discovery and admissibility. See generally Id. at 53-63. Specifically,
the Final Study Report considers: (1) Victims' compensation; (2) the
necessity of a regulation; (3) promoting railroad safety; (4) promoting
the reporting of railroad accidents; (5) promoting open government and
freedom of information; (6) what kinds of documents a regulation should
protect; and (7) administrative procedure. Therefore, FRA concludes the
Final Study Report adequately considered the public interest and the
rights of railroad accident victims and their families.
3. Comments Against Any Information Protections
    Several commenters objected to including any information
protections in the final rule. These included AAJ, ARLA, the non-profit
organizations represented by the Group Letter, California State Senator
Wolk, Washington State Representative Farrell, the City of Portland,
and several individuals and other non-profit organizations.
    Overall, the primary objections of many commenters opposed to any
information protections are that the protections would (1) ignore the
importance of transparency in railroad safety and (2) reduce, not
improve, railroad safety. FRA disagrees. First, in section 20118,
Congress specifically exempted railroad safety analysis records from
mandatory disclosure under FOIA, indicating that Congress concluded the
benefits of improved railroad safety outweighed the benefits of
complete transparency in railroad safety. Second, the information
protections will not change the information available to litigants
today, as information currently discoverable and admissible will remain
discoverable and admissible. Further, the information protections will
improve railroad safety by encouraging railroads to engage in a
systematic and honest assessment of the hazards and resulting risks on
their systems. A railroad's risk-based Hazard Management Program (HMP)
will not improve railroad safety if a railroad is reluctant to reveal
risks and hazards because a litigant could use that information against
the railroad in a court proceeding for damages.
a. Comments That the Information Protections Are Unprecedented
    AAJ contends the proposed information protections are
unprecedented. While AAJ recognizes certain existing programs have
information protections, AAJ argues those programs have two key
features: (1) Congress directed disclosure of documents be limited, and
(2) limited

disclosure applies predominately to documents actually submitted to a
Federal agency. AAJ believes that the RRP information protections do
not have either of these key features. ARLA also claims the safety-
related statutes and regulations the Final Study Report cites only
protect data a governmental agency holds, not a private entity such as
a railroad. (FRA notes that not all railroads are private entities.)
    While Congress did not set forth specific information protections
in section 20119, Congress explicitly gave FRA authority to promulgate
such protections. As discussed previously, section 20119(a) directs FRA
to conduct a study to determine if certain information protections
would be in the public interest, and Congress described the specific
parameters of the information protections the study had to consider.
Congress then authorized FRA to promulgate a rule, subject to notice
and comment, which addresses the results of the study. Id. FRA has
complied with Congress' mandate and has included information
protections in this rule consistent with the specific parameters
Congress described. FRA does not believe the information protections
are invalid simply because Congress didn't promulgate specific
protections.
    Additionally, nothing in section 20119 limits the information
protections to documents a railroad submits to FRA. Congress' language
in section 20119 states that the information protections, depending on
the results of the study, could apply to information a railroad does
not submit to FRA. Under section 20119(a), the study must consider
information protections that would apply to documents a railroad
compiles and collects for ``the purpose of planning, implementing, or
evaluating a safety risk reduction program.'' Because Congress did not
limit the information protections only to documents a railroad submits
to FRA, FRA has authority to protect documents a railroad possesses.
    Further, nothing in 23 U.S.C. 409 (section 409), the statute FRA
used as a model for the proposed information protections, or the
Supreme Court's decision in Pierce County v. Guillen, 537 U.S. 129
(2003) (which upheld the validity and constitutionality of section
409),\11\ limits the information protections to documents submitted to
the Federal Highway Administration (FHWA) as part of the Hazard
Elimination Program. In that case, the Supreme Court did not base its
interpretation of section 409 on whether documents were submitted to
FHWA. Rather, the Supreme Court held the information protections
extended to information because the Hazard Elimination Program required
compiling or collection of that information. See Guillen, 537 U.S. at
146. Like the statute at issue in that case, because the RSIA requires
railroads to compile and collect information for an RRP, it is
appropriate to protect any information the railroad compiles or
collects for that purpose, even if the railroad never submits that
information to FRA.
---------------------------------------------------------------------------

    \11\ For additional discussion on FRA's decision to base the RRP
information protection provisions on section 409 and Guillen, FRA
refers readers to the NPRM. See 80 FR 10963-10964 (Feb. 27, 2015).
---------------------------------------------------------------------------

    AAJ claims that in the limited circumstances where provisions have
protected data, the provisions have been narrowly tailored and
construed. AAJ believes the proposed information protections are overly
broad and inconsistent with any other government program that limits
some disclosure of evidence.
    FRA agrees with AAJ that the information protections must be
narrowly tailored and construed. In Guillen, the Supreme Court
recognized that ``statutes establishing evidentiary privileges must be
construed narrowly because privileges impede the search for truth.''
Guillen at 144-45. Because section 409 established a privilege, the
Court construed it narrowly to the extent the text of the statute
permitted. Id. at 145. FRA believes the RRP information protections are
consistent with the Court's narrow interpretation of section 409.
Further, FRA has tailored the RRP protections even more narrowly than
section 409 by limiting them to information a railroad originally
compiled or collected ``solely'' for the purpose of planning,
implementing or evaluating an RRP, as the section-by-section analysis
for Sec.  271.11 discusses.
    Labor Organizations II commented that, with the exception of
section 409, each safety law or regulation the Final Study Report cites
allows discovery of information. FRA believes Labor Organizations II's
characterization of the Final Study Report is inaccurate because the
final report identifies two additional safety statutes prohibiting both
the discoverability and the admissibility of information. The first is
49 U.S.C. 6307(b)(2)(B)(i), which specifies reports submitted to DOT's
Bureau of Transportation Statistics (BTS) under 49 U.S.C. 6302(b)(3)(B)
are ``immune from legal process.'' \12\ ``Accordingly, no litigant may
subpoena the report in discovery or obtain it through any other legal
proceeding.'' Final Study Report at 20. The second statute is 46 U.S.C.
6308(a), which protects from discovery marine casualty reports the U.S.
Coast Guard creates under 46 U.S.C. 6301.\13\
---------------------------------------------------------------------------

    \12\ The Final Study Report discussed a previous version of
section 6307(b)(2)(B)(i), 49 U.S.C. 111(k)(a)(2)(B)(i), repealed in
2012. See Pub. L. 112-141, Div. E, Title II, section 52011(c)(1),
July 6, 2012, 126 Stat. 895. However, substantively, sections
6307(b)(2)(B)(i) and 111(k)(a)(2)(B)(i) are identical and have the
same ``immune from legal process'' language. Because section
6302(b)(3)(B)(vi)(1) requires BTS to collect statistics on
``transportation safety across all modes and modally,'' FRA believes
section 6307(b)(2)(B)(i) is a safety law.
    \13\ Because marine casualty investigations identify the cause
of accidents resulting in fatalities, FRA believes section 6308(a)
is also a safety law.
---------------------------------------------------------------------------

