therefore is the more appropriate person to sign the policy statement.
    FRA has not departed from the RSIA requirements because Sec.
271.301(c)(1) of the final rule requires the railroad's chief official
for safety to sign the RRP plan and certify the contents of the RRP
plan are accurate and the railroad will implement the contents of the
plan. This substantively mirrors the language in section 20156(b).
Paragraph (a) of this section, however, requires the chief official at
the railroad to sign the RRP policy statement, not the entire RRP plan.
Prior experience with effective risk management programs has
demonstrated to FRA how important the active involvement of the highest
railroad officials is to improving safety and safety culture.
Therefore, FRA determined the chief official at the railroad must sign
the RRP policy statement.
    Paragraph (b)(4) in the NPRM proposed requiring an RRP plan's
purpose and scope statement to describe how any person that utilizes or
provides significant safety-related services to a railroad (including
host railroads, contract operators, shared track/corridor operators, or
their contractors) will support and participate in the railroad's RRP.
Upon review of the NPRM, FRA believes this provision belongs more
appropriately in the Sec.  271.205 requirements regarding an RRP plan's
system description. FRA has therefore moved this provision to Sec.
271.205(a)(4), and the section-by-section analysis for that section
will discuss this provision further.
Section 271.205--System Description
    This section requires an RRP plan to include a statement describing
the characteristics of the railroad system. Except for changes made to
clarify paragraph (a)(3) and language moved from Sec.  271.203(b)(4) to
paragraph (a)(4) of this section, discussed below, FRA adopts this
section unchanged from the NPRM. FRA is therefore not repeating the
NPRM's section-by-section analysis in this final rule but refers
interested readers to the NPRM's discussion. See 80 FR 10974 (Feb. 27,
2015). FRA did not receive any comments in response to this section.
    Paragraph (a)(3) in the NPRM proposed requiring an RRP plan's
system description to identify all persons that utilize or perform
significant safety-related services on the railroad's behalf (including
entities such as host railroads, contract operations, shared track/
corridor operators, or other contractors). FRA modified paragraph
(a)(3) to clarify its requirements and refers readers to the
explanation of those changes in the section-by-section analysis for
Sec.  271.101(d). FRA does not intend these changes to affect the
substance of the rule.
    FRA is also adding a paragraph (a)(4) to this section that contains
language from Sec.  271.203(b)(4) in the NPRM, which proposed requiring
an RRP plan to include a purpose and scope statement describing how any
person that utilizes or provides significant safety-related services to
a railroad (including host railroads, contract operators, shared track/
corridor operators, or other contractors) will support and participate
in the railroad's RRP. Because this section requires a railroad's RRP
plan to identify such persons as part of its system description, FRA
concluded the requirement to describe how such persons will support and
participate in the railroad's RRP fits better in this section. FRA's
changes are for clarity only. Paragraph (a)(4) requires an RRP plan's
system description to describe how the railroad will ensure any person
identified under paragraph (a)(3) of this section will support and
participate in the railroad's RRP. As an example, paragraph (a)(4)
states the system description must describe the extent to which such
persons will, as part of the railroad's RRP, help identify hazards,
develop and implement mitigation strategies, conduct internal annual
assessments, or otherwise perform actions this part requires.
Section 271.207--Consultation Requirements
    Section 271.207 implements section 20156(g)(1), which states a
railroad required to establish an RRP must consult with, employ good
faith, and use its best efforts to reach agreement with, all its
directly affected employees, including any non-profit employee labor
organization representing a class or craft of directly affected
employees of the railroad carrier, on the contents of the RRP plan.
This section also implements section 20156(g)(2), which further
provides that if a railroad carrier and its directly affected
employees, including any nonprofit employee labor organization
representing a class or craft of directly affected employees of the
railroad carrier, cannot reach consensus on the proposed contents of
the RRP plan, then directly affected employees and such organizations
may file a statement explaining their views on the plan on which
consensus was not reached. See 49 U.S.C. 20156(g)(2). The RSIA requires
FRA to consider these views during review and approval of a railroad's
RRP plan. Id.
    FRA made several changes to this section from the NPRM. These
changes respond to comments received, conform this rule to the SSP
final rule, and renumber certain paragraphs for better organization.
For clarity, FRA is briefly discussing each provision of this section,
even provisions FRA adopts unchanged from the NPRM. To promote
consistency with the SSP final rule,

FRA has changed the title of this section from ``consultation process
description'' to ``consultation requirements.'' See 49 CFR 270.107.
This discussion also notes minor differences between the consultation
provisions in the RRP and SSP rules.
    Paragraph (a)(1) implements section 20156(g)(1) by requiring a
railroad to consult with its directly affected employees on the
contents of its RRP plan, including any non-profit employee labor
organization representing a class or craft of the railroad's directly
affected employees. As part of that consultation, a railroad must
utilize good faith and best efforts to reach agreement with its
directly affected employees on the contents of its plan. FRA has not
changed this language from the NPRM.
    Paragraph (a)(2) specifies a railroad that consults with a non-
profit employee labor organization is considered to have consulted with
the directly affected employees that organization represents.
    Paragraph (b) states a railroad must have a preliminary meeting
with its directly affected employees to discuss how the consultation
process will proceed. While the NPRM did not include this language, FRA
added it merely as an introductory clause for the subsequent
requirements in paragraphs (b)(1) through (4), discussed below, which
were all included in proposed paragraphs (a)(3) through (6) of the
NPRM. FRA believes including the preliminary meeting requirements in a
separate paragraph (b) improves the organization and clarity of this
section.
    Some commenters to the corresponding consultation provision of the
SSP NPRM appeared to believe this preliminary meeting must discuss the
substance of the RRP plan. To rectify this misunderstanding, FRA is
adding language in paragraph (b) specifying a railroad is not required
to discuss the substance of an RRP plan during this preliminary
meeting. Rather, the preliminary meeting may be administrative in
nature so all parties understand the consultation process and may
engage in substantive discussions as soon as possible after the Sec.
271.11 protections become applicable. The preliminary meeting is also
an opportunity for the railroad to educate directly affected employees
on risk reduction and how it may affect them. The SSP final rule
incorporates substantively identical language. See 81 FR 53883 and
53900 (Aug. 12, 2016).
    Paragraphs (b)(1) through (3) contain the deadlines Class I
railroads, ISP railroads, and railroads that STB reclassifies or newly
classifies as Class I railroads must meet to hold the preliminary
meeting with their directly affected employees. FRA merely renumbered
these provisions from paragraphs (a)(3) through (5) of the NPRM to
paragraphs (b)(1) through (3) in this final rule. This reorganization
does not affect the substance of these paragraphs. FRA refers
interested readers to the NPRM discussion of paragraphs (a)(3) through
(5) for additional information. See 80 FR 10975 (Feb. 27, 2015).
    Paragraph (a)(6) of the NPRM, stating a voluntarily-compliant
railroad must also consult with its directly affected employees using
good faith and best efforts, is in paragraph (b)(4) of the final rule.
Paragraph (a)(6) also proposed, however, that because there is no
deadline for a voluntarily-compliant railroad to file an RRP plan with
FRA, there would also be no requirement for a voluntarily-compliant
railroad to meet with its directly affected employees within a certain
timeframe. Because FRA decided to include a notification and filing
deadline for voluntarily-compliant railroads in Sec.  271.301(b)(4)(i),
discussed below, FRA is adding language in paragraph (b)(4) that
applies to voluntarily-compliant railroads the same consultation
deadlines for ISP railroads and railroads that STB reclassifies or
newly classifies as Class I railroads.
    Labor Organizations I commented that this section requires railroad
management and labor to have only one, non-substantive administrative
meeting. To correct any implication that this is the only meeting a
railroad must hold to comply with all the consultation process
requirements of this section, FRA added language to paragraph (b)(5)
clarifying the mandatory preliminary meeting does not constitute full
compliance with the consultation process requirements of this section.
Although the NPRM did not include this language, it does not impose any
additional substantive requirement. The SSP rule does not contain this
provision because a similar comment was not received in response to the
SSP NPRM. FRA does not intend this to indicate a substantive difference
between the consultation requirements of the SSP and RRP rules.
    Paragraph (a)(7) of the NPRM, which directed readers to appendix B
for additional guidance on how a railroad can comply with the
consultation process requirements of this section, is paragraph (c) of
the final rule. FRA renumbered this paragraph for better organization
and clarity and changed it to direct readers to appendix A instead of
appendix B (for reasons discussed in the section-by-section analysis
for appendices A and B). FRA discusses appendix A later in this
preamble.
    Paragraph (d) of the final rule, requiring a railroad to submit,
together with its RRP plan, a consultation statement, was paragraph (b)
in the NPRM. The consultation statement must contain specific
information described in paragraphs (d)(1) through (3) of this final
rule, which were renumbered from paragraphs (b)(1), (2), and (4) in the
NPRM. Paragraph (d)(1), which requires a consultation statement to
describe the process a railroad uses to consult with its directly
affected employees, is unchanged from paragraph (b)(1) of the NPRM.
    If the railroad cannot reach agreement with its directly affected
employees on the contents of its RRP plan, paragraph (d)(2) requires
the consultation statement to identify any areas of non-agreement and
provide the railroad's explanation for why it believed agreement was
not reached. FRA made a minor editorial change to paragraph (d)(2) to
be consistent with the SSP final rule by changing the phrase ``was not
able to'' to ``could not.'' See 81 FR 53901 (Aug. 12, 2016). This
change does not affect the substance of this provision. Additionally,
while the NPRM used the term ``disagreement,'' FRA changed this to
``non-agreement'' in the final rule to conform more closely with the
statutory language in section 20156(g)(1). Although the SSP rule uses
``disagreement'' instead of ``non-agreement,'' FRA does not intend this
to indicate a substantive difference between the consultation
requirements of the SSP and RRP rules.
    Paragraph (b)(3) of the NPRM proposed that if the RRP plan would
affect a provision of a collective bargaining agreement between the
railroad and a non-profit employee labor organization, the consultation
statement must identify that provision and explain how the railroad's
RRP plan would affect it. In response to the NPRM, AAR/ASLRRA commented
this provision went too far because collective bargaining is a matter
between railroads and their employees beyond FRA's jurisdiction. FRA
agrees and is not including this provision in the final rule.
    Under paragraph (d)(3) of the final rule, proposed as paragraph
(b)(4) of the NPRM, the consultation statement must include a service
list of the names and contact information for the international/
national president of any non-profit employee labor organization
representing directly affected employees and any directly affected
employee not represented by a non-profit employee labor organization
who significantly

participated in the consultation process. FRA did not make any
substantive changes to this provision but FRA made the following
editorial changes to promote consistency with the SSP final rule and to
improve clarity. Although the first sentence in the NPRM addressed both
international/national presidents of any non-profit employee labor
organization and individual directly affected employees, FRA separated
this requirement into two separate sentences and made additional
changes to clarify a railroad must include only a directly affected
employee who significantly participated in the consultation process on
the service list if that employee participated independent of a non-
profit employee labor organization. FRA also modified the second to the
last sentence of paragraph (d)(3) to add a reference to the plan
submission requirements of Sec.  271.301 and to clarify that a railroad
must simultaneously provide its RRP plan and consultation statement to
individuals the service list identifies. These changes do not affect
the substance of this paragraph.\25\
---------------------------------------------------------------------------

