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

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

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

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

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

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

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

and copying during normal business hours.

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

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

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

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

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

VII. Regulatory Impact

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

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

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

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

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

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

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

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

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

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

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

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. An agency must prepare an initial regulatory flexibility
analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. FRA has not determined whether
this proposed rule would have a significant economic impact on a
substantial number of small entities. Therefore, FRA is publishing this
IRFA to aid the public in commenting on the potential small business
impacts of the requirements in this NPRM. FRA invites all interested
parties to submit data and information regarding the potential economic
impact on small entities that would result from the adoption of the
proposals in this NPRM. FRA will consider all information and comments
received in the public comment process when making a determination
regarding the economic impact on small entities in the final rule.
    FRA estimates that the total cost for the proposed rule will be
$4.1 million (undiscounted)--$2.0 million (discounted at 7 percent), or
$3.0 million (discounted at 3 percent), for the railroad industry over
a 20-year period. Based on information currently available, FRA
estimates that 1 percent of the total railroad costs associated with
implementing the proposed rule would be borne by small entities. FRA
generally uses conservative assumptions in its costing of rules.
    There are two railroads that would be considered small entities for
purposes of this analysis, and together they comprise about 7 percent
of the railroads impacted directly by this proposed regulation. Thus, a
substantial number of small entities in this sector may be impacted. In
order to get a better understanding of the total costs for the railroad
industry (which forms the basis for the estimates in this IRFA), or
more cost detail on any specific requirement, please see the Regulatory
Impact Analysis (RIA) that FRA has placed in the docket for this
rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must
contain:
     A description of the reasons why action by the agency is
being considered.
     A succinct statement of the objectives of, and the legal
basis for, the proposed rule.
     A description--and, where feasible, an estimate of the
number--of small entities to which the proposed rule will apply.
     A description of the projected reporting, recordkeeping,
and other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
     Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
1. Reasons for Considering Agency Action
    FRA has proposed part 270 in order to comply with sections 103 and
109 of RSIA. RSIA mandates that FRA, by delegation from the Secretary,
shall require each railroad that provides intercity rail passenger or
commuter rail passenger transportation to establish a railroad safety
risk reduction program. 49 U.S.C. 20156(a)(1). This proposed rule sets
forth the requirements for a safety risk reduction program for a
railroad that provides intercity rail passenger or commuter rail
passenger transportation.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
    The purpose of this proposed rule is to improve railroad safety
through structured, proactive processes and procedures developed and
implemented by railroad operators. The proposed rule will require a
railroad to establish a program that systematically evaluates railroad
safety hazards on its system and manages those risks in order to reduce
the numbers and rates of railroad accidents, incidents, injuries, and
fatalities.
    The proposed rule prescribes minimum Federal safety standards for
the preparation, adoption, and implementation of railroad system safety
programs. The proposed rule does not restrict railroads from adopting
and enforcing additional or more stringent requirements not
inconsistent with this part.
    FRA proposes to add part 270 to title 49 of the Code of Federal
Regulations. Part 270 will satisfy the RSIA requirement of a railroad
safety risk reduction program for a railroad providing intercity rail
passenger or commuter rail passenger service. 49 U.S.C. 20156(a)(1). It
will also include protection from admission or discovery of certain
information generated solely for the purpose of developing,
implementing, or evaluating a system safety program under part 270, or
a railroad safety risk reduction program required by FRA for Class I
railroads, railroads with inadequate safety performance, or any other
railroad. 49 U.S.C. 20119.
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
    The ``universe'' of the entities considered in an IRFA generally
includes only those small entities that can reasonably expect to be
directly regulated by this proposed action. Small passenger railroads
are the only types of small entities that may be affected directly by
this proposed rule.
    ``Small entity'' is defined in 5 U.S.C. 601(3) as having the same
meaning as ``small business concern'' under section 3 of the Small
Business Act. This includes any small business concern that is
independently owned and operated, and is not dominant in its field of
operation. Section 601(4) likewise includes within the definition of
``small entities'' not-for-profit enterprises that are independently
owned and operated, and are not dominant in their field of operation.
    The U.S. Small Business Administration (SBA) stipulates in its size
standards that the largest a railroad business firm that is ``for
profit'' may be and still be classified as a ``small entity'' is 1,500
employees for ``Line Haul Operating Railroads'' and 500 employees for
``Switching and Terminal Establishments.'' Additionally, 5 U.S.C.
601(5) defines as ``small entities'' governments of cities, counties,
towns, townships, villages, school districts, or special districts with
populations less than 50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
statement of agency policy that formally establishes ``small entities''
or ``small businesses'' as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part
209. The $20 million limit is based