    Further, Labor Organizations II's argument acknowledges that
section 409 prohibits discovery. As discussed in the NPRM, FRA believes
section 409 is the best model for the RRP information protections
because Congress used similar language in section 409 and section 20119
authorizing information protection and because Guillen determined
section 409 was constitutional. See 80 FR at 10963.
    ARLA also commented that virtually every safety law the Final Study
Report discussed has exceptions to the protection against disclosure
and admissibility. FRA notes that the information protections in Sec.
271.11 are narrowly tailored and will not provide blanket protection
for all railroad RRP information. The rule excepts from protection
several categories of RRP information, such as (1) information
discoverable and admissible before publication of the RRP final rule,
(2) information another provision of law or regulation requires the
railroad to compile or collect, and (3) information a railroad does not
use ``solely'' for an RRP purpose. Accordingly, FRA concludes this rule
contains several exceptions to the information protections and is not
inconsistent with other safety laws with exceptions to protections
against discoverability and admission into evidence.
b. Comments That the Information Protections Will Reduce the Rights of
Litigants
    AAJ argues the RRP information protections will reduce the rights
of persons injured in railroad accidents. AAJ asserts that evidence a
railroad knew or should have known of a hazard is key in many cases to
prove the railroad's liability, particularly for Federal Employers'
Liability Act cases. AAJ believes the Final Study Report concluded
without analysis that injured people could continue to pursue legal
remedies because access to currently discoverable documents would
remain

discoverable. AAJ does not believe this conclusion is accurate because
it contends the information protections may shield the documents/data
necessary to show the railroad knew or should have known of the hazard.
AAJ also commented that the information protections are one-sided
because they shield the railroad from discovery, while permitting the
railroad to obtain extensive discovery regarding a plaintiff's
knowledge of a hazard or risk. The Chesapeake Climate Action Network
(CCAN) expressed similar concerns.
    FRA has drafted the RRP information protections so a plaintiff or
defendant is no worse off than he or she would have been if the RRP
rule never existed. This is consistent with section 409 and the Supreme
Court's interpretation of that section. See Guillen at 146. To ensure a
plaintiff is no worse off, Sec.  271.11(b) has certain exceptions to
the information protections. Under Sec.  271.11(b), the information
protections are not extended to information compiled or collected for a
purpose other than that specifically identified in Sec.  271.11(a).
Further, if certain information was discoverable and admissible before
the enactment of the RRP rule, Sec.  271.11(b) ensures the information
remains discoverable and admissible. This is true even if the railroad
(1) continues to compile or collect that information as part of its RRP
or (2) stops compiling or collecting that information outside the RRP
and then begins to compile or collect that information again as part of
its RRP. These exceptions are discussed extensively in the section-by-
section analysis for Sec.  271.11(b). These exceptions strike a
reasonable balance between ensuring that plaintiffs are no worse than
they would have been if the RRP rule had not existed and encouraging
railroads to undertake a systematic and candid assessment of the
hazards and resulting risks on their system.
c. Comments That the Information Protections Will Allow Railroads To
Hide Safety Hazards
    AAJ asserts the information protections will allow railroads to
hide safety hazards. AAJ believes the threat of disclosure of these
hazards creates an incentive for railroads to correct them immediately.
AAJ points to multiple cases it believes prove railroads routinely hide
evidence of hazards. CCAN also argues that the information protections
would allow railroads to hide knowledge of safety problems and delay
correcting known or suspected hazards. Labor Organizations II express a
similar concern that the information protections would prevent
knowledge of future risks known by railroads. Specifically, Labor
Organizations II assert the information protections would hide risks
uncovered by a railroad resulting from future rulemakings.
    FRA disagrees. The purpose of the RRP is for railroads to identify
hazards and resulting risks and to take the appropriate measures to
mitigate or eliminate these hazards. Without the information
protections, an RRP could result in an effort-free tool for plaintiffs
in litigation against railroads, which would discourage railroads from
identifying hazards and resulting risks, thus frustrating the intent
behind section 20156. The RRP rule and information protections will
encourage railroads to identify and address hazards. Further, if a
railroad is already required by another law or regulation to collect
information to show compliance with existing laws or regulations, that
information will not be protected. Further, the information
protections' narrow application to information that a railroad compiles
or collects ``solely'' for an RRP purpose will not allow a railroad to
claim that the provisions protect all information regarding risks
relating to future technologies or rulemakings. Once a railroad uses
such information beyond the scope of its RRP, Sec.  271.11 will not
protect the non-RRP use of the information outside the railroad's RRP.
For example, if the railroad gives RRP information to a contractor to
use while performing maintenance work for the railroad, Sec.  271.11
will not extend to the contractor's use of the information. Therefore,
railroads will not be able to use the RRP information protections to
hide issues of non-compliance or avoid future regulatory requirements.
    Several commenters also expressed concern the information
protection provisions would allow railroads to hide information related
to the transportation of crude oil by rail. One individual specifically
commented that the RRP final rule should require railroads to provide
detailed crude-by-rail information.
    The information protection provisions in this final rule explicitly
do not protect any information that a railroad must compile or collect
``pursuant to any other provision of law or regulation.'' This excludes
from protection any crude oil information a railroad must collect under
Federal law, including (but not limited to) the Enhanced Tank Car
Standards and Operational Controls for High-Hazard Flammable Trains
(HHFT Final Rule) that FRA and the Pipelines and Hazardous Materials
Safety Administration (PHMSA) jointly issued. See generally 80 FR
26644-26750 (May 8, 2015). Further, because the HHFT Final Rule and
other Federal regulations contain provisions requiring the provision
and maintenance of certain hazardous material information, FRA does not
believe that this RRP final rule should impose additional crude-by-rail
information requirements. See e.g., DOT's Emergency Restriction/
Prohibition Order, DOT-OST-2014-0067, May 7, 2014, available at https://www.transportation.gov/briefing-room/emergency-order.
4. Comments That the RRP Final Rule Does Not Need To Limit the
Disclosure of Evidence
    AAJ contends that FRA can issue an RRP rule without limiting the
discovery of evidence, just like FAA did in its Safety Management
System (SMS) rulemaking.
    FRA disagrees. A significant difference between the FRA and FAA
programs is the scope of statutory authority Congress gave each agency
to protect information collected or maintained as part of an SMS. The
FAA's authority under 49 U.S.C. 44735 limits the protection of SMS
voluntarily-submitted information (such as reports, data, or other
information produced or collected for purposes of developing and
implementing an SMS) to protection from FOIA disclosure by the FAA.
Congress similarly protects risk reduction information from mandatory
FOIA disclosure in section 20118. However, Congress gave FRA authority
to further protect RRP information in section 20119, which directed FRA
to conduct the study and authorized FRA to issue a regulation
addressing the results of that study.
    As discussed above, the Final Study Report concludes 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. The final
report also makes recommendations for the drafting and structuring of
such a regulation. See Final Study Report at 63-64. Therefore, FRA
determined the information protections in this final rule are
consistent with the authority Congress provided in section 20119 and
the conclusion of the Final Study Report.
    ARLA also argues that railroads will honestly identify risks and
mitigations without the information protections because labor unions
will assure a railroad's compliance by participating