    \25\ FRA notes that paragraph (d)(3) in the RRP final rule
contains two provisions not in the SSP rule. The first provision
states that if an international/national president did not
participate in the consultation process, the service list must
include information for the designated representative who
participated on his or her behalf, and the second states that a
railroad may send documents to individuals on the service list via
electronic means or other service means reasonably calculated to
succeed. The RRP NPRM proposed these provisions (see 80 FR 10994
(Feb. 27, 2015)), and their non-inclusion in the SSP final rule was
an oversight.
---------------------------------------------------------------------------

    Under paragraph (e)(1) of the final rule, proposed as paragraph
(c)(1) in the NPRM, if a railroad and its directly affected employees
cannot reach agreement on the proposed contents of an RRP plan, then a
directly affected employee may file a statement with the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer explaining
his or her views on the plan on which agreement was not reached. See 49
U.S.C. 20156(g)(2). Except for correcting a typo in the proposed rule
(replacing ``then directly affected employees'' with ``the directly
affected employees'') and specifically identifying the address for the
FRA Associate Administrator for Railroad Safety and Chief Safety
Officer, FRA has not changed this paragraph from the NPRM. The above
changes do not affect the substance of this paragraph.
    Paragraph (e)(2) of the final rule, proposed as paragraph (c)(2) in
the NPRM, specifies that a railroad's directly affected employees have
30 days following the railroad's submission of its proposed RRP plan to
submit the statement described in paragraph (e)(1) of this section.
While the NPRM proposed giving directly affected employees 60 days to
submit their statement, FRA believes that 30 days is more appropriate.
This decision takes into account that paragraph (b)(3) ensures directly
affected employees are provided the RRP plan and the consultation
statement at the same time the railroad provides these documents to FRA
for review. Moreover, under Sec.  271.301(d) of the final rule
(discussed below), FRA will review an RRP plan within 90 days of
receipt. As a result, if the directly affected employees had 60 days to
submit a statement when agreement on the RRP plan was not reached, FRA
would have only 30 days to consider the directly affected employees'
view while reviewing the RRP plan. Thirty days would not be enough time
to ensure that FRA sufficiently considered the directly affected
employees' views during the RRP review process. Finally, the deadline
is identical to the deadline for directly affected employee statements
in Sec.  271.107(c)(2), which was also changed from a proposed 60-day
deadline in the SSP NPRM. See 81 FR 53886 (Aug. 12, 2016). To further
promote consistency with the SSP final rule, FRA has also removed a
reference in proposed paragraph (c)(2) to Sec.  271.301(a)(4). See 49
CFR 271.107(c)(2).
    In the preamble to the NPRM, FRA explained that it would help a
railroad develop its RRP. The preamble to the SSP NPRM expressed a
similar intent. Labor Organizations I commented expressing concern that
this preamble language indicates that FRA will work exclusively with
the railroads, precluding the involvement of any other interested
party. Labor Organizations I fear that this would substitute FRA for
the directly affected employees in the statutorily-mandated
consultation role.
    This was not FRA's intent in the preamble discussion. Rather, FRA
meant to communicate that FRA would be available to provide guidance to
the railroads on the various aspects of the rule, not that there would
be an exclusive partnership between FRA and the railroads to develop
RRPs. FRA guidance to railroads will not replace Labor Organizations I
or any directly affected employee in the consultation role. Under the
consultation process required by Sec.  271.207, a railroad must use
good faith and best efforts to reach agreement with directly affected
employees on the railroad's RRP plan. While the section-by-section
analysis discusses ``good faith'' and ``best efforts'' further, a
railroad will not be able to meet these standards merely by submitting
the required consultation statement. Directly affected railroad
employees will therefore always have an opportunity to provide input on
the railroad's RRP plan, regardless of guidance FRA provides the
railroad on developing an RRP plan.
    Labor Organizations I also argue that FRA improperly classified the
process under section 20156(g) as one of consultation. Rather, Labor
Organizations I believe that section 20156(g) requires a railroad to
negotiate or bargain with directly affected employees in accordance
with the legal authority of the Railway Labor Act, as amended.
    FRA disagrees. Nothing in section 20156(g) requires a railroad to
negotiate or bargain with directly affected employees on the contents
of an RRP plan. Rather, section 20156(g) requires a railroad to
``consult with, employ good faith and use [its] best efforts to reach
agreement with'' directly affected employees (including Labor
Organizations I). Throughout SSP and RRP RSAC meetings, FRA referred to
this process as one of consultation, not negotiation or bargaining. The
NPRM proposed text contained language identical to language in section
20156(g), and FRA does not believe that this language requires a
process of negotiation or bargaining consistent with the Railway Labor
Act. Requiring a process of negotiation or bargaining would therefore
be beyond the scope of FRA's authority in section 20156(g).
    Labor Organizations I also expressed concern that various estimates
regarding employee involvement and the consultation process in the
Regulatory Impact Analysis and the Paperwork Reduction Act analysis
were too low. Labor Organizations I claim the estimated time periods
were too short and would result in an inconsequential amount of time
for consultation on the contents of the plan. FRA notes that the time
periods in the analyses were only estimates and that the analyses
requested comment on these estimates. See 80 FR 10988 and Regulatory
Impact Analysis, at ii (Feb. 27, 2015). While Labor Organizations I did
not provide suggested estimates that they believe are more appropriate,
FRA has changed the final rule to add Sec.  271.113 (discussed above),
which requires a railroad to involve its directly affected employees in
the establishment and implementation of an RRP. FRA has also updated
its estimates of the time RRP safety outreach is expected to take,
required under Sec.  271.107 of the final

rule, from 15 minutes to 60 minutes per employee.\26\
---------------------------------------------------------------------------

    \26\ For additional discussion, see Section 4.1., Consultation:
Time Needed to Consult (Economic Impact) and Timeline, of the
Regulatory Impact Analysis accompanying this final rule.
---------------------------------------------------------------------------

    Labor Organizations I also expressed concern that the NPRM did not
contain a penalty schedule or otherwise propose a mechanism for
enforcing the consultation process requirements. Labor Organizations I
specifically suggested that the DOT Secretary and the President of the
United States ``publish an Executive Order supplementing enforcement of
[section] 103 by providing for suspension and cancellation of federal
payments and benefits to contracting railroads similar to Sec. 7 of
E.O. 13,496, . . . codified at 29 CFR [ ] 471.14.''
    Regarding the lack of a penalty schedule, FRA typically does not
include penalty schedules in an NPRM. Section 271.9(a) of this final
rule, however, refers readers to FRA's website for a penalty schedule.
Because a penalty schedule is a statement of agency policy, FRA was not
required to provide notice and comment before its issuance. See 5
U.S.C. 553(b)(3)(A). FRA also notes that none of its enforcement
authority is supplemented by a Presidential executive order. FRA
concludes, therefore, that an executive order is not necessary to
enforce the RRP requirements, even assuming that the President
concluded that such an executive order would be legal and appropriate.
Section 271.209--Consultation on Amendments
    This section describes the consultation process requirements for
amendments to a railroad's RRP plan. Except for replacing an incorrect
reference to ``system safety program'' with the correct ``RRP plan''
and replacing the incorrect term ``paragraph'' with ``section,'' FRA
adopts this section unchanged from the NPRM. FRA is therefore not
repeating the NPRM's section-by-section analysis in this final rule,
but refers interested readers to the NPRM's discussion. See 80 FR 10976
(Feb. 27, 2015). FRA did not receive any comments on this section.
Section 271.211--Risk-Based Hazard Management Program Process
    This section requires an RRP plan to describe the railroad's
process for conducting a risk-based HMP. Because FRA received no
comments and adopts this section unchanged from the NPRM (except for
editorial changes in paragraph (c) to standardize its approach with
paragraph (b) and to clarify that the section's requirements are
minimal requirements), FRA is not repeating the NPRM's section-by-
section analysis in this final rule, but refers interested readers to
the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
Section 271.213--Safety Performance Evaluation Process
    This section requires an RRP plan to describe the railroad's
processes for identifying and analyzing its safety culture under Sec.
271.105, monitoring safety performance under Sec.  271.105(b), and
conducting safety assessments under Sec.  271.105(c). While this
section proposed requiring an RRP plan to describe a railroad's
processes for ``measuring'' safety culture in the NPRM, FRA replaced
the term ``measuring'' with the phrase ``identifying and analyzing''
for reasons discussed in the above section-by-section analysis for
Sec.  271.105. FRA otherwise adopts this section unchanged from the
NPRM. See 80 FR 10976 (Feb. 27, 2015).
Section 271.215--Safety Outreach Process
    This section requires an RRP plan to describe a railroad's
processes for communicating safety information to railroad personnel
and management under Sec.  271.107. FRA received no comments and adopts
this section unchanged from the NPRM, except for exchanging the word
``process'' with ``processes.'' FRA is therefore not repeating the
NPRM's section-by-section analysis in this final rule, but refers
interested readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27,
2015).
Section 271.217--Technology Implementation Plan Process
    This section requires an RRP plan to describe a railroad's
processes for conducting a technology analysis pursuant to Sec.
271.109(b) and for developing a technology implementation plan pursuant
to Sec.  271.109(c). FRA received no comments and adopts this section
unchanged from the NPRM. FRA is therefore not repeating the NPRM's
section-by-section analysis in this final rule, but refers interested
readers to the NPRM's discussion. See 80 FR 10976 (Feb. 27, 2015).
Section 271.219--Implementation and Support Training Plan
    This section requires an RRP plan to contain a training plan
describing the railroad's processes for training, under Sec.  271.111,
employees with significant responsibility for implementing and
supporting the RRP. Paragraph (a) in the NPRM specified these employees
must include persons a railroad identifies under Sec.  271.205(a)(3) as
utilizing or performing significant safety-related services on the
railroad's behalf. For reasons explained in the section-by-section
analysis for Sec.  271.101(d) above, FRA clarified the requirements of
this provision. The modified language states that the employees must
include employees that a railroad identifies under Sec.  271.205(a)(3)
as performing on the railroad's behalf significant safety-related
services or utilizing safety-related services provided by the railroad
for railroad operations purposes. FRA has not otherwise changed
paragraph (a) of this section.
    Paragraph (b) in the NPRM proposed requiring the training plan to
describe the content and frequency of the RRP training for each
position or job function a railroad identifies under Sec.
271.223(b)(3) as having significant responsibilities for implementing
the RRP. FRA modified the proposed language in two ways. First, FRA
changed the Sec.  271.223(b)(3) reference to Sec.  271.225(b)(3) due to
FRA's inclusion of a new Sec.  271.221 in the final rule, discussed
below, which resulted in the renumbering of subsequent sections in
subpart C of the final rule. AAR/ASLRRA also commented there was some
inconsistency in the NPRM because it discusses the training requirement
as a one-time event, but also mentions training frequency. FRA has
addressed this inconsistency by not including the term ``frequency'' in
this section, unlike the proposed language. AAR/ASLRRA are correct that
the term is not necessary because the training is a one-time event. FRA
has not otherwise changed paragraph (b) of this section.
Section 271.221--Involvement of Railroad Employees Process
    This section requires an RRP plan to describe the railroad's
processes for involving railroad employees in the establishment and
implementation of an RRP under Sec.  271.113. For reasons discussed in
the section-by-section analysis for Sec.  271.113 above, FRA did not
specifically propose this requirement in the NPRM, but is including it
in the final rule to clarify a railroad must involve its employees in
the RRP.
    This section in the NPRM contained RRP plan requirements for a
railroad's internal assessment process in the NPRM. To accommodate this
RRP plan involvement requirement, FRA moved the internal assessment
process