on the Surface Transportation Board's revenue threshold for a Class III
railroad. Railroad revenue is adjusted for inflation by applying a
revenue deflator formula in accordance with 49 CFR 1201.1-1. FRA is
proposing to use this definition for this rulemaking. Any comments
received pertinent to its use will be addressed in the final rule.
Passenger Railroads
    Commuter and intercity passenger railroads would have to comply
with all provisions of Part 270; however, the amount of effort to
comply with the proposed rule is commensurate with the size of the
entity.
    There are two intercity passenger railroads, Amtrak and the Alaska
Railroad. Neither can be considered a small entity. Amtrak is a Class I
railroad and the Alaska Railroad is a Class II railroad. The Alaska
Railroad is owned by the State of Alaska, which has a population well
in excess of 50,000.
    There are 28 commuter or other short-haul passenger railroad
operations in the U.S. Most of these railroads are part of larger
transit organizations that receive Federal funds and serve major
metropolitan areas with populations greater than 50,000. However, two
of these railroads do not fall in this category and are considered
small entities: Saratoga & North Creek Railway (SNC), and the Hawkeye
Express, which is operated by the Iowa Northern Railway Company (IANR).
All other passenger railroad operations in the United States are part
of larger governmental entities whose service jurisdictions exceed
50,000 in population.
    In 2011 Hawkeye Express transported approximately 5,000 passengers
per game over a 7-mile round-trip distance to and from University of
Iowa (University) football games. Iowa Northern has approximately 100
employees and is primarily a freight operation totaling 184,385 freight
train miles in 2010. The service is on a contractual arrangement with
the University, a State of Iowa institution. (The population of Iowa
City, Iowa, is approximately 69,000.) Iowa Northern owns and operates
the 6 bi-level passenger cars used for this small passenger operation
which runs on average 7 days over a calendar year. FRA expects that any
costs imposed on the railroad by this regulation will likely be passed
on to the University as part of the transportation cost, and requests
comment on this assumption.
    SNC began operation in the summer of 2011 and currently provides
daily rail service over a 57-mile line between Saratoga Springs and
North Creek, New York. The SNC, a Class III railroad, is a limited
liability company, wholly owned by San Luis & Rio Grande Railroad
(SLRG). SLRG is a Class III rail carrier and a subsidiary of Permian
Basin Railways, Inc. (Permian), which in turn is owned by Iowa Pacific
Holdings, LLC (IPH). The SNC primarily transports visitors to Saratoga
Springs, tourists seeking to sightsee along the Hudson River, and
travelers connecting to and from Amtrak service. The railroad operates
year round, with standard coach passenger trains. Additional service
activity includes seasonal ski trains, and specials such as ``Thomas
The Train.'' This railroad operates under a five-year contract with the
local government, and is restarting freight operations as well. The
railroad has about 25 employees. SNC has already developed and is
starting to utilize an SSP plan which follows the APTA model of SSP
plan features and processes.
    FRA has assisted and plans to continue to assist ``new start''
passenger railroads, including small business entities, in the
development of their SSPs, starting at the design and planning phase
through implementation. FRA will also provide guidance to those
railroads so that the scope and content of their SSPs is proportionate
to their size and nature of their operation.
    The cost burden to the two small entities will be considerably less
on average than that of the other 28 railroads. FRA estimates impacts
on these two railroads could range on average between $1,375 and $3,150
per annum to comply with the regulation, depending on the existing
level of compliance and discount rate (or $14,568 to $62,382 over 20
years per entity, again depending on the existing level of compliance
and discount rate.)
    Since one of these railroads provides service under contract to a
State institution, it may be able to pass some or all of the compliance
cost on to that institution. The small entity itself may not be
significantly impacted. As indicated above, FRA will assist an entity
like the Hawkeye Express in preparing its program and plan if it is not
already preparing an SSP. FRA envisions the SSP plan of such an entity
as a very concise and brief document. FRA seeks comment on these
findings and conclusions.
Contractors
    Some passenger railroads use contractors to perform many different
functions on their railroads. For some of these railroads, contractors
perform safety-related functions, such as operating trains. For the
purpose of assessing the impact of an SSP, contractors fall into two
groups; larger contractors who perform primary operating and
maintenance functions for the passenger railroads and smaller
contractors who perform ancillary functions to the primary operations.
Larger contractors are typically large private companies such as
Herzog, or part of an international conglomerate such as Keolis or
Veolia, with substantial multidisciplinary workforces, and are able to
perform most all operating functions the passenger railroad requires.
Smaller contractors may perform duties such as snow clearing on station
platforms, brush clearing, painting stations, etc.
    Safety related policy, work rules, guidelines, and regulations are
imparted to the small contractors today as part of their contractual
obligations and qualification to work on the passenger railroad
property. FRA sees minimal additional burden to imparting the same type
of information under each passenger railroad's SSP. A very small
administrative burden may result.
    No provisions of the proposed rule would directly require any
contractors (small or large) to do anything unless they are also
intercity passenger or commuter railroads.
    FRA seeks comment on these findings and conclusions.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Will Be Subject to the Requirements and the Type
of Professional Skill Necessary for Preparation of the Report or Record
    There are reporting, recordkeeping, and compliance costs associated
with the proposed regulation. This NPRM proposes what almost all
passenger railroads have for the most part been doing voluntarily for
some time. FRA believes that the added burden due to these proposed
requirements is marginal. The total 20-year cost of this proposed
rulemaking is $4.1 million (undiscounted), of which FRA estimates 2.9
percent or less will be attributable to small entities. FRA estimates
that the approximate total burden for small railroads for the 20-year
period could range between $33,384 and $120,217, depending on discount
rates and extent of costs relative to larger railroads. FRA believes
this would not be a substantial burden. For a thorough presentation of
cost estimates, please refer to the RIA, which has been placed in the
docket for this rulemaking. FRA expects that most of the skills
necessary to comply with

