numerical goals. NY MTA states that OSHA has indicated that simply
setting numerical safety goals discourages accident reporting and that
the goal of a SSP as described in the NPRM appears to be focused on
setting such numerical goals. NY MTA is concerned that any conflict
between OSHA's perspective and the main goal of a SSP program could
have the unattended effect of hampering safety programs.
    FRA agrees with NY MTA that the goals of a SSP cannot be focused
exclusively on numerical values, e.g., accident rates, employee injury
rates, etc.; however, FRA believes that paragraph (c), like the SSP
rule as a whole, does not focus solely on numerical goals. While the
central goal of a SSP is to manage risks to reduce the number and rates
of railroad accidents, incidents, injuries, and fatalities, this is not
the sole goal of a SSP. A SSP must be designed and implemented so that
it systematically reduces hazards and the resulting risks on a
railroad's system. This rule provides each railroad with the
flexibility to adapt a SSP to its system--the rule is not focused on a
rigid numerical goal. A properly implemented SSP should naturally
result in reduced rates of railroad accidents, incidents, injuries, and
fatalities.
    Paragraph (d), proposed as paragraph (e) in the NPRM, requires a
railroad to set forth a statement in its SSP plan describing the
characteristics of the railroad's system. FRA received comments from
AAR, Labor Organizations, and the NY MTA regarding this paragraph. The
railroad's system description is an important part of the overall SSP.
This is the section where the railroad will provide sufficient
information to allow a basic understanding of the railroad and its
operations. A good system description is important to understand the
operating

environment and interfaces that occur during operation of passenger
trains, especially those elements that may positively or negatively
affect safety. If the system is not described accurately, then the
risk-based hazard analysis and resulting mitigations may be flawed.
    Understanding the breadth of the railroad system is also
fundamentally necessary for FRA to be able to review and audit a
railroad's SSP. This description will allow FRA to determine whether
the railroad's program sufficiently covers the railroad's operations
and the extent of the risks/hazards on its system. The description will
also focus the railroad on its staff and contractors that have an
effect on the safety of its operations and, therefore, have an effect
on the success of its SSP.
    This information is required for FRA to understand the extent of
infrastructure and operations so that they can relate the safety
aspects of the plan to the railroad specifically. When carrying out
enforcement action such as reviewing annual assessments or performing
audits, FRA will have a basis of understanding for what, where and who
is responsible. This is a key input in order to establish a
``baseline'' of a railroad's safety environment and culture.
    FRA notes that passenger railroads often answer to officials
representing governmental jurisdictions served by those railroads. FRA
believes a SSP plan will be ineffective if those officials cannot
easily be made aware of the nature of the railroads' operations and how
those operations are made safer through the SSPs. FRA believes that for
the SSPs required by RSIA to be effective, this information must be
readily available to relevant governmental officials. Further, this
information will make it easier for those governmental officials to
inform railroads of, or place emphasis upon, relevant hazards,
improving the quality of the SSPs. For example, States have safety rail
inspectors who work in collaboration with FRA, to which that
information will be useful. Railroads for the most part have this
information currently; it's simply a matter of inserting into the plan
document.
    Generally, the description of the characteristics of the railroad's
system should be sufficient to allow persons who are not familiar with
the railroad's operations and railroad operations in general to
understand the railroad's system and its basic operations.
Specifically, this statement describes the following:
     The railroad's operations (including any host operations),
including the role, responsibilities, and organization of the
railroad's operating departments.
     The physical characteristics of the railroad, including
the number miles of track over which the railroad operates, the number
of stations the railroad services, the number and types of grade
crossings over which the railroad operates, on which segments the
railroad shares track with other railroads, the maximum authorized
speed, and toxic inhalation hazard routing.
     The scope of the service the railroad provides, including
the number of passengers, the number of routes, and the days and hours
when service is provided. The railroad may also provide a system map.
     The maintenance activities performed by the railroad,
including the role, responsibilities, and organization of the
railroad's various maintenance departments and the type of maintenance
required by the railroad's operations and facilities.
     Any other aspects of the railroad pertinent to the
railroad's operations.
    The NPRM proposed requiring a description of the history of the
railroad's operations and physical plant. FRA determined that these
descriptions were not necessary because any pertinent information they
would provide is already addressed by the other descriptions required
by paragraph (d)(1).
    Paragraph (d)(2) requires a railroad to identify in its SSP plan
certain persons that provide or utilize significant safety-related
services. The railroad will identify persons that have 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 provided by the railroad
for purposes related to railroad operations. The term ``significant
safety-related services'' is intended to be understood broadly to give
a railroad the flexibility to evaluate the services other entities
provide to the railroad and the degree that these services are safety-
related. FRA has edited this section from the NPRM to clarify who needs
to be identified by the railroad. First, the NPRM proposed that a
railroad identify ``entities or persons that provide significant
safety-related services.'' However, FRA determined that the term
``entities'' was redundant because the definition for ``person'' in
Sec.  270.5 covers all of the entities that would need to be
identified, therefore, the term ``entities'' has been removed. Second,
the proposed rule text in the NPRM did not include the requirement that
the person must be providing the services on the railroad's behalf.
This was added to clarify the relationship between the railroad and the
person providing the service. The contractual basis of this
relationship is discussed further in this section.
    Third, the proposed rule text in the NPRM did not include the
requirement that the railroad describe the persons that utilize
significant safety-related services of the railroad; however, the NPRM
did request comment on whether FRA should add this requirement. FRA
received comments from AAR, APTA, Labor Organizations, and NY MTA in
response to this request. AAR was unsure of which persons FRA meant
when referring to persons that utilize significant safety-related
services and suggested that the railroad itself could be a person that
utilizes significant safety-related services. APTA commented that
general considerations can be given for customers, motorists using
highway rail-grade crossings and communities served by safe alternative
transportation. However, APTA believes that there is no useful purpose
for including this requirement in the rule. FRA has added the
requirement that the railroad identify persons that utilize significant
safety-related services, but included language to clarify which persons
would fall under this category. The railroad will identify persons that
utilize significant safety-related services provided by the railroad
for the purpose related to railroad operations. For example, if a
railroad contracts with a company to perform bridge maintenance, that
company provides a significant safety-related service to the railroad
on behalf of the railroad and would be identified as so under this
paragraph. If during the bridge maintenance, the company uses the
railroad's roadway worker protection, that company is then utilizing a
significant safety-related service (roadway worker protection) provided
by the railroad and would be identified as so under this paragraph. A
railroad does not have to identify persons providing or utilizing
significant safety-related services for purposes unrelated to railroad
operations, such as railroad passengers or motor vehicle drivers who
benefit from a highway-rail grade crossing warning system.
    Fourth, FRA has added a contractual element to the relationship
between the railroad and persons that provide or utilize significant
safety-related services. This was added to ensure that there is a
formalized agreement between the railroad and the person regarding the
service that is provided or utilized. With the formalized agreement,
the duties of the contractor would be clear

and, therefore, the extent they are performing or utilizing significant
safety-related services of the railroad would be clear as well. FRA
would give a railroad significant discretion to identify which persons
utilize or provide significant safety-related services. In interpreting
this proposed provision, emphasis would be placed upon the words
``significant'' and ``safety-related.'' FRA does not expect a railroad
to identify every person that provides it services. For example, a
railroad would be expected to identify a signal contractor that
routinely performed services on its behalf, but not a contractor hired
on a one-time basis to pave a grade crossing. If a railroad was
uncertain whether a person should be identified, it would be encouraged
to contact FRA for further guidance. Generally, however, this section
would require identification of those persons whose significant safety-
related services or utilization would be affected by the railroad's
SSP. FRA recognizes that not all railroad operations are the same;
thus, not all persons that utilize or provide significant safety-
related services will be the same. During its review of a railroad's
SSP plan, FRA will determine whether the persons the railroad has
sufficiently described significant safety-related services and
identified the proper persons.
    NY MTA recommended that FRA permit railroads to use the same
safety-related matrix for designating employees that was proposed in
the Training Standards NPRM to identify persons that provide
significant safety-related services. NY MTA believes this will be more
practical for staff changes, while still establishing accountability.
On November 7, 2014, FRA published in the Federal Register a Final Rule
entitled ``Training, Qualification, and Oversight for Safety-Related
Railroad Employees.'' 79 FR 66460. Generally, the Training Standards
Rule requires each railroad or contractor that employs one or more
``safety-related railroad employee'' as defined by Sec.  243.5, to
develop and submit a training program to FRA for approval and to
designate the minimum qualifications for each occupational category of
employee. Id. The Training Standards Rule defines ``safety-related
railroad employee'' as follows:

    Safety-related railroad employee means an individual who is
engaged or compensated by an employer to: (1) Perform work covered
under the hours of service laws found at 49 U.S.C. 21101, et seq.;
(2) Perform work as an operating railroad employee who is not
subject to the hours of service laws found at 49 U.S.C. 21101, et
seq.; (3) In the application of parts 213 and 214 of this chapter,
inspect, install, repair, or maintain track, roadbed, and signal and
communication systems, including a roadway worker or railroad bridge
worker as defined in Sec.  214.7 of this chapter; (4) Inspect,
repair, or maintain locomotives, passenger cars or freight cars; (5)
Inspect, repair, or maintain other railroad on-track equipment when
such equipment is in a service that constitutes a train movement
under part 232 of this chapter; (6) Determine that an on-track
roadway maintenance machine or hi-rail vehicle may be used in
accordance with part 214, subpart D of this chapter, without repair
of a non-complying condition; (7) Directly instruct, mentor,
inspect, or test, as a primary duty, any person while that other
person is engaged in a safety-related task; or (8) Directly
supervise the performance of safety-related duties in connection
with periodic oversight in accordance with Sec.  243.205.

79 FR 66502.

    Pursuant to Sec.  243.101(c), the railroad is required to provide a
table or other suitable format that lists, among other things, the
railroad's safety-related employees. 49 CFR 243.101(c). While the
matrix required by the Training Standards rule may provide the
railroads with guidance regarding which persons provide significant
safety-related services, it is not clear whether the matrix would cover
persons that utilize significant safety-related services. Therefore,
FRA declines to adopt NY MTA's suggestion.
    The Labor Organizations expressed concern that railroads may
contract out the majority of their safety-related services or allow a
third party to perform such services to evade their statutory
obligations under this part. The Labor Organizations believe that
simply requiring identification of the persons that a railroad may or
may not use for safety-related services would make it very difficult
for FRA to determine whether the railroads are complying with this
part. To avoid such difficulty, the Labor Organizations request that
FRA make clear that the responsibility for compliance with this rule is
non-delegable. Pursuant to Sec. Sec.  270.3 and 270.7, as explained
above in the accompanying section-by-section analysis, the railroad is
ultimately responsible for compliance with this final rule and cannot
delegate this duty. Section 270.7(b) provides that a railroad may
contract with another person to perform the duties under this rule;
however, that person is required to perform these duties in the same
manner as the railroad and is subject to FRA enforcement action. The
railroad remains accountable even if it does contract with another
person to perform the duties required by this rule. Of course, the
other person must perform the required duties in compliance with this
rule, and both the railroad and the contracted person are subject to
FRA enforcement action.
    Finally, an individual also commented that it is important to
ensure that persons providing significant safety-related services are
qualified or credentialed, or both, to provide such services. FRA
believes such a requirement is unnecessary because persons that perform
any duty on behalf of the railroad are required to perform these duties
consistent with this regulation and any other applicable safety laws
and regulations. Therefore, a railroad is required to ensure that any
person that provides significant safety-related services do so
consistent with this regulation and any other applicable safety laws
and regulations.
    Paragraph (d)(3) incorporates text from proposed paragraph (f)(4)
of the NPRM. FRA determined that the requirements in proposed paragraph
(f)(4) were better placed in paragraph (d) because the requirements are
part of the railroad system description. Paragraph (d)(3) requires the
railroad to describe the relationship and responsibilities between it
and certain other persons. These persons include any host railroads,
contract operators, shared track/corridor operators, and other persons
that utilize or provide significant safety-related services as
identified by the railroad in paragraph (d)(2) of this section.
Describing the relationship and responsibilities between the railroad
and any host railroads, contract operators, or shared track/corridor
operators should be relatively straight forward because a railroad most
likely has entered into contracts or memoranda of agreement with these
persons that outline this information. The description should be
detailed enough so that FRA can understand the basis of the
relationship and the responsibilities of each person based on that
relationship. For example a commuter railroad may contract out
operation of the commuter trains to one corporation and contract out
track maintenance on the commuter railroad's own trackage to another
corporation. For a certain section of the route, the commuter
railroad's trains are hosted by another railroad on the other
railroad's tracks and that other railroad provides the dispatching and
signal/track maintenance for that portion of track. The commuter
railroad would need to outline these relationships and responsibilities
in the plan. Not only to ensure that FRA understands, but also to
ensure the railroad has a complete understanding of who performs the
various activities. Many departments know who and what they do and