in the identification of risks and mitigations.
    FRA agrees with ARLA that employee participation in the risk-based
HMP is essential and will improve a railroad's RRP. FRA does not
believe, however, that employee participation alone can overcome a
railroad's reluctance to fully identify hazards and risks. Further,
employees and labor unions may not represent the interests of the
public or other accident victims. FRA therefore believes the
information protections will provide important additional encouragement
for a railroad to assess its hazards and risks.
5. Comments Requesting Preservation of State Tort Law Based Claims
    AAJ requests that FRA specifically preserve State tort law based
claims. AAJ believes that because railroads must submit their RRP plans
to FRA for approval, railroads may claim they are immune from any
safety hazard claim or that FRA's approval of the RRP plan preempts any
State law claim. Non-profit employee labor organizations also raised
this concern in response to the SSP NPRM.
    To address this issue, FRA is including Sec.  271.301(d)(4) in the
final rule, which provides that approval of a railroad's RRP plan under
this part does not constitute approval of the specific actions the
railroad will implement under its RRP plan and shall not be construed
as establishing a Federal standard regarding those specific actions.
FRA will not approve the specific mitigation and elimination measures a
railroad adopts to address identified hazards and risks. FRA also does
not intend the RRP rule to preempt State standards of care regarding
the specific risk mitigation actions a railroad will implement under
its RRP plan. Accordingly, Sec.  271.301(d)(4) clarifies that FRA
approval of a railroad's RRP plan is not approval of any specific
actions a railroad implements under that RRP plan, including any
specific mitigation and elimination measures a railroad chooses.
6. Comments That a Judge Should Determine Information Admissibility
    Labor Organizations II propose a compromise position where ``risk
reduction facts would be admissible if it is determined by a judge that
the information would be `in furtherance of the highest degree of
safety in railroad transportation.' '' As Labor Organizations II
explain, the phrase ``in furtherance of the highest degree of safety in
railroad transportation'' comes from 49 U.S.C. 103(c), which is the
safety standard Congress mandated FRA to follow in its administration
of railroad safety.
    FRA does not believe this suggestion would improve the proposed
information protections. Labor Organizations II's proposal only
addresses the admission of risk reduction information into evidence and
does not indicate whether discovery protections are necessary. The
suggestion also does not clarify when a judge should determine whether
admissibility of information is in furtherance of the highest degree of
safety in railroad transportation. As such, FRA believes the suggestion
would lead to the type of litigation avalanche that AAJ and ARLA fear,
where courts would have to routinely interpret the meaning of ``in
furtherance of the highest degree of safety in railroad
transportation.'' Labor Organizations II's suggestion is therefore too
imprecise to implement and would lead to an increase in costly
litigation.
7. Comments Suggesting FRA Should Only Protect a Railroad's Hazard
Analysis Form
    One individual suggested that FRA narrowly draft the regulation to
only protect a railroad's hazard analysis form from disclosure.
    FRA declines to implement this individual's suggestion. The
suggested approach would leave too much risk reduction information
unprotected, resulting in inadequate information protections. For
example, the suggested approach would not protect information a
railroad might not include in the hazard analysis form, such as
supporting data spreadsheets or candid discussions with employees about
hazards and risks. The suggested approach also would not protect
information a railroad uses to track the effectiveness of an
implemented mitigation measure. Further, an effective RRP cannot lock
important information in a hazard analysis form forever, as a railroad
must use such information for other mandatory RRP components (such as
its Safety Performance Evaluation or annual Internal Assessment).
    Moreover, the suggested approach could encourage a railroad to
claim protection for non-RRP information simply by placing it in a
hazard analysis form. FRA believes, however, that information should be
protected based on how the railroad is using the information (e.g., is
the railroad using the information solely for RRP purposes?), not
merely on whether or not the railroad included the information in a
hazard analysis form.
    Finally, protecting information beyond a railroad's hazard analysis
is consistent with section 20119(a), which directed FRA to study
protecting RRP information in various forms, including ``any report,
survey, schedule, list, or data compiled or collected'' for various RRP
purposes. The final rule also does not require a railroad to use a
specific hazard analysis form for its RRP, so it would be unclear which
document would be the ``hazard analysis form.'' Therefore, the
information protections would be applied inconsistently based on which
document was considered the ``hazard analysis form.''
    For these reasons, FRA declines to adopt the suggested approach.
8. Comments That the Information Protections Are Too Narrow
    FRA received several comments arguing that the proposed information
protections are too narrow. ASLRRA commented that FRA is not protecting
data as Congress intended in the RSIA, asserting FRA improperly relied
on section 409 and the Supreme Court's decision in Guillen because both
significantly predate the RSIA. Instead, ASLRRA believes that FRA
should only rely on the RSIA and protect ``any report, survey,
schedule, list or data compiled or collected for the purpose of
evaluating, planning or implementing a railroad safety risk reduction
program . . . including a railroad carrier's analysis of its safety
risks and its statement of the mitigation measures with which it will
address those risks.'' According to ASLRRA, any limitations FRA imposes
on this language are inappropriate.
    FRA disagrees and believes it has properly limited the scope of the
information protections. As explained above, FRA believes it correctly
used section 409 and Guillen as models for the information protections.
ASLRRA provided no reason, other than age, why FRA should not consider
Guillen's analysis sound guidance for establishing RRP information
protections.
    FRA also believes ASLRRA mischaracterized Congress' intent in
section 20119. Section 20119 does not directly establish parameters for
protecting risk reduction information. Rather, it requires FRA to
conduct a study and authorizes FRA to promulgate a rule addressing the
results of that study. Section 20119(b) also does not mandate the scope
of any information protections. FRA therefore concludes that the
proposed information protections are consistent with Congress' intent
in the RSIA to authorize FRA to decide the scope of the information
protections.

    ASLRRA also questions FRA's explanation in the NPRM preamble that
the information protections would extend to the Short Line Safety
Institute (Institute) only if FRA finds the Institute is part of a
complete RRP program. See 80 FR 10964 (Feb. 27, 2015). Specifically,
ASLRRA asserts there is no evidence small railroads will attempt to
obtain approval for, or operate under, inadequate programs. FRA
supports development of the Institute. FRA does not believe, however,
it has authority under RSIA to extend information protections to
programs that do not fully meet the requirements of this RRP final
rule. Section 20119(a) (emphasis added) only mandated FRA (as delegated
by the Secretary) to study protections for information ``compiled or
collected for the purpose of evaluating, planning, or implementing a
railroad safety risk reduction program required under this chapter.''
Under the rule, a complete RRP must contain several components,
including (but not limited to) a railroad's risk-based HMP and safety
performance evaluation. A railroad must also comply with the rule's
requirements for RRP internal assessment and external evaluations. If
the Institute either does not meet all the rule's requirements for a
railroad, or is otherwise not part of a railroad's broader RRP that
does meet the requirements, the Institute is neither a complete RRP nor
part of a complete RRP, and the information protections may not extend
to Institute information.
    In a joint comment, AAR and ASLRRA (AAR/ASLRRA) commented on the
NPRM's discussion in the preamble, which states Sec.  271.11 would only
protect information once FRA approves a railroad's RRP plan. They
believe that approach does not make sense and would weaken the rule's
protections. After reviewing the NPRM's discussion, FRA agrees with
AAR/ASLRRA that the discussion in the preamble to the proposed rule
does not properly reflect the scope of the information protections. See
80 FR 10952 (Feb. 27, 2015). In the preamble to the NPRM, FRA explained
that railroads should not begin implementing an RRP plan before FRA
approval, erroneously stating the information protections would not
apply to information a railroad did not compile or collect for an FRA-
approved RRP plan. FRA's intent was to explain that a railroad should
not begin performing hazard analysis or implementing mitigation
measures under its RRP plan before FRA approves the plan. However, FRA
overlooked that once the information protections are in effect, but
before FRA approves a railroad's RRP plan, a railroad could compile or
collect information for the purpose of developing its RRP plan that
should be protected. FRA therefore does not intend to limit the
information protections only to information a railroad compiles or
collected for an RRP plan FRA has already approved. Accordingly, Sec.
271.11 protects information compiled or collected solely for the
purpose of planning, implementing, or evaluating an RRP.