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

C. Federalism

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

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

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

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

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

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

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning the following issues:
whether these information collection requirements are necessary for the
proper performance of the functions of FRA, including whether the
information has practical utility; the accuracy of FRA's estimates of
the burden of the information collection requirements; the quality,
utility, and clarity of the information to be collected; and whether
the burden of collection of information on those who are to respond,
including through the use of automated collection techniques or other
forms of information technology, may be minimized. For information or a
copy of the paperwork package submitted to OMB, contact Mr. Robert
Brogan, Information Clearance Officer, at<PHONE_NUMBER>, or Ms. Kimberly
Toone, Records Management Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via email to Mr. Brogan or Ms. Toone at the following
address<EMAIL_ADDRESS><EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

G. Environmental Assessment

    FRA has evaluated this proposed rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this proposed rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows: ``(c)
Actions categorically excluded. Certain classes of FRA actions have
been determined to be categorically excluded from the requirements of
these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * * (20)
Promulgation of railroad safety rules and policy statements that do not
result in significantly increased emissions or air or water pollutants
or noise or increased traffic congestion in any mode of
transportation.''
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal action significantly affecting the
quality of the human environment.

H. Unfunded Mandates Reform Act of 1995

    Pursuant to section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
For the year 2010, this monetary amount of $100,000,000 has been
adjusted to $143,100,000 to account for inflation. This proposed rule
would not result in the expenditure of more than $143,100,000 by the
public sector in any one year, and thus preparation of such a statement
is not required.

I. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates, or is expected to
lead to the promulgation of, a final rule or regulation (including a
notice of inquiry, advance notice of proposed rulemaking, and notice of
proposed rulemaking) that (1)(i) is a significant regulatory action
under Executive Order 12866 or any successor order and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) is designated by the Administrator of the Office
of Information and Regulatory Affairs as a significant energy action.
FRA has evaluated this NPRM in accordance with Executive Order 13211.
FRA has determined that this NPRM will not have a significant adverse
effect on the supply, distribution, or use of energy. Consequently, FRA
has determined that this regulatory action is not a ``significant
energy action'' within the meaning of Executive Order 13211.

