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 for part
270 is 2130-0599.\29\
---------------------------------------------------------------------------

    \29\ No changes are necessary to the RRP rule's PRA analysis to
account for the conforming amendments to the consultation and
information protection provisions in this rule. See 85 FR 9262,
9311-13 (Feb. 18, 2020).
---------------------------------------------------------------------------

D. Environmental Impact

    FRA has evaluated this rule in accordance with its ``Procedures for
Considering Environmental Impacts'' (FRA's Procedures) (64 FR 28545
(May 26, 1999)) as required by the National Environmental Policy Act
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive
Orders, and related regulatory requirements. FRA has determined that
this rule is not a major Federal action, requiring the preparation of
an environmental impact statement or environmental assessment, because
it is categorically excluded from detailed environmental review
pursuant to section 4(c)(20) of FRA's Procedures. See 64 FR 28547 (May
26, 1999).
    In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this rule that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this rule is
not a major Federal action significantly affecting the quality of the
human environment.

E. Federalism Implications

    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 has analyzed this rule in accordance with the principles and
criteria contained in Executive Order 13132. VTrans commented that the
SSP rule had significant federalism implications that FRA did not
consider regarding the rule's applicability to VTrans. See VTrans at
12. Specifically, VTrans contended the rule ``would have a chilling
effect'' on States (like Vermont), that, in reliance on existing law,
have ``structured their support for . . . intercity passenger rail
service to avoid `railroad carrier' status.'' See id. As discussed
above, FRA does not believe the proposal or SSP final rule raised such
implications. However, in any event, the revisions to the rule make
even clearer that no such implications are intended.
    This rule generally clarifies or makes technical amendments to the
requirements contained in part 270, System Safety Program, and part
271, Risk Reduction Program. FRA has determined that this final rule
has no federalism implications, other than the possible preemption of
State laws under 49 U.S.C. 20106. Therefore, the consultation and
funding requirements of Executive Order 13132 do not apply, and
preparation of a federalism summary impact statement for the rule is
not required.

F. Unfunded Mandates Reform Act of 1995

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

preparation of such a statement is not required.

G. 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 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 rule would not burden the development or use
of domestically produced energy resources.

List of Subjects

49 CFR Part 270

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

49 CFR Part 271

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

The Rule

    For the reasons discussed in the preamble, FRA amends parts 270 and
271 of chapter II, subtitle B of title 49, Code of Federal Regulations,
as follows:

PART 270--SYSTEM SAFETY PROGRAM

0
1. The authority citation for part 270 continues to read as follows:

    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.

0
2. In Sec.  270.1, revise paragraphs (a) and (b) to read as follows:

Sec.  270.1   Purpose and scope.

    (a) The purpose of this part is to improve railroad safety through
structured, proactive processes and procedures developed and
implemented by passenger rail operations. This part requires certain
passenger rail operations to establish a system safety program that
systematically evaluates railroad safety hazards and the resulting
risks on their systems and manages those risks 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 railroad system safety
programs. This part does not restrict passenger rail operations from
adopting and enforcing additional or more stringent requirements not
inconsistent with this part.
* * * * *

0
3. In Sec.  270.3, revise paragraphs (a)(1) and (2) to read as follows:

Sec.  270.3   Application.

    (a) * * *
    (1) Passenger rail operations that operate intercity or commuter
passenger train service on the general railroad system of
transportation; and
    (2) Passenger rail operations that operate commuter or other short-
haul rail passenger train service in a metropolitan or suburban area
(as described by 49 U.S.C. 20102(2)), including public authorities
operating passenger train service.
* * * * *

0
4. In Sec.  270.5:
0
a. Add a definition in alphabetical order for ``Confidential Close Call
Reporting System (C\3\RS)'';
0
b. Revise the definitions of ``Fully implemented'' and ``Hazard'';
0
c. Add a definition in alphabetical order for ``Passenger rail
operation''; and
0
d. Revise the definitions of ``Person'' and ``System safety program
plan''.
    The additions and revisions read as follows:

Sec.  270.5   Definitions.

* * * * *
    Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad
operations by allowing railroad employees to confidentially report
currently unreported or underreported unsafe events.
* * * * *
    Fully implemented means that all elements of a system safety
program as described in the SSP plan are established and applied to the
safety management of the passenger rail operation.
    Hazard means any real or potential condition (as identified in a
risk-based hazard analysis) that can cause injury, illness, or death;
damage to or loss of a system, equipment, or property; or damage to the
environment.
* * * * *
    Passenger rail operation means an intercity, commuter, or other
short-haul passenger rail service.
    Person means an entity of any type covered under 49 U.S.C. 21301,
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; any employee of such owner, manufacturer,
lessor, lessee, or independent contractor or subcontractor.
* * * * *
    System safety program plan means a document developed by the
passenger rail operation that implements and supports the system safety
program.
* * * * *

0
5. Revise Sec.  270.7 to read as follows:

Sec.  270.7   Penalties and responsibility for compliance.

    (a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least 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 persons, 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 who knowingly
and willfully falsifies a record or report required by this part may be
subject to criminal penalties under 49 U.S.C. 21311. FRA's website at
www.fra.dot.gov contains a schedule of civil penalty amounts used in
connection with this part.
    (b) Although the requirements of this part are stated in terms of
the duty of a railroad or passenger rail operation, 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
or passenger rail operation) shall perform that function in accordance
with this part.
    (c)(1) All persons providing intercity rail passenger or commuter
(or other short-haul) rail passenger service share responsibility for
ensuring compliance with this part. Nothing in this paragraph (c),
however, shall restrict the ability to provide for an appropriate
designation

of responsibility for compliance with this part.
    (2)(i) Any passenger rail operation subject to this part may
designate a person as responsible for compliance with this part by
including a designation of responsibility in the SSP plan. This
designation must be included in the SSP plan's statement describing the
passenger rail operation's management and organizational structure and
include the information specified by Sec.  270.103(e)(6).
    (ii) A passenger rail operation subject to this part may notify FRA
of a designation of responsibility before submitting an SSP plan by
first submitting a designation of responsibility notice to the
Associate Administrator for Railroad Safety and Chief Safety Officer.
The notice must include all information required under Sec.
270.103(e)(6), and this information must also be included in the SSP
plan.

0
6. Revise Sec.  270.101 to read as follows:

Sec.  270.101   System safety program; general.

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

0
7. Revise Sec.  270.103 to read as follows:

Sec.  270.103   System safety program plan.