B. Other Topics

1. Transportation of Hazardous Materials
    Some commenters (including Friends of the Earth, Mountain Watershed
Association, and approximately four individuals) suggested that an RRP
final rule should require railroads to address issues related to high-
hazard flammable trains and routing of hazardous materials. One
individual asserted that the RRP final rule should simply ban the
transportation of Bakken crude oil, while another individual suggested
constructing a tank car inspection facility on the Canadian border.
    FRA shares the commenters' concerns regarding the safe
transportation of large quantities of crude oil and other hazardous
materials by rail, and DOT has taken numerous actions to reduce the
risk to public safety and the environment posed by the movement of
crude oil and other energy products by rail. A summary of those actions
and more information are available online at: https://www.phmsa.dot.gov/safe-transportation-energy-products/safe-transportation-energy-products-overview.
    DOT has also addressed the routing of hazardous materials by rail.
Under 49 CFR 172.820, railroads must perform a routing analysis for
HHFTs and other trains carrying certain explosives, material poisonous
by inhalation, and radioactive materials. See Sec.  172.820(a). At a
minimum, this routing analysis must consider 27 separate safety and
security factors. See Sec.  172.820(d) and part 172, appendix D. FRA
enforces these routing requirements under 49 CFR 209.501 and can (in
consultation with PHMSA, the Transportation Security Administration,
and the STB) direct a railroad to use an alternative route if the
railroad's route selection documentation and underlying analysis are
deficient and fail to establish that the chosen route poses the least
overall safety and security risk. See Sec.  209.501(a) and (d).
    Because these (and other) DOT actions address hazardous materials
routing and the safety of transporting crude oil by rail, FRA does not
believe the RRP final rule needs to impose additional--and potentially
duplicative--requirements directed at these issues. Nothing in the
final rule, however, prohibits a railroad from including HHFTs and
hazardous materials routing in its risk-based HMP, and many railroads
may choose to do so, particularly if they find that doing so allows
them to more efficiently comply with both the RRP rule and the other
DOT requirements addressing hazardous materials. A railroad including
HHFTs and hazardous materials routing in its risk-based HMP would
still, of course, remain subject to requirements of Federal hazardous
materials and rail safety laws and regulations that apply independently
of this final rule. (FRA notes that the rule's information protection
provisions will not apply to any hazardous materials routing or safety
information a railroad must collect under another Federal law or
regulation.) FRA further notes that the mitigating actions a railroad
may take to reduce the risk of any accident/incident will often be the
same actions a railroad would take to reduce the risk of an accident/
incident resulting in a release of hazardous materials (e.g.,
mitigating actions taken to prevent derailments). Finally, FRA's
approach is consistent with the RSIA, which does not specifically
require a railroad to include HHFTs and hazardous materials routing in
its risk analysis. See 49 U.S.C. 20156(c).
2. Comments on Performance-Based Rule and Flexibility
    The NPRM preamble described RRP as a performance-based rule that
would provide a railroad flexibility to tailor RRP requirements to its
specific operations. See 80 FR 10950-10951 (Feb. 27, 2015). As the NPRM
preamble explains, each railroad has a unique operating system and not
all railroads have the same amount of resources. Id. Accordingly, FRA
did not propose to establish prescriptive requirements that may be
appropriate for one railroad but unworkable for another. Id.
    To clarify, the NPRM's description of RRP as a performance-based
rule refers primarily to how a railroad identifies hazards and chooses
strategies to mitigate risks associated with those hazards. FRA is
requiring railroads to specify the performance standard (reduction in
safety risk as identified in a statement defining specific, measurable
goals of the RRP and describing clear strategies for reaching those
goals under Sec.  271.203(c)) but is not specifying the specific
subject areas,

processes, or tools to be used by the railroads in complying with the
rule. The purpose of an RRP is to reduce a railroad's accidents/
incidents, injuries, and fatalities, but the railroad has flexibility
to identify hazards and mitigate risks in a manner best-suited to its
unique system. FRA would not, for example, require a railroad to use a
specific hazard analysis tool or mandate implementation of a certain
mitigation strategy to address a risk. How a railroad prepares, adopts,
and implements an RRP, however, is subject to minimum Federal
standards, in that a railroad must support its RRP with an RRP plan
that contains certain components, follow the provisions of that RRP
plan, and ensure that it conducts an internal assessment of its RRP. In
short, requirements for an RRP's substance are performance-based, but
an RRP's process must meet certain minimum Federal standards.
    Several commenters supported FRA's decision to propose a
performance-based, flexible RRP rule. AAR/ASLRRA acknowledged the
performance-based nature of RRP, while Amtrak commented that the final
rule ``needs to be performance based and flexible. It should provide
the opportunity for new creative programs rather than a prescriptive
checklist of requirements or conditions.'' DNV-GL also noted the NPRM
was ``to a large extent aligned with good risk management practice in
potentially hazardous industries[,] particularly those that have
learned the lessons of previous accidents and implemented performance-
based regimes of safety regulation.''
    Labor Organizations I and several non-profit organizations and
individuals expressed concern that FRA described RRP as a performance-
based, flexible rule. Public Citizen Texas, for example, commented that
the proposed flexibility did not comply with the RSIA mandate.
    The nature of SMS demands a performance-based, flexible RRP rule.
Not every railroad will have the same hazards and risks, and different
railroads may find different mitigation strategies equally effective
for certain risks. Additionally, FRA notes that the RRP final rule
reflects every RSIA requirement (except for the portions of the RSIA
mandate the SSP final rule addresses and the FMP rulemaking will
address). FRA therefore believes that establishing an RRP final rule
that is performance-based and flexible reflects the outcome-oriented
nature of SMS and meets the RSIA mandate.
    Regarding Labor Organizations I's specific comment, FRA clarifies
in this preamble that both the RRP and SSP rule provide railroads
flexibility to tailor an RRP or SSP to a railroad's particular
operations. Like the SSP rule, the RRP rule depends on a railroad's
ability to thoroughly and candidly assess its unique hazards and risks,
not the railroad's ability to meet certain prescriptive requirements.
Rather, RRP requires a railroad to engage in self-analysis that a
railroad will conduct in conjunction with the railroad's directly
affected employees and FRA oversight. Since no two railroads'
operations are exactly the same, no two RRPs will be exactly the same.
Further, regardless of the amount of flexibility the RRP rule affords
railroads, the directly affected employees, including Labor
Organizations I, will have an opportunity to provide input and work
with the railroads on the development of the RRP plan. FRA also added
provisions to the final rule clarifying that a railroad must involve
its employees in the RRP. The section-by-section analysis will
specifically discuss these provisions further.
3. Comments on Streamlined Safety Management System (SMS)
    The NPRM preamble also described the proposed RRP rule as a
streamlined version of an SMS, explaining that FRA had not included a
number of components common to SMS to closely adhere to the RSIA
mandate. See 80 FR 10959 (Feb. 27, 2015). The NPRM preamble
specifically identified the following components that FRA did not
propose: (1) Processes ensuring that safety concerns are addressed
during the procurement process; (2) development and implementation of
processes to manage emergencies; (3) processes and procedures for a
railroad to manage changes that have a significant effect on railroad
safety; (4) processes and permissions for making configuration changes
to a railroad; and (5) safety certification prior to the initiation of
operations or implementation of major projects. See 80 FR 10959 (Feb.
27, 2015).
    Generally, the non-profit organizations and individuals who
expressed concern about the flexibility of the proposed RRP rule also
questioned FRA's description of RRP as streamlined and asserted that
the proposed RRP rule was less rigorous than the RSIA mandate, which
requires a ``comprehensive and systematic'' safety management system.
DNV-GL shared the concerns of these commenters, arguing that every
element of a safety management system is important and that ``it is
better to have a basic program in place for every element than to be
excellent in some and have no program in others.'' Labor Organizations
I also asked to better understand why FRA was not requiring the
additional components, arguing that they would expect an RRP to contain
the ``proven safety systems such as the items FRA identifies.''
    FRA disagrees with the commenters that the proposed rule does not
comply with the RSIA mandate (except for the portions of the RSIA
mandate the SSP final rule addresses and the FMP rulemaking will
address). As the NPRM explained, FRA proposed a streamlined version of
a safety management system ``to adhere as closely as possible to the
requirements of the RSIA.'' Id. The RSIA does not mandate a full SMS
\14\ but requires railroad RRPs to contain certain components, each of
which the RRP final rule also contains (as supplemented by the SSP and
FMP rulemakings). The RRP final rule adequately addresses railroad
safety hazards by following the RSIA mandate, particularly as the core
of the program is a systematic risk-based hazard management program
that includes a risk-based hazard analysis.
---------------------------------------------------------------------------