requirements to Sec.  271.223 and renumbered the rest of subpart C
accordingly.
Section 271.223--Internal Assessment Process
    Paragraph (a) of this section, proposed as Sec.  271.221 in the
NPRM, requires an RRP plan to describe a railroad's processes for
conducting an internal assessment of its RRP under proposed subpart E.
Paragraph (b) is reserved. FRA did not receive any comments on this
section and, except for moving it to this section in the final rule,
adopts this section unchanged from the NPRM. FRA is therefore not
repeating the NPRM's section-by-section analysis in this final rule,
but refers interested readers to the NPRM's discussion. See 80 FR
10976-10977 (Feb. 27, 2015).
Section 271.225--RRP Implementation Plan
    Paragraph (a) of this section, proposed as Sec.  271.223 in the
NPRM, requires an RRP plan to describe how the railroad will implement
its RRP. Except for editorial changes in paragraph (a) and (b)(3),
discussed below, FRA adopts this section unchanged from the NPRM. These
changes do not affect the substance of this section and FRA did not
receive any comments on this section. FRA is therefore not repeating
the NPRM's entire section-by-section analysis in this final rule, but
refers interested readers to the NPRM's discussion. See 80 FR 10977
(Feb. 27, 2015).
    FRA modified paragraph (a) to change language in the second
sentence from passive to active voice, clarifying that the railroad
must fully implement the entire RRP within 36 months of FRA's approval
of the plan.
    For reasons explained in the section-by-section analysis for Sec.
271.101(d), above, FRA modified the language of paragraph (b)(3) to
clarify its requirements. Paragraph (b)(3) requires a railroad's
implementation plan to describe the roles and responsibilities of each
position or job function with significant responsibility for
implementing the railroad's RRP. Paragraph (b)(3) that this includes
positions held by contractors that either perform significant safety-
related services on the railroad's behalf or utilize significant
safety-related services the railroad provides.

Subpart D--Review, Approval, and Retention of Risk Reduction Program
Plans

    The RSIA requires a railroad to submit its RRP, including any of
the required plans, to the FRA Administrator (as delegate of the
Secretary) for review and approval. See 49 U.S.C. 20156(a)(1)(B).
Subpart D, Review, Approval, and Retention of System Safety Program
Plans, contains requirements addressing this mandate.
Section 271.301--Filing and Approval
    This section contains requirements for the filing of an RRP plan
and FRA's approval process. While FRA did not receive any comments on
this section, FRA modified this section from the NPRM as discussed
below. For background discussion on provisions that FRA has not
changed, FRA refers readers to the NPRM's discussion. See 80 FR 10977-
10978 (Feb. 27, 2015).
    Paragraph (a) generally requires a railroad to submit a copy of its
RRP plan to the FRA Associate Administrator for Railroad Safety and
Chief Safety Officer. Paragraph (a) of the NPRM also contained the RRP
plan submission deadlines for Class I railroads, railroads with
inadequate safety performance, railroads that the STB classifies or
newly classifies as a Class I railroad, and voluntarily compliant
railroads. For organizational clarity, FRA moved these deadlines to
paragraph (b) and made each deadline separate paragraphs (b)(1) through
(4). FRA is further modifying the deadline for ISP railroads in
paragraph (b)(2). While the NPRM proposed requiring an ISP railroad to
provide FRA an RRP plan no later than 90 days after receiving final
notification from FRA under Sec.  271.13, FRA is extending this
timeline to 180 days in the final rule to account for the petition
process FRA is including in Sec.  271.13(f). Paragraphs (a)(1) through
(4) of the NPRM also contained certain requirements for the RRP plan,
which FRA moved to paragraph (c) in the final rule. These
organizational changes resulted in the renumbering of the other
paragraphs in this section but do not affect the substance of the rule.
    While the NPRM proposed that a voluntarily-compliant railroad could
submit an RRP plan to FRA for review and approval at any time, FRA
concluded the proposed approach is vague. FRA based its conclusion on
the fact that it leaves uncertainty about when a voluntarily-compliant
railroad begins to compile and collect information solely for RRP
purposes such that the rule's information protection provisions would
apply. Paragraph (b)(4)(i) of the final rule therefore states a
voluntarily-compliant railroad must provide FRA written notice of its
intent to submit an RRP plan for FRA's review and approval. Under
paragraph (b)(4)(ii), the date FRA receives the written notice or
February 18, 2021, whichever is later, is the date the voluntarily-
compliant railroad may begin to compile or collect information solely
for the purpose of planning, implementing, or evaluating an RRP under
the information protection provisions of Sec.  271.11. To ensure a
voluntarily-compliant railroad does indeed submit an RRP plan for FRA's
review and approval once the railroad begins compiling or collecting
information solely for RRP purposes, paragraph (b)(4)(iii) states a
voluntarily-compliant railroad must submit its RRP plan for review and
approval no later than 180 days after FRA receives the railroad's
written notice. This is the same amount of time an ISP railroad has to
submit its RRP plan under paragraph (b)(2).
    Paragraphs (c)(1) through (4), proposed as paragraphs (a)(1)
through (4) of the NPRM, require a railroad to provide certain
additional information as part of its submission. Aside from the
reorganization, FRA did not make any changes to the language in
paragraphs (c)(1) and (2). For reasons explained by the section-by-
section analysis for Sec.  271.101(d), above, FRA changed paragraph
(c)(3) to clarify its requirements. Paragraph (c)(3) requires a
railroad's RRP plan to include the contact information for the senior
representatives of any person that has entered into a contractual
relationship with the railroad to either perform significant safety-
related services on the railroad's behalf or to utilize significant
safety-related services the railroad provides for railroad operations.
This includes the senior representatives of host railroads, contract
operators, shared track/corridor operators, and other contractors. This
change does not affect the substance of this provision.
    Paragraph (c)(4), proposed as paragraph (a)(4) in the NPRM,
requires a railroad to submit a statement describing how it consulted
with its directly affected employees on the contents of its RRP plan
under Sec.  271.207(d). This paragraph also reminds directly affected
employees that they have 30 days following the railroad's submission of
its proposed RRP plan to file a statement under Sec.  271.207(e)(2).
FRA has made three changes to these requirements from the NPRM. First,
this paragraph referenced Sec.  271.207(b) and (c) in the NPRM, and FRA
changed these references to Sec.  271.207(d) and (e)(2) to reflect
organizational changes to Sec.  271.207. For plain language purposes,
FRA also changed the phrase ``in accordance with'' to ``under.'' These
changes do not affect the substance of this requirement. Finally, while
the NPRM proposed

providing directly affected employees 60 days to submit a statement
following a railroad's submission of its RRP plan, FRA believes 30 days
is more appropriate. The section-by-section analysis for Sec.
271.207(e)(2) explains why FRA has made this change.
    Paragraph (d), proposed as paragraph (b) in the NPRM, explains how
FRA will approve a railroad's RRP plan. Except for updating references
to reflect organizational changes in Sec.  271.207, making a non-
substantive editorial change in paragraph (d)(1), extending a deadline
in paragraph (d)(3), and adding minor provisions in paragraphs (d)(3)
and (4), FRA adopts this paragraph unchanged from the NPRM. In
paragraph (d)(1), FRA changed the language ``prior to the commencement
of railroad operations'' to ``before the start of railroad operations''
for plain language purposes. Under paragraph (d)(3), when a railroad
receives notification that FRA has not approved its plan and notice of
the specific points in which the plan is deficient, the railroad has 90
days to correct all of the deficiencies identified and resubmit the
plan to FRA. Both the SSP NPRM and the RRP NPRM proposed giving a
railroad 60 days to correct identified deficiencies, but FRA received
comments in response to the SSP NPRM expressing concern that 60 days
was not a sufficient amount of time for a railroad to address the
deficient points of an SSP plan. See 81 FR 53888 (Aug. 12, 2016) and 80
FR 10995 (Feb. 27, 2015). The SSP final rule addressed this concern by
extending the deadline to 90 days, and this final rule does the same to
keep the rules consistent. See 49 CFR 270.201(b)(3) and 81 FR 53888
(Aug. 12, 2016). FRA has also modified paragraph (d)(3) to include
language indicating that FRA will review a corrected RRP plan within 60
days of receipt.
    FRA has modified paragraph (d)(4) to include language stating FRA's
approval of a railroad's RRP plan does not constitute approval of the
specific actions the railroad will implement under its RRP plan and
shall not be construed as establishing a Federal standard regarding
those specific actions. Section V.A.5 of the preamble, above, explains
that FRA has added this language to specifically preserve State claims.
    Paragraph (e), proposed as paragraph (c) in the NPRM, specifies
that all documents required to be submitted to FRA under this part may
be submitted electronically under the procedures in appendix B to this
part. Other than the reorganization and directing readers to appendix B
instead of appendix C, as proposed in the NPRM (for reasons discussed
in the section-by-section analysis for appendix B), FRA adopts this
provision unchanged from the NPRM.
Section 271.303--Amendments
    This section addresses the process a railroad must follow whenever
it amends its FRA-approved RRP plan, regardless of whether the
amendments are substantive or non-substantive. Except for additional
language FRA added to paragraph (a) and clarifying changes in
paragraphs (b) and (c), discussed below, FRA adopts this section
unchanged from the NPRM. FRA also did not receive any comments on this
section. For discussion on provisions FRA has not changed, FRA refers
interested readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27,
2015).
    Paragraph (a) in the NPRM stated that for substantive amendments, a
railroad must follow the process in its RRP plan under Sec.  271.209
for consulting with its directly affected employees. In the final rule,
FRA renumbered this provision paragraph (a)(1) and added language
clarifying that a railroad must also submit a consultation statement to
FRA. FRA also added language in paragraph (a)(2) specifying that if a
railroad and its directly affected employees cannot reach agreement on
the proposed contents of a substantive amendment, the directly affected
employees may file a statement with FRA under Sec.  271.207(e)(1)
procedures. Paragraph (a)(2) gives directly affected employees 15 days
following the railroad's submission of the proposed amendment to submit
a statement. Fifteen days is sufficient time for the statement because
issues associated with amending an RRP plan are likely to be less
complex than issues associated with initially developing a new RRP
plan. FRA is including this provision because FRA believes a railroad
substantively amending its RRP plan must follow all the consultation
process requirements that apply when a railroad is initially developing
a plan. A railroad cannot either evade consultation process
requirements or deprive directly affected employees of the opportunity
to submit a statement to FRA by substantively amending an RRP plan FRA
already approved. This paragraph does not apply to non-substantive
amendments (e.g., amendments updating names and addresses of railroad
personnel). If a railroad is uncertain whether a proposed amendment is
substantive or non-substantive, it should contact FRA for guidance.
    Paragraph (b) contains requirements for filing an RRP plan
amendment. The only change FRA made to this paragraph was to replace
``prior to'' with ``before'' for plain language purposes.
    Paragraph (c) describes how FRA will review and approve a
railroad's proposed amendment. Paragraph (c)(1) in the NPRM stated that
FRA will review an amendment within 45 days of receipt and then notify
the primary contact person of the railroad whether FRA approves the
proposed amendment. FRA made non-substantive editorial changes to this
provision to improve clarity and change passive voice to active voice.
FRA also added language in paragraphs (c)(1) and (2) clarifying that
FRA will also provide this notification to each individual identified
in the service list accompanying the consultation statement under Sec.
271.303(a)(1). Once again, FRA added this language to ensure the
process for approving substantive amendments is the same as the process
for initially approving a railroad's RRP plan. FRA adopts paragraph
(c)(3) unchanged from the NPRM. See 80 FR 10978 (Feb. 27, 2015).
Section 271.305--Reopened Review
    This section provides that, for cause stated, FRA may reopen review
of an RRP plan or amendment (in whole or in part) after approval of the
plan or amendment. While this section of the NPRM stated that FRA may
``reopen consideration'' of an RRP plan or amendment, FRA has replaced
this phrase with ``reopen review'' because ``review'' is the term used
in the section title and elsewhere in the final rule to describe FRA's
role in approving an RRP plan. The determination of whether to reopen
review is solely within FRA's discretion on a case-by-case basis. As an
example, the NPRM explained that FRA could reopen review if it
determines the railroad has not been complying with its plan/amendment
or if FRA obtains information that was not available when FRA
originally approved the plan or amendment.
    In response to this section in the NPRM, AAR/ASLRRA commented the
phrase ``for cause stated'' was unlimited and this section was
unacceptably vague. FRA does not believe this provision needs
additional specificity. FRA further notes that reopening an RRP plan
for review does not necessarily mean the plan does not comply with the
final rule. FRA will work with a railroad and its directly affected
employees if it reopens review to ensure the railroad and employees
understand and can address FRA's cause stated.