    (a) General. (1) Each passenger rail operation subject to this part
shall adopt and fully implement a system safety program through a
written SSP plan that, at a minimum, contains the elements in this
section. This SSP plan shall be approved by FRA under the process
specified in Sec.  270.201.
    (2) Each passenger rail operation subject to this part shall
communicate with each railroad that hosts passenger train service for
that passenger rail operation and coordinate the portions of the SSP
plan applicable to the railroad hosting the passenger train service.
    (b) System safety program policy statement. Each SSP plan shall
contain a policy statement that endorses the passenger rail operation's
system safety program. This policy statement shall:
    (1) Define the passenger rail operation's authority for the
establishment and implementation of the system safety program;
    (2) Describe the safety philosophy and safety culture of the
passenger rail operation; and
    (3) Be signed by the chief official of the passenger rail
operation.
    (c) System safety program goals. Each SSP plan shall contain a
statement defining the goals for the passenger rail operation's system
safety program. This statement shall describe clear strategies on how
the goals will be achieved and what management's responsibilities are
to achieve them. At a minimum, the goals shall be:
    (1) Long-term;
    (2) Meaningful;
    (3) Measurable; and
    (4) Focused on the identification of hazards and the mitigation or
elimination of the resulting risks.
    (d) Rail system description. (1) Each SSP plan shall include a
statement describing the rail system. The description shall include:
The rail operations, including any host operations; the physical
characteristics of the rail system; the scope of rail service; the rail
system's maintenance activities; and any other pertinent aspects of the
rail system.
    (2) Each SSP plan shall identify the persons that enter into a
contractual relationship with the passenger rail operation to either
perform significant safety-related services on the passenger rail
operation's behalf or to utilize significant safety-related services
provided by the passenger rail operation for purposes related to
railroad operations.
    (3) Each SSP plan shall describe the relationships and
responsibilities between the passenger rail operation and: Host
railroads, contractor operators, shared track/corridor operators, and
persons providing or utilizing significant safety-related services as
identified pursuant to paragraph (d)(2) of this section.
    (e) Management and organizational structure. Each SSP plan shall
contain a statement that describes the management and organizational
structure of the passenger rail operation. This statement shall include
the following:
    (1) A chart or other visual representation of the organizational
structure of the passenger rail operation;
    (2) A description of the passenger rail operation's management
responsibilities within the system safety program;
    (3) A description of how safety responsibilities are distributed
within the rail organization;
    (4) Clear identification of the lines of authority used by the
passenger rail operation to manage safety issues;
    (5) A description of the roles and responsibilities in the
passenger rail operation's system safety program for each host
railroad, contractor operator, shared track/corridor operator, and any
persons utilizing or providing significant safety-related services as
identified pursuant to (d)(2) of this section. As part of this
description, the SSP plan shall describe how each host railroad,
contractor operator, shared track/corridor operator, and any persons
utilizing or providing significant safety-related services as
identified pursuant to paragraph (d)(2) of this section supports and
participates in the passenger rail operation's system safety program,
as appropriate; and
    (6) If a passenger rail operation subject to this part designates a
person as responsible for compliance with this part under Sec.
270.7(c)(2), the following information must be included in the
passenger rail operation's SSP plan and any notice of designation
submitted under Sec.  270.7(c)(2):
    (i) The name and contact information of the designator;
    (ii) The name and contact information of the designated entity and
a statement signed by an authorized representative of the designated
entity acknowledging responsibility for compliance with this part;
    (iii) A statement affirming that a copy of the designation has been
provided to the primary point of contact for each non-profit employee
labor organization representing directly affected employees for
consultation purposes under Sec.  270.107(a)(2); and
    (iv) A description of how directly affected employees not
represented by a non-profit employee labor organization were notified
of the designation for consultation purposes under Sec.  270.107(a).
    (f) System safety program implementation process. (1) Each SSP plan
shall contain a statement that describes the process the passenger rail
operation will use to implement its system safety program. As part of
the implementation process, the SSP plan shall describe:
    (i) Roles and responsibilities of each position that has
significant responsibility for implementing the system safety program,
including those held by employees and other persons utilizing or
providing significant safety-related services as identified pursuant to
(d)(2) of this section; and