    \14\ The NPRM explained that a full SMS would contain numerous
components FRA was not proposing to mandate in the RRP rule, such as
a description of the railroad management and organizational
structure (including charts or other visual representations) or 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. Id.
---------------------------------------------------------------------------

4. Comments on Plan Approval
    The NPRM preamble stated FRA would only approve the processes and
procedures in a railroad's RRP plan, not the entire RRP. See 80 FR
10977 (Feb. 27, 2015). FRA will not, for example, approve specific
mitigation measures in a railroad's RRP plan. FRA received several
comments from individuals and non-profit organizations urging FRA to
approve entire RRPs, not just RRP plans. These commenters were
concerned FRA's decision to only approve RRP plans represented a
diminished role for FRA implementation and oversight of RRPs and did
not comply with the RSIA mandate.
    FRA disagrees and believes its decision to approve only RRP plans
satisfies the RSIA mandate. Section 20156(a)(3) directs FRA to ``review
and approve or disapprove railroad safety risk reduction program plans
within a reasonable period of time.'' (Emphasis added.) Further, an RRP
is an ongoing program that supports continuous safety improvement. As
discussed in the NPRM, ``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.''
80 FR at 10969 (Feb. 27, 2015). An RRP is not a one-time exercise. As
such, FRA does not believe it is possible to meaningfully approve a
railroad's entire RRP, because an RRP should be continuously moving
forward and improving. If FRA approved a railroad's program, it would
require a railroad to freeze an RRP at the moment of approval. That
position is not consistent with the dynamic and changing nature of a
successful RRP. FRA therefore is not changing the final rule to require
FRA approval of a railroad's RRP.
5. Comments on Fatigue Management Plans
    The RSIA requires an RRP to include an FMP meeting certain
requirements. The RRP NPRM did not address this mandate because FRA,
with the assistance of industry stakeholders, is implementing it
through the separate FMP rulemaking process.
    Labor Organizations I commented that FRA was violating the RSIA
mandate by failing to require FMPs in the proposed rule text and that
``the proposal of the FRA to provide an unknown number of years of
additional delay is the functional equivalent of an open-ended
waiver.'' Labor Organizations I also commented that RSIA section 108
required FRA to promulgate a fatigue rulemaking no later than October
2011.
    FRA notes that RSIA section 108 applies specifically to hours-of-
service reform, not the fatigue management programs that RSIA section
103 mandates for RRP. See 49 U.S.C. 20156(f). As such, arguments based
on RSIA section 108 are inapplicable to FMPs. Nevertheless, FRA is
working to issue a proposed FMP rulemaking. As the NPRM discussed, the
RSAC voted to establish the FMP Working Group to address the FMP
mandate in December 2011. The FMP Working Group completed its work in
September 2013 and submitted its recommendations to FRA. FRA is
considering these recommendations as it develops an FMP rulemaking.
Ultimately, any fatigue management plans that FRA requires pursuant to
section 20156(d)(2) and (f) would be part of a railroad's overall RRP.
FRA does not believe that it is failing to meet the RSIA mandate by
addressing the FMP requirements in a separate rulemaking process with
stakeholder assistance. The SSP final rule takes the same approach and
does not include FMP requirements. See 81 FR 53856-53857 (Aug. 12,
2016).
6. Comments on the RSAC Process
    FRA received comments from several individuals arguing that the
RSAC RRP Working Group process was flawed because it did not include an
industry risk reduction analysis expert. One commenter specifically
noted the RSAC process did not include participation from those in
high-risk industries, including chemical shipping industries,
universities, and consultants. These commenters suggested that FRA
should reopen the comment period and reconsider the proposed rule based
on much more information from the at-risk public and public officials
and from experts on industrial SMS.
    FRA declines to reopen the comment period again for several
reasons. First, FRA representatives who have participated in the APTA
system safety program have significant experience with industry risk
reduction programs, as explained in the SSP NPRM. See 77 FR 55375
(Sept. 7, 2012). Railroad representatives who participated in the RSAC
process also brought to the process experience with risk reduction
programs. Overall, the RRP Working Group included a number of certified
safety professionals, certified industrial hygienists, system safety
managers, and safety directors. FRA therefore concludes that the RSAC
RRP Working Group included ample expertise in the area of industry risk
reduction analysis.
    Second, FRA has provided the public--including public officials,
private individuals, and experts on industrial SMS--ample notice and
opportunity to participate in the RRP rulemaking process. The RSIA
mandate first notified the public FRA must require certain railroads to
implement railroad safety risk reduction programs. The Regulatory Plan
and Unified Agenda of Regulatory and Deregulatory Actions (published by
the Regulatory Information Service Center and made available to the
public at www.Reginfo.gov) have also included the risk reduction
rulemaking since the fall of 2009. See http://www.reginfo.gov/public/do/eAgendaMain?operation=OPERATION_GET_AGENCY_RULE_LIST¤tPubId=200910&showStage=active&agencyCd=2100&Image58.x=35&Image58.y=17.
    The ANPRM also solicited public comment on how FRA could best
develop and implement a risk reduction regulation based on the RSIA
requirements. See 75 FR 76345-76351 (Dec. 8, 2010). Interested persons
could submit comments to the ANPRM. FRA received 12 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. The RSAC subsequently discussed
in depth many of the questions and issues these comments raised.
    After it published the ANPRM and the comment period closed, FRA
also held two public hearings (announced in the Federal Register)
giving interested persons an additional opportunity to present oral
statements and to offer information and views on development of a risk
reduction regulation in response to the ANPRM. See 76 FR 40320 (July 8,
2011). As with the ANPRM, the hearing testimony focused on topics the
RSAC RRP Working Group continued to discuss. As noted above, FRA also
held a public hearing and reopened the comment period on several
occasions following the publication of the NPRM. The RSAC RRP Working
Group also met to review and discuss comments received in response to
the NPRM and the public hearing.
    Overall, FRA concludes reopening the RRP NPRM for further
consideration and comment is not necessary because the RSAC RRP Working
Group contained sufficient expertise in risk reduction and because FRA
provided interested risk reduction experts numerous opportunities to
participate in the rulemaking process.
7. Comments on the Relationship Between RRP and SSP
    FRA explained in the NPRM preamble that it worked with both the
RSAC RRP Working Group and the RSAC System Safety Task Group on
language implementing the RSIA mandate on information protection and
consultation process requirements, with the understanding the RRP and
SSP NPRMs would include the same language on both issues for review and
comment. See 80 FR 10955 (Feb. 27, 2015). As such, the RRP NPRM did not
respond to comments that FRA received in response to the SSP NPRM, but
explained that FRA would consider comments responding to both NPRMs
when developing the RRP final rule. See 80 FR 10958-10959 (Feb. 27,
2015).
    Labor Organizations I objected to FRA's position, arguing that FRA
had a duty to address comments on the SSP NPRM in the RRP NPRM. FRA
disagrees. SSP and RRP are separate rulemakings that apply to different
entities. FRA concluded, therefore, that it would be fair to allow
Class I railroads and potential ISP railroads the same opportunity to
respond to the proposed information protections and