contract out, but do not have a grasp of the big picture for the entire
commuter railroad.
    Paragraph (e), proposed as paragraph (f) in the NPRM, requires a
railroad to set forth a statement in its SSP plan that describes the
management and organizational structure of the railroad. RSIA requires
a railroad's hazard analysis to identify and analyze the railroad's
management structure. 49 U.S.C. 20156(c). Under this section, the
railroad will identify its management structure and how safety
responsibilities are distributed throughout the railroad.
    As discussed previously, to maintain consistency and increase
clarity, proposed paragraphs (c)(2) and (3) have been incorporated into
paragraph (e) of this section. The statement pursuant to paragraph (e)
shall include a chart or other visual representation of the
organizational structure of the railroad; description of the railroad's
management responsibilities within the SSP; description of how the
safety responsibilities are distributed within the railroad
organization; clear identification of the lines of authority used by
the railroad to manage safety issues; and a description of the roles
and responsibilities in the railroad's system safety program for each
host railroad, contract operator, shared track/corridor operator, and
other person that utilizes or provides significant safety-related
services as identified by the railroad pursuant to (d)(2) of this
section. The statement shall also describe how each host railroad,
contractor operator, shared track/corridor operator, and any other
person that utilizes or provides significant safety-related services as
identified by the railroad pursuant to paragraph (d)(2) of this section
supports and participates in the railroad's system safety program, as
appropriate. Under paragraph (e)(1), the chart or other visual
representation of the organizational structure of the railroad does not
need to be overly detailed. Rather, it must identify the divisions
within the railroad, the key management positions within each division,
and titles of the officials in those positions.
    Under paragraph (e)(2), the railroad shall describe the railroad's
management's responsibilities within the SSP. This description
clarifies who within the railroad's management are responsible for
which aspects of the SSP.
    Under paragraph (e)(3), a railroad must identify how the safety
responsibilities are distributed within the railroad's departments. A
railroad may have one department that handles safety matters or there
may be multiple departments and each department has separate and
distinct responsibilities for handling safety matters. Regardless of
how the railroad distributes the overall responsibility to manage
safety issues, it is important that the railroad identifies and
describes how safety is being managed on its system.
    Under paragraph (e)(4), the railroad also needs to clearly identify
which of the management positions within the department(s) are
responsible for managing the safety issues within the railroad.
Identification of these lines of authority allows FRA to determine who
within the organization and at what level has responsibility for
managing the safety issues. While FRA recognizes that safety is
everybody's responsibility within the railroad organization, the
management personnel responsible for managing the safety issues need to
be identified.
    Paragraph (e)(5) requires the railroad to describe the roles and
responsibilities in the railroad's SSP for each host railroad, contract
operator, shared track/corridor operator, and any other person that
utilizes or provides significant safety-related services. Since these
persons play a key role in the safe operation of the railroad, their
role and responsibilities in the railroad's SSP must be described.
    Paragraph (e)(5) also requires the railroad to describe how each
host railroad, contractor, shared track/corridor operator, and any
other person that utilizes or provides significant safety-related
services as identified by the railroad pursuant to paragraph (d)(2)
supports and participates in the railroad's SSP, as appropriate.
    Paragraph (f), proposed as paragraph (g) in the NPRM, requires a
railroad's SSP plan to include a description of the process the
railroad will use to implement its SSP. RSIA requires passenger
railroads to implement a SSP plan that is approved by the Secretary. 49
U.S.C. 20156(a)(1)(C). Under this section, the railroad will describe
how it will implement its SSP, which will allow FRA, during initial
plan approval and subsequent audits, to determine if the railroad is
properly implementing its SSP.
    The implementation process must, at a minimum, address the roles
and responsibilities of each position (including those held by
employees, contractors, and other persons that utilize or provide
significant safety-related services) that has significant
responsibilities to implement the SSP. The addition of persons that
utilize significant safety-related services is consistent with the
discussion in paragraph (d)(2). The NPRM proposed that the statement
would address the roles and responsibilities of each position and job
function that has significant responsibilities to implement the SSP.
FRA determined that the term ``job function'' was redundant; therefore,
all references in the rule have been removed. The process must also
identify the milestones necessary to be reached to properly implement
the SSP. FRA did not receive any comments in response to paragraph (f);
however, as discussed in the next paragraph, FRA has included the
requirement in paragraph (f) that the SSP be fully implemented within
36 months of FRA approval. Further, in the NPRM this paragraph proposed
to require an implementation plan; however, FRA has determined that a
description of the implementation process is more appropriate than
requiring a formal plan.
    FRA notes that in the NPRM there was no proposal for the railroad
to specify a timeframe in which it would be required to fully
implement, as defined in Sec.  270.5, its SSP; however FRA believes
such a timeline is necessary. FRA has determined that 36 months is a
sufficient amount of time for a railroad to fully implement its SSP.
With such a time frame, a railroad can effectively allocate the
resources necessary to fully implement its SSP while also prioritizing
the implementation of specific elements. Further, with this timeframe,
the railroad will be able to more precisely set the milestones as
required by this section. While ``fully implemented'' is defined in
Sec.  270.5, there are no rigid criteria that determine if a program is
fully implemented. To determine if a program is fully implemented, FRA
will consider the extent to which each section of the plan is
implemented and the railroad, along with its stakeholders, are actively
fulfilling each section. For example, regarding paragraph (c), System
safety program goals, FRA will consider the extent to which a railroad
has developed written goals that are long-term, meaningful, measurable,
and focused on the identification of hazards and the mitigation or
elimination of the resulting risks, and whether there are programs in
place for the railroad to achieve the written goals.
    The positions that will be described pursuant to paragraph (f) are
those that are responsible for implementing the major elements of the
SSP, to the extent that the individuals having these positions have
clear and concrete roles and responsibilities. Not every individual who
participates in the railroad's SSP needs to be described as part of the
implementation process but

rather only those individuals who have significant responsibilities for
implementing the railroad's SSP. The phrase ``significant
responsibilities'' is intended to be broadly defined to provide the
railroads the flexibility to determine, based on their individual
operations, what may be considered ``significant responsibilities.''
    In its SSP plan a railroad will set forth the milestones to
demonstrate that it has properly implemented its SSP. Each railroad's
SSP will be different; therefore, the milestones that must be achieved
to properly implement a SSP will be different. A railroad has the
flexibility to determine, based on its own SSP and not rigid
requirements, realistic benchmarks that need to be achieved to properly
implement its SSP. FRA understands that there may be unforeseeable
circumstances that can cause a railroad to adjust the implementation of
its SSP and subsequently adjust these milestones. The important
consideration is that the railroad sets forth milestones that can be
used to determine the progress of the railroad's implementation of its
SSP.
    Paragraph (g), proposed paragraph (h) in the NPRM, addresses a
railroad's maintenance and repair program. RSIA requires a railroad's
hazard analysis to ``identify and analyze'' the railroad's
``infrastructure'' and ``equipment.'' 49 U.S.C. 20156(c). Under this
section, the railroad will identify its procedures and processes for
the maintenance, repair, and inspection of such infrastructure and
equipment. This identification is necessary for the railroad to conduct
a thorough risk-based hazard analysis and will allow FRA, during
initial plan review and subsequent audits, to determine if the
railroad's SSP sufficiently addresses the risk and hazards generated by
the railroad's infrastructure and equipment. FRA received three
comments in response to this paragraph. Based on these comments,
paragraph (g)(4) was added.
    Paragraph (g)(1) requires a railroad's SSP plan to identify and
describe the processes and procedures used for maintenance and repair
of its infrastructure and equipment directly affecting railroad safety.
The phrase ``infrastructure and equipment directly affecting railroad
safety'' is intended to be broadly understood to provide the railroad
the opportunity to take a realistic survey of its particular operations
and make the determination of which infrastructure and equipment
directly affect the safety of that railroad. However, as guidance, a
list of the types of infrastructure and equipment that are considered
to directly affect railroad safety is provided. This list includes:
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. The list in
the NPRM did not include passenger train/station platform interface
(gaps); however, FRA believes passenger train/station platform
interface (gaps) are an important element of a railroad's
infrastructure and will provide the railroad with further opportunities
to identify hazards and the resulting risks and eliminate or mitigating
these hazards. Once the railroad has determined what infrastructure and
equipment directly affect railroad safety, it will then identify and
describe the processes and procedures used for the maintenance and
repair of that infrastructure and equipment. The safety of a railroad's
operations depends greatly upon the condition of its infrastructure and
equipment; therefore, these maintenance and repair processes and
procedures should and are expected to already be in place.
    Under paragraph (g)(2), each description of the processes and
procedures used for maintenance and repair of infrastructure and
equipment directly affecting safety must include the processes and
procedures used to conduct testing and inspections of the
infrastructure and equipment. Multiple FRA regulations require a
railroad to conduct testing and inspection of infrastructure and
equipment, and paragraph (g)(2) addresses the processes and procedures
that the railroad has developed to meet these regulatory standards. For
example, pursuant to 49 CFR part 234, a railroad must inspect, test,
and repair warning systems at highway-rail grade crossings. Under
paragraph (g)(2), the railroad will describe the internal procedures it
has developed to conduct such inspections, tests, and repairs and how
it educates its employees on the proper way to conduct the inspection,
testing and repair of highway-rail grade crossing warning systems. As
discussed below, in certain situations, paragraph (g)(3) permits
referencing these manuals in the SSP plan rather than providing the
entire manual.
    Typically, railroads have a manual or manuals that describe the
maintenance and testing procedures and processes used to conduct
testing and inspections of the infrastructure and equipment. FRA has
included paragraph (g)(3) to address the use of such manuals in a SSP
plan. Rather than including an entire manual in its SSP plan, if the
manual satisfies all applicable Federal regulations, in most cases
simply referencing the manual in the SSP plan will satisfy this
paragraph. If a manual does not comply with all applicable Federal
regulations, it cannot be included in the plan. If any the regulations
that apply to these are updated, the manuals and references to such
will need to be updated as well. Approval of a SSP plan that references
manuals that describe the maintenance and testing procedures and
processes used to conduct testing and inspections of the infrastructure
and equipment does not necessarily mean that the manuals satisfy all
applicable regulations. Rather, each manual must independently comply
with the applicable regulations and is subject to a civil penalty if
not in compliance. If FRA finds it necessary to review the manuals, FRA
will examine whether the manuals are current, if they are readily
available to the employees who are performing the functions the manuals
address, and if these employees have been trained on their use.
    While FRA is always concerned with the safety of railroad employees
performing their duties, employee safety in maintenance and servicing
areas generally falls within the jurisdiction of OSHA. It is not FRA's
intent in this rule to displace OSHA's jurisdiction regarding the
safety of employees while performing inspections, tests, and
maintenance, except where FRA has already addressed workplace safety
issues, such as blue signal protection in 49 CFR part 218. In other
rules, FRA has included a provision that makes it clear that FRA does
not intend to displace OSHA's jurisdiction over certain subject
matters. See, e.g., 49 CFR 238.107(c).
    In the NPRM, FRA sought comment on whether such a clarifying
statement was necessary for any such subject matter that the proposed
rule may affect. APTA, the Labor Organizations, and an individual
commenter all provided comments in response to this request. All of the
commenters agree that the final rule should contain such a clarifying
statement; therefore, paragraph (g)(4) has been included in this
section. Modeled after 49 CFR 238.107(c), paragraph (g)(4) makes clear
that FRA neither intends to displace OSHA jurisdiction with respect to
employee working conditions generally nor specifically with respect to
the maintenance, repair, and inspection of infrastructure and equipment
directly affecting railroad safety. FRA does not intend to approve any
specific portion of a SSP plan that relates exclusively to employee
working conditions covered by OSHA. The term ``approve'' is used to
make it clear that any part of a plan that relates to employee working