    (ii) Milestones necessary to be reached to fully implement the
program.
    (2) A system safety program shall be fully implemented within 36
months of FRA's approval of the SSP plan pursuant to subpart C of this
part.
    (g) Maintenance, repair, and inspection program. (1) Each SSP plan
shall identify and describe the processes and procedures used for
maintenance and repair of infrastructure and equipment directly
affecting railroad safety. Examples of infrastructure and equipment
that directly affect railroad safety include: Fixed facilities and
equipment, rolling stock, signal and train control systems, track and
right-of-way, passenger train/station platform interface (gaps), and
traction power distribution systems.
    (2) Each description of the processes and procedures used for
maintenance and repair of infrastructure and equipment directly
affecting safety shall include the processes and procedures used to
conduct testing and inspections of the infrastructure and equipment.
    (3) If a manual or manuals comply with all applicable Federal
regulations and describe the processes and procedures that satisfy this
section, the SSP plan may reference those manuals. FRA approval of an
SSP plan that contains or references such manuals is not approval of
the manuals themselves; each manual must independently comply with
applicable regulations and is subject to a civil penalty if not in
compliance with applicable regulations.
    (4) The identification and description required by this section of
the processes and procedures used for maintenance, repair, and
inspection of infrastructure and equipment directly affecting railroad
safety is not intended to address and should not include procedures to
address employee working conditions that arise in the course of
conducting such maintenance, repair, and inspection of infrastructure
and equipment directly affecting railroad safety as set forth in the
plan. FRA does not intend to approve any specific portion of an SSP
plan that relates exclusively to employee working conditions.
    (h) Rules compliance and procedures review. Each SSP plan shall
contain a statement describing the processes and procedures used by the
passenger rail operation to develop, maintain, and comply with
applicable rules and procedures directly affecting railroad safety and
to comply with the applicable railroad safety laws and regulations
found in this chapter. The statement shall identify:
    (1) The operating and safety rules and maintenance procedures that
are subject to review under this chapter;
    (2) Techniques used to assess the compliance of the passenger rail
operation's employees with applicable operating and safety rules and
maintenance procedures, and applicable railroad safety laws and
regulations; and
    (3) Techniques used to assess the effectiveness of the passenger
rail operation's supervision relating to the compliance with the
applicable operating and safety rules and maintenance procedures, and
applicable railroad safety laws and regulations.
    (i) System safety program employee/contractor training. (1) Each
employee who is responsible for implementing and supporting the system
safety program, and any persons utilizing or providing significant
safety-related services will be trained on the passenger rail
operation's system safety program.
    (2) Each passenger rail operation shall establish and describe in
its SSP plan a system safety program training plan. A system safety
program training plan shall set forth the procedures by which employees
that are responsible for implementing and supporting the system safety
program, and any persons utilizing or providing significant safety-
related services, will be trained on the system safety program. A
system safety program training plan shall help ensure that all
personnel who are responsible for implementing and supporting the
system safety program understand the goals of the program, are familiar
with the elements of the program, and have the requisite knowledge and
skills to fulfill their responsibilities under the program.
    (3) For each position identified pursuant to paragraph (f)(1)(i) of
this section, the training plan shall describe the frequency and
content of the system safety program training that the position
receives.
    (4) If a position is not identified under paragraph (f)(1)(i) of
this section as having significant responsibility to implement the
system safety program but the position is safety-related or has a
significant impact on safety, personnel in those positions shall
receive training in basic system safety concepts and the system safety
implications of their position.
    (5) Training under this subpart may include, but is not limited to,
classroom, computer-based, or correspondence training.
    (6) The passenger rail operation shall keep a record of all
training conducted under this part and update that record as necessary.
The system safety program training plan shall set forth the process
used to maintain and update the necessary training records required by
this part.
    (7) The system safety program training plan shall set forth the
process used by the passenger rail operation to ensure that it is
complying with the training requirements set forth in the training
plan.
    (j) Emergency management. Each SSP plan shall contain a statement
that describes the processes used to manage emergencies that may arise
within the passenger rail operation's system including, but not limited
to, the processes to comply with applicable emergency equipment
standards in part 238 of this chapter and the passenger train emergency
preparedness requirements in part 239 of this chapter.
    (k) Workplace safety. Each SSP plan shall contain a statement that
describes the programs established to protect the safety of the
passenger rail operation's employees and contractors. The statement
shall include a description of:
    (1) The processes that help ensure the safety of employees and
contractors while working on or in close proximity to railroad property
as described in paragraph (d) of this section;
    (2) The processes that help ensure that employees and contractors
understand the requirements established by the passenger rail operation
pursuant to paragraph (f)(1) of this section;
    (3) Any fitness-for-duty programs or any medical monitoring
programs; and
    (4) The standards for the control of alcohol and drug use in part
219 of this chapter.
    (l) Public safety outreach program. Each passenger rail operation
shall establish and set forth a statement in its SSP plan that
describes its public safety outreach program to provide safety
information to railroad passengers and the general public. Each
passenger rail operation's safety outreach program shall provide a
means for railroad passengers and the general public to report any
observed hazards.
    (m) Accident/incident reporting and investigation. Each SSP plan
shall include a statement that describes the processes that the
passenger rail operation uses to receive notification of accidents/
incidents, investigate and report those accidents/incidents, and
develop, implement, and track any corrective actions found necessary to
address an investigation's finding(s).
    (n) Safety data acquisition. Each passenger rail operation shall
establish and set forth a statement in its SSP plan that describes the
processes it uses to collect, maintain, analyze, and

distribute safety data in support of the system safety program.
    (o) Contract procurement requirements. Each SSP plan shall set
forth a statement that describes the process(es) used to help ensure
that safety concerns and hazards are adequately addressed during the
safety-related contract procurement process.
    (p) Risk-based hazard management program. Each passenger rail
operation shall establish a risk-based hazard management program as
part of the system safety program. The risk-based hazard management
program shall be fully described in the SSP plan.
    (1) The risk-based hazard management program shall establish:
    (i) The processes or procedures used in the risk-based hazard
analysis to identify hazards on the rail system;
    (ii) The processes or procedures used in the risk-based hazard
analysis to analyze identified hazards and support the risk-based
hazard management program;
    (iii) The methods used in the risk-based hazard analysis to
determine the severity and frequency of hazards and to determine the
corresponding risk;
    (iv) The methods used in the risk-based hazard analysis to identify
actions that mitigate or eliminate hazards and corresponding risks;
    (v) The process for setting goals for the risk-based hazard
management program and how performance against the goals will be
reported;
    (vi) The process to make decisions that affect the safety of the
rail system relative to the risk-based hazard management program;
    (vii) The methods used in the risk-based hazard management program
to support continuous safety improvement throughout the life of the
rail system; and
    (viii) The methods used to maintain records of identified hazards
and risks and the mitigation or elimination of the identified hazards
and risks throughout the life of the rail system.
    (2) The SSP plan's description of the risk-based hazard management
program shall include:
    (i) The position title of the individual(s) responsible for
administering the risk-based hazard management program;
    (ii) The identities of stakeholders who will participate in the
risk-based hazard management program; and
    (iii) The position title of the participants and structure of any
hazard management teams or safety committees that may be established to
support the risk-based hazard management program.
    (q) Risk-based hazard analysis. (1) Once FRA approves a passenger
rail operation's SSP plan pursuant to Sec.  270.201(b), the risk-based
hazard analysis methodology identified in paragraphs (p)(1)(i) through
(iii) of this section shall be applied to identify and analyze hazards
on the rail system and to determine the resulting risks. At a minimum,
the aspects of the rail system that shall be analyzed include:
Operating rules and practices, infrastructure, equipment, employee
levels and schedules, management structure, employee training, and
other aspects that have an impact on railroad safety not covered by
railroad safety regulations or other Federal regulations.
    (2) A risk-based hazard analysis shall identify specific actions
that shall be implemented using the methods described in paragraph
(p)(1)(iv) of this section that will mitigate or eliminate the hazards
and resulting risks identified by paragraph (q)(1) of this section.
    (3) A passenger rail operation shall also conduct a risk-based
hazard analysis pursuant to paragraphs (q)(1) and (2) of this section
when there are significant operational changes, system extensions,
system modifications, or other circumstances that have a direct impact
on railroad safety.
    (r) Technology analysis and implementation plan. (1) A passenger
rail operation shall develop, and periodically update as necessary, a
technology analysis and implementation plan as described by this
paragraph. The passenger rail operation shall include this technology
analysis and implementation plan in its SSP plan.
    (2) A passenger rail operation's technology analysis and
implementation plan shall describe the process used to:
    (i) Identify and analyze current, new, or novel technologies that
will mitigate or eliminate the hazards and resulting risks identified
by the risk-based hazard analysis pursuant to paragraph (q)(1) of this
section; and
    (ii) Analyze the safety impact, feasibility, and costs and benefits
of implementing the technologies identified by the processes under
paragraph (r)(2)(i) of this section that will mitigate or eliminate
hazards and the resulting risks.
    (3) Once FRA approves a passenger rail operation's SSP plan
pursuant to Sec.  270.201(b), including the technology analysis and
implementation plan, the passenger rail operation shall apply:
    (i) The processes described in paragraph (r)(2)(i) of this section
to identify and analyze technologies that will mitigate or eliminate
the hazards and resulting risks identified by the risk-based hazard
analysis pursuant to paragraph (q)(1) of this section. At a minimum,
the technologies a passenger rail operation shall consider as part of
its technology analysis are: Processor-based technologies, positive
train control systems, electronically-controlled pneumatic brakes, rail
integrity inspection systems, rail integrity warning systems, switch
position monitors and indicators, trespasser prevention technology, and
highway-rail grade crossing warning and protection technology; and
    (ii) The processes described in paragraph (r)(2)(ii) of this
section to the technologies identified by the analysis under paragraph
(r)(3)(i) of this section.
    (4) If a passenger rail operation decides to implement any of the
technologies identified in paragraph (r)(3) of this section, in the
technology analysis and implementation plan in the SSP plan, the
passenger rail operation shall:
    (i) Describe how it will develop, adopt, implement, maintain, and
use the identified technologies; and
    (ii) Set forth a prioritized implementation schedule for the
development, adoption, implementation and maintenance of those
technologies over a 10-year period.
    (5) Except as required by subpart I of part 236 of this chapter, if
a passenger rail operation decides to implement a positive train
control system as part of its technology analysis and implementation
plan, the technology implementation plan shall set forth and comply
with a schedule for implementation of the positive train control system
consistent with the deadlines in the Positive Train Control Enforcement
and Implementation Act of 2015, Public Law 114-73, 129 Stat. 576-82
(Oct. 29, 2015), and 49 CFR 236.1005(b)(7).
    (6) The passenger rail operation shall not include in its SSP plan
the analysis conducted pursuant to paragraph (r)(3) of this section. A
passenger rail operation shall make the results of any analysis
conducted pursuant to paragraph (r)(3) of this section available upon
request to representatives of FRA and States participating under part
212 of this chapter.
    (s) Safety Assurance--(1) Change management. Each passenger rail
operation shall establish and set forth a statement in its SSP plan
describing the processes and procedures used to manage significant
operational changes, system extensions, system modifications, or other
significant changes that will have a direct impact on railroad safety.
    (2) Configuration management. Each passenger rail operation shall
establish a configuration management program