consultation process requirements that the passenger railroads had in
responding to the SSP NPRM. Moreover, because this final rule contains
the same information protection provision as the SSP final rule, it
incorporates FRA's response to all comments received on the matter in
both the SSP and RRP rulemakings.
8. Comments on the Short Line Safety Institute
    ASLRRA commented that small railroad participation in the Short
Line Safety Institute (Institute) should suffice as complete compliance
with the requirements in the NPRM. According to ASLRRA, the Institute
assessment process is a comprehensive review of safety practices and
culture, which it believes is consistent with the intent of an RRP.
ASLRRA acknowledges that a key component of an effective RRP is
performance of a risk assessment and claims the Institute has teams of
assessors specifically trained (using FRA-approved materials) in a
well-documented safety assessment process. ASLRRA also claims FRA would
fulfill the Small Business Regulatory Enforcement Fairness Act (SBREFA)
requirement to grant special considerations to small businesses by
accepting participation in the Institute as satisfying RRP
requirements. In response to DOT's request for public comments on its
regulatory review initiative, ASLRRA similarly commented that FRA
should utilize the Institute to work with short line railroads as the
mechanism for risk reduction within the short line industry and not
place unnecessary and burdensome regulations on short lines. See 82 FR
45750-45753 (Oct. 2, 2017) and DOT-OST-2017-0069-2666. The following
discussion is FRA's response to ASLRRA's comments discussing the
Institute for both the NPRM and DOT's regulatory reform initiative.
    FRA supports the development of the Institute to promote the safety
of short line and regional railroad operations. However, for Institute
participation to constitute an RRP, the Institute would have to fully
comply with each RRP requirement this final rule establishes, which are
consistent with the RSIA requirements. FRA currently cannot determine
whether the Institute will fully comply with the RSIA mandate or the
requirements of this final rule. For example, FRA cannot determine
whether the Institute will include certain mandated components, such as
an RRP plan reviewed and approved by FRA, consultation with directly
affected employees on the contents of an RRP plan, annual internal
assessments, and a technology implementation plan. Rather, FRA believes
it is more appropriate to make this determination when reviewing RRP
plans under Sec.  271.301 of the final rule.
    Further, FRA does not believe it has to accept the Institute as a
fully-compliant RRP to comply with SBREFA or otherwise avoid placing
unnecessary and burdensome regulations on short line and regional
railroads. Because an RRP is scalable by design, a short line or
regional railroad's full compliance with an RRP final rule is not
likely to be as complex and comprehensive as it would be for a larger
railroad. The rule will therefore not unduly burden short line and
regional railroads. The Final Regulatory Flexibility Analysis in
Section VII.B further discusses how FRA has considered small business
concerns in developing the RRP final rule.
9. Comments on Other SMS Programs
    As both the NPRM and this preamble discuss, other Federal agencies
have established or proposed SMS requirements, and SMS programs have
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. FRA
received several comments urging FRA to consider other such SMS
programs as both positive and negative models for RRP.
    Transport Action Canada (TAC) commented that the effect of SMS in
the Canadian railroad industry has not been positive. Specifically, TAC
expressed concern that SMS-type programs such as RRP are ``incapable of
assuming . . . the role of government in ensuring public safety.''
    FRA does not believe this RRP rule will result in FRA abdicating
its role ensuring railroad safety, as any alleged weakness of SMS
programs in Canada does not mean SMS programs in the United States
cannot be successful. The United States' railroad safety laws and
regulations are different than Canada's, and the RRP rule will not
replace or modify any of FRA's railroad safety regulations,
responsibilities, or enforcement tools. An RRP will supplement FRA
oversight of railroad safety, not replace it.
    Various commenters suggested other SMS programs as models for RRP,
such as the United States Environmental Protection Agency's (EPA) Risk
Management Program, the Moving Ahead for Progress in the 21st Century
Act (MAP-21) and the Federal Transit Administration (FTA) approach, and
the Massachusetts Toxics Use Reduction Act (TURA). FRA notes that some
of these SMS programs operate very differently from the way FRA
exercises its railroad safety authority. For example, States have
primary responsibility for enforcing SMS programs under MAP-21 through
the State Safety Oversight (SSO) Program. See State Safety Oversight
(SSO) Program, available at http://www.fta.dot.gov/tso_15863.html
(``The SSO program is administered by eligible States with rail transit
systems in their jurisdiction. FTA provides Federal funds through the
SSO Formula Grant Program for eligible States to develop or carry out
their SSO programs. Under 49 U.S.C. Section 5329(e), as amended by
[MAP-21], FTA is required to certify each State's program to ensure
compliance with MAP-21.''). Further, as FRA has already stressed
elsewhere, this final rule hews closely to the RSIA mandate. If FRA
used other SMS programs as a model for RRP, rather than the RSIA
requirements, this could cause FRA to either fail to meet or exceed the
limits of RSIA's statutory mandate.

VI. Section-by-Section Analysis

    FRA is adding a new part 271 to chapter 49 of the CFR. This part
satisfies the RSIA requirements for safety risk reduction programs for
Class I railroads and railroads with inadequate safety performance. See
49 U.S.C. 20156(a)(1). This part also protects certain information
compiled or collected for a safety risk reduction program from
admission into evidence or discovery during court proceedings for
damages. See 49 U.S.C. 20119.

Subpart A--General

    Subpart A of the final rule contains 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
    Section 271.1 explains the rule's purpose and scope. Paragraph (a)
states the purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by railroads. Paragraph (a) also states this rule requires
each affected railroad to establish an RRP that systematically
evaluates railroad safety hazards on its system and manages the risks
generated by those hazards to reduce the number and rates of railroad
accidents/incidents, injuries, and fatalities. Except for replacing the
phrase ``in order to''