conditions exclusively covered by OSHA will not be approved even if the
overall plan is approved. Additionally, the term ``specific''
reinforces that the particular portion of the plan that relates to
employee working conditions exclusively covered by OSHA will not be
approved; however, the rest of the plan may still be approved. As
discussed below, paragraph (g)(4) also applies to paragraph (k)
regarding OSHA jurisdiction over any workplace safety programs. If
there is any confusion regarding whether a plan covers an OSHA-
regulated area, FRA is available to provide assistance.
    Paragraph (h), proposed as paragraph (i) in the NPRM, requires a
railroad's SSP plan to set forth a statement describing the railroad's
processes and procedures for developing, maintaining, and ensuring
compliance with the railroad's rules and procedures directly affecting
railroad safety and the railroad's processes for complying with
applicable railroad safety laws and regulations. RSIA requires a
railroad's hazard analysis to identify and analyze the railroad's
operating rules and practices. 49 U.S.C. 20156(c). Under this
paragraph, the railroad will identify the railroad's operating rules
and practices. FRA did not receive any comments in response to this
paragraph as proposed in the NPRM; however, the term ``maintenance''
has been included in paragraph (h)(1) to be consistent with paragraph
(h)(3). This statement describes how the railroad not only develops,
maintains, and complies with its own safety rules, but also how the
railroad complies with applicable railroad safety laws and regulations.
The statement includes identification of the railroad's operating and
safety rules and procedures that are subject to review under chapter
II, subtitle B of title 49 of the Code of Federal Regulations, i.e.,
all of FRA's railroad safety regulations.
    The railroad must also identify the techniques used to assess the
compliance of its employees with applicable railroad safety laws and
regulations and the railroad's operating and safety rules and
maintenance procedures. Both Federal railroad safety laws and
regulations and railroad operating and safety rules and maintenance
procedures are effective at increasing the safety of the railroad's
operations only if the railroad and its employees comply with such
rules and procedures. By ensuring compliance with such rules and
procedures, the overall safety of the railroad is improved. The NPRM
proposed requiring that the railroad identify the techniques to assess
compliance of the railroad's employees with ``applicable FRA
regulations''; however, to be consistent with the other requirements in
paragraph (h), FRA has revised this language to ``railroad safety laws
and regulations.''
    The railroad must identify the techniques used to assess the
effectiveness of the railroad's supervision relating to compliance with
applicable railroad safety laws and regulations and the railroad's
operating and safety rules and maintenance procedures. If the
railroad's supervision relating to compliance with these rules and
procedures is effective, the employees' compliance should also be
effective, thus improving the overall safety of the railroad.
    Paragraph (i), proposed as paragraph (j) in the NPRM, requires each
railroad to train necessary personnel on in its SSP plan. As proposed,
paragraph (i) did not have the explicit requirement that the railroad
train the necessary employees; thus, paragraph (i)(1) has been added to
make this clear. Paragraph (i) also requires that each railroad
establish and describe its plan how the necessary personnel will be
trained on the SSP. As proposed in the NPRM, paragraph (i) did not
require a railroad to establish a plan addressing how its employees
will be trained on the SSP. Since some railroads will not have a SSP in
place before the effective date of this final rule, FRA determined that
it was necessary to include the requirement that a railroad not only
describe but also establish a plan addressing how its employees will be
trained on the SSP. This ensures that a railroad has such a plan in
place and that it can be properly described pursuant to this paragraph.
    The SSP training plan will describe the procedures in which
employees that are responsible for implementing and supporting the
program and any other person that utilizes or provides significant
safety-related services will be trained on the railroad's SSP. The NPRM
proposed that ``contractors who provide significant safety-related
services'' needed to be trained as well. However, FRA determined that
the phrase ``persons utilizing or performing significant safety-related
services'' includes contractors who provide significant safety-related
services; therefore, the phrase ``contractors who provide significant
safety-related services'' has been removed. A railroad's SSP can be
successful only if those who are responsible for implementing and
supporting the program understand the requirements and goals of the
program. To this end, a railroad would train those responsible for
implementing and supporting the railroad's SSP on the elements of the
program so that they have the knowledge and skills to fulfill their
responsibilities under the program.
    For each position or job title that has been identified under
paragraph (f)(1)(i) as having significant responsibility for
implementing a railroad's SSP, the railroad's training plan must
describe the frequency and the content of the training on the SSP that
the position or job title receives. If the railroad does not identify a
position or job title under paragraph (f)(1)(i) as having significant
responsibility to implement the SSP but the position or job title is
safety-related or has a significant impact on safety, personnel in
these positions will be required to receive basic training on the
system safety concepts and the system safety implications of their
position. Even though the personnel may not have responsibilities to
implement the railroad's SSP, they do have an impact on the program
because their position is safety-related or has a significant impact on
safety, or both. It is important that all persons who may have an
impact on the success of a railroad's SSP understand the requirements
of the program so they can work together to achieve its goals.
    Paragraph (i)(5) provides that a railroad may conduct its SSP
training by classroom, computer-based, or correspondence training.
Paragraph (i) is not intended to limit the forms of training; rather,
it provides the railroads the flexibility to conduct training using
methods other than traditional classroom training. SSP training may
also be combined with a railroad's regular safety or rules training and
in some cases SSP training could be included in field ``tool box''
safety training sessions. APTA requested that FRA make it clear in the
rule text that the methods listed in paragraph (i)(4) were illustrative
and not restrictive. FRA has revised the text of paragraph (i)(4) to
address this concern. Additionally, for clarity and consistency with 49
CFR part 243, the methods listed are ``classroom, computer-based, or
correspondence training,'' which differs slightly from the NPRM;
however, as discussed, the list is only illustrative and not
restrictive.
    Paragraph (i)(6) requires each railroad to keep a record of all
training conducted under paragraph (i) and describe the process it will
use to maintain and update these training records. The requirement that
the railroad keep a record of all training was originally proposed in
paragraph (i)(1); however, FRA believes it is more consistent to
include it in paragraph (i)(6). Paragraph (i)(7) requires each railroad
to describe the process that it

will use to ensure that it is complying with the requirements of the
training plans as required by this part.
    NY MTA commented that the training required under this part should
apply only to railroads that contract out their operations. NY MTA
believed that contractors who are not responsible for actual railroad
operations will be governed by the then-forthcoming Training Standards
Rule, which proposed to require these contractors to certify that they
have trained their employees on all the appropriate safety protocols
    Requiring a SSP training component for certain railroad employees
and officers is necessary because FRA's Training Standards Rule would
not cover such SSP training for each type of employee or officer that
this final rule describes as needing the training. As discussed supra,
in late 2014, FRA published the final Training Standards Rule. 79 FR
66460. Generally, the Training Standards Rule requires each railroad or
contractor that employs one or more ``safety-related railroad
employee'' as defined by Sec.  243.5, to develop and submit a training
program to FRA for approval and to designate the minimum qualifications
for each occupational category of employee. 49 CFR part 243. Some
employees and officers required by paragraph (i) to receive system
safety training would be considered a ``safety-related railroad
employee'' under the Training Standards Rule and others would not.
Since all employees and officers required to receive system safety
program training under this final rule would not be required to receive
such training pursuant to the Training Standards Rule, FRA declines to
narrow the applicability of paragraph (i) as suggested by NY MTA.
Furthermore, having a training component in this final rule does not
create a duplicate training program filing requirement or require
duplicate training as the Training Standards Rule specifically permits
an employer to elect to cross-reference training programs or plans
required by other FRA regulations in a part 243 submission, rather than
resubmitting that program or plan for additional FRA review and
approval. 49 CFR 243.103(b). As on-the-job training (OJT) is not
expected to be a requirement of any SSP training program or plan, the
provision of Sec.  243.103(b) that mentions adding an OJT component
would not be applicable to this final rule.
    Paragraph (j), proposed as paragraph (k) in the NPRM, requires that
a railroad's SSP plan describe the processes used by the railroad to
manage emergencies that may arise within its system. A strong SSP will
include effective emergency management processes. This description will
allow FRA, during initial plan review and subsequent audits, to
understand the railroad's emergency management processes, assess
whether the railroad is complying with them, and determine if the
processes adequately cover potential emergencies. FRA did not receive
any comments in response to the proposal; its text remains unchanged in
this final rule. The description must include the processes the
railroad uses to comply with the applicable emergency equipment
standards in part 238 of this chapter and the passenger train emergency
preparedness requirements in part 239 of this chapter.
    Paragraph (k), proposed as paragraph (l) in the NPRM, requires that
the railroad's SSP plan describe the programs that the railroad has
established that protect the safety of its employees and contractors.
The description must include: (1) The processes that have been
established to help ensure the safety of employees and contractors
while working on or in close proximity to the railroad's property as
described in paragraph (d) of this section; (2) the processes to help
ensure that employees and contractors understand the requirements
established by the railroad 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.
    Workplace safety is an integral part of a railroad's SSP and has a
significant impact on railroad safety. Workplace safety touches many of
the elements embedded in a SSP and should also be part of the
railroad's overall safety philosophy and culture. This description will
allow FRA, during initial plan review and subsequent audits, to
understand the railroad's workplace safety programs and determine
whether the railroad's SSP sufficiently addresses any gaps in the
programs.
    The NPRM originally proposed that the statement ``describe any'' of
the programs and processes listed; however, FRA believes that this may
have indicated that a railroad would not be required to describe all of
the programs and processes listed, which was not the intent. FRA has
revised the language to make clear that a railroad is required to
describe all of the programs and processes listed. FRA also notes that
proposed paragraph (k)(3) listed ``fatigue management programs
established by this part'' as one of the fitness-for-duty programs to
be described. However, as discussed in the Statutory Background
section, to minimize confusion regarding the separate FMP Working Group
process and the ongoing fatigue management plans rulemaking, the
placeholder in this rule for fatigue management plans, paragraph (s),
has been deleted. Therefore, the proposed requirement in paragraph
(k)(3) that the railroad describe ``fatigue management programs
established by this part'' has not been included in this final rule.
    Moreover, in the NPRM, paragraph (k)(3) proposed that the statement
include a description of ``fitness-for-duty programs, including
standards for the control of alcohol and drug use contained in part 219
of this chapter, and medical monitoring programs.'' However, the
standards under part 219 are not necessarily ``fitness-for-duty
programs.'' Therefore, to minimize the potential for confusion, the
final rule separates the required description of any fitness-for-duty
programs or any medical monitoring programs (paragraph (k)(3)) from the
description of the standards for the control of alcohol and drug use in
part 219 of this chapter (included as paragraph (k)(4)). This change
from the NPRM does not add to or remove any of the substantive
requirements proposed in the NPRM.
    Employees and contractors of the railroad are exposed to many
hazards and risks while on railroad property. A railroad's SSP is
required to take into consideration the safety of these persons and the
programs and processes the railroad already has in place to address the
hazards they face and resulting risks. As explained in the discussion
of paragraph (g)(4), FRA is always concerned with the safety of
employees in performing their duties; however, employee safety in
maintenance and servicing areas generally falls within the jurisdiction
of OSHA. It is not FRA's intent in this rule to displace OSHA's
jurisdiction regarding the safety of employees while performing
inspections, tests, and maintenance, except where FRA has already
addressed workplace safety issues, such as blue signal protection. As
with paragraph (g), FRA requested comment on whether it is necessary to
include in the final rule a provision making clear that FRA does not
intend to displace OSHA's jurisdiction over certain subject matters.
Paragraph (g)(4) was included in response to the comments received and
that provision makes clear that nothing in this rule, including
paragraph (k), is intended to displace OSHA's jurisdiction.