Section 271.307--Retention of RRP Plans
    This section contains requirements for railroads to retain their
RRP plans. Except for adding language in paragraph (b) clarifying that
a railroad must also make a copy of any subsequent amendment to an RRP
plan available for inspection and copying (in addition to the plan
itself), FRA adopts this section unchanged from the NPRM. FRA also did
not receive any comments on this section so it is therefore not
repeating the NPRM's section-by-section analysis, but refers interested
readers to the NPRM's discussion. See 80 FR 10978 (Feb. 27, 2015).

Subpart E--Internal Assessments

    To help ensure an RRP is properly implemented and effective, a
railroad must evaluate its program annually. Subpart E contains the
railroad requirements to conduct an internal assessment of its RRP. FRA
did not receive any comments on this subpart. Except for updating
references in the NPRM to reflect organizational changes in the final
rule \27\ and the minor changes discussed below for Sec. Sec.  271.403
and 271.405, FRA adopts this subpart unchanged from the NPRM. FRA is
therefore not repeating the NPRM's section-by-section analysis in this
final rule, but refers interested readers to the NPRM's discussion. See
80 FR 10978-10979 (Feb. 27, 2015).
---------------------------------------------------------------------------

    \27\ To reflect organizational changes in the final rule, FRA
changed a reference in Sec.  271.401(a) from Sec.  271.301(b) to
Sec.  271.301(d) and a reference in Sec.  271.401(b)(1) from Sec.
271.223(b) to Sec.  271.225(b).
---------------------------------------------------------------------------

Section 271.403--Internal Assessment Improvement Plans
    Paragraph (b)(2) in this section of the NPRM stated that a
railroad's improvement plan must describe recommended improvements,
``including any necessary revisions or updates to the RRP plan which
would be made through the amendment process. . . .'' FRA believes the
term ``necessary'' is vague, and therefore changed this language in the
final rule to read, ``including any proposed revisions or updates to
the RRP plan the railroad expects to make through the amendment process
. . . .'' The changed language also clarifies that these are amendments
the railroad expects to make. FRA does not intend these changes to
change the substance of this paragraph.
Section 271.405--Internal Assessment Reports
    FRA has made changes to paragraph (b)(3) of this section to conform
its language with the changes FRA has made to Sec.  271.403(b)(2),
discussed above.

Subpart F--External Audits

    This subpart explains FRA's process for conducting audits of the
railroad's RRP and establishes requirements for the actions a railroad
must take in response to FRA's audits. FRA's audits will focus on
reviewing the railroad's RRP process and ensuring that the railroad is
following the processes and procedures described in its FRA-approved
RRP plan. FRA did not receive any comments on this subpart and except
for a modification to Sec.  271.501 discussed below, adopts it
unchanged from the NPRM. FRA is therefore not repeating the NPRM's
section-by-section analysis in this final rule, but refers interested
readers to the NPRM's discussion. See 80 FR 10979 (Feb. 27, 2015).
Section 271.501--External Audits
    This section in the NPRM generally stated FRA would cause external
audits to be conducted. FRA has modified this section to clarify that a
railroad must make documentation kept pursuant to its RRP plan
available to FRA or State railroad safety inspectors for copying and
inspection.

Appendix A to Part 271--Federal Railroad Administration Guidance on the
Risk Reduction Program Consultation Process

    As proposed in the NPRM, FRA intended appendix A to contain a
schedule of civil penalties for use in connection with this final rule.
However, FRA has decided to provide such a schedule on its website
instead of as an appendix to the final rule. Please see the discussion
of Sec.  271.9, Penalties and responsibility for compliance, in the
section-by-section analysis for further details.
    FRA is therefore moving appendix B, as proposed in the NPRM, to
appendix A in the final rule. Appendix A contains guidance on complying
with Sec.  271.207, which states that a railroad must in good faith
consult with, and use its best efforts to reach agreement with, all of
its directly affected employees on the contents of the RRP plan. The
appendix begins with a general discussion of the terms ``good faith''
and ``best efforts,'' explaining they are separate terms and 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 a railroad makes to try to reach agreement with its directly
affected employees. The appendix also explains that FRA will determine
a railroad's compliance with the Sec.  271.207 requirements on a case-
by-case basis and explains that FRA may disapprove a plan if a railroad
fails to consult with its directly affected employees in good faith and
use best efforts.
    Further, the appendix contains specific guidance on the process a
railroad may use to consult with its directly affected employees. This
guidance does not establish prescriptive requirements a railroad must
comply with, but provides a road map as an example of 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 there are
many ways a railroad may choose to consult with its directly affected
employees to comply with the rule. Therefore, it is important to
maintain a flexible approach to the Sec.  271.207 consultation process
requirements, so a railroad and its directly affected employees may
consult in the manner best suited to their specific circumstances.

Appendix B to Part 271--Procedures for Submission of RRP Plans and
Statements From Directly Affected Employees

    Appendix B in the NPRM proposed guidance on complying with the
consultation process requirements, and has been moved to appendix A in
the final rule for reasons discussed above. FRA is therefore moving
appendix C, as proposed in the NPRM, to appendix B in the final rule.
Appendix B provides railroads and directly affected employees the
option to file RRP plans or consultation statements electronically. The
NPRM requested comment regarding whether FRA should allow electronic
submission of RRP materials. FRA did not receive any comments against
electronic submission and, therefore, is including this appendix
unchanged in the final rule.
    FRA will create a secure document submission site and will need
basic information from railroads or directly affected employees before
setting up a user's account. To provide secure access, FRA will also
need information on the railroad's points of contact. FRA anticipates
it will be able to approve or disapprove all or part of a program and
generate automated notifications by

email to a railroad's points of contact. Thus, each point of contact
must understand that by providing any email addresses, the railroad is
consenting to receive approval and disapproval notices from FRA by
email. Railroads that allow notice from FRA by email benefit from
receiving such notices quickly and efficiently.
    Railroads that choose to submit printed materials to FRA must
deliver them directly to the specified address. Some railroads may
choose to deliver a CD, DVD, or other electronic storage format to FRA
rather than requesting access to upload the documents directly to the
secure electronic database. Although that is an acceptable method of
submission, FRA encourages each railroad to utilize the electronic
submission capabilities of the system. If FRA cannot read the type of
electronic storage format sent, FRA will reject the submission.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13771, Congressional Review Act, and DOT
Regulatory Policies and Procedures

    This rule is a significant regulatory action within the meaning of
Executive Order 12866 (E.O. 12866) and DOT policies and procedures. See
44 FR 11034 (Feb. 26, 1979). FRA made this determination by finding
that, although the economic effects of this regulatory action would not
exceed the $100 million annual threshold defined by E.O. 12866, the
rule is significant because of the substantial public interest in
transportation safety. Pursuant to the Congressional Review Act (5
U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs
designated this rule as not a `major rule', as defined by 5 U.S.C.
804(2). Additionally, this final rule is considered an E.O. 13771
regulatory action. Details on the estimated costs of this final rule
can be found in the rule's RIA, which FRA has prepared and placed in
the docket (docket no. FRA-2009-0038). The RIA details estimated costs
the railroads regulated by the rule are likely to incur over a ten-year
period.
    FRA did not estimate the full incremental costs of railroads
conducting additional and systematic hazard and risk analyses or
implementing actions to mitigate identified hazards and risks. FRA
lacks information to reliably estimate such costs because FRA does not
know the specific level of hazards and risks on impacted railroads or
the means railroads will use to mitigate these risks. FRA nevertheless
expects railroads will implement the most cost-effective mitigations to
eliminate or mitigate hazards, and the rule does not require railroads
to implement mitigations that would result in net costs. As such, FRA
expects that a railroad will only implement mitigation efforts that are
net beneficial to the railroad.
    The below tables summarize the rule's total costs over a ten-year
period based on Class I railroads having a 43-percent pre-compliance
rate and ISP railroads having no pre-compliance, with a total cost of
$40.2 million, using a 7-percent discount rate (PV), 7-percent) (Table
5) and $51.0 million, using a 3-percent discount rate (PV, 3-percent)
(Table 6). The annualized costs are $5.7 million (PV, 7-percent) and
$5.9 million (PV, 3-percent).

 Table 5--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 7-Percent
----------------------------------------------------------------------------------------------------------------
                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $7,000          $7,000
Subpart B: RR Programs..........................................     $35,725,000       2,216,000      37,941,000
Subpart C: RRP Plans............................................         656,000       1,053,000       1,709,000
Subpart D: Review and Approval of Plans.........................           2,000           7,000           9,000
Subpart E: Internal Assessments.................................         171,000         312,000         483,000
Subpart F: External Audits......................................          28,000          32,000          60,000
                                                                 -----------------------------------------------
    Total Cost..................................................      36,582,000       3,627,000      40,209,000
                                                                 -----------------------------------------------
Annualized......................................................       5,210,000         516,000       5,726,000
----------------------------------------------------------------------------------------------------------------

 Table 6--Summary of the Rule's Total Costs (Ten-Year Period), Assuming 43-Percent Class I Pre-Rule Compliance;
                                                  PV, 3-Percent
----------------------------------------------------------------------------------------------------------------
                                                                      Class I
                              Costs                                  railroads    ISP  railroads  All  railroads
----------------------------------------------------------------------------------------------------------------
Subpart A: General..............................................  ..............          $9,000          $9,000
Subpart B: RR Programs..........................................     $45,156,000       3,011,000      48,167,000
Subpart C: RRP Plans............................................         771,000       1,329,000       2,100,000
Subpart D: Review and Approval of Plans.........................           2,000           8,000          10,000
Subpart E: Internal Assessments.................................         230,000         413,000         643,000
Subpart F: External Audits......................................          37,000          43,000          80,000
                                                                 -----------------------------------------------
    Total Cost, 3% present value................................      46,197,000       4,813,000      51,000,000
                                                                 -----------------------------------------------
Annualized, 3%..................................................       5,416,000         564,000       5,979,000
----------------------------------------------------------------------------------------------------------------