with ``to'' for the purpose of streamlining the regulatory language,
FRA has not changed paragraph (a) from the NPRM. As the NPRM explained,
the rule does 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. See 80 FR 10959
(Feb. 27, 2015).
    An individual commenter suggested FRA's RRP rule should use an
``All-Hazards'' approach. FRA declines to adopt this suggestion because
the RSIA requires an RRP to address only ``railroad safety risks'' and
Sec.  271.1(a) of the final rule accurately reflects this mandate by
requiring RRPs to ``systematically evaluate railroad safety hazards.''
The RSIA does not authorize RRPs that address hazards other than
railroad safety hazards.
    Paragraph (b) states that this part prescribes minimum Federal
safety standards for the preparation, adoption, and implementation of
RRPs. A railroad is not restricted from adopting and enforcing
additional or more stringent requirements that are not inconsistent
with the rule. FRA did not receive any comments on this paragraph and
adopts it as proposed.
    Paragraph (c) states that the rule protects information a railroad
compiles or collects solely for the purpose of planning, implementing,
or evaluating an RRP. While paragraph (c) in the proposed rule
specified that the rule would protect information ``generated'' solely
for developing, implementing, or evaluating an RRP, FRA has replaced
the term ``generated'' with the phrase ``compiles or collects'' to
promote consistency with Sec.  271.11. FRA has also replaced the term
``developing'' with the term ``planning'' from Sec.  271.11. FRA made
these changes only to improve clarity and consistency between this
section and Sec.  271.11 and not to make any substantive change in this
part's information protections.
    Paragraph (d) explains the final rule does not require an RRP to
address hazards completely unrelated to railroad safety and that fall
under the exclusive jurisdiction of another Federal agency. For
example, an RRP is not required to address environmental hazards that
would fall under the exclusive jurisdiction of the United States
Environmental Protection Agency (EPA) or workplace safety hazards that
would fall under the exclusive jurisdiction of the United States
Department of Labor's Occupational Safety and Health Administration
(OSHA). Paragraph (d) also explains an RRP should not address the
safety of employees while performing inspections, tests, and
maintenance. The only exception is where FRA has exercised its
jurisdiction over the safety issue, as in 49 CFR part 218, subpart B,
which establishes blue signal protection for workers. FRA will not
approve any specific portion of an RRP plan that addresses hazards
related to a safety issue that falls under the exclusive jurisdiction
of another Federal agency unless FRA has exercised its jurisdiction
over the safety issue.
    Paragraph (d) of the NPRM proposed the same language regarding
working conditions, but did not include the first sentence discussing
hazards completely unrelated to railroad safety and that fall under the
exclusive jurisdiction of another Federal agency. See 80 FR 10959 (Feb.
27, 2015). The NPRM preamble explained that while FRA is always
concerned with the safety of railroad employees performing their
duties, employee safety in maintenance and servicing areas generally
falls under OSHA's jurisdiction. Id. The NPRM similarly explained that
FRA did not intend RRPs to address environmental hazards and risks
unrelated to railroad safety that fall under EPA's jurisdiction. Id.
For example, the NPRM stated 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. Id.
    AAR/ASLRRA commented the language in proposed paragraph (d) did not
achieve clarification and specifically suggested FRA clarify its intent
by precisely stating that the scope of an RRP does not include matters
within OSHA's jurisdiction. AAR/ASLRRA also stated paragraph (d) did
not address environmental issues under EPA jurisdiction.
    To address AAR/ASLRRA's concern regarding EPA's jurisdiction, FRA
changed paragraph (d) in the final rule to add the first sentence
plainly stating that an RRP is not required to address hazards
completely unrelated to railroad safety and that fall under the
exclusive jurisdiction of another Federal agency. The purpose of this
language is to incorporate the NPRM's explanation that an RRP should
not address hazards that fall exclusively under the jurisdiction of
another Federal agency, such as EPA.
    FRA has otherwise not changed the proposed text of paragraph (d)
that relates to working conditions, as similar language appears in the
SSP final rule and FRA's regulations on passenger equipment safety
standards.\15\ See Sec. Sec.  270.103(g)(4) and 238.107(c). The purpose
of the language is to make clear that FRA neither intends to displace
OSHA jurisdiction with respect to employee working conditions generally
nor specifically with respect to the maintenance, repair, and
inspection of infrastructure and equipment directly affecting railroad
safety. FRA does not intend to approve any specific portion of an RRP
plan that relates exclusively to employee working conditions covered by
OSHA. The term ``approve'' is used to make clear that any part of an
RRP plan that relates to employee working conditions exclusively
covered by OSHA will not be approved even if the overall plan is
approved. Additionally, the term ``specific'' reinforces that the
particular portion of the plan that relates to employee working
conditions exclusively covered by OSHA will not be approved; however,
the rest of the plan may still be approved. If there is any confusion
whether an RRP plan covers an OSHA-regulated area, FRA is available to
provide assistance. The preamble to the SSP final rule contains this
same explanation regarding SSP plans and working conditions exclusively
covered by OSHA. See 81 FR 53871 (Aug. 12, 2016).
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    \15\ While Sec. Sec.  270.103(g)(4) and 238.107(c) contain
reference to working conditions ``as set forth in the plan,'' the
RRP final rule does not contain this language because an RRP plan is
not required to specifically address working conditions that arise
in the course of conducting maintenance, repair, and inspection of
infrastructure and equipment directly affecting railroad safety. FRA
is also leaving the reference to FRA regulations on blue signal
protection, which does not appear in the corresponding SSP language,
to improve clarity. FRA does not intend this difference to indicate
any substantive difference between the SSP and RRP language, as the
preamble to the SSP final rule contains the same example regarding
blue signal protection. See 81 FR 53870 (Aug. 12, 2016).
---------------------------------------------------------------------------

    Overall, FRA's intent behind paragraph (d) in the NPRM and this
final rule has not changed, and FRA has changed the language solely to
address AAR/ASLRRA's concerns regarding clarity. The NPRM discussion of
paragraph (d) therefore remains applicable to paragraph (d) in this
final rule. See 80 FR 10959 (Feb. 27, 2015).
Section 271.3--Application
    This section sets forth application of the rule. Except for
additional language in paragraph (c), this section is the same as in
the NPRM. Thus, FRA is not repeating the NPRM section-by-section
analysis for paragraphs (a) and (b) in this final rule, but refers
interested readers to the NPRM. See 80 FR 10959-10960 (Feb. 27, 2017).
FRA is, however, discussing comments it received