    The Labor Organizations raised a concern on whether paragraph (k)
would create new, if any, rights for carriers to use fitness-for-duty
programs and medical monitoring programs to undermine the forthcoming
statutory-mandated fatigue management program. The Labor Organizations
requested that FRA make clear in the final rule that the SSP regulation
is not a fitness-for-duty or medical standards regulation. Neither
paragraph (k) nor the SSP rule as a whole create any new rights
regarding fitness-for-duty or medical monitoring programs, consistent
with FRA's intent.
    Paragraph (l), proposed as paragraph (m) in the NPRM, requires a
railroad to establish and describe in its SSP plan the railroad's
public safety outreach program to provide safety information to the
railroad's passengers and the general public. Paragraph (l) also
requires the railroad's safety outreach program to have a means in
which railroad passengers and the general public can report hazards to
the railroad.
    A railroad's passengers and the general public play a vital role in
the success of the railroad's SSP. The public safety outreach program
requires the railroad to directly communicate safety information to
both passengers and the general public and also allow these individuals
to alert the railroad about safety hazards they observe. FRA will
review the programs during the initial SSP plan review and subsequent
audits to determine if the railroad's SSP sufficiently addresses any
gaps in the programs.
    FRA did not receive any comments in response to this paragraph;
however, as proposed in the NPRM, paragraph (l) did not require a
railroad's safety outreach to include a means for railroad passengers
and the general republic to report hazards.
    As proposed in the NPRM, a railroad's safety outreach program would
only provide safety information to railroad passengers and the general
public, which was not the intent. While it is important for a
railroad's safety outreach program to provide the necessary safety
information to the railroad's passengers and to the general public so
that they can minimize their exposure to the hazards and resulting
risks on the railroad and take appropriate precautions, it is not the
sole purpose of the program. FRA believes that it is also important for
railroad passengers and the general public to provide the railroad with
information regarding any hazards they observed. This information will
allow the railroad to address these identified hazards and resulting
risks and improve the safety of the overall railroad and the safety
information provided to the railroad passengers and the general public.
    Paragraph (m), proposed as paragraph (n) in the NPRM, requires that
a railroad's SSP plan describe the processes that the railroad 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). These processes should already be in place because they are
necessary to comply with the requirements of part 225 of this chapter.
Accidents and incidents can reveal hazards and risks on the railroad's
system, which the railroad can then address as part of its SSP. While
49 CFR part 225 sets forth FRA's accident/incident reporting
requirements, this section focuses on the actions the railroad will
take to address accident/incident investigation results. These actions
are important to the overall safety of a railroad's operations and will
provide information to the railroad on what additional actions it can
take as part of its SSP to address the hazards and resulting risks that
contributed to the accident/incident.
    FRA did not receive any comments in response to this paragraph as
proposed in the NPRM. However, FRA has modified the paragraph to
address ``accidents/incidents''--rather than just ``accidents,'' as
proposed. This makes clear FRA's intent that the paragraph covers
events that provide the railroad with information that may improve the
safety of the railroad, which is not exclusive to accidents.
    Paragraph (n), proposed as paragraph (o) in the NPRM, requires a
railroad to establish and describe in its SSP plan processes that the
railroad has or puts in place to collect, maintain, analyze, and
distribute safety data in support of the SSP. Accurate safety data
collection and the analysis and distribution of that data within a
railroad can help the railroad determine where safety problems or
hazards exist, develop targeted programs to address the problems and
hazards, and focus resources towards the prevention of future incidents
and improvement of safety culture. This description will assist FRA's
review of these programs during the initial SSP plan review and audits
to determine if the railroad's SSP sufficiently addresses any gaps in
the programs. As proposed in the NPRM, paragraph (n) did not require a
railroad to establish processes to collect, maintain, analyze, and
distribute safety data in support of the SSP. Since some railroads will
not have a SSP in place before the effective date of this final rule,
FRA determined that it was necessary to include the requirement that a
railroad not only describe but also establish SSP data acquisition
processes. This ensures that a railroad has these processes in place
and that it can be properly described pursuant to this paragraph. The
data acquisition process described in APTA's System Safety Manual
provides guidance on the processes a railroad may use to comply with
this part.
    Paragraph (o), proposed as paragraph (p) in the NPRM, requires a
railroad's SSP plan to describe the process(es) it employs to address
safety concerns and hazards during the safety-related contract
procurement process. This applies to safety-related contracts to help
ensure that the railroad can address as necessary safety concerns and
hazards that may result from the procurement. FRA did not receive any
comments in response to this proposed paragraph. However, the term
``process'' was changed to ``process(es)'' to recognize that a railroad
may have more than one process in place.
    The main components of a SSP are the risk-based hazard management
program and the risk-based hazard analysis. The railroad will use the
risk-based hazard management program to describe the various methods,
processes, and procedures it will employ to properly and effectively
identify, analyze, and mitigate or eliminate hazards and resulting
risks. In turn, through the risk-based hazard analysis the railroad
will actually identify, analyze, and determine the specific actions it
will take to mitigate or eliminate the hazards and the resulting risks.
Paragraphs (p) and (q), proposed as paragraphs (q) and (r) in the NPRM,
set forth the elements of the railroad's risk-based hazard management
program and risk-based hazard analysis. Both of these paragraphs
implement sections 20156(c) through (f). FRA received multiple comments
addressing the risk-based hazard management program and the risk-based
hazard analysis, and these comments are addressed accordingly.
    The risk-based hazard management program will be a fully
implemented program within the railroad's SSP. Paragraph (p) requires a
railroad to establish and describe the various methods, processes, and
procedures that, when implemented, will identify, analyze, and mitigate
or eliminate hazards and the resulting risks on the railroad's system.
This paragraph embodies FRA's intent to provide each railroad with the
flexibility to tailor its

SSP to its specific operations. Paragraph (p) does not set forth rigid
requirements for a risk-based hazard management program. Rather, more
general guidelines are provided and the railroad is able to apply these
general guidelines to its specific operations.
    APTA commented that paragraph (p) and paragraph (q), Risk-based
hazard analysis, do not contain a discussion of the variety of controls
or the flexibility this SSP rule provides to the railroads to choose
which procedures they will put into place to mitigate or eliminate
risks. APTA points out there was substantial discussion at the RSAC on
this issue and it was recognized that there are many methods a railroad
can apply to keep risk as low as reasonably practicable. APTA further
points out that the analysis methods were grouped by RSAC into non-
formal (e.g., 5 Y method) and formal (e.g., fault trees and cut sets).
APTA therefore requests that FRA clarify that the understandings
reached by the RSAC, and which were voted upon as recommendations, are
still available as tools and have not been replaced by a formal
analysis required by paragraphs (p) and (q).
    FRA makes clear that the rule does not limit the methods a railroad
may use in its risk-based hazard management program. FRA recognizes
that there was agreement in the RSAC that many methods exist to keep
risk low, such as MIL-STD-882 or the Government Electronics &
Information Technology Association 010 Standard. However, this rule
does not prescribe which of these methods must be used. Specifically,
the discussion in the NPRM of proposed paragraph (q)(5) (paragraph
(p)(1)(i) of the final rule) explained that the railroad would
determine the methods it would use in the risk-based hazard analysis in
proposed paragraph (r) (paragraph (q) of the final rule), to identify
hazards on various aspects of its system. FRA intends that each
railroad use this opportunity to use known methods and consider any new
or novel techniques or methods to identify hazards that best suits that
railroad's operations.
    FRA notes that paragraph (p) is structured differently from what
was proposed in the NPRM; however, the substance of paragraph (p)
remains the same.
    Paragraph (p)(1) requires the railroad's risk-based hazard
management program to contain eight elements. All of these elements
will be fully described in the railroad's SSP plan. First, the railroad
shall establish the processes or procedures that will be used in the
risk-based hazard analysis to identify the hazards on the railroad's
system. This will be the railroad's opportunity to consider any new or
novel techniques or methods that best suit the railroad's operations to
identify hazards.
    Second, the railroad must establish the processes or procedures
that will be used in the risk-based hazard analysis that will analyze
the identified hazards and, therefore, support the risk-based hazard
management program. These processes and procedures will allow the
railroad to analyze the hazards and, thus, gain the necessary knowledge
to effectively identify the resulting risk.
    Third, the railroad must establish the methods that will be used in
the risk-based hazard analysis to determine the severity and frequency
of hazards and to determine the corresponding risk. Once the railroad
has identified the hazards, it will determine the corresponding risk.
By developing a method that effectively identifies the severity and
frequency of the hazards and determines the resulting risks, the
railroad will be able to effectively prioritize the mitigation or
elimination of the hazards and resulting risks.
    In its comments on the NPRM, Parsons Brinckerhoff inquired as to
FRA's intent behind using the terms ``calculate'' and ``resulting
risk'' in the proposed rule text for paragraph (p)(1)(iii). Parsons
Brinckerhoff questioned if FRA's use of the term ``calculate'' meant
that the estimation of the resulting risk should be quantitative and
that the use of the term ``resulting risk'' meant that the risk is a
precise product of determining severity and consequence of hazards.
Parsons Brinckerhoff suggested replacing ``calculate the resulting
risk'' with ``determine the corresponding risk'' so that paragraph
(p)(1)(iii) is more consistent with paragraph (p)(1)(iv) and allows for
a broader range of risk assessment methodologies, which may include:
Quantitative, semi-quantitative, qualitative, or some combination of
all three. FRA agrees that the estimation of the risk does not
necessarily have to involve a formal quantitative analysis, and
therefore FRA adopts Parsons Brinckerhoff's suggested language.
    Fourth, the railroad must establish the methods that will be used
in the risk-based hazard analysis to identify the actions that mitigate
or eliminate hazards and corresponding risks. Here the railroad will
identify the methods or techniques it will use to determine which
actions it will need to take to mitigate or eliminate the identified
hazards and risks. As is the case with identifying the hazards and
resulting risks, this is the railroad's opportunity to consider any new
or novel methods best suited to the railroad's operations to mitigate
or eliminate hazards and resulting risks. FRA recognizes that not all
hazards and resulting risks can be eliminated or even mitigated, due to
costs, feasibility, or other reasons. However, FRA expects the
railroads to consider all reasonable actions that may mitigate or
eliminate hazards and the resulting risks and to implement those
actions that are best suited for that railroad's operations.
    Fifth, the railroad must establish the process that will be used in
the risk-based hazard analysis to set goals for the risk-based hazard
management program and how performance against the goals will be
reported. Establishing clear and concise goals will play an important
role in the success of a railroad's risk-based hazard management
program. The goals should be tailored so that the central goal of the
risk-based hazard management program (to effectively identify, analyze,
and mitigate or eliminate hazards and resulting risks) is supported for
the individual railroad.
    Sixth, the railroad must establish a process to make decisions that
affect the safety of the rail system relative to the risk-based hazard
management program. Railroads make numerous decisions every day that
affect the safety of the rail system and this paragraph requires a
railroad to describe how those decisions will be made when they relate
to the risk-based hazard management program. FRA notes that Parsons
Brinckerhoff commented whether this paragraph was meant to address risk
acceptance, based on its reading of the discussion of this paragraph in
the NPRM. Parsons Brinckerhoff requested that FRA revise this paragraph
to make that clear, if it was FRA's intent.
    Risk acceptance is a process in which an organization determines
the appropriate level of risk to accept. An organization will determine
which risks are acceptable based on the resources available to mitigate
or eliminate those risks. While risk acceptance is an integral part of
a SSP, FRA does not intend this paragraph to establish a risk
acceptance requirement. Rather, the overall risk-based hazard
management program, in part, establishes a risk acceptance framework
for the railroad.
    Seventh, the railroad must establish the methods that will be used
in the risk-based hazard analysis to support continuous safety
improvement throughout the life of the rail system. Consistent with the
overall SSP, the railroad will implement methods as part of the risk-
based hazard management program that will support continuous safety
improvement.