and describe the program in its SSP plan. The configuration management
program shall:
    (i) Identify who has authority to make configuration changes;
    (ii) Establish processes to make configuration changes to the rail
system; and
    (iii) Establish processes to ensure that all departments of the
system affected by the configuration changes are formally notified and
approve of the change.
    (3) Safety certification. Each passenger rail operation shall
establish and set forth a statement in its SSP plan that describes the
certification process used to help ensure that safety concerns and
hazards are adequately addressed before the initiation of operations or
major projects to extend, rehabilitate, or modify an existing system or
replace vehicles and equipment.
    (t) Safety culture. Each SSP plan shall contain a statement that
describes how the passenger rail operation measures the success of its
safety culture identified in paragraph (b)(2) of this section.

0
8. In Sec.  270.105, revise paragraphs (a) and (b)(2) and add paragraph
(e) to read as follows:

Sec.  270.105   Discovery and admission as evidence of certain
information.

    (a) Protected information. Except as provided in paragraph (a)(3)
of this section, any information compiled or collected after August 14,
2017, solely for the purpose of planning, implementing, or evaluating a
system safety 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 passenger rail
operation's analysis of its safety risks under Sec.  270.103(q)(1) and
a passenger rail operation's statement of mitigation measures under
Sec.  270.103(q)(2);
    (2) ``Solely'' means that a passenger rail operation originally
compiled or collected the information for the exclusive purpose of
planning, implementing, or evaluating a system safety program under
this part. Information compiled or collected for any other purpose is
not protected, even if the passenger rail operation also uses that
information for a system safety program. ``Solely'' also means that a
passenger rail operation continues to use that information only for its
system safety program. If a passenger rail operation subsequently uses
for any other purpose information that was initially compiled or
collected for a system safety program, this section does not protect
that information to the extent that it is used for the non-system
safety program purpose. The use of that information within the
passenger rail operation's system safety program, however, remains
protected. This section does not protect information that is required
to be compiled or collected pursuant to any other provision of law of
regulation; and
    (3) A passenger rail operation may include a Confidential Close
Call Reporting System (C\3\RS) program in a system safety program
established under this part. For Federal or State court proceedings
described by this paragraph (a) that are initiated after March 4, 2021,
the information protected by this paragraph (a) includes C\3\RS
information a passenger rail operation includes in its system safety
program, even if the passenger rail operation compiled or collected the
C\3\RS information on or before August 14, 2017, for purposes other
than planning, implementing, or evaluating a system safety program
under this part.
    (b) * * *
    (2) Information compiled or collected on or before August 14, 2017,
and that continues to be compiled or collected, even if used to plan,
implement, or evaluate a system safety program; or
* * * * *
    (e) Enforcement. This section does not apply to civil enforcement
or criminal law enforcement proceedings.

0
 9. Revise Sec.  270.107 to read as follows:

Sec.  270.107   Consultation requirements.

    (a) General duty. (1) Each passenger rail operation required to
establish a system safety program under this part shall in good faith
consult with, and use its best efforts to reach agreement with, all of
its directly affected employees, including any non-profit labor
organization representing a class or craft of directly affected
employees, on the contents of the SSP plan.
    (2) A passenger rail operation that consults with a non-profit
employee labor organization as required by paragraph (a)(1) of this
section is considered to have consulted with the directly affected
employees represented by that organization. For directly affected
employees represented by a non-profit employee labor organization, the
primary point of contact shall be either the general chairperson of
that non-profit employee labor organization or a non-profit employee
labor organization primary point of contact the passenger rail
operation and the non-profit employee labor organization agree on at
the beginning of the consultation process. If a passenger rail
operation contracts out significant portions of its operations, the
contractor and the contractor's employees performing those operations
shall be considered directly affected employees for the purposes of
this part.
    (3) A passenger rail operation shall have a preliminary meeting
with its directly affected employees to discuss how the consultation
process will proceed. A passenger rail operation is not required to
discuss the substance of an SSP plan during this preliminary meeting. A
passenger rail operation must:
    (i) Hold the preliminary meeting no later than July 2, 2020;
    (ii) Notify the directly affected employees of the preliminary
meeting no less than 60 days before it is held.
    (4) Appendix B to this part contains non-mandatory guidance on how
a passenger rail operation may comply with the requirements of this
section.
    (b) Consultation statements. A passenger rail operation required to
submit an SSP plan under Sec.  270.201 must also submit, together with
the plan, a consultation statement that includes the following
information:
    (1) A detailed description of the process utilized to consult with
directly affected employees;
    (2) If the passenger rail operation could not reach agreement with
its directly affected employees on the contents of its SSP plan,
identification of any known areas of disagreement and an explanation of
why it believes agreement was not reached; and
    (3) A service list containing the name and contact information for
either each international/national president and general chairperson of
any non-profit employee labor organization representing a class or
craft of the passenger rail operation's directly affected employees, or
each non-profit employee labor organization primary point of contact
the passenger rail operation and the non-profit employee labor
organization agree on at the beginning of the consultation process. The
service list must also contain the name and contact information for any
directly affected employee who significantly participated in the
consultation process independently of a non-profit employee labor
organization. When a passenger rail operation submits its SSP plan and
consultation statement to FRA pursuant to Sec.  270.201, it must also
simultaneously send a copy of