J. Privacy Act Statement

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

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

List of Subjects in 49 CFR Part 270

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

The Proposal

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

PART 270--SYSTEM SAFETY PROGRAM

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

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

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

Subpart A--General

Sec.  270.1  Purpose and scope.

    (a) The purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by railroads. This part requires certain railroads to
establish a system safety program that systematically evaluates
railroad safety hazards on their systems and manages those risks in
order to reduce the numbers and rates of railroad accidents, incidents,
injuries, and fatalities.
    (b) This part prescribes minimum Federal safety standards for the
preparation, adoption, and implementation of railroad system safety
programs. This part does not restrict railroads from adopting and
enforcing additional or more stringent requirements not inconsistent
with this part.
    (c) This part prescribes the protection of information generated
solely for the purpose of developing, implementing, or evaluating a
system safety program under this part or a railroad safety risk
reduction program required by this chapter for Class I railroads and
railroads with inadequate safety performance.

Sec.  270.3  Application.

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

Sec.  270.5  Definitions.

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

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

Sec.  270.7  Waivers.

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

Sec.  270.9  Penalties and responsibility for compliance.

    (a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $650 and not more than $25,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violation has created an imminent hazard of death or injury to
persons, or has caused death or injury, a penalty not to exceed
$105,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense. Any person who knowingly and
willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311 (formerly codified
in 45 U.S.C. 438(e)). Appendix A contains a schedule of civil penalty
amounts used in connection with this part.
    (b) Although the requirements of this part are stated in terms of
the duty of a railroad, when any person, including a contractor or
subcontractor to a railroad, performs any function covered by this
part, that person (whether or not a railroad) shall perform that
function in accordance with this part.

Subpart B--System Safety Program Requirements

Sec.  270.101  System safety program; general.

    (a) Each railroad subject to this part shall establish and fully
implement a system safety program that continually and systematically
evaluates railroad safety hazards on its system and manages the
resulting risks to reduce the number and rates of railroad accidents,
incidents, injuries, and fatalities. A system safety program shall
include a risk-based hazard management program and risk-based hazard
analysis designed to proactively identify hazards and mitigate the
resulting risks. The system safety program shall be fully implemented
and supported by a written SSP plan described in Sec.  270.103.
    (b) A railroad's SSP shall be designed so that it promotes and
supports a positive safety culture at the railroad.

Sec.  270.102  Consultation requirements.

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

Railroad Safety/Chief Safety Officer shall consider any such views
during the plan review and approval process.
    (2) A railroad's directly affected employees have 60 days following
the railroad's submission of a proposed SSP plan to submit the
statement described in paragraph (c)(1) of this section.
    (d) Consultation requirements for system safety program plan
amendments. As required by Sec.  270.201(c)(1)(i), a railroad's SSP
plan must include a description of the process the railroad will use to
consult with its directly affected employees on any subsequent
substantive amendments to the railroad's system safety program. The
requirements of this paragraph do not apply to non-substantive
amendments (e.g., amendments that update names and addresses of
railroad personnel).

Sec.  270.103  System safety program plan.