    Eighth, the railroad must establish the methods that will be used
in the risk-based hazard analysis 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. In this
paragraph the railroad will describe how it plans to maintain the
records of the results of the risk-based hazard analysis. The railroad
will also describe how it will maintain records of the mitigation or
elimination of the identified hazards and risks. FRA notes that the
proposal in the NPRM expressly addressed only the description of the
methods used to maintain records of mitigating the identified hazards
and risks. Because the hazards and risks maybe be eliminated by the
railroad--not just mitigated--the text of this paragraph in the final
rule makes clear that records of the elimination of the identified
hazards and risks are covered as well. As a separate matter, while the
railroad will not be required to provide in its SSP plan submission to
FRA any of the specific records addressed by this paragraph, the
railroad will be required to make the results of the risk-based hazard
analysis available upon request to representatives of FRA pursuant to
Sec.  270.201(a)(2).
    Paragraph (p)(2) requires the risk-based hazard management program
to identify certain key individuals. First, the railroad must identify
the position title of the individual(s) responsible for administering
the risk-based hazard management program. These positions will be
responsible for developing and implementing the risk-based hazard
management program. Rather than identifying the specific individual(s),
the railroad will identify the position(s) responsible for
administering the risk-based hazard management program so that the SSP
will not have to be updated merely because an individual changes
positions. This clarification addresses an AAR comment on the NPRM in
which AAR opposed the proposed requirements in paragraphs that the
railroad identify the individuals responsible for administering the
hazard management program and participating in hazard management teams
or safety committees. AAR believes the problem with identifying such
individuals is that whenever one of these individuals is removed or
added, the plan must be amended and no real purpose is served. As a
result, FRA makes clear that the final rule only requires the
identification of the position titles, not the specific individuals.
    Second, the railroad must identify the stakeholders who will
participate in the hazard management program. This means the railroad
will identify the persons who will be affected by and may play a role
in the risk-based hazard management program.
    Third, the railroad must identify the position title of the
participants and structure of any hazard management teams or safety
committees that a railroad may establish to support the risk-based
hazard management program. By establishing these types of teams or
committees, the railroad can focus on specific hazards and risks and
more thoroughly consider the specific actions to effectively mitigate
or eliminate the hazards and risks.
    Paragraph (q), proposed as paragraph (r) in the NPRM, provides that
once FRA has approved a railroad's SSP plan pursuant to Sec.
270.201(b), the railroad shall conduct a risk-based hazard analysis.
Paragraph (q)(1) serves to implement the section 20156(c) statutory
mandate that a railroad must conduct a ``risk analysis.'' As discussed
earlier, section 20156(c) requires the railroad, as part of its
development of a railroad safety risk reduction program (e.g., a SSP),
to ``identify and analyze the aspects of its railroad, including
operating rules and practices, infrastructure, equipment, employee
levels and schedules, safety culture, management structure, employee
training, and other matters, including those not covered by railroad
safety regulations or other Federal regulations, that impact railroad
safety.'' Id. Paragraph (q)(1) follows the language of section
20156(c); however, in the list of the aspects of the railroad system
that must be analyzed, paragraph (q)(1) does not include ``safety
culture.'' Safety culture, which paragraph (b)(2) of this section
requires the railroad to describe, is not something that a railroad can
necessarily ``identify and analyze'' as readily as the other aspects
listed. Nonetheless, the railroad must describe how it measures the
success of its safety culture pursuant to paragraph (t) of this
section.
    As proposed in the NPRM, paragraph (q)(1) originally included
employee fatigue as identified in proposed paragraph (s), in the list
of the aspects of the railroad system that must be analyzed. However,
as discussed in the Statutory Background section above, to minimize
confusion regarding the separate FMP Working Group process and the
ongoing fatigue management plans rulemaking, proposed paragraph (s) has
not been included in the final rule; therefore the requirement that the
railroad analyze employee fatigue as part of its risk analysis is not
included in paragraph (q)(1) of the final rule. FRA also notes that
proposed paragraph (q)(1) included ``new technology as identified in
paragraph (s) of this section''; however, since paragraph (r) of the
final rule addresses a separate analysis regarding new technology,
including new technology in paragraph (q)(1) would be duplicative.
    As provided in the final rule, paragraph (q)(1) requires a railroad
to analyze 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. Pursuant to
paragraphs (d), (e), and (g) through (i) of this section, a railroad is
required to describe in its plan its operating rules and practices,
infrastructure, equipment, employee levels and schedules, management
structure, and employee training; therefore, the analysis and
identification of hazards and resulting risks regarding these aspects
pursuant to paragraph (q)(1) should be straightforward. The railroad
will determine which aspects of the railroad system have an impact on
railroad safety that are not covered by railroad safety regulations or
other Federal regulations. When analyzing the various aspects, the
railroad will apply the risk-based hazard analysis methodology
previously identified in paragraphs (p)(1)(i) through (iii) of this
section.
    In commenting on the NPRM, Parsons Brinckerhoff stated that
paragraph (q)(1) proposed to require that railroads apply the risk-
based hazard analysis up through the application of mitigations but
that it would not require the railroads to achieve an acceptable level
of risk. While the rule does not specifically require a railroad to
reduce risk to an acceptable level, paragraph (q)(2) requires a
railroad, in part, to implement specific actions that will mitigate or
eliminate the identified hazards and resulting risks. FRA believes that
requiring railroads to achieve an acceptable level of risk would set
forth an ambiguous standard because, due to differences in the size and
complexity of passenger railroad operations, an acceptable level of
risk for one railroad may not necessarily be the same for another
railroad. Requiring a railroad to implement specific actions that will
mitigate or eliminate the identified hazards and resulting risks will
reduce risk and if FRA determines that a railroad is not properly
addressing and reducing risk, FRA will work with the railroad and other
stakeholders to address this issue and may take enforcement action if
necessary.

    Parsons Brinckerhoff also believed that proposed paragraph (q)(1)
would not require the application of the risk-based hazard management
program to support continuous safety improvement throughout the life of
the rail system. Pursuant to paragraph (p)(1)(vii), the railroad will
be required to describe the methods it will implement as part of the
risk-based hazard management program that will support continuous
safety improvement throughout the life of the rail system. Further, as
discussed below, pursuant to paragraph (q)(3) a railroad will be
required to conduct a risk-based hazard analysis when there are
significant operational changes, system extensions, system
modifications, or other circumstances that have a direct impact on
railroad safety. FRA believes paragraphs (p)(1)(vii) and (q)(3) support
continuous safety improvement throughout the life of the rail system.
    Once the railroad has analyzed the various aspects of its
operations and identified hazards and the resulting risks, the railroad
is required to mitigate or eliminate these risks. This requirement is
derived directly from section 20156(d), which requires a railroad, as
part of its SSP, to have a risk mitigation plan that mitigates the
aspects that increase risks to railroad safety and enhances the aspects
that decrease the risks to railroad safety. In paragraph (q)(2), the
railroad will use the methods described in paragraph (p)(1)(iv) to
identify and implement specific actions to mitigate or eliminate the
hazards and risks identified by paragraph (q)(1).
    FRA makes clear that a risk-based hazard analysis is not a one-time
event. Railroads operate in a dynamic environment and certain changes
in that environment may expose new hazards and risks that a previous
risk-based hazard analysis did not address. Paragraph (q)(3) identifies
the changes that FRA believes are significant enough to require that a
railroad conduct a new risk-based hazard analysis. Railroads must
conduct a risk-based hazard analysis when there are significant
operational changes, system extensions, system modifications, or other
circumstances that have a direct impact on railroad safety.
    As part of its SSP plan, paragraph (r), proposed as paragraph (s)
in the NPRM, requires a railroad to conduct a technology analysis and
set forth a technology analysis and implementation plan. Paragraph (r)
implements sections 20156(d)(2) and 20156(e). Paragraph (r) has been
substantially modified from the proposal in the NPRM. As proposed in
the NPRM, this paragraph would have required railroads to first conduct
a technology analysis, then establish a technology implementation plan
containing the results of the technology analysis, and, if the railroad
determined to implement any of the technologies, establish a plan and a
prioritized implementation schedule for the development, adoption,
implementation and maintenance of the technologies over a 10-year
period.
    FRA believes that the technology analysis and implementation plan
requirements should be consistent with the risk-based hazard management
program and risk-based hazard analysis requirements. Therefore, FRA has
modified paragraph (r) from the proposed rule to ensure that it is
consistent with these other requirements. A railroad, in its SSP plan
submission to FRA, will describe the process it will use to: (1)
Identify and analyze technologies that will mitigate or eliminate the
hazards identified by the risk-based hazard analysis, and (2) analyze
the safety impact, feasibility, and costs and benefits of implementing
the identified technologies. The initial submission to FRA is required
to describe only the processes the railroad will use to identify and
analyze technology that will mitigate or eliminate hazards and the
resulting risks.
    The requirement that the railroad ``periodically update as
necessary'' its technology analysis and implementation plan has been
added to paragraph (r)(1). This was not proposed in the NPRM; however,
section 20156(e) requires the plan to be periodically updated as
necessary.
    As with the overall SSP, the railroads will have flexibility to
determine the processes they will use pursuant to paragraph (r)(2). One
of the purposes of the technology analysis and implementation plan is
to provide railroads and their stakeholders the opportunity to consider
current, new, and novel technology to address hazards and the resulting
risks; therefore, FRA encourages the railroads to consider as many
different types of technology as possible.
    Once FRA reviews and approves a railroad's technology analysis and
implementation plan, as part of the SSP plan approval process, the
railroad will apply the process identified in paragraph (r)(2)(i) to
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. As with risk-based hazard analysis, the
railroad will not conduct its technology analysis until after FRA has
approved its technology analysis and implementation plan. Section
20156(e)(2) mandates that a railroad consider certain technologies as
part of its technology analysis. These technologies are: Processor-
based technologies, positive train control systems, electronically-
controlled pneumatic brakes, rail integrity inspection systems, rail
integrity warning systems, switch position monitors and indicators,
trespasser prevention technology, and highway-rail grade crossing
warning and protection technology.
    Once the railroad has identified and analyzed current, new, or
novel technologies that will mitigate or eliminate the hazards and
resulting risks, the railroad shall apply the processes described in
paragraph (r)(2)(ii) to analyze the safety impact, feasibility, and
costs and benefits of implementing these technologies. FRA expects the
railroads to engage in an appropriate and realistic analysis of the
technologies. FRA is not requiring that a railroad use a specific
formula to determine whether it should implement any of the technology
analyzed in the technology analysis. Rather, the railroad must consider
the safety impact, feasibility, and the costs and benefits of these
technologies and, based on the railroad's specific operations, decide
whether to implement any of the technologies. Technology has proved to
be an invaluable tool to manage hazards across all modes of
transportation, and a robust SSP certainly needs to include risk
mitigation technology.
    If a railroad decides to implement any of the technologies
identified in paragraph (r)(3), the railroad would be required to
update its technology analysis and implementation plan in its SSP to
describe how it will develop, adopt, implement, maintain, and use the
technologies. This description should be sufficient to allow FRA and
other interested stakeholders to determine which technologies the
railroad will implement, how they will be implemented, how the
technologies will eliminate or reduce hazards and the resulting risks,
and how the technologies will be maintained. The railroad will also be
required to set forth in its SSP plan a prioritized implementation
schedule for the development, adoption, implementation, and maintenance
of those technologies over a 10-year period. By establishing this
implementation schedule, the railroad will be able to describe its plan
as to how it will apply technology on its system to mitigate or
eliminate the identified hazards and resulting risks.