these documents to all individuals identified in the service list.
    (c) Statements from directly affected employees. (1) If a passenger
rail operation and its directly affected employees cannot reach
agreement on the proposed contents of an SSP plan, the directly
affected employees may file a statement with the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer explaining
their views on the plan on which agreement was not reached with the FRA
Associate Administrator for Railroad Safety and Chief Safety Officer at
Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590. The FRA
Associate Administrator for Railroad Safety and Chief Safety Officer
shall consider any such views during the plan review and approval
process.
    (2) A passenger rail operation's directly affected employees have
30 days following the date of the submission of a proposed SSP plan to
submit the statement described in paragraph (c)(1) of this section.
    (d) Consultation requirements for system safety program plan
amendments. A passenger rail operation's SSP plan must include a
description of the process the passenger rail operation will use to
consult with its directly affected employees on any subsequent
substantive amendments to the system safety program. The requirements
of this paragraph do not apply to non-substantive amendments (e.g.,
amendments that update names and addresses of railroad personnel).

0
10. Revise Sec.  270.201 to read as follows:

Sec.  270.201   Filing and approval.

    (a) Filing. (1) Each passenger rail operation to which this part
applies shall submit one copy of its SSP plan to the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer, 1200 New
Jersey Avenue SE, Washington, DC 20590, no later than March 4, 2021, or
not less than 90 days before commencing passenger operations, whichever
is later.
    (2) The passenger rail operation shall not include in its SSP plan
the risk-based hazard analysis conducted pursuant to Sec.  270.103(q).
A passenger rail operation shall make the results of any risk-based
hazard analysis available upon request to representatives of FRA and
States participating under part 212 of this chapter.
    (3) The SSP plan shall include:
    (i) The signature, name, title, address, and telephone number of
the chief safety officer who bears primary managerial authority for
implementing the program for the submitting passenger rail operation.
By signing, this chief official is certifying that the contents of the
SSP plan are accurate and that the passenger rail operation will
implement the contents of the program as approved by FRA;
    (ii) The contact information for the primary person responsible for
managing the system safety program; and
    (iii) The contact information for the senior representatives of any
host railroad, contractor operator, shared track/corridor operator, or
persons utilizing or providing significant safety-related services.
    (4) As required by Sec.  270.107(b), each passenger rail operation
must submit with its SSP plan a consultation statement describing how
it consulted with its directly affected employees on the contents of
its SSP plan. Directly affected employees may also file a statement in
accordance with Sec.  270.107(c).
    (b) Approval. (1) Within 90 days of receipt of an SSP plan, FRA
will review the SSP plan to determine if the elements prescribed in
this part are sufficiently addressed. This review will also consider
any statement submitted by directly affected employees pursuant to
Sec.  270.107(c).
    (2) FRA will notify each person identified in the SSP plan under
Sec.  270.201(a)(3) in writing whether the proposed plan has been
approved by FRA, and, if not approved, the specific points in which the
SSP plan is deficient. FRA will also provide this notification to each
individual identified in the service list accompanying the consultation
statement required under Sec.  270.107(b).
    (3) If FRA does not approve an SSP plan, the affected passenger
rail operation shall amend the proposed plan to correct all
deficiencies identified by FRA and provide FRA with a corrected copy of
the SSP plan not later than 90 days following receipt of FRA's written
notice that the proposed SSP plan was not approved.
    (4) Approval of an SSP plan under this part does not constitute
approval of the specific actions a passenger rail operation will
implement under an SSP plan pursuant to Sec.  270.103(q)(2) and shall
not be construed as establishing a Federal standard regarding those
specific actions.
    (c) Review of amendments. (1)(i) A passenger rail operation shall
submit any amendment(s) to the SSP plan to FRA not less than 60 days
before the proposed effective date of the amendment(s). The passenger
rail operation shall file the amended SSP plan with a cover letter
outlining the changes made to the original approved SSP plan by the
proposed amendment(s). The cover letter shall also describe the process
the passenger rail operation used pursuant to Sec.  270.107(d) to
consult with its directly affected employees on the amendment(s).
    (ii) If an amendment is safety-critical and the passenger rail
operation is unable to submit the amended SSP plan to FRA 60 days
before the proposed effective date of the amendment, the passenger rail
operation shall submit the amended SSP plan with a cover letter
outlining the changes made to the original approved SSP plan by the
proposed amendment(s) and why the amendment is safety-critical to FRA
as near as possible to 60 days before the proposed effective date of
the amendment(s).
    (iii) If the proposed amendment is limited to adding or changing a
name, title, address, or telephone number of a person, FRA approval is
not required under the process in paragraphs (c)(1)(i) and (ii) of this
section, although the passenger rail operation shall still file the
proposed amendment with FRA's Associate Administrator for Railroad
Safety and Chief Safety Officer. These proposed amendments may be
implemented upon filing with FRA. All other proposed amendments must
comply with the formal approval process in paragraph (c) of this
section.
    (2)(i) Except as provided in paragraph (c)(1)(iii) of this section,
FRA will review the proposed amended SSP plan within 45 days of
receipt. FRA will then notify the primary contact person of each
affected passenger rail operation whether the proposed amended plan has
been approved by FRA, and if not approved, the specific points in which
each proposed amendment to the SSP plan is deficient.
    (ii) If FRA has not notified the passenger rail operation by the
proposed effective date of the amendment(s) whether the proposed
amended plan has been approved or not, the passenger rail operation may
implement the amendment(s) pending FRA's decision.
    (iii) If a proposed SSP plan amendment is not approved by FRA, no
later than 60 days following the receipt of FRA's written notice, the
passenger rail operation shall provide FRA either a corrected copy of
the amendment that addresses all deficiencies noted by FRA or written
notice that the passenger rail operation is retracting the amendment.
    (d) Reopened review. Following initial approval of a plan, or
amendment, FRA may reopen consideration of the plan or amendment for
cause stated.