    The final rule will require each Class I and ISP railroad to create
and implement an RRP. As part of an ongoing process, the final rule
will require each railroad and its employees to collaboratively
identify, rank, and address safety hazards. FRA concludes that the
final rule will result in each affected railroad creating a systematic

approach to safety that achieves benefits from inter-department
coordination similar to the type of benefits observed through the FRA-
sponsored C\3\RS program.\28\ FRA expects that the final rule will
improve the effectiveness of a railroad's hazard mitigation efforts,
which will result in the primary benefit of decreasing the frequency of
accidents/incidents. Other benefits that will come from promulgating
the rule include reduced railroad and non-railroad property damage,
railroad and highway travel delays, cleanup costs, employee
absenteeism, and emergency response costs, among others. Lastly, FRA
expects that the final rule will increase railroad productivity and
profitability, due to substantially better employee morale, improved
working conditions, and a more effective allocation of hazard safety
mitigation resources.
---------------------------------------------------------------------------

    \28\ See U.S. Department of Transportation, Federal Railroad
Administration, ``Continued Improvement at One C3RS Site'', June
2015, available at https://rosap.ntl.bts.gov/view/dot/12204/dot_12204_DS1.pdf (Accessed December 10, 2018).
---------------------------------------------------------------------------

    Benefits that come from the final rule will vary from railroad to
railroad. These benefits are based on each railroad's organizational
structure, the ability for labor and management to collaborate, and the
steps the railroad takes to implement hazard analysis and mitigation.
FRA could not reliably predict the specific risks that each freight
railroad will identify, the actions each freight railroad will take to
mitigate such risks, or the success rate of such actions. Details on
the estimated benefits of this final rule can be found in the rule's
RIA, which FRA has prepared and placed in the docket (docket no. FRA-
2009-0038).
    FRA expects that the final rule will increase the effectiveness of
railroad hazard mitigation strategies, which will reduce the frequency
of accidents and incidents on the general railroad system. FRA also
expects that the final rule will result in increased employee morale
and improved working conditions, which will improve railroad
productivity. These benefits will result because the final rule:
    1. Ensures that railroads keep their RRP current and in place;
    2. Improves safety culture;
    3. Requires ongoing employee involvement and proactive
collaboration between labor and management; and
    4. Provides information protection, which allows for a systematic
risk-based hazard analysis.
    The final rule requires each Class I railroad to have a fully
implemented RRP within five years of the rule's effective date and
requires the first set of ISP railroads to implement all portions of
their RRPs within six years after the final rule's effective date.\29\
FRA anticipates that railroads may implement some components of their
RRP plan before the required implementation dates specified in the
final rule. Therefore, this analysis estimates that the final rule will
start generating benefits in the fourth year (year 2022), when Class I
railroads will have substantially implemented their RRPs. As previously
discussed, Class I railroads have in place existing activities related
to the final rule's required components. The existing levels of pre-
rule compliance reduce the size of potential benefits that follow from
issuing the final rule.
---------------------------------------------------------------------------

    \29\ An ISP railroad should begin to realize benefits
approximately three years after FRA approves its RRP plan, the point
when the final rule requires the ISP railroad to have fully
implemented its RRP. The final rule requires each ISP railroad that
is part of the first group of ISP railroads to implement in full an
RRP by the sixth year.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act and Executive Order 13272

    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 a Final Regulatory Flexibility
Analysis (FRFA) 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 is publishing this FRFA to
describe the potential impact of the final rule on small businesses.
1. Statement of Need for, and Objectives of, the Rule
    FRA is requiring each Class I freight railroad and ISP freight
railroad to develop and implement an RRP, a structured program with
proactive processes and procedures a railroad develops and implements
to identify and eliminate or mitigate hazards and the resulting risks
on its system. An RRP works by encouraging a railroad and its employees
to proactively collaborate to identify hazards and determine what, if
any, action to take to eliminate or mitigate the resulting risks. The
rule provides each railroad with a substantial amount of flexibility to
establish an RRP based on its specific operations. FRA is issuing the
RRP rule as part of its efforts to continuously improve rail safety and
to satisfy in part the statutory mandate in sections 103 and 109 of the
RSIA.
    The rule is intended to focus on increased safety, care, and
protection of railroad employees, customers, and the general public.
The rule will also help ensure railroads provide a safer workplace
environment for their employees. Conformance and compliance with the
rule, rather than a voluntary system, will better facilitate and ensure
industry-wide efforts, resulting in measurable improvement in the
performance and quality of safety management processes.
    Even though FRA has issued safety regulations and guidance that
address many aspects of railroad operations, there are gaps in safety
and hazards. Risks may arise from these gaps. RRPs will provide
railroads with the tools to systematically and continuously evaluate
their systems to identify the gaps in safety and eliminate or mitigate
the hazards and risks that result from these gaps.
    The rule responds to the Congressional mandate in section 103 of
the RSIA, which provides that FRA, by delegation from the Secretary,
shall require each Class I railroad and ISP railroad to establish a
railroad safety risk reduction program. See 49 U.S.C. 20156(a)(1).\30\
The rule also conforms to section 109 of the RSIA, which directs FRA,
by delegation from the Secretary, to conduct a study to determine if it
is in the public interest to withhold certain information, including a
railroad's assessment of its safety risks and its statement of
mitigation measures, from discovery and admission into evidence in
proceedings for damages involving personal injury and wrongful death.
Section 109 authorizes FRA, by delegation from the Secretary, to
prescribe a rule, subject to notice and comment, to address the results
of the study. See 49 U.S.C. 20119.
---------------------------------------------------------------------------

    \30\ While the RSIA also directs FRA to require passenger
railroads to establish railroad safety risk reduction programs, FRA
has published a separate SSP rule that addresses the passenger
railroad mandate. See 81 FR 53850 (Aug. 12, 2016).
---------------------------------------------------------------------------

    The RSIA requirements explain the congressionally mandated need for
action. Under 49 U.S.C. 20103(a), ``[t]he Secretary of Transportation,
as necessary, shall prescribe regulations and issue orders for every
area of railroad safety supplementing laws and regulations in effect on
October 16, 1970.'' The Secretary's responsibility under this provision
and the balance of the railroad safety laws has been delegated to the
FRA Administrator under 49 CFR 1.89.

2. Summary of Significant Issues Raised by Public Comments, Summary of
Assessment of Such Issues, and Statement of Any Changes in Rule as
Result of Such Comments
    There is an extensive section, above, discussing comments. This
section discusses comments particularly applicable to small railroads.
    ISP Determination: ASLRRA expressed concern that FRA's proposed
methodology for identifying ISP railroads would select a
disproportionate number of the smallest railroads. To assess this
concern, FRA conducted several analyses of data from FRA's RAIRS, the
system that would provide FRA data for the inadequate safety
performance methodology. To approximate the proposed methodology, FRA
conducted the analyses for the three-year period from 2012 through
2014, the latest years for which a full 12 months' data were available
at the time of the analysis.
    The first analysis identified and evaluated all railroads the
proposed methodology would analyze for inadequate safety performance
(i.e., Class II and III freight railroads that operate on the general
system). On average, these railroads reported about 231,000 total train
miles operated and 200,000 employee hours between 2012 and 2014.
    FRA then used the proposed methodology for identifying ISP
railroads to evaluate Class II and III railroads for inadequate safety
performance. Railroads determined to have inadequate safety performance
reported, on average, 32,000 total train miles operated and 35,000
employee hours between 2012 and 2014. These averages are substantially
lower than averages for the entire pool of Class II and III railroads
the proposed methodology would evaluate. Based on this result, FRA
shares ASLRRA's concern that the proposed methodology would over-select
the smallest railroads.
    FRA has therefore changed the proposed methodology to include a
preliminary selection in the quantitative analysis phase. This
preliminary selection will help avoid over-selecting the smallest
railroads by utilizing the absolute number (rather than rates) of two
factors regarding a railroad's safety performance. FRA has applied this
methodology to RAIRS data. On average, railroads identified as having
inadequate safety performance reported 146,000 train miles operated and
165,000 employee hours from 2012 through 2014. These averages are much
closer to the averages for the entire pool of Class II and III freight
railroads that the methodology will initially evaluate.
    Appeal of FRA's ISP Determination: AAR/ASLRRA commented urging FRA
to establish an appeals process for railroads that the methodology
identifies as having inadequate safety performance. FRA agrees
including an appeals process for railroads determined to have
inadequate safety performance is fair. In the final rule, FRA therefore
added a process for railroads to petition the FRA Administrator for
reconsideration of inadequate safety performance determinations under
existing procedures to appeal to the Administrator (e.g., procedures
regarding petitions for waiver of safety rules under 49 CFR part 211,
subpart C). These procedures are well-established and should be
familiar to the railroad industry.
    Information Protection: While small railroad commenters favored
information protection, FRA received several comments arguing the
proposed information protections are too narrow. ASLRRA commented FRA
improperly relied on section 409 and the Supreme Court's decision in
Guillen, and therefore FRA is not protecting data as Congress intended
in the RSIA. ASLRRA also questions FRA's explanation in the NPRM
preamble that the information protections would only extend to the
Short Line Safety Institute (Institute) if FRA finds the Institute is
part of a complete RRP program. See 80 FR 10964 (Feb. 27, 2015). As
Section V.A.8 explains above, FRA disagrees with these comments and
believes it has properly limited the scope of the information
protections, the protections are consistent with Congress' intent in
the RSIA, and FRA lacks authority under RSIA to extend information
protections to programs that do not fully meet the requirements of this
RRP final rule.
    AAR/ASLRRA also commented on the NPRM preamble statement that Sec.
271.11 would only protect information once FRA approves a railroad's
RRP plan. They believe that approach does not make sense and weakens
the rule's proposed protections. As Section V.A.8 explains above, FRA
agrees with AAR/ASLRRA and does not intend to limit the information
protections only to information a railroad compiles or collects for an
RRP plan FRA has already approved.
    Performance-based rule and flexibility: As Section V.B.2 explains
above, the NPRM described RRP as a performance-based rule that would
not establish prescriptive requirements that may be appropriate for one
railroad but unworkable for another. Several commenters supported FRA's
decision to propose a performance-based, flexible RRP rule, and AAR/
ASLRRA acknowledged the performance-based nature of RRP. The
performance-based nature of the RRP final rule gives a smaller railroad
the flexibility to tailor the rule's requirements to its specific
operations and amount of resources.
    Short Line Safety Institute: As Section V.B.8 explains above,
ASLRRA commented that small railroad participation in the Institute
should suffice as complete compliance with the requirements in the
NPRM. ASLRRA also claims FRA would fulfill the SBREFA requirement to
grant special considerations to small businesses by accepting
participation in the Institute as satisfying RRP requirements. FRA
currently cannot determine, however, whether the Institute will fully
comply with the RSIA mandate or the requirements of this final rule.
Rather, FRA believes it is more appropriate to make this determination
when reviewing RRP plans under Sec.  271.301 of the final rule. FRA
also notes that the final rule will not unduly burden short line and
regional railroads because of its scalability and flexibility.
3. The Response of the Agency to Any Comments Filed by the Chief
Counsel for Advocacy of the Small Business Administration
    FRA did not receive any comments from the Chief Counsel for
Advocacy of the Small Business Administration.
4. Description and Estimate of Number of Small Entities to Which the
Final Rule Applies
    ``Small entity'' is defined in 5 U.S.C. 601 as a small business
concern that is independently owned and operated, and is not dominant
in its field of operation. The U.S. Small Business Administration (SBA)
has authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a for profit ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 500
employees, or a ``commuter rail system'' with annual receipts of less
than 15 million dollars. See ``Size Eligibility Provisions and
Standards,'' 13 CFR part 121, subpart A. 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.