    Paragraph (r)(5) provides that, except as required by 49 CFR part
236, subpart I (Positive Train Control Systems), if a railroad decides
to implement a positive train control (PTC) system as part of its
technology implementation plan, the railroad shall set forth and comply
with a schedule for implementation of the PTC system consistent with
the deadlines in the Positive Train Control Enforcement and
Implementation Act of 2015 (PTCEI Act), Public Law 114-73, 129 Stat.
576-82 (Oct. 29, 2015), and 49 CFR 236.1005(b)(7). The NPRM proposed
that the railroad would have to implement the PTC system by December
31, 2018, which was consistent with 49 U.S.C. 20156(e)(4)(B). However,
Congress subsequently passed the PTCEI Act and FRA has revised
paragraph (r)(5) to reflect the changes to PTC implementation deadlines
set forth in the Act. This paragraph does not, in itself, require a
railroad to implement a PTC system. In the NPRM, FRA sought comment on
whether a railroad electing to implement a PTC system would find it
difficult to meet the December 31, 2018 implementation deadline. If so,
FRA invited comment as to what measures could be taken to assist a
railroad struggling to meet the deadline and achieve the safety
purposes of the statute. FRA received one comment in response to this
request. AAR commented that it does not object to this requirement but
that it is impossible to meet the 2015 deadline for an interoperable
nationwide PTC system that complies with the statutory-mandate.
Consequently, AAR believes that no railroad will take advantage of
paragraph (r)(5). FRA recognizes the challenges associated with
implementing a PTC system; however, FRA also recognizes that PTC is a
technology that a railroad may seek to implement to eliminate or
mitigate hazards and the resulting risks. Therefore, the regulation
provides railroads the flexibility to decide whether they want to
implement a PTC system as part of their technology analysis and
implementation plan; if they do so, they must comply with an
implementation schedule consistent with the deadlines in the PTCEI Act.
    Consistent with the risk-based hazard analysis, a railroad will not
include its technology analysis conducted pursuant to paragraph (r)(3)
in the SSP submission to FRA under Sec.  270.201. The SSP plan should
only include the processes used to conduct its technology analysis as
described in paragraph (r)(3). FRA may work with the railroads to
ensure that the technology analysis is robust and analyzes a sufficient
number of technologies. To achieve this goal, FRA, its representatives,
and States participating under part 212 of this chapter will have
access to the railroad's technology analysis pursuant to paragraph
(r)(5). Furthermore, in its initial submission, a railroad will not
include the description and implementation schedule required by
paragraph (r)(4) because the railroad will not draft the description
and implementation schedule until FRA approves the railroad's
technology analysis and implementation plan.
    Paragraph (s) sets forth the requirements for ensuring that safety
issues are addressed whenever there are certain changes to the
railroad's operations. Paragraph (s)(1) requires each railroad to
establish and set forth a statement in its SSP plan that describes the
processes and procedures used by the railroad to manage significant
operational changes, system extensions, system modifications, or other
circumstances that will have a direct impact on railroad safety. Since
these changes have a direct impact on safety, it is vital that the
railroad has a process to manage these changes so that safety is not
compromised. Change management processes ensure that, when there is a
need for a change to a safety-critical program, the proposed change is
vetted through a formalized process within the organization. This
description will assist FRA's review of these processes during the
initial SSP plan review and subsequent audits to determine if the
railroad's SSP sufficiently addresses any gaps in the processes. The
term ``significant changes that will have a direct impact on railroad
safety'' is intended to be broadly understood; however, the other
changes listed (significant operational changes, system extensions,
system modifications) are the type of changes that will also
necessitate a process/procedure to properly manage them.
    Paragraph (s)(2) requires each railroad to establish in its SSP
plan a configuration management program. The term configuration
management is defined in Sec.  270.5 as a process that ensures that the
configurations of all property, equipment, and system design elements
are accurately documented. Accordingly, the railroad's configuration
management program shall: (1) Identify who within the railroad has
authority to make configuration changes; (2) establish processes to
make configuration changes to the railroad's system; and (3) establish
processes to ensure that all departments of the railroad affected by
the configuration change are formally notified and approve of the
change. Configuration management is a process that ensures that all
safety-critical documentation relating to the railroad and its various
components is current and reflects the actual functional and physical
characteristics of the railroad. This description will assist FRA's
review of these processes during the initial SSP plan review and
subsequent audits to determine if the railroad's SSP sufficiently
addresses any gaps in the processes.
    Paragraph (s)(3) requires the railroad to establish and describe in
its SSP plan the process it uses to certify 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
repair vehicles and equipment. Through a process certifying that safety
concerns have been addressed before the railroad initiates operations
or major projects to extend, rehabilitate, or modify an existing system
or replace vehicles and equipment, the railroad helps to minimize the
potential for any negative impact on safety resulting from any of these
activities.
    In commenting on the NPRM, APTA states that safety certifications
are not common in commuter rail operations mostly because these
railroads follow FRA regulations and standards and most, if not all,
safety certifications have been performed because an FTA funding
agreement required one to be performed. According to APTA, FTA does not
have a set of regulations and standards to allow operation on the
general railroad system of transportation that applies to all railroads
under FTA's jurisdiction. Without these national standards, APTA notes
that FTA and transit properties rely on design criteria and best
engineering practices, and since these design criteria differ at each
transit agency, safety certification is the method relied upon to
ensure the system is safe. APTA believes that it would be a rare
occasion when a commuter railroad would be required to perform a safety
certification under paragraph (s)(3) and that the paragraph uses the
term ``major projects'' without elaboration. APTA does not believe that
every project will need safety certification unless it falls outside of
FRA's existing standards. APTA therefore recommends that FRA clarify
the term ``major projects'' by adding to the end of the sentence: ``not
otherwise addressed by existing FRA standards.''
    FRA expects every major project to be designed and built so that it
meets or exceeds existing FRA standards. However, paragraph (s)(3)
requires a

process that certifies the major project is in compliance with these
FRA standards or with appropriate design criteria, or both. Safety
certification is part of APTA's Manual for the Development of System
Safety Program Plans for Commuter Railroads. Section 6 of APTA's
manual, Safety Assurance, contains Element 22, Configuration
Management, and within Element 22 is section <IP_ADDRESS>, Safety
Certification. Section <IP_ADDRESS> states: ``Safety Certification is used
to oversee the addition and introduction of completely new systems and
the integration to the existing system if the project is not a new
start. The US DOT Federal Transit Administration and APTA have jointly
published a manual on how to conduct a safety certification program.''
A railroad is free to use the standards published in the manual/guide
that APTA and FTA have developed regarding safety certification to
comply with paragraph (s)(3).
    As discussed previously, a SSP can only be effective at mitigating
or eliminating hazards and risks if the railroad has a robust and
positive safety culture. Pursuant to Sec.  270.101(b), the railroad
will design its SSP so that it promotes and supports a positive safety
culture; pursuant to Sec.  270.103(b)(2), the railroad will identify in
its SSP plan its safety culture; and pursuant to paragraph (t) a
railroad will describe in its SSP plan how it measures the success of
its safety culture. A railroad cannot have a robust safety culture
unless it actively promotes it and evaluates whether it is successful.
With respect to measuring safety culture, the rule permits railroads to
identify the safety culture measurement methods that they find most
effective and appropriate for their own operations. It is important
that a railroad regularly measure its safety culture. This measurement
may be based upon the DOT's 10 traits of a positive safety culture
discussed above or the Nuclear Regulatory Commission's nine traits. See
76 FR 34777-78, Jun. 14, 2011. The key is to be continuously measuring
because organizational culture, which safety culture is a part of, can
change. Measuring to determine a positive safety culture demonstrates
that there is a clear connection, and inverse relationship, between
safety culture and event occurrence. Measuring safety culture, such as
findings from previous employee assessments, demonstrates that there is
a positive relationship between safety culture and employee engagement
which supports improved decision-making. When measuring safety culture,
FRA expects a railroad to use a method that is capable of correlating a
railroad's safety culture with actual safety outcomes. A safety culture
assessment focuses on the people side of safety--cultural behaviors
that enable, equip, and empower--such as communication, trust,
leadership, commitment, peer group norms and organizational influences.
For example, such measurement methods can include surveys that assess
safety culture using validated scales, or some other method or
measurement that appropriately identifies aspects of the railroad's
safety culture that correlate to safety outcomes. Ultimately, FRA
expects a railroad to demonstrate that improvements in the measured
aspects of safety culture will reliably lead to reductions in
accidents, injuries, and fatalities.
    Measuring safety culture that is done on a regular basis would be
very difficult to establish costs and benefits. As discussed above DOT
has 10 traits to guide the measurement of safety culture. A number of
different tools have been developed to measure safety culture, and are
used in various industries, including aviation and certain
manufacturing sectors. To illustrate, one research review listed 24
different tools used to measure safety culture in the health care
industry alone.\6\ It is important to note that each tool measures
factors using its own scale, and the scales are not calibrated across
the different tools. Calibration is the process of finding a
mathematical relationship between different scales--the Fahrenheit and
Celsius temperature scales are calibrated, for example, so it is
possible to convert a reading from one scale to the other. Thus,
although in the aggregate many studies suggest there is a link between
improved safety culture and decreases in accidents or injuries,\7\ it
is not possible to definitively quantify the benefits that accrue due
to improvements in safety culture. FRA recognizes that there are many
ways to accomplish the task of measuring a railroad's safety culture.
For purposes of this rule FRA will assume that this is accomplished
with some type of survey instrument.\8\
---------------------------------------------------------------------------

    \6\ Health Foundation. ``Evidence scan: Measuring safety
culture,'' http://patientsafety.health.org.uk/sites/default/files/resources/measuring_safety_culture.pdf as of October 30, 2014
(February, 2011) p. 7.
    \7\ O'Toole, Michael. ``The Relationship between employees'
perceptions of safety and organizational culture,'' The Journal of
Safety Research, 33 (2002) pp 231-243.
    \8\ One organization that provides safety culture surveys
includes a price list on their Web site. Perhaps averaging a few
such organizations' prices would help refine this estimate. See
http://www.nsc.org/safety_work/employee_perception_surveys/Pages/SurveyCosts.aspx (showing costs for safety culture surveys of
different levels of complexity).
---------------------------------------------------------------------------