regarding tourist railroads and Class II and Class III railroads in
response to the NPRM.
    Paragraph (b)(2) of the NPRM proposed that the rule would not apply
to tourist, scenic, historic, or excursion operations, whether on or
off the general railroad system of transportation. See 80 FR 10989
(Feb. 27, 2015). The NPRM specifically requested public comment on how
an RRP final rule should address tourist operations that may create
hazards for freight operations. In response, Labor Organizations I
responded that FRA should require all railroads to account for tourist
operations on their lines in performing the self-critical analysis and
include such operations in the railroad's RRP. FRA agrees with Labor
Organizations I that a railroad required to comply with this rule must
account for tourist operations on its system. FRA has made changes
responding to this comment in Sec.  271.101(d), which requires
railroads to identify tourist operations that operate over the
railroad's track (even if the tourist railroad is exempt from this
rule) and to ensure the tourist railroad supports and participates in
the railroad's RRP. The section-by-section analysis for Sec.
271.101(d) discusses these changes further.
    In this final rule, FRA added a paragraph (c) that includes
language from the SSP final rule. See Sec.  270.107(a)(2). This
language clarifies that if a railroad contracts out significant
portions of its operations, the contractor and the contractor's
employees performing the railroad's operations are considered directly
affected employees for this rule's purposes, including the consultation
process and employee involvement requirements in Sec. Sec.  271.113 and
271.207, discussed below. This language is necessary to address how
directly affected employee consultation and involvement will be handled
when a railroad contracts out significant portions of its operations to
other entities. Contractors and contractor employees will only be
considered directly affected employees when the contracts are ongoing
and involve significant aspects of the railroad's operations. For
example, if a railroad contracts out maintenance of its locomotive and
rail cars to another entity, it is vital for the employees who are
performing this maintenance to be involved in that railroad's RRP and
have the opportunity to provide their valuable input on the RRP plan.
Another example would be if a railroad contracts out the actual
operations of its railroad to another entity. In such cases, the
contracted entity and its employees operating trains on behalf of the
railroad would certainly need to be part of the consultation process
and otherwise involved in the railroad's RRP. If a railroad is unsure
whether a contracted entity and its employees are directly affected
employees for purposes of this part, FRA encourages the railroad and
other interested stakeholders to contact FRA for guidance.
    The Association of Tourist Railroads and Railway Museums (ATRRM)
commented it supported FRA's proposed approach for tourist railroads.
ATRRM commented an RRP was poorly suited to a small tourist railroad,
but agreed with FRA's approach to tourist railroads that conduct their
own freight operations, or which operate on RRP host railroads. ATRRM
correctly understood FRA's position, and the changes made in Sec.
271.101(d) are consistent with this position.
    FRA received approximately four comments from individuals arguing
that FRA should expand the scope of the RRP final rule to Class II and
Class III railroads. FRA declines to incorporate this recommendation
for two principle reasons. First, applying the RRP final rule to Class
II and Class III railroads would go beyond the RSIA mandate and
increase the number of RRP plans submitted for FRA review. FRA would
therefore need more time to review all submitted plans, as well as more
time to conduct external reviews of RRPs. This would divert FRA
resources away from Class I railroads, which have more complex
operations than Class II and Class III railroads, and ISP railroads,
which FRA will have determined demonstrate inadequate safety. Adhering
to the RSIA mandate, which only directs FRA to require compliance from
Class I railroads, passenger railroads, and railroads with inadequate
safety performance, therefore represents the best and most efficient
use of FRA resources. Second, the methodology for identifying railroads
with inadequate safety performance will require certain Class II and
Class III railroads to comply with the RRP rule. FRA also notes that
Class II and III freight railroads may voluntarily comply with the
final rule.
Section 271.5--Definitions
    This section contains definitions clarifying the meaning of
important terms used in the rule. FRA worded the definitions carefully
to minimize potential misinterpretation of the rule. Commenters on the
NPRM did not have significant issues with the proposed definitions,
except for a few comments FRA received on the proposed definitions of
``hazard'' and ``safety culture,'' discussed below. FRA also made
changes discussed below to the definitions of ``accident/incident'' and
``pilot project.'' For definitions that did not receive any comment and
have not been changed, FRA is not repeating the NPRM's section-by-
section analysis in this final rule but refers interested readers to
the NPRM's discussion. See 80 FR 10960-10962 (Feb. 27, 2015).
    The NPRM preamble stated FRA was proposing an ``accident/incident''
definition identical to the definition contained in FRA's accident/
incident reporting regulations at 49 CFR part 225. See 80 FR 10960
(Feb. 27, 2015). However, the proposed definition did not match the
part 225 definition exactly, because it did not include occupational
illnesses. See 49 CFR 225.5. This inconsistency was merely an
oversight. To correct this inconsistency and to ensure future
conformity with the part 225 definition and any amendments thereto, FRA
has changed the final rule's definition to simply cross-reference the
part 225 definition.
    The NPRM proposed to define ``hazard'' as 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. See
80 FR 10989 (Feb. 27, 2015). In response, AAR/ASLRRA commented the
definition of hazard did not help clarify the proposed jurisdiction
statement in Sec.  271.1(d). AAR/ASLRRA also claimed the definition
places conditions that do not impact human safety or property damage
squarely within the definition of hazard. As discussed above, FRA has
made changes to Sec.  271.1(d) to clarify an RRP does not have to
address safety issues that are completely unrelated to railroad safety
and that fall under the exclusive jurisdiction of another Federal
agency, such as EPA. This does not mean, however, an RRP should not
address railroad safety hazards that could result in damage to the
environment, such as a derailment that could result in a hazardous
materials release. See also 80 FR 10959 (Feb. 27, 2015). As Sec.
271.1(a) provides, an RRP is required to address ``railroad safety
hazards.'' The final rule adopts the NPRM's definition for ``hazard''
unchanged.
    The NPRM proposed to define ``pilot project'' as 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. See 80 FR 10989-10990 (Feb. 27, 2015). FRA modified
this definition to replace the word ``proof'' with the phrase
``evaluation and analysis.'' FRA made this change to avoid implying
that a

railroad had to meet an established quantitative threshold as proof
that a pilot project has potential to succeed. FRA did not intend to
establish a quantitative proof threshold, and believes ``evaluation and
analysis'' more accurately describes the purpose of a pilot project.
FRA also modified this definition slightly by changing ``potential to
succeed on a full-scale basis'' to ``potential for full-scale
success.'' The purpose of this change is only to streamline the
language, and FRA does not intend any substantive change.
    The NPRM proposed defining ``safety culture'' as the shared values,
actions, and behaviors that demonstrate a commitment to safety over
competing goals and demands. This definition is the same in the final
rule and was also included in the SSP rule. See Sec.  270.5 and 81 FR
53863-53864 (Aug. 12, 2016). As the NPRM explained, FRA based the
definition on a research paper published by the DOT Safety Council. See
80 FR 10962 (Feb. 27, 2015). 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. Id. See also
U.S. Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety
Culture: A Significant Influence on Safety in Transportation,'' 2-3
(2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. The NPRM also acknowledged the
proposed definition was different than the definition that the RRP
Working Group recommended. Specifically, FRA noted that some
participants during RRP Working Group discussion expressed 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. The NPRM explained FRA selected
the proposed definition because it was important to use a definition
the DOT Safety Council formulated. See 80 FR 10962 (Feb. 27, 2015). The
definition also would not require a railroad to prioritize absolute
safety over competing goals and demands (i.e., it would not require a
railroad to have a perfect safety culture). Rather, FRA explained that
the proposed definition merely expressed how a railroad should evaluate
safety culture by measuring the extent to which a railroad emphasizes
safety over competing goals and demands. Id.
    AAR/ASLRRA responded to this discussion by commenting there was no
doubt that the proposed definition requires ``a commitment to safety
over competing goals and demands,'' because that is what the definition
says. AAR/ASLRRA further suggested that if FRA's intent was to measure
the extent to which a railroad emphasizes safety over competing goals
and demands, that language should be included. FRA declines to change
the proposed ``safety culture'' definition as suggested because doing
so would eliminate the benefits of having a general definition the DOT
Safety Council developed and approved. There is value in establishing a
shared understanding of safety culture that can be applied across many
contexts, and developing a common understanding of the elements that
comprise a strong safety culture can help DOT agencies have a better
basis for improving safety programs, policies, and strategies. See U.S.
Dep't of Transp., John A. Volpe Nat'l Transp. Sys. Ctr., ``Safety
Culture: A Significant Influence on Safety in Transportation,'' 2
(2017), available at https://www.fra.dot.gov/eLib/details/L18784#p1_z50_gD_ksafety%20culture. As explained in the NPRM, FRA also
disagrees with AAR/ASLRRA and believes the definition does not require
railroads to ``absolutely and necessarily'' demonstrate a commitment to
safety over competing goals and demands but only describe how certain
shared values, actions, and behaviors demonstrate such a commitment.
Rather, the rule requires that a railroad design its RRP to promote and
support a positive safety culture (Sec.  271.101(a)), develop processes
for identifying and analyzing its safety culture (Sec.  271.105(a)),
and include in its RRP plan a statement describing the railroad's
safety culture and how it promotes improvements to its safety culture
(Sec.  271.203(b)(1) and (2)).\16\ FRA believes these provisions
generally require a railroad to define its own safety culture and
develop processes for analyzing and improving it. Nowhere does the RRP
final rule require a railroad to establish a safety culture that
absolutely prioritizes safety. For these reasons, FRA believes the
definition for safety culture is appropriate.
---------------------------------------------------------------------------

    \16\ The SSP rule contains similar requirements related to
safety culture. See Sec.  271.101(b) (``A railroad's system safety
program shall be designed so that it promotes and supports a
positive safety culture at the railroad.''), Sec.  271.103(b)
(``This policy statement shall . . . [d]escribe the . . . safety
culture of the railroad''), and Sec.  271.103(t) (``A railroad shall