Under that authority, FRA published a final statement of agency policy
formally establishing ``small entities'' or ``small businesses'' as
railroads, contractors, and hazardous materials shippers that meet the
revenue requirements of a Class III railroad under 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 49 CFR part 209, appendix C). The $20 million limit is based on the
STB's revenue threshold for a Class III railroad carrier. Railroad
revenue is adjusted for inflation by applying a revenue deflator
formula in accordance with 49 CFR 1201.1-1. FRA is using this
definition for the final rule. For other entities, the same dollar
limit in revenues governs whether a railroad, contractor, or other
respondent is a small entity.
Railroads
    In the universe of railroads that potentially have to comply with
the final rule, there are 7 Class I railroads, 11 Class II railroads (1
of which is classified as a passenger railroad that will be excepted
from the final rule), and 735 Class III freight railroads. Out of the
735 Class III freight railroads, the final rule excepts railroads not
on the general system and tourist railroads, leaving approximately 600
Class III railroads as small entities that may be subject to the
requirements of the final rule.\31\
---------------------------------------------------------------------------

    \31\ Total number of Class III railroads potentially impacted =
735 Class III railroads-43 Class III railroads not on the general
system-93 Class III railroads that are tourist railroads = 599 Class
III railroads.
---------------------------------------------------------------------------

    To identify Class II and Class III railroads that must comply with
the final rule because they demonstrate inadequate safety performance,
FRA will annually conduct a two-phase analysis. The first phase is a
statistically-based quantitative analysis of fatalities, FRA-reportable
injuries/illnesses, FRA-reportable accidents/incidents, and FRA safety
violations; and the second phase is a qualitative assessment that
includes input from affected railroads and their employees. See Sec.
271.13 of the final rule for a full description of FRA's process for
determining inadequate safety performance.
    Because FRA's initial inadequate safety performance analysis will
occur at least one year after the RRP final rule goes into effect, it
is impossible for FRA to know how many Class III railroads will be
required to comply. FRA reviewed a 3-year rolling average of safety
data to test the selection process. This analysis accounted for the
types of information that railroads and employees could present to FRA
during the qualitative review process. Such information could serve to
refute the quantitative analysis' identification of a railroad as
demonstrating inadequate safety performance. Based on this analysis,
FRA expects to identify approximately 10 Class II and Class III freight
railroads that demonstrate inadequate safety performance in year 2 of
the 10-year period of the analysis. In each subsequent year, FRA
expects to identify five additional ISP railroads. Therefore, by year
10, FRA will have identified approximately 50 ISP railroads.
    FRA expects the number of ISP railroads will reach a maximum of 50
railroads by year 10, at which point the number of ISP railroads should
flatten out or decline. In estimating the maximum number of ISP
railroads, FRA considered the following factors: (1) Industry-wide
safety performance improvement; (2) in year 7 of the analysis, some ISP
railroads will seek and receive relief from being in the program after
complying for 5 years; (3) the size of the railroad pool being examined
for inadequate safety performance would shrink as more railroads are
required to comply with part 271; and (4) those railroads not
identified as being an ISP railroad will observe the positive behaviors
and results of ISP railroads and will embrace the better safety
practices without having a formal RRP program.
    For purposes of this FRFA, FRA expects that each ISP will be a
Class III railroad (small railroad).
Contractors
    Some 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 assessing the
impact of an RRP, contractors fall into two groups: Larger contractors
that perform a primary operating or maintenance function for the
railroads, and smaller contractors that perform ancillary functions to
the primary operations. Larger contractors are typically employed by
sizable private companies or part of an international conglomerate.
Smaller contractors may perform such duties as brush clearing or
painting facilities.
    Safety-related policies, work rules, guidelines, and regulations
are imparted to the small contractors today as part of their
contractual obligations and qualification to work on the Class I
freight railroads, and potentially to work for ISP railroads. FRA sees
minimal additional burden to imparting the same type of information
under each railroad's RRP. A very small administrative burden may
result.
    Under the final rule, contractors (small or large) that provide
significant safety-related services are expected to have minimal burden
under the rule. For example, while the final rule requires the railroad
to involve the persons that provide significant safety-related services
in the railroad's RRP, it doesn't require the entity to do any
training. Thus, any burden imposed on contractors would be indirect or
considered in the contract with the pertinent railroad or both.
5. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including Estimate of Small
Entities Regulated by Rule
    The rule will require an ISP railroad to develop and implement an
RRP under a written RRP plan FRA has reviewed and approved. There are
several reporting, recordkeeping, and compliance costs associated with
the final rule. FRA believes that the added burden of recordkeeping is
marginal due to the final rule requirements.
    The total 10-year cost of this final rule is $40.2 million (PV, 7%)
and $51.0 million (PV, 3%), of which FRA estimates $3.6 million (PV,
7%) and $4.5 million (PV, 3%) or less will be attributable to small
entities. Based on FRA's RIA, which has been placed in the docket, the
average Class III ISP railroad will incur an average burden per year.
If, for example, ISP railroads comply with the final rule for an
average of eight years, then the total cost will be approximately
$143,000 (PV, 7%) and $168,000 (PV, 3%) per ISP railroad.
    However, due to the small number of small railroads that are
estimated to be impacted by this final rule, the cost per railroad
could be found to be significant. For a thorough presentation of cost
estimates, please refer to the RIA, which has been placed in the docket
for this rulemaking.
    The following section outlines the potential additional burden on
small railroads for each subpart of the final rule.
 Subpart A--General
    The policy, purpose, and definitions outlined in subpart A, alone,
will not impose a significant burden on small railroads. However, there
is the small requirement for notifying employees of

the railroad that FRA's quantitative analysis has found that the
railroad may demonstrate inadequate safety performance. This subpart of
the final rule will impose less than 1 percent of the total burden for
small entities.
 Subpart B--Risk Reduction Program Requirements
    Subpart B of the final rule will have a proportional effect
directly related to the size and complexity of a railroad and will
impose approximately 60 percent of the total burden for small entities.
Generally, this subpart describes what a railroad must develop and
include in its RRP. For example, it requires the development of a risk-
based HMP (which includes a risk-based hazard analysis and the design
and implementation of mitigation strategies), safety performance
evaluation, and technology implementation plans.
    Because of the scalable nature of the final rule, the requirements
of an RRP will be much less complex for a small railroad than they will
be for a Class I railroad. Additionally, several characteristics of
small railroads should also limit the number and types of hazards for
the RRP to address. These characteristics include the concentrated
geography of operation in a small area, the short distance of
operation, and a non-fragmented and non-diffused work force (in other
words, most employees of a small railroad are in one place). RRP
requirements such as technology implementation plans should also not be
burdensome. This is because small railroads are very limited in the
resources they can allocate for new technologies. FRA expects that
small railroads will rely on tried-and-true technologies that have been
thoroughly tested elsewhere.
 Subpart C--Risk Reduction Program Plan Requirements
    Subpart C of the final rule will have a proportional effect
directly related to the size and complexity of a railroad. This subpart
of the final rule contains the requirements for RRP plans and will
impose approximately 29 percent of the total burden for small entities.
For example, it requires a plan statement on each RRP element mandated
in subpart B and plan statements related to safety policy and goals, a
system description, the consultation process, and an RRP implementation
plan. This subpart of the final rule is primarily the paperwork or
written plan that supports the processes and programs in the RRP.
 Subpart D--Review, Approval, and Retention of Risk Reduction
Program Plans
    Subpart D of the final rule will impose less than 1 percent of the
total burden for small entities. The final requirements of this subpart
are for the submission to FRA for review and approval of the initial
RRP plan and any amendments thereto. Since only 10 small railroads are
expected to submit RRP plans for approval in year two, and
approximately 5 small railroads are expected to submit RRP plans each
year thereafter, this subpart should have a very small economic impact.
 Subpart E--Internal Assessments
    Subpart E of the final rule will impose approximately 9 percent of
the total burden for small entities. This burden is for the ongoing
cost of small railroads to perform an internal assessment and report on
internal audits on an annual basis. As noted above, initially very few
small railroads will be performing these internal assessments, which
will serve to minimize the economic impact on small railroads.
 Subpart F--External Audits
    Subpart F of the final rule will impose approximately 1 percent of
the total burden for small entities. This burden is for the ongoing
cost of small railroads to host an external audit by FRA or its
designees on a periodic basis. This includes the burden to produce an
improvement plan addressing any instances of deficiencies or
noncompliance FRA identified during the audit. FRA does not expect more
than five of these small railroads to receive an external audit in any
given year.
Market and Competition Considerations
    The railroad industry has several significant barriers to entry,
such as the need to own or otherwise obtain access to rights-of-way and
the high capital expenditure needed to purchase a fleet, as well as
track and equipment. Furthermore, the small railroads under
consideration will potentially be competing only with the trucking
industry and typically deal with the transport of commodities or goods
that are not truck-friendly. Thus, while this final rule will have an
economic impact on Class I freight railroads and ISP railroads, it
should not have an impact on the competitive position of small
railroads.
    For the entire railroad industry over a 10-year period, FRA
estimates the total cost for the rule will be $40.2 million (PV, 7-
percent), or $51.0 million (PV, 3-percent).\32\ Based on information
currently available, FRA estimates that Class II and Class III
railroads will bear 9 percent of the total railroad costs associated
with implementing the rule.
---------------------------------------------------------------------------

    \32\ FRA's estimates follow Office of Management and Budget
(OMB) guidance in OMB Circular A-94 to use real discount rates of 7-
and 3-percent for regulatory analysis.
---------------------------------------------------------------------------

6. Description of Steps Taken To Minimize Significant Adverse Economic
Impact on Small Entities
    As discussed above, FRA estimates ISP railroads will incur
approximately 9 percent of the total cost of this final rule. Based on
FRA's RIA, the average ISP railroad will incur an average burden of
approximately $18,000 (PV, 7-percent) and $21,000 (PV, 3-percent) per
year. If ISP railroads complied with the RRP final rule for an average
of eight years, then the average total cost will be approximately
$144,000 (PV, 7-percent) and $168,000 (PV, 3-percent) per ISP railroad.
    FRA has taken several steps to minimize the final rule's burden on
small entities. For example, several provisions in the final rule
respond directly to comments on the NPRM raising small entity concerns.
Specifically, FRA modified the methodology for identifying ISP
railroads to avoid over-selecting the smallest railroads and included a
process in the final rule allowing railroads to appeal an ISP
determination to the FRA Administrator. Additional steps FRA has taken
include developing and promulgating a performance-based final rule,
helping to create the Institute (which will help any small railroad
comply with this rule), and providing information protections.
    FRA also intends to aid railroads, including small entities, in the
development of the RRPs, starting at the planning phase and continuing
through the implementation phase. The final rule is also scalable by
design. Therefore, a short line or regional railroad can likely
maintain full compliance with the final rule with an RRP that is not
likely to have the complexity and comprehensiveness of an RRP for a
larger railroad. FRA will aid railroads so that the scope and content
of their RRPs are proportionate to their size and the nature of their
operation. All these actions benefit small railroads and will help them
comply with the final rule. Lastly, as a result of addressing the
safety issues that led FRA to determine the railroad demonstrated
inadequate safety performance, FRA believes an RRP will help an ISP
railroad more effectively

allocate resources, while also reducing the frequency of accidents. For
small entities, FRA estimates the monetized value of gains will be
equal to or greater than the final rule's burden.
    In the Initial Regulatory Flexibility Analysis, FRA stated it had
not determined whether the proposed rule would have a significant
economic impact on a substantial number of small entities. See 80 FR
10982 (Feb. 27, 2015). FRA remains uncertain whether the rule may have
a significant impact on affected entities, or whether the number of
small entities FRA expects to be impacted, a maximum of 50 out of
approximately 600, is a substantial number of small entities.
Therefore, FRA is not certifying that the rule will not have a
significant impact on a substantial number of small entities.
    In compliance with SBREFA, FRA is developing a compliance guide to
assist small entities in complying with the rule. FRA is placing this
guide in the public docket for this rulemaking.
    Overall, FRA has taken reasonable measures to ensure the rule's
impact is commensurate with business size, and FRA will aid small
railroad compliance.