Section 270.105 Discovery and Admission as Evidence of Certain
Information
    As discussed in the Statutory Background section, FRA's Study
concluded that it is in the public interest to protect certain
information generated by railroads from discovery or admission into
evidence in litigation. Section 20119(b) provides FRA with the
authority to promulgate a regulation if FRA determines that it is in
the public interest, including public safety and the legal rights of
persons injured in railroad accidents, to prescribe a rule that
addresses the results of the Study.
    Following the issuance of the Study, the RSAC met and reached
consensus on recommendations for this rulemaking, including a
recommendation on the discovery and admissibility issue. RSAC
recommended that FRA issue a rule that would protect documents
generated solely for the purpose of planning, implementing, or
evaluating a SSP from (1) discovery, or admissibility into evidence, or
considered for other purposes in a Federal or State court proceeding
for damages involving property damage, personal injury, or wrongful
death; and (2) State discovery rules and sunshine laws that could be
used to require the disclosure of such information.
    Section 270.105, Discovery and admission as evidence of certain
information, sets forth the discovery and admissibility protections
that are based on the Study's results and the RSAC recommendations.
These protections are narrow and apply only to information that was
generated solely for a railroad's SSP, and aim to ensure that a
litigant will not be better or worse off than if the protections had
never existed. FRA intends these provisions to be strictly construed.
    FRA modeled Sec.  270.105 after 23 U.S.C. 409. In section 409,
Congress enacted statutory protections for certain information compiled
or collected pursuant to Federal highway safety or construction
programs. See 23 U.S.C. 409. Section 409 protects both data
compilations and raw data. Intermodal Surface Transportation Efficiency
Act of 1991, sec. 1035(a), 105 Stat. 1978; National Highway System
Designation Act of 1995, sec. 323, 109 Stat. 591. A litigant may rely
on section 409 to withhold certain documents from a discovery request,
in seeking a protective order, or as the basis to object to a line of
questioning during a trial or

deposition. Section 409 extends this protection to information that has
never been in any Federal entity's possession.
    Section 409 was enacted by Congress in response to concerns raised
by the States that compliance with the Federal road hazard reporting
requirements could reveal certain information that would increase the
State's risk of liability. Without confidentiality protections, States
feared that their ``efforts to identify roads eligible for aid under
the Program would increase the risk of liability for accidents that
took place at hazardous locations before improvements could be made.''
Pierce County v. Guillen, 537 U.S. 129, 133-34 (2003) (citing H.R. Doc.
No. 94-366, p. 36 (1976)).
    The constitutionality and validity of section 409 has been affirmed
by the Supreme Court of the United States. See Pierce County v.
Guillen. In Guillen, the Court considered the application of section
409 to documents created pursuant to the Hazard Elimination Program,
which is a Federal highway program that provides funding to State and
local governments to improve the most dangerous sections of their
roads. Id. at 133. To be eligible for the program, the State or local
government must (1) maintain a systematic engineering survey of all
roads, with descriptions of all obstacles, hazards, and other dangerous
conditions; and (2) create a prioritized plan for improving those
conditions. Id.
    The Court held that section 409 protects information actually
compiled or collected by any government entity for the purpose of
participating in a Federal highway program, but does not protect
information that was originally compiled or collected for purposes
unrelated to the Federal highway program, even if the information was
at some point used for the Federal highway program. Guillen at 144. The
Court took into consideration Congress' desire to make clear that the
Hazard Elimination Program ``was not intended to be an effort-free tool
in litigation against state and local governments.'' Id. at 146.
However, the Court also noted that the text of section 409 ``evinces no
intent to make plaintiffs worse off than they would have been had
section 152 [Hazard Management Program] funding never existed.'' Id.
The Court also held that section 409 was a valid exercise of Congress'
powers under the Commerce Clause because section 409 ``can be viewed as
legislation aimed at improving safety in the channels of commerce and
increasing protection for the instrumentalities of interstate
commerce.'' Id.
    FRA believes that given the similar concepts between section 409
and section 20119 and the Supreme Court's expressed acknowledgement of
the constitutionality of section 409, section 409 is an appropriate
model for Sec.  270.105.
    Under Sec.  270.105(a) there are certain circumstances in which
information will 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. This information may not be used in such litigation when it is
compiled or collected solely for the purpose of planning, implementing,
or evaluating a SSP. Section 270.105(a) applies to information whether
or not it is also in the Federal government's possession.
    FRA notes that paragraph (a) has been reformatted for clarity from
the proposal in the NPRM. Paragraph (a) is divided into paragraph
(a)(1) and (2) after its introductory text. However, the formatting
change does not, in itself, result in any substantive change to the
paragraph.
    Paragraph (a)(1) describes what may be considered ``information''
for the purposes of this section. Section 20119(a) identifies reports,
surveys, schedules, lists, and data as the forms of information that
should be included as part of FRA's Study. However, FRA does not
necessarily view this as an exclusive list. In the statute, Congress
directed FRA to consider the need for protecting information that
includes a railroad's analysis of its safety risks and its statement of
the mitigation measures with which it will address those risks. Id.
While the railroad is not required to provide in the SSP plan that it
submits to FRA the results of the risk-based hazard analysis and the
specific elimination or mitigation measures it will be implementing,
the railroad may have a specific plan within its SSP that does contain
this information. Therefore, to adequately protect this type of
information, the term ``plan'' is included in the definition of
``information'' to cover a railroad's submitted SSP plan and any
elimination or mitigation plans the railroad otherwise develops within
its SSP. FRA also deems it necessary to include ``documents'' in this
provision to maintain consistency and properly effectuate Congress'
directive in section 20119.
    This paragraph does not protect all information that is part of a
SSP; these protections will extend only to information that is compiled
or collected after August 14, 2017, solely for purpose of planning,
implementing, or evaluating a system safety program. The term
``compiled or collected'' is taken directly from section 20119(a). FRA
recognizes that railroads may be reluctant to compile or collect
extensive and detailed information regarding the safety hazards and
resulting risks on their systems if this information could potentially
be used against them in litigation. The term ``compiled'' refers to
information that was generated by the railroad for the purposes of a
SSP; whereas the term ``collected'' refers to information that was not
necessarily generated for the purposes of the SSP, but was assembled in
a collection for use by the SSP. It is important to note that in this
context, only the collection is protected; however, each separate piece
of information that was not originally compiled for use by the SSP
remains subject to discovery and admission into evidence subject to any
other applicable provision of law or regulation.
    Section 20119(b) prohibits the protections from becoming effective
until one year after the adoption of the SSP rule. The necessary text
has been added to paragraph (a) to implement this effective date.
    The information has to be compiled or collected solely for the
purpose of planning, implementing, or evaluating a SSP. APTA commented
that the use of the term ``solely'' is not adequately explained in the
text of the regulation. APTA proposes that FRA either use a more
appropriate term such as ``primarily'' or ``initially'' or that FRA
define ``solely'' in the rule text, not just in the preamble. FRA
agrees. The use of the term ``solely'' is deliberate and it is
important that the term is understood as used within the four corners
of the regulation. Therefore, FRA has included paragraph (a)(2), which
defines the term ``solely.''
    As discussed in the section-by-section analysis for Sec.  270.1(c),
NY MTA recommended that the term ``solely'' be deleted from paragraph
(a) to protect studies or risk analyses that are not developed
expressly to comply with this part. NY MTA believes that it is in the
public interest to ensure that railroads conduct on-going and thorough
self-critical examinations and expressed concern if these types of
studies or analyses are not protected, they may be used against the
railroad in court. As discussed below in response to APTA's request
that FRA extend the protections to information collected as part of
programs that existed before the SSP regulation but were similar to a
SSP, FRA has the authority to protect only documents that are created
pursuant to

a SSP; therefore, omitting the term ``solely'' would improperly expand
the protections beyond the limits of FRA's authority.
    The term ``solely'' is intended to narrow circumstances in which
the information will be protected. The use of the term ``solely'' means
that the original purpose of compiling or collecting the information
was exclusively for the railroad's SSP. A railroad cannot compile or
collect information for one purpose and then try to use paragraph (a)
to protect that information because it uses that information for its
SSP as well. The railroad's original and singular purpose of compiling
or collecting the information must be for planning, implementing, or
evaluating its SSP in order for the protections to be extended to that
information. The term ``solely'' also means that a railroad shall
continue to use the information only for its SSP. If a railroad
subsequently uses, for any other purpose, information that was
initially compiled or collected for its SSP, paragraph (a) 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
railroad's SSP, however, will remain protected. If the railroad is
required by another provision of law or regulation to collect the
information, the protections of paragraph (a) do not extend to that
information because it is not being compiled or collected solely for
the purpose of planning, implementing, or evaluating a SSP. For
example, 49 CFR 234.313 requires railroads to retain records regarding
emergency notification system (ENS) reports of unsafe conditions at
highway-rail grade crossings. Those individual records are not
protected by Sec.  270.105. However, if as part of its risk-based
hazard analysis a railroad collects several of its Sec.  234.313
reports from a specific time period for the sole purpose of determining
if there are any hazards at highway-rail grade crossings, this
collection will be protected as used in the SSP. If the railroad
decides to use the collection for another purpose other than in its
SSP, such as submitting it to an ENS maintenance contractor for routine
maintenance, the protections are not extended to that non-SSP use.
    The information must be compiled or collected solely for the
purpose of planning, implementing, or evaluating a SSP. The three
terms--planning, implementing, or evaluating--are taken directly from
section 20119(a). These terms cover the necessary uses of the
information compiled or collected solely for the SSP. To properly plan
and develop a SSP, a railroad will need to determine the proper
processes and procedures to identify hazards, the resulting risks, and
elimination or mitigation measures to address those hazards and risks.
This planning will involve gathering information about the various
analysis tools and processes best suited for that particular railroad's
operations. This type of information is essential to the risk-based
hazard analysis and is information that a railroad does not necessarily
already have. In order for the railroad to plan its SSP, the
protections are extended to the SSP planning stage. The NPRM used the
term ``developing'' instead of ``planning''; however, to remain
consistent with section 20119(a), FRA has determined that the term
``planning'' is more appropriate.
    Based on the information generated by the risk-based hazard
analysis, the railroad will implement measures to eliminate or mitigate
the hazards and risks identified. To properly implement these measures,
the railroad will need the information regarding the hazards and risks
on the railroad's system identified during the development stage.
Therefore, the protection of this information is extended to the
implementation stage.
    The protections do not apply to information regarding mitigations
that the railroad implements. Rather, the railroad's statement of
mitigation measures, which could include various proposed and alternate
mitigations for a specific hazard, that address the hazards identified
by the risk-based hazard analysis is protected. Additionally, the
underlying risk analysis information that the implemented mitigation
measure addresses is also protected. For instance, if a railroad builds
a structure to address a risk identified by the risk-based hazard
analysis, the information regarding that structure (e.g., blueprints,
contracts, permits, etc.) is not protected by this section; however,
the underlying risk-based hazard analysis that identified the hazard
and any statement of mitigations that included the structure is
protected.
    The protections also do not apply to any hazards, risks, or
mitigations that fall under the exclusive jurisdiction of another
Federal agency. If FRA does not have jurisdiction over a hazard, risk,
or mitigation, then the protections under this paragraph cannot be
extended to that hazard, risk, or mitigation.
    The railroad will also be required to evaluate whether the measures
it implements to mitigate or eliminate the hazards and risks identified
by the risk-based hazard analysis are effective. To do so, it will need
to review the information developed by the risk-based hazard analysis
and the methods used to implement the elimination/mitigation measures.
The use of this information in the evaluation of the railroad's SSP is
protected.
    The information covered by this section shall not be subject to
discovery, admitted into evidence, or considered for other purposes in
a Federal or State court proceeding that involves a claim for damages
involving personal injury, wrongful death, or property damage. The
protections affect the discovery, admission into evidence, or
consideration for other purposes of the information described in this
section. The first two situations come directly from section 20119(a);
however, FRA determined that for the protections to be effective they
must also apply to any other situation where a litigant might try to
use the information in a Federal or State court proceeding that
involves a claim for damages involving personal injury, wrongful death,
or property damage. For example, under this section a litigant will be
prohibited from admitting into evidence a railroad's risk-based hazard
analysis. Nonetheless, without the additional language: ``or considered
for other purposes,'' the railroad's risk-based hazard analysis could
be used by a party for the purpose of refreshing the recollection of a
witness or by an expert witness to support an opinion. The additional
language ensures that the protected information remains out of such a
proceeding completely. The protections would be ineffective if a
litigant were able to use the information in the proceeding for another
purpose. To encourage railroads to perform the necessary vigorous risk
analysis and to implement truly effective elimination or mitigation
measures, the protections are extended to any use in a proceeding.
    This section applies to Federal or State court proceedings that
involve a claim for damages involving personal injury, wrongful death,
or property damage. This means, for example, if a proceeding has a
claim for personal injury and a claim for property damage, the
protections are extended to that entire proceeding; therefore, a
litigant cannot use any of the information protected by this section as
it applies to either the personal injury or property damage claim.
Section 20119(a) required the Study to consider proceedings that
involve a claim for damages involving personal injury or wrongful
death; however, to effectuate Congress' intent behind section 20156,
that railroads engage in a robust and candid hazard analysis and
develop meaningful mitigation measures, FRA has determined that it is
necessary for