    (a) General. (1) Each railroad subject to this part shall adopt and
fully implement a system safety program through a written SSP plan
that, at a minimum, contains the elements in this section. This SSP
plan shall be approved by FRA under the process specified in Sec.
270.201.
    (2) Each railroad subject to this part shall communicate with each
railroad that hosts passenger train service for that railroad and
coordinate the portions of the SSP plan applicable to the railroad
hosting the passenger train service.
    (b) System safety program policy statement. Each railroad shall set
forth in its SSP plan a policy statement that endorses the railroad's
system safety program. This policy statement shall:
    (1) Define the railroad's authority for establishment and
implementation of the system safety program; and
    (2) Be signed by the chief official at the railroad.
    (c) Purpose and scope of system safety program. Each railroad shall
set forth in its SSP plan a statement defining the purpose and scope of
the system safety program. The purpose and scope statement shall
describe:
    (1) The safety philosophy and safety culture of the railroad;
    (2) The railroad's management responsibilities within the system
safety program; and
    (3) How host railroads, contractor operators, shared track/corridor
operators, contractors who provide significant safety-related services,
and any other entity or person that provides significant safety-related
services as identified by the railroad pursuant to paragraph (e)(2) of
this section will, as appropriate, support and participate in the
railroad's system safety program.
    (d) System safety program goals. Each railroad shall set forth in
its SSP plan a statement defining the goals for the railroad's system
safety program. This statement shall describe clear strategies on how
the goals will be achieved and what management's responsibilities are
to achieve them. At a minimum, the goals shall be:
    (1) Long-term;
    (2) Meaningful;
    (3) Measurable; and
    (4) Focused on the identification of hazards and the mitigation or
elimination of the resulting risks.
    (e) Railroad system description. (1) Each railroad shall set forth
in its SSP plan a statement describing the railroad's system. The
description shall include: a history of the railroad's operations,
including any host operations; the physical characteristics of the
railroad; the scope of service; the railroad's maintenance; and
identification of the physical plant and any other pertinent aspects of
the railroad's system.
    (2) Each railroad shall identify the persons that provide
significant safety-related services to the railroad.
    (f) Railroad management and organizational structure. Each railroad
shall set forth a statement in its SSP plan that describes the
management/organizational structure of the railroad. This statement
shall include:
    (1) A chart or other visual representation of the organizational
structure of the railroad;
    (2) A description of how safety responsibilities are distributed
within the railroad organization;
    (3) Clear identification of the lines of authority used by the
railroad to manage safety issues; and
    (4) A description of the relationships and responsibilities between
the railroad, host railroads, contract operators, shared track/corridor
operators, and other entities or persons that provide significant
safety-related services. The statement shall set forth the roles and
responsibilities in the railroad's system safety program for each host
railroad, contract operator, shared track/corridor operator, or other
entity or person that provides significant safety-related services.
    (g) System safety program implementation plan. Each railroad shall
set forth a plan in its SSP plan that describes how the system safety
program will be implemented on that railroad. This plan shall include a
description of the:
    (1) Roles and responsibilities of each position or job function
that has significant responsibility for implementing the system safety
program, including those held by employees, contractors who provide
significant safety-related services, and other entities or persons that
provide significant safety-related services; and
    (2) Milestones necessary to be reached to fully implement the
program.
    (h) Maintenance, inspection and repair program. (1) Each railroad
shall identify and describe in its SSP plan the processes and
procedures used for maintenance and repair of infrastructure and
equipment directly affecting railroad safety. Examples of
infrastructure and equipment that directly affect railroad safety
include: fixed facilities and equipment, rolling stock, signal and
train control systems, track and right-of-way, and traction power
distribution systems.
    (2) Each description of the processes and procedures used for
maintenance and repair of infrastructure and equipment directly
affecting safety shall include the processes and procedures used to
conduct testing and inspections of the infrastructure and equipment.
    (i) Rules compliance and procedures review. Each railroad shall set
forth a statement describing the processes and procedures used by the
railroad to develop, maintain, and comply with the railroad's rules and
procedures directly affecting railroad safety and to comply with the
applicable railroad safety laws and regulations found in this chapter.
The statement shall include:
    (1) Identification of the railroad's operating and safety rules and
procedures that are subject to review under this chapter;
    (2) Techniques used to assess the compliance of the railroad's
employees with the railroad's operating and safety rules and
maintenance procedures, and applicable FRA regulations; and
    (3) Techniques used to assess the effectiveness of the railroad's
supervision relating to the compliance with the railroad's operating
and safety rules and maintenance procedures, and applicable railroad
safety laws and regulations.
    (j) System safety program employee/contractor training. (1) Each
railroad shall set forth a statement in its SSP plan that describes the
railroad's system safety program training plan. A system safety program
training plan shall set forth the procedures in which employees who are
responsible for implementing and supporting the SSP, contractors who
provide significant safety-related services, and any other entity or
person that provides significant safety-related services will be
trained on the railroad's system safety

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

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