    (e) Electronic submission. All documents required to be submitted
to FRA under this part may be submitted electronically. Appendix C to
this part provides instructions on electronic submission of documents.

0
 11. Revise Sec.  270.203 to read as follows:

Sec.  270.203   Retention of system safety program plan.

    Each passenger rail operation to which this part applies shall
retain at its system headquarters, and at any division headquarters,
one copy of the SSP plan required by this part and one copy of each
subsequent amendment to that plan. These records shall be made
available to representatives of FRA and States participating under part
212 of this chapter for inspection and copying during normal business
hours.

0
12. Revise Sec.  270.301 to read as follows:

Sec.  270.301   General.

    The system safety program and its implementation shall be assessed
internally by the passenger rail operation and audited externally by
FRA or FRA's designee.

0
 13. Revise Sec.  270.303 to read as follows:

Sec.  270.303   Internal system safety program assessment.

    (a) Following FRA's initial approval of the passenger rail
operation's SSP plan pursuant to Sec.  270.201, the passenger rail
operation shall annually conduct an assessment of the extent to which:
    (1) The system safety program is fully implemented;
    (2) The passenger rail operation is in compliance with the
implemented elements of the approved system safety program; and
    (3) The passenger rail operation has achieved the goals set forth
in Sec.  270.103(c).
    (b) As part of its SSP plan, the passenger rail operation shall set
forth a statement describing the processes used to:
    (1) Conduct internal system safety program assessments;
    (2) Internally report the findings of the internal system safety
program assessments;
    (3) Develop, track, and review recommendations as a result of the
internal system safety program assessments;
    (4) Develop improvement plans based on the internal system safety
program assessments. Improvement plans shall, at a minimum, identify
who is responsible for carrying out the necessary tasks to address
assessment findings and specify a schedule of target dates with
milestones to implement the improvements that address the assessment
findings; and
    (5) Manage revisions and updates to the SSP plan based on the
internal system safety program assessments.
    (c)(1) Within 60 days of completing its internal SSP plan
assessment pursuant to paragraph (a) of this section, the passenger
rail operation shall:
    (i) Submit to FRA a copy of the passenger rail operation's internal
assessment report that includes a system safety program assessment and
the status of internal assessment findings and improvement plans to the
FRA Associate Administrator for Railroad Safety and Chief Safety
Officer, Mail Stop 25, 1200 New Jersey Avenue SE, Washington, DC 20590;
and
    (ii) Outline the specific improvement plans for achieving full
implementation of the SSP plan, as well as achieving the goals of the
plan.
    (2) The passenger rail operation's chief official responsible for
safety shall certify the results of the internal SSP plan assessment.

0
 14. Revise Sec.  270.305 to read as follows:

Sec.  270.305   External safety audit.

    (a) FRA may conduct, or cause to be conducted, external audits of a
system safety program. Each audit will evaluate compliance with the
elements required by this part in an approved SSP plan. FRA shall
provide the passenger rail operation written notification of the
results of any audit.
    (b)(1) Within 60 days of FRA's written notification of the results
of the audit, the passenger rail operation shall submit to FRA for
approval an improvement plan to address the audit findings that require
corrective action. At a minimum, the improvement plan shall identify
who is responsible for carrying out the necessary tasks to address
audit findings and specify target dates and milestones to implement the
improvements that address the audit findings.
    (2) If FRA does not approve the passenger rail operation's
improvement plan, FRA will notify the passenger rail operation of the
specific deficiencies in the improvement plan. The affected passenger
rail operation shall amend the proposed plan to correct the
deficiencies identified by FRA and provide FRA with a corrected copy of
the improvement plan no later than 30 days following its receipt of
FRA's written notice that the proposed plan was not approved.
    (3) Upon request, the passenger rail operation shall provide to FRA
and States participating under part 212 of this chapter for review a
report upon request regarding the status of the implementation of the
improvements set forth in the improvement plan established pursuant to
paragraph (b)(1) of this section.

0
15. Revise appendix B to part 270 to read as follows:

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

    A passenger rail operation required to develop a system safety
program under this part must in good faith consult with and use its
best efforts to reach agreement with its directly affected employees on
the contents of the SSP plan. See Sec.  270.107(a). This appendix
discusses the meaning of the terms ``good faith'' and ``best efforts,''
and provides non-mandatory guidance on how to comply with the
requirement to consult with directly affected employees on the contents
of the SSP plan.
    The guidance is provided for employees who are represented by a
non-profit employee labor organization and employees who are not
represented by any such organization. The guidance is not legally
binding in its own right and will not be relied upon by the U.S.
Department of Transportation as a separate basis for affirmative
enforcement action or other administrative penalty. Conformity with
this guidance (as distinct from existing statutes and regulations) is
voluntary only, and nonconformity will not affect rights and
obligations under existing statutes and regulations.

The Meaning of ``Good Faith'' and ``Best Efforts''

    ``Good faith'' and ``best efforts'' are not interchangeable terms
representing a vague standard for the Sec.  270.107 consultation
process. Rather, each term has a specific and distinct meaning. When
consulting with directly affected employees, therefore, a passenger
rail operation must independently meet the standards for both the good
faith and best efforts obligations. A passenger rail operation that
does not meet the standard for one or the other will not be in
compliance with the consultation requirements of Sec.  270.107.
    The good faith obligation requires a passenger rail operation to
consult with employees in a manner that is honest, fair, and
reasonable, and to genuinely pursue agreement on the contents of an SSP
plan. If a passenger rail operation consults with its employees merely
in a