the protections to be extended to proceedings that involve a claim
solely for property damage. The typical railroad accident resulting in
injury or death also involves some form of property damage. Without
extending the protection to proceedings that involve a claim for
property damage, a litigant could bring two separate claims arising
from the same incident in two separate proceedings, the first for
property damages and the second one for personal injury or wrongful
death, and be able to conduct discovery regarding the railroad's risk
analysis and to introduce this analysis in the property damage
proceeding but not in the personal injury or wrongful death proceeding.
This would mean that a railroad's risk analysis could be used against
the railroad in a proceeding for damages. If this were the case, a
railroad would be hesitant to engage in a robust and candid hazard
analysis and develop meaningful elimination or mitigation measures.
Such an approach would be nonsensical and would completely frustrate
Congress' intent in providing FRA the ability to protect that
information which is necessary to ensure that open and complete risk
assessments are performed and appropriate mitigation measures are
selected and implemented. Therefore, to be consistent with
Congressional intent behind section 20156, FRA has decided to extend
the protections in paragraph (a) to proceedings that involve a claim
for property damage. Furthermore, RSAC, which includes railroads and
rail labor organizations as members, recommended to FRA that the
protections be extended in this way to proceedings that involve a claim
for property damage.
    Paragraph (b) ensures that the protections set forth in paragraph
(a) do not extend to information compiled or collected for a purpose
other than that specifically identified in paragraph (a). This type of
information shall continue to be discoverable, admissible into
evidence, or considered for other purposes if it was before the date
the protections take effect. The type of information that will not
receive the protections provided by paragraph (a) include: (1)
Information that was compiled or collected on or before August 14,
2017; (2) information that was compiled or collected on or before
August 14, 2017, and continues to be compiled or collected, even if
used to plan, implement, or evaluate a railroad's SSP; or (3)
information that is compiled or collected after August 14, 2017, for a
purpose other than that specifically identified in paragraph (a) of
this section. Paragraph (b) affirms the intent behind the use of the
term ``solely'' in paragraph (a), in that a railroad may not compile or
collect information for a different purpose and then expect to use
paragraph (a) to protect that information just because the information
is also used in its SSP. If the information was originally compiled or
collected for a purpose unrelated to the railroad's SSP, then it is
unprotected and will continue to be unprotected.
    Examples of the types of information that paragraph (b) applies to
may be records related to prior incidents/accidents and reports
prepared in the normal course of railroad business (such as inspection
reports). Generally, this type of information is often discoverable,
may be admissible in Federal and State proceedings, and should remain
discoverable and admissible where it is relevant and not unduly
prejudicial to a party after the implementation of this part. However,
FRA recognizes that evidentiary decisions are based on the facts of
each particular case; therefore, FRA does not intend this to be a
definitive and authoritative list. Rather, FRA merely provides these as
examples of the types of information that paragraph (a) is not intended
to protect.
    In commenting on the NPRM, the Labor Organizations requested that
FRA provide a list of examples of information that is currently
discoverable and admissible and will remain so after the enactment of
the protections. The Labor Organizations pointed out that such a list
was provided to FRA during the Risk Reduction Working Group
deliberations and they would like the list to be placed in the
discussion of the final rule. While the list that was provided was
instructive, as mentioned in the previous paragraph, evidentiary
decisions are based on the facts of each particular case and a court's
ruling in one case does not guarantee that another court's ruling in
another jurisdiction will be the same. FRA believes that the examples
provided in the previous paragraph are more than sufficient to provide
a general idea of the types of information covered by paragraph (b)
that are not protected.
    APTA requested that FRA extend the protections to information
collected as part of programs that existed before the SSP regulation
but were similar to a SSP. APTA pointed out that this information will
now be collected under the SSP rule and therefore should receive the
protections provided by paragraph (a). APTA believes that the
exclusions in paragraph (b) will incentivize railroads with existing
SSP-like programs to shut down their programs in anticipation of this
part because the information from the SSP-like programs will not be
protected even if it were collected as part of the SSP under this part.
While FRA understands APTA's concern, FRA does not have the authority
to provide retroactive protection to information that was compiled or
collected before the protections take effect. The study section
20119(a) mandated only addresses information compiled and collected
pursuant to the statutory-mandated risk reduction program. Since a SSP
is a risk reduction program mandated by statute (section 20156), the
information protections can only be extended to information compiled or
collected pursuant to a SSP. This means that any information compiled
or collected before the protections take effect is not protected
because that is not information compiled or collected pursuant to a
SSP. Furthermore, since this is information compiled or collected
before the protections take effect, the fact that after the protections
take effect the information will be compiled or collected pursuant to
the SSP does not mean that the information will then be protected. By
virtue of the information being compiled or collected before the SSP
rule protections take effect, it is not information collected
``solely'' for the SSP that is protected by this rule. To clarify this
distinction, FRA has included language in the exception in paragraph
(b)(2).
    Pursuant to paragraph (b)(2), if a railroad compiled or collected
certain information that was subject to discovery, admissibility, or
consideration for other purposes before the protections take effect and
the railroad continues to collect the same type of information pursuant
to its SSP required by this part, that information will not be
protected by paragraph (a) of this section. For example, before this
section takes effect and all else being equal, a litigant that would
have been able to have admitted into evidence certain information the
railroad compiled will still be able to have that type of information
admitted after this section takes effect even if the railroad compiles
the information pursuant to this rule. The protections are designed to
apply only when the original purpose for the generation of the
information was for a SSP required by this part. The original purpose
of the generation of the information for the SSP-like programs that
existed before the SSP rule would not be for a SSP required by this
part; therefore, such information is not protected by paragraph (a).

    Paragraph (b)(3) reaffirms that information that is compiled or
collected for a purpose other than solely for the purpose of planning,
implementing, or evaluating a SSP, shall not be protected.
    This section is not intended to replace any other protections
provided by law or regulation. Accordingly, paragraph (c) states that
the protections set forth in this section will not affect or abridge in
any way any other protection of information provided by another
provision of law or regulation. Any such provision of law or regulation
shall apply independently of the protections provided by this section.
    Paragraph (d) clarifies that a litigant cannot rely on State
discovery rules, evidentiary rules, or sunshine laws that could be used
to require the disclosure of information that is protected by paragraph
(a) in a Federal or State court proceeding for damages involving
personal injury, wrongful death, or property damage. This provision is
necessary to ensure the effectiveness of the Federal protections
established in paragraph (a) in situations where there is a conflict
with State discovery rules or sunshine laws in a Federal or State court
proceeding for damages involving personal injury, wrongful death, or
property damage. The concept that Federal law takes precedence where
there is a direct conflict between State and Federal law should not be
controversial as it derives from the constitutional principal that
``the Laws of the United States . . . shall be the supreme Law of the
Land.'' U.S. Const., Art. VI. Additionally, FRA notes that 49 U.S.C.
20106 is applicable to this section. 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. In this regard, FRA's Study concluded that a rule
``limiting the use of information collected as part of a railroad
safety risk reduction program in discovery or litigation'' furthers the
public interest by ``ensuring safety through effective railroad safety
risk reduction program plans'' (see Study at 64); FRA concurs in this
conclusion.
    NY MTA commented that it is in the public interest to protect risk
analysis information from production in response to FOIA requests and
State freedom of information laws. NY MTA requested that the protection
from these types of information disclosure laws be applied to
information about system vulnerabilities that could be of interest to
terrorist threats. As discussed in the Statutory Background section,
section 20118(c) gives FRA the discretion to prohibit the public
disclosure of risk analyses or risk mitigation analyses obtained under
other FRA regulations if FRA determines that the prohibition of public
disclosure is necessary to promote public safety. Furthermore, if a
railroad believes that certain risk analysis information qualifies as
Sensitive Security Information (SSI), the information can be submitted
to FRA for such a determination. If FRA determines the information
qualifies as SSI or if the railroad has some other acceptable basis for
requesting confidential treatment, pursuant to 49 CFR 209.11, the
information will be appropriately marked and handled, which includes
redacting it from any publicly disclosed documents.
    Section 20119(b) mandates that the effective date of any rule
prescribed pursuant to that section must be one year after the adoption
of that rule. As discussed in the Statutory Background section, FRA is
developing, with the assistance of the RSAC, a separate risk reduction
rule that would implement the requirements of sections 20156, 20118,
and 20119 for Class I freight railroads and railroads with inadequate
safety performance. In the NPRM for this final rule, FRA proposed to
apply the protections and the exceptions for SSP information proposed
in that NPRM to the information in the forthcoming RRP final rule. The
effect of that proposal would have been to make the protections for the
forthcoming RRP final rule applicable one year after the publication of
this final rule establishing part 270 rather than one year after
publication of the RRP final rule. FRA sought comment on this proposal
and received one comment from APTA, who supported the proposal.
    After further consideration, FRA has determined to implement the
RRP protections in the RRP final rule rather than in this rule. Because
section 20119(b) states that ``[a]ny such rule prescribed pursuant to
this subsection shall not become effective until 1 year after its
adoption,'' FRA has concluded that the RSIA requires that each rule's
implementing information protections must have its own independent
implementation timeline. (Emphasis added.) FRA believes this revised
approach is a better reflection of the Congressional intent in section
20119(b). Further, the revised approach ensures that FRA has complied
with notice and comment procedures of the Administrative Procedure Act
for both the SSP and RRP rulemakings.
Section 270.107 Consultation Requirements
    This section implements section 20156(g)(1), which states that a
railroad required to establish a SSP must ``consult with, employ good
faith and use its best efforts to reach agreement with, all of its
directly affected employees, including any non-profit employee labor
organization representing a class or craft of directly affected
employees of the railroad carrier, on the contents of the safety risk
reduction program.'' 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 plan, then directly affected employees and such organizations may
file a statement with the Secretary explaining their views on the plan
on which consensus was not reached.'' Section 20156(g)(2) requires FRA
to consider these views during review and approval of a railroad's SSP
plan. The consultation requirements were proposed in Sec.  270.102 of
the NPRM; however, to remain consistent with CFR section numbering
format, this section is designated as Sec.  270.107 in this final rule.
    RSAC did not provide recommended language for this section. Rather,
FRA worked with the System Safety Task Group to receive input regarding
how the consultation process should be addressed, with the
understanding that language would be provided in the NPRM for review
and comment. In response to consultation process language proposed in
the NPRM, FRA received comments from AAR, APTA, Labor Organizations,
Metra, NY MTA, and an individual commenter.
    The Labor Organizations commented that FRA improperly classified
the process under section 20156(g) as one of consultation. The Labor
Organizations believe that section 20156(g) requires a process of
negotiation or bargaining with the directly affected employees, not one
of consultation. Nothing in the text of section 20156(g) requires
railroads to negotiate or bargain with directly affected employees;
rather, the statute requires the railroads to ``consult with, employ
good faith and use [their]

best efforts to reach agreement with'' directly affected employees
(including the Labor Organizations) on the contents of the SSP plan.
Throughout the RSAC discussions, FRA referred to this process as one of
consultation, not one of negotiation or bargaining. The proposed text
in the NPRM is consistent with section 20156(g), and FRA does not agree
with the Labor Organizations' belief that the statute requires a
process of negotiation or bargaining. Requiring a process of
negotiation and bargaining would be beyond the scope of section
20156(g).
    APTA believes that the consultation requirements in the final rule
should mirror text in section 20156(g), and nothing more is needed.
Specifically, APTA believes that anything more than the statutory text
would be counter-productive, interfere with business relationships, and
blur the line between FRA and the National Labor Relations Board's
(NLRB) responsibilities. FRA disagrees. FRA believes that Sec.  270.107
and the accompanying Appendix clarify and provide a workable framework
for the railroads. As for the blurring of FRA's and NLRB's
responsibilities, APTA did not provide any examples in which FRA
proposed to intrude upon NLRB's responsibilities. It isn't clear,
therefore, to which NLRB responsibilities APTA is referring.
    Paragraph (a)(1) of this section implements section 20156(g)(1) by
requiring a railroad to consult with its directly affected employees on
the contents of its SSP plan. As part of that consultation, a railroad
must utilize good faith and best efforts to reach agreement with its