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.
    FRA analyzed this final rule under the principles and criteria in
Executive Order 13132. FRA has determined this rule does 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 this rule does 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 rule adds part 271, Risk Reduction Program. 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 re-codified at 49 U.S.C. 20106 (section 20106). 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. FRA has determined that certain State laws
may be preempted by this part. Section 271.11(d) in the final rule
specifically addresses the preemption of State discovery rules and
sunshine laws to the extent those laws would require disclosure of
information protected by Sec.  271.11 in a Federal or State court
proceeding for damages involving personal injury, wrongful death, or
property damage. The preemption of State discovery rules and sunshine
laws is discussed further in the section-by-section analysis of Sec.
271.11(d). In addition, as previously discussed, section 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 rule under the principles and
criteria in Executive Order 13132. As explained above, FRA has
determined this rule has minimal federalism implications. Accordingly,
FRA has determined that preparation of a federalism summary impact
statement for this rule is not required.

D. International Trade Impact Assessment

    The Trade Agreements 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 act requires consideration of international standards
and, where appropriate, that they be the basis for U.S. standards. This
rule 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

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

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Total annual
                                                                                Average  time per      Total annual     dollar cost
     CFR section/subject \33\           Respondent universe          Total annual  responses             response          burden hours     equivalent
                                                                                \34\
--------------------------------------------------------------------------------------------------------------------------------------------------------
271.13--Determination of           15 railroads.................  5 notices....................  3 hours................              15          $1,018
 inadequate safety performance
 (ISP)--Notice to employees of
 possible ISP identification by
 FRA.
    --Employee confidential        125 employees................  5 comments...................  30 minutes.............             2.5             170
     comments to FRA regarding RR
     possible ISP identification.
    --RR Documentation to FRA      15 railroads.................  5 documents..................  8 hours................              40           2,715
     refuting possible ISP
     identification.
                                  ----------------------------------------------------------------------------------------------------------------------
271.101(a)--Risk Reduction                         This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
 Programs (RRPs)--Class I
 railroads.
                                  ----------------------------------------------------------------------------------------------------------------------
271.103--RRP hazard management     7 railroads..................  2.333 HMPs analyses..........  3,360 hours............           7,839         532,111
 program (HMPs).
271.105--RRP safety performance    7 railroads..................  2.333 SPEs evaluation........  147 hours..............             343          23,283
 evaluation (SPEs): Survey/
 evaluation.

                                   7 railroads..................  2.333 assessments............  1,060 hours............           2,473         167,867
271.107--Safety Outreach--         7 railroads..................  44,333 communications........  1 hour.................          44,333       2,379,352
 communications/reports.
                                   7 railroads..................  28 communications............  30 minutes.............              14             950
271.109--Technology analysis and   7 railroads..................  2.333 reports................  10 hours...............            23.3           1,582
 technology implementation plans.
271.111--RRP implementation        7 railroads..................  1,400 records of trained       3 minutes..............              70           4,752
 training--programs/tr. employees/                                 employees.
 rcds.
271.101(c)--Communication by       7 railroads..................  40 communications/             2 hours................              80           5,430
 Class I RRs that host passenger                                   consultations.
 train service with RRs subject
 to FRA System Safety Program
 Requirements.
    --(d)--Identification/         7 railroads..................  212 communications/            1 hour.................             212          14,391
     communication w/entities                                      consultations.
     performing/utilizing
     significant safety-related
     services--Class I RRs.
    --RR Identification/further    7 railroads..................  1,488 communications/          1 hour.................           1,488         101,005
     communication with                                            consultations.
     contractors performing/
     utilizing significant safety
     related services--Class I
     RRs.
                                  ----------------------------------------------------------------------------------------------------------------------
271.101(a)--Risk Reduction                         This burden is covered under sections 271.103, 271.105, 271.107, 271.109, and 271.111.
 Programs (RRPs)--ISP railroads.
                                  ----------------------------------------------------------------------------------------------------------------------
271.103--RRP hazard management     15 railroads.................  5 HMPs.......................  240 hours..............           1,200          81,456
 program (HMPs).
271.105--RRP safety performance    15 railroads.................  5 surveys....................  14.73 hours............              74           5,023
 evaluation (SPEs): Survey/
 evaluation.
                                   15 railroads.................  5 SPEs.......................  51.1 hours.............             256          17,377
271.107--Safety Outreach--         15 railroads.................  5 communications.............  1 hour.................               5             268
 communications/reports.
                                   15 railroads.................  5 reports....................  3 hours................              15           1,018
271.109--Technology analysis and   15 railroads.................  5 plans......................  5 hours................              25           1,697
 technology implementation plans.
271.111--RRP implementation        15 railroads.................  50 records of trained          3 minutes..............             2.5             170
 training--programs/tr. employees/                                 employees.
 rcds.
271.101(d)--ISPs--Identification/  15 railroads.................  5 communications/              2 hours................              10             679
 communication w/entities                                          consultations.
 performing significant safety-
 related services.
271.201/203--Written risk          7 railroads..................  2.333 RRP plans..............  461 hours..............           1,075          72,971
 reduction program plans (RRP
 plans)--Adoption and
 implementation of RRP plans--
 Class I.
    --Written RRP plans--ISP RRs.  15 railroads.................  5 RRP plans..................  96 hours...............             480          32,582
271.207--RR Good faith             7 railroads..................  2.333 consults...............  8 hours................              19           1,290
 consultation w/directly affected
 employees--Class I RRs.
    --RR Notification to non-      7 railroads..................  1 notification...............  3 hours................               3             204
     represented employees of
     consultation meeting--Class
     I RRs.
    --RR Good faith consultations/ 15 railroads.................  5 consults/notices...........  20 hours...............             100           6,788
     notices: ISP RRs.
    (d)--Submission of detailed    7 railroads..................  2.333 consultation statements  200 hours..............             467          31,700
     consultation statement along
     w/RRP plan by Class I RRs.
    --Submission of detailed       15 railroads.................  5 consultation statements....  40 hours...............             200          13,576
     consultation statement along
     w/RRP plan by ISPs.
    --Copy of RRP plan/            22 railroads.................  380 plan copies..............  2 minutes..............            12.7             862
     consultation statement to     22 railroads.................  380 consultation statements..  2 minutes..............            12.7             862
     service list individuals--
     Class I RRs + ISP RRs.
    --Statements from directly     10 labor organizations.......  3 statements.................  6 hours................              18           1,222
     affected employees--Class I
     RRs.
    --Statements from directly     15 railroads.................  12 statements................  1 hour.................              12             815
     affected employees--ISP RRs.
271.301--Filing of RRP plan w/     7 railroads..................  2.333 filed plans............  2 hours................               5             339
 FRA--Class I RRs.
    --Filing of RRP plan w/FRA--   15 railroads.................  5 filed plans................  2 hours................              10             679
     ISP RRs.
    --Class I RR corrected RRP     7 railroads..................  1 RRP plan...................  2 hours................               2             136
     plan.
    --FRA requested Class I RR     7 railroads..................  1 consult/statement..........  3 hours................               3             204
     consultation with directly
     affected employees regarding
     substantive corrections/
     changes to RRP plan.
    --ISP RR corrected RRP plan..  15 railroads.................  1 RRP plan...................  2 hours................               2             136
    --FRA requested ISP RR         15 railroads.................  1 consult/statement..........  1 hour.................               1              68
     further consultation with
     directly affected employees
     regarding substantive
     amendment to RRP plan.
271.303--Amendments consultation   22 railroads (Class I + ISP).  2 consults...................  1 hour.................               2             136
 w/directly affected employees on
 substantive amendments to RRP
 plan--Class I RRs and ISP RRs.
    --Employee statement to FRA    22 railroads (Class I + ISP).  2 employee statements........  30 minutes.............               1              68
     on RR RRP plan substantive
     amendment where agreement
     could not be reached.
    --Filed amended RRP plan--     7 railroads..................  1 plan.......................  6 hours................               6             407
     Class I RRs.
    --Filed amended RRP plan--ISP  15 railroads.................  1 plan.......................  1 hour.................               1              68
     RRs.
271.307--Retention of RRP plans--  22 railroads (Class I + ISP).  22 plan copies...............  10 minutes.............               4             272
 Copies of RRP Plan/Amendments by
 RR at system/division
 headquarters--Class I and ISP
 RRs.
217.401/403--Annual internal       7 railroads..................  2.333 assessments/improvement  120 hours..............             280          19,006
 assessment/improvement plans--                                    plans.
 Class I RRs.
    --Annual internal assessment/  15 railroads.................  5 assessments/improvement      32 hours...............             160          10,861
     improvement plans--ISP RRs.                                   plans.
271.405--Internal assessment       7 railroads..................  2.333 reports................  8 hours................              19           1,290
 report copy to FRA--Class I RRs.
    --Internal assessment report   15 railroads.................  5 reports....................  2 hours................              10             679
     copy to FRA--ISP RRs.