perfunctory manner, without genuinely pursuing agreement, it will not
have met the good faith requirement. For example, a lack of good faith
may be found if a passenger rail operation's directly affected
employees express concerns with certain parts of the SSP plan, and the
passenger rail operation neither addresses those concerns in further
consultation nor attempts to address those concerns by making changes
to the SSP plan.
    On the other hand, ``best efforts'' establishes a higher standard
than that imposed by the good faith obligation, and describes the
diligent attempts that a passenger rail operation must pursue to reach
agreement with its employees on the contents of its system safety
program. While the good faith obligation is concerned with the
passenger rail operation's state of mind during the consultation
process, the best efforts obligation is concerned with the specific
efforts made by the passenger rail operation in an attempt to reach
agreement. This would include considerations such as whether a
passenger rail operation had held sufficient meetings with its
employees to address or make an attempt to address any concerns raised
by the employees, or whether the passenger rail operation had made an
effort to respond to feedback provided by employees during the
consultation process. For example, a passenger rail operation would not
meet the best efforts obligation if it did not initiate the
consultation process in a timely manner, and thereby failed to provide
employees sufficient time to engage in the consultation process.
Generally, best efforts are measured by the measures that a reasonable
person in the same circumstances and of the same nature as the acting
party would take. Therefore, the standard imposed by the best efforts
obligation may vary with different railroads, depending on a railroad's
size, resources, and number of employees.
    When reviewing SSP plans, FRA will determine on a case-by-case
basis whether a passenger rail operation has met its Sec.  270.107 good
faith and best efforts obligations. This determination will be based
upon the consultation statement submitted by the passenger rail
operation pursuant to Sec.  270.107(b) and any statements submitted by
employees pursuant to Sec.  270.107(c). If FRA finds that these
statements do not provide sufficient information to determine whether a
passenger rail operation used good faith and best efforts to reach
agreement, FRA may investigate further and contact the passenger rail
operation or its employees to request additional information. If FRA
determines that a passenger rail operation did not use good faith and
best efforts, FRA may disapprove the SSP plan submitted by the
passenger rail operation and direct the passenger rail operation to
comply with the consultation requirements of Sec.  270.107. Pursuant to
Sec.  270.201(b)(3), if FRA does not approve the SSP plan, the
passenger rail operation will have 90 days, following receipt of FRA's
written notice that the plan was not approved, to correct any
deficiency identified. In such cases, the identified deficiency would
be that the passenger rail operation did not use good faith and best
efforts to consult and reach agreement with its directly affected
employees. If a passenger rail operation then does not submit to FRA
within 90 days an SSP plan meeting the consultation requirements of
Sec.  270.107, FRA could impose penalties for failure to comply with
Sec.  270.201(b)(3).

Guidance on How a Passenger Rail Operation May Consult With Directly
Affected Employees

    Because the standard imposed by the best efforts obligation will
vary depending upon the passenger rail operation, there may be
countless ways to comply with the consultation requirements of Sec.
270.107. Therefore, FRA believes it is important to maintain a flexible
approach to the Sec.  270.107 consultation requirements, to give a
passenger rail operation and its directly affected employees the
freedom to consult in a manner best suited to their specific
circumstances.
    FRA is nevertheless providing guidance in this appendix as to how a
passenger rail operation may proceed when consulting (utilizing good
faith and best efforts) with employees in an attempt to reach agreement
on the contents of an SSP plan. FRA believes this guidance may be
useful as a starting point for those that are uncertain about how to
comply with the Sec.  270.107 consultation requirements. This guidance
distinguishes between employees who are represented by a non-profit
employee labor organization and employees who are not, as the processes
a passenger rail operation may use to consult with represented and non-
represented employees could differ significantly.
    This guidance does not establish prescriptive requirements but
merely outlines a consultation process a passenger rail operation may
choose to follow. A passenger rail operation's consultation statement
could indicate that it followed the guidance in this appendix as
evidence that it utilized good faith and best efforts to reach
agreement with its employees on the contents of an SSP plan.

Employees Represented by a Non-Profit Employee Labor Organization

    As provided in Sec.  270.107(a)(2), a passenger rail operation
consulting with the representatives of a non-profit employee labor
organization on the contents of an SSP plan will be considered to have
consulted with the directly affected employees represented by that
organization.
    A passenger rail operation may utilize the following process as a
roadmap for using good faith and best efforts when consulting with
represented employees in an attempt to reach agreement on the contents
of an SSP plan.
     Pursuant to Sec.  270.107(a)(3)(i), a passenger rail
operation must meet with representatives from a non-profit employee
labor organization (representing a class or craft of the passenger rail
operation's directly affected employees) no later than July 2, 2020, to
begin the process of consulting on the contents of the SSP plan. A
passenger rail operation must provide notice at least 60 days before
the scheduled meeting.
     During the time between the initial meeting and the
applicability date of Sec.  270.105 the parties may meet to discuss
administrative details of the consultation process as necessary.
     Within 60 days after the applicability date of Sec.
270.105 a passenger rail operation should have a meeting with the
directed affected railroad employees to discuss substantive issues with
the SSP.
     Pursuant to Sec.  270.201(a)(1), a passenger rail
operation would file its SSP plan with FRA no later than March 4, 2021,
or not less than 90 days before commencement of new passenger service,
whichever is later.
     As provided by Sec.  270.107(c), if agreement on the
contents of an SSP plan could not be reached, a labor organization
(representing a class or craft of the passenger rail operation's
directly affected employees) may file a statement with the FRA
Associate Administrator for Railroad Safety and Chief Safety Officer
explaining its views on the plan on which agreement was not reached.

Employees Who Are Not Represented by a Non-Profit Employee Labor
Organization

    FRA recognizes that some (or all) of a passenger rail operation's
directly affected employees may not be represented by a non-profit
employee labor organization. For such non-represented employees, the
consultation

process described for represented employees may not be appropriate or
sufficient. For example, FRA believes that a passenger rail operation
with non-represented employees should make a concerted effort to ensure
that its non-represented employees are aware that they are able to
participate in the development of the SSP plan. FRA therefore is
providing the following guidance regarding how a passenger rail
operation may utilize good faith and best efforts when consulting with
non-represented employees on the contents of its SSP plan.
     By April 20, 2020, a passenger rail operation should
notify non-represented employees that--
    (1) The passenger rail operation is required to consult in good
faith with, and use its best efforts to reach agreement with, all
directly affected employees on the proposed contents of its SSP plan;
    (2) The passenger rail operation is required to meet with its
directly affected employees by July 2, 2020, to address the
consultation process;
    (3) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in this
process); and
    (4) If a passenger rail operation is unable to reach agreement with
its directly affected employees on the contents of the proposed SSP
plan, an employee may file a statement with the FRA Associate
Administrator for Railroad Safety and Chief Safety Officer explaining
the employee's views on the plan on which agreement was not reached.
     This initial notification (and all subsequent
communications, as necessary or appropriate) could be provided to non-
represented employees in the following ways:
    (1) Electronically, such as by email or an announcement on the
passenger rail operation's website;
    (2) By posting the notification in a location easily accessible and
visible to non-represented employees; or
    (3) By providing all non-represented employees a hard copy of the
notification. A passenger rail operation could use any or all of these
methods of communication, so long as the notification complies with the
passenger rail operation's obligation to utilize best efforts in the
consultation process.
     Following the initial notification and initial meeting to
discuss the consultation process (and before the passenger rail
operation submits its SSP plan to FRA), a passenger rail operation
should provide non-represented employees a draft proposal of its SSP
plan. This draft proposal should solicit additional input from non-
represented employees, and the passenger rail operation should provide
non-represented employees 60 days to submit comments to the passenger
rail operation on the draft.
     Following this 60-day comment period and any changes to
the draft SSP plan made as a result, the passenger rail operation
should submit the proposed SSP plan to FRA, as required by this part.
     As provided by Sec.  270.107(c), if agreement on the
contents of an SSP plan cannot be reached, then a non-represented
employee may file a statement with the FRA Associate Administrator for
Railroad Safety and Chief Safety Officer explaining employee's views on
the plan on which agreement was not reached.

0
 16. Revise appendix C to part 270 to read as follows:

Appendix C to Part 270--Procedures for Submission of SSP Plans and
Statements From Directly Affected Employees

    This appendix summarizes procedures for the submission of an SSP
plan and statements by directly affected employees consistent with the
requirements of this part.

Submission by a Passenger Rail Operation and Directly Affected
Employees

    As provided for in Sec.  270.101, a system safety program shall be
fully implemented and supported by a written SSP plan. Each passenger
rail operation must submit its SSP plan to FRA for approval as provided
for in Sec.  270.201.
    As provided for in Sec.  270.107(c), if a passenger rail operation
and its directly affected employees cannot come to agreement on the
proposed contents of the SSP plan, the directly affected employees have
30 days following the submission of the proposed SSP plan to submit a
statement to the FRA Associate Administrator for Railroad Safety and
Chief Safety Officer explaining the directly affected employees' views
on the plan on which agreement was not reached.
    The passenger rail operation's and directly affected employees'
submissions shall be sent to the FRA Associate Administrator for
Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey
Avenue SE, Washington, DC 20590. When a passenger rail operation
submits its SSP plan and consultation statement to FRA pursuant to
Sec.  270.201, it must also simultaneously send a copy of these
documents to all individuals identified in the service list pursuant to
Sec.  270.107(b)(3).
    Each passenger rail operation and directly affected employee is
authorized to file by electronic means any submissions required under
this part. Before any person submits anything electronically, the
person shall provide the FRA Associate Administrator for Railroad
Safety and Chief Safety Officer with the following information in
writing:
    (1) The name of the passenger rail operation or directly affected
employee(s);
    (2) The names of two individuals, including job titles, who will be
the passenger rail operation's or directly affected employees' points
of contact and will be the only individuals allowed access to FRA's
secure document submission site;
    (3) The mailing addresses for the passenger rail operation's or
directly affected employees' points of contact;
    (4) The system or main headquarters address located in the United
States;
    (5) The email addresses for the passenger rail operation's or
directly affected employees' points of contact; and
    (6) The daytime telephone numbers for the passenger rail
operation's or directly affected employees' points of contact.
    A request for electronic submission or FRA review of written
materials shall be addressed to the FRA Associate Administrator for
Railroad Safety and Chief Safety Officer, Mail Stop 25, 1200 New Jersey
Avenue SE, Washington, DC 20590. Upon receipt of a request for
electronic submission that contains the information listed above, FRA
will then contact the requestor with instructions for electronically
submitting its program or statement. A passenger rail operation that
electronically submits an initial SSP plan or new portions or revisions
to an approved program required by this part shall be considered to
have provided its consent to receive approval or disapproval notices
from FRA by email. FRA may electronically store any materials required
by this part regardless of whether the passenger rail operation that
submits the materials does so by delivering the written materials to
the Associate Administrator and opts not to submit the materials
electronically. A passenger rail operation that opts not to submit the
materials required by this part electronically, but provides one or
more email addresses in its submission, shall be considered to have
provided its consent to receive approval or disapproval notices from
FRA by email or mail.

PART 271--RISK REDUCTION PROGRAM

0
17. The authority citation for part 271 continues to read as follows:

    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.

0
18. In Sec.  271.5, add a definition in alphabetical order for
``Confidential Close Call Reporting System (C\3\RS)'' and revise the
definition of ``Person'' to read as follows:

Sec.  271.5   Definitions.

* * * * *
    Confidential Close Call Reporting System (C\3\RS) means an FRA-
sponsored voluntary program designed to improve the safety of railroad
operations by allowing railroad employees to confidentially report
currently unreported or underreported unsafe events.
* * * * *
    Person means an entity of any type covered under 49 U.S.C. 21301,
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; any employee of such owner, manufacturer,
lessor, lessee, or independent contractor or subcontractor.
* * * * *

0
19. In Sec.  271.11, revise paragraphs (a) introductory text and
(a)(1), the final sentence of paragraph (a)(2), and add paragraph
(a)(3) to read as follows:

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

    (a) Protected information. Except as provided in paragraph (a)(3)
of this section, 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);
    (2) * * * This section does not protect information that is
required to be compiled or collected pursuant to any other provision of
law or regulation; and
    (3) A railroad may include a Confidential Close Call Reporting
System (C\3\RS) program in a risk reduction program established under
this part. For Federal or State court proceedings described by this
paragraph (a) that are initiated after March 4, 2021, the information
protected by this paragraph (a) includes C\3\RS information a railroad
includes in its risk reduction program, even if the railroad compiled
or collected the C\3\RS information on or before February 17, 2021, for
purposes other than planning, implementing, or evaluating a risk
reduction program under this part.
* * * * *

0
20. In Sec.  271.207, add a second sentence to paragraph (a)(2) and
revise paragraph (d)(3) to read as follows:

Sec.  271.207   Consultation requirements.

    (a) * * *
    (2) * * * For directly affected employees represented by a non-
profit employee labor organization, the primary point of contact shall
be either the general chairperson of the non-profit employee labor
organization or a non-profit employee labor organization primary point
of contact the railroad and the non-profit employee labor organization
agree on at the beginning of the consultation process.
* * * * *
    (d) * * *
    (3) A service list containing the names and contact information for
each international/national president of any non-profit employee labor
organization representing a class or craft of the railroad's directly
affected employees, or each non-profit employee labor organization
primary point of contact the railroad and the non-profit employee labor
organization agree on at the beginning of the process. The service list
must also contain the name and contact information for any directly
affected employee who significantly participated in the consultation
process independently of a non-profit employee labor organization. When
a railroad submits its RRP plan and consultation statement to FRA under
Sec.  271.301, it shall also simultaneously send a copy of these
documents to all individuals identified in the service list. A railroad
may send the documents to the identified individuals via electronic
means or other service means reasonably calculated to succeed.
* * * * *

    Issued in Washington, DC, on February 28, 2020.
Ronald L. Batory,
Administrator, Federal Railroad Administration.
[FR Doc. 2020-04424 Filed 3-2-20; 8:45 am]
 BILLING CODE 4910-06-P