Appendix B--Request by FRA for     7 railroads..................  3 documents..................  40 hours...............             120           8,146
 additional information/documents
 to determine whether railroad
 has met good faith and best
 efforts consultation
 requirements of section 271.207.
    --Further railroad             7 railroads..................  1 consult....................  8 hours................               8             543
     consultation w/employees
     after determination by FRA
     that railroad did not use
     good faith/best efforts.
    --Meeting to discuss           7 railroads..................  7 meetings/consults..........  2 hours................              14             950
     administrative details of
     consultation process during
     the time between initial
     meeting and applicability
     date--Class I RRs.
    --Meeting to discuss           15 railroads.................  7 meetings/consults..........  1 hour.................               7             475
     administrative details of
     consultation process during
     the time between initial
     meeting and applicability
     date--ISP RRs.
    --Notification to non-         15 railroads.................  600 notices..................  15 minutes.............             150          10,182
     represented employees of
     good faith consultation
     process--ISP RRs.
    --Draft RRP plan proposal to   15 railroads.................  20 proposals/copies..........  2 hours................              40           2,715
     employees--ISP RRs.
    --Employee comments on RRP     2,000 employees..............  60 comments..................  1 hour.................              60           4,073
     plan draft proposal.
                                  ----------------------------------------------------------------------------------------------------------------------
        Totals...................  22 railroads.................  49,148 responses.............  N/A....................          61,825       3,566,619
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions,
searching existing data sources, gathering or maintaining the needed
data, and reviewing the information.
---------------------------------------------------------------------------

    \33\ Information collection requests relating to petitions and
audits will occur outside of this information collection request
timeframe. Also, because Sec.  271.113 requires a railroad to
involve directly affected employees in establishing or implementing
an RRP (e.g., when identifying hazards, conducting internal
assessments, or otherwise performing activities required under part
271), the burdens associated with Sec.  271.113 are covered under
the other burdens associated with subparts B and E of part 271.
    \34\ The dollar equivalent cost is derived from the Surface
Transportation Board's Full Year Wage A&B data series using the
appropriate employee group hourly wage rate that includes 75-percent
overhead charges.
---------------------------------------------------------------------------

    For information or a copy of the paperwork package submitted to
OMB, contact Ms. Hodan Wells, Information Collection Clearance Officer,
Office of Railroad Safety, Federal Railroad Administration, at 202-493-
0440 or Ms. Kimberly Toone, Information Collection Clearance Officer,
Office of Information Technology, Federal Railroad Administration, at
202-493-6132.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Ms. Hodan
Wells 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 Ms. Wells at<EMAIL_ADDRESS>or Ms. Toone at
<EMAIL_ADDRESS>    OMB must make a decision concerning the collection of information
requirements contained in this 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. FRA did not receive any OMB
or public comments on the information collection requirements contained
in the NPRM.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements that do not display a current OMB
control number, if required. The current OMB control number is 2130-
0610.

F. Environmental Assessment

    FRA has evaluated this rule under 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 this 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. 64 FR 28547, 28548.
    Consistent with section 4(c) and (e) of FRA's Procedures, FRA also
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 this rule is not a major
Federal action significantly affecting the quality of the human
environment.

G. Unfunded Mandates Reform Act of 1995

    Under 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 each agency to prepare a comprehensive written
statement for any proposed or final rule that includes a Federal
mandate that may result in the 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.\35\
---------------------------------------------------------------------------

    \35\ See U.S. Department of Transportation, ``Guidance--
Threshold of Significant Regulatory Actions under the Unfunded
Mandates Reform Act of 1995,'' April 4, 2016, https://www.transportation.gov/office-policy/transportation-policy/threshold-significant-regulatory-actions-under-unfunded-mandat-0, as
accessed July 26, 2018.
---------------------------------------------------------------------------

    This final rule will not result in such an expenditure, and thus
preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). FRA evaluated this final rule in accordance
with Executive Order 13211, and determined that this regulatory action
is not a ``significant energy action'' within the meaning of the
Executive Order.
    Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources. See 82 FR 16093 (Mar. 31,
2017). FRA determined this final rule will not burden the development
or use of domestically produced energy sources.

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 E.O. 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 rule under Executive
Order 13211 and determined this rule 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'' under the Executive Order 13211.

List of Subjects in 49 CFR Part 271

    Penalties, Railroad safety, Reporting and recordkeeping
requirements, Risk reduction.

The Rule

0
In consideration of the foregoing, FRA adds part 271 to chapter II,
subtitle B of title 49, Code of Federal Regulations, to read as
follows:

PART 271--RISK REDUCTION PROGRAM

Subpart A--General
Sec.
271.1 Purpose and scope.
271.3 Application.
271.5 Definitions.
271.7 [Reserved]
271.9 Penalties and responsibility for compliance.
271.11 Discovery and admission as evidence of certain information.
271.13 Determination of inadequate safety performance.
271.15 Voluntary compliance.
Subpart B--Risk Reduction Program Requirements
271.101 Risk reduction programs.
271.103 Risk-based hazard management program.
271.105 Safety performance evaluation.
271.107 Safety outreach.
271.109 Technology analysis and technology implementation plan.
271.111 Implementation and support training.
271.113 Involvement of railroad employees.
Subpart C--Risk Reduction Program Plan Requirements
271.201 General.
271.203 Policy, purpose and scope, and goals.
271.205 System description.
271.207 Consultation requirements.
271.209 Consultation on amendments.
271.211 Risk-based hazard management program process.
271.213 Safety performance evaluation process.
271.215 Safety outreach process.
271.217 Technology implementation plan process.
271.219 Implementation and support training plan.
271.221 Involvement of railroad employees process.
271.223 Internal assessment process.
271.225 RRP implementation plan.
Subpart D--Review, Approval, and Retention of Risk Reduction Program
Plans
271.301 Filing and approval.
271.303 Amendments.
271.305 Reopened review.
271.307 Retention of RRP plans.
Subpart E--Internal Assessments
271.401 Annual internal assessments.
271.403 Internal assessment improvement plans.
271.405 Internal assessment reports.
Subpart F--External Audits
271.501 External audits.
271.503 External audit improvement plans.
Appendix A to Part 271--Federal Railroad Administration Guidance on
the Risk Reduction Program Consultation Process
Appendix B to Part 271--Procedures for Submission of RRP Plans and
Statements From Directly Affected Employees

    Authority: 49 U.S.C. 20103, 20106-20107, 20118-20119, 20156,
21301, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.89.

Subpart A--General

Sec.  271.1  Purpose and scope.

    (a) The purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by railroads. Each railroad subject to this part must
establish a Risk Reduction Program (RRP) that systematically evaluates
railroad safety hazards on its system and manages the risks associated
with those hazards to reduce the number and rates of railroad
accidents/incidents, injuries, and fatalities.
    (b) This part prescribes minimum Federal safety standards for the
preparation, adoption, and implementation of RRPs. This part does not
restrict railroads from adopting and enforcing additional or more
stringent requirements not inconsistent with this part.
    (c) This part prescribes the protection of information a railroad
compiles or collects solely for the purpose of planning, implementing,
or evaluating an RRP under this part.
    (d) This part does not require an RRP to address hazards completely
unrelated to railroad safety and that fall under the exclusive
jurisdiction of another Federal agency. Additionally, an RRP required
by this part is not intended to address and should not address the
safety of employees while performing inspections, tests, and
maintenance, except where FRA has already addressed workplace safety
issues, such as blue signal protection in part 218 of this chapter. FRA
does not intend to approve any specific portion of an RRP plan that
relates exclusively to employee working conditions.

Sec.  271.3  Application.

    (a) Except as provided in paragraph (b) of this section, this part
applies to--
    (1) Class I railroads;
    (2) Railroads determined to have inadequate safety performance
pursuant to Sec.  271.13; and
    (3) Railroads that voluntarily comply with the requirements of this
part pursuant to Sec.  271.15.
    (b) This part does not apply to:
    (1) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation;
    (2) Tourist, scenic, historic, or excursion operations, whether on
or off the general railroad system of transportation;
    (3) Operation of private cars, including business/office cars and
circus trains;
    (4) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec.  271.5); and
    (5) Commuter or intercity passenger railroads that are subject to
Federal system safety program requirements contained in part 270 of
this chapter.
    (c) If a railroad contracts out significant portions of its
operations, the contractor and the contractor's employees performing
the railroad's operations shall be considered directly affected
employees for purposes of this part.

Sec.  271.5  Definitions.

    As used in this part only--
    Accident/incident means an ``accident/incident'' as defined in
Sec.  225.5 of this chapter.
    Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
    FRA means the Federal Railroad Administration.
    FRA Associate Administrator means the Associate Administrator for
Railroad

Safety and Chief Safety Officer, Federal Railroad Administration, or
the Associate Administrator's delegate.
    Fully implemented means that all elements of an RRP as described in
the RRP plan are established and applied to the safety management of
the railroad.
    Hazard means any real or potential condition that can cause injury,
illness, or death; damage to or loss of a system, equipment, or
property; or damage to the environment.
    Inadequate safety performance means safety performance that FRA has
determined to be inadequate based on the criteria described in Sec.
271.13.
    Mitigation strategy means an action or program intended to reduce
or eliminate the risk associated with a hazard.
    Person means an entity of any type covered under 1 U.S.C. 1,
including, but not limited to, the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor or subcontractor providing goods
or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor or
subcontractor.
    Pilot project means a limited scope project used to determine
whether quantitative evaluation and analysis suggests that a particular
system or mitigation strategy has potential to succeed on a full-scale
basis.
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
is not considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
    Positive train control system means a system designed to prevent
train-to-train collisions, overspeed derailments, incursions into
established work zone limits, and the movement of a train through a
switch left in the wrong position, as described in subpart I of part
236 of this chapter.
    Railroad means:
    (1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including:
    (i) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads, but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; and
    (2) A person or organization that provides railroad transportation,
whether directly or by contracting out operation of the railroad to
another person.
    Risk means the combination of the probability (or frequency of
occurrence) and the consequence (or severity) of a hazard.
    Risk-based HMP means a risk-based hazard management program (HMP).
    Risk reduction means the formal, top-down, organization-wide
approach to managing safety risk and assuring the effectiveness of
safety risk mitigation strategies. It includes systematic procedures,
practices, and policies for the management of safety risk.
    RRP means a Risk Reduction Program.
    RRP plan means a Risk Reduction Program plan.
    Safety culture means the shared values, actions, and behaviors that
demonstrate a commitment to safety over competing goals and demands.
    Safety performance means a realized or actual safety accomplishment
relative to stated safety objectives.
    Safety outreach means the communication of safety information to
support the implementation of an RRP throughout a railroad.
    Senior management means personnel at the highest level of a
railroad's management who are responsible for making major policy
decisions and long-term business plans regarding the operation of the
railroad.
    STB means the Surface Transportation Board of the United States.
    Tourist, scenic, historic, or excursion operations means railroad
operations that carry passengers, often using antiquated equipment,
with the conveyance of the passengers to a particular destination not
being the principal purpose. Train movements of new passenger equipment
for demonstration purposes are not tourist, scenic, historic, or
excursion operations.

Sec.  271.7  [Reserved]

Sec.  271.9  Penalties and responsibility for compliance.

    (a) Any person that violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least the minimum civil monetary penalty and not more than the
ordinary maximum civil monetary penalty per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to individuals, or has caused death or injury, a penalty not to exceed
the aggravated maximum civil monetary penalty per violation may be
assessed. See 49 CFR part 209, appendix A. Each day a violation
continues shall constitute a separate offense. Any person that
knowingly and willfully falsifies a record or report required by this
part may be subject to criminal penalties under 49 U.S.C. 21311. See
FRA's website at www.fra.dot.gov for a statement of agency civil
penalty policy.
    (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.

Sec.  271.11  Discovery and admission as evidence of certain
information.

    (a) Protected information. Any information compiled or collected
after February 17, 2021 solely for the purpose of planning,
implementing, or evaluating a risk reduction program under this part
shall not be subject to discovery, admitted into evidence, or
considered for other purposes in a Federal or State court proceeding
for damages involving personal injury, wrongful death, or property
damage. For purposes of this section--
    (1) ``Information'' includes plans, reports, documents, surveys,
schedules, lists, or data, and specifically includes a railroad's
analysis of its safety risks under Sec.  271.103(b) and a railroad's
statement of mitigation measures under Sec.  271.103(c); and
    (2) ``Solely'' means that a railroad originally compiled or
collected the information for the exclusive purpose of planning,
implementing, or evaluating a risk reduction program under this part.

Information compiled or collected for any other purpose is not