villages, school districts, or special districts with populations less
than 50,000.
    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
Statement of Agency Policy that formally establishes small entities or
small businesses as being railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891, May 9, 2003 (codified as appendix C to 49 CFR part
209). The $20 million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad. Railroad revenue is
adjusted for inflation by applying a revenue deflator formula in
accordance with 49 CFR 1201.1-1. This definition is what FRA is
proposing to use for the rulemaking.
Railroads
    Class I freight railroads and railroads with inadequate safety
performance would have to comply with all of the proposed provisions of
part 271. However, the amount of effort to comply with the proposed
rule is commensurate with the size of the entity.
    In the universe of railroads for potential compliance under this
proposed rule, there are 7 Class I railroads, 10 Class II railroads (1
of which is classified as a passenger railroad that would be excepted
from the proposed rule), and 629 Class III freight railroads. Railroads
with tourist operations are excluded, and these comprise approximately
90 of the total 719 Class III railroads.
    To identify the non-Class I railroads that must comply with the
proposed rule, FRA will annually conduct a two-phase analysis to
determine which railroads have inadequate safety performance. This is
accomplished by the following: (1) A statistically-based quantitative
analysis of fatalities, FRA-reportable injuries/illnesses, FRA-
reportable accidents/incidents, and FRA safety violations; and (2) a
qualitative assessment that includes input from affected railroads and
their employees. (See Sec.  271.13 of the proposed rule for a full
description of the process used to determine inadequate safety
performance.)
    As FRA's initial inadequate safety performance analysis would occur
at least one year after an RRP final rule goes into effect, it is
impossible to tell how many railroads with inadequate safety
performance would be required to comply with the RRP regulation, and
consequently how many of those might be small businesses. However,
using a recent 3-year rolling average of safety data to test the
selection analytical process, and accounting for those that might seek
relief through the qualitative review process, FRA would expect between
7 and 13 Class III railroads to qualify initially for the program, or a
simple average of 10; and between 3 and 7, incrementally, per annum
thereafter, or a simple average of 5. FRA expects the number of
inadequate safety performance railroads to grow each year by 4 or 5 to
a maximum of 40 to 45 by year 9 or 10, at which point it should flatten
out or actually decline. This declining involvement is due to several
factors: (1) Safety performance will improve; (2) after 7 years, some
railroads will seek and receive relief

from being in the program; (3) the size of the railroad pool being
examined for inadequate safety performance would shrink as more
railroads are required to comply with part 271; and (4) railroads will
observe the positive behaviors and results of those railroads with RRPs
and will embrace the better safety practices of those railroads as a
model. FRA does not find this number of small railroads to be a
substantial number of small entities when compared with the 629 small
railroads that could potentially be impacted (i.e., Class III
railroads) in the industry.
    FRA intends to provide assistance to railroads, including small
business entities, in the development of their RRPs, starting at the
planning phase and continuing through the implementation phase. The
proposed rule is also scalable in nature, and FRA would provide
assistance to those railroads so that the scope and content of their
RRPs are proportionate to their size and the nature of their operation.
    As indicated above, FRA would assist a small entity in preparing
its RRP program and plan. FRA anticipates that the RRP plan for such an
entity would be a very concise and brief document.
    FRA requests comments on these findings and conclusions.
Contractors
    Some railroads use contractors to perform many different functions
on their railroads. For some of these railroads, contractors perform
safety-related functions, such as operating trains. For the purpose of
assessing the impact of an RRP, contractors fall into two groups:
Larger contractors who perform a primary operating or maintenance
function for the railroads, and smaller contractors who perform
ancillary functions to the primary operations. Larger contractors are
typically large private companies, such as Sperry Rail Service, or part
of an international conglomerate such as Balfour Beatty. Smaller
contractors may perform such duties as brush clearing, painting
facilities, etc.
    Safety-related policies, work rules, guidelines, and regulations
are imparted to the small contractors today as part of their
contractual obligations and qualification to work on the Class I
freight railroads, and potentially to work for railroads with
inadequate safety performance. FRA sees minimal additional burden to
imparting the same type of information under each railroad's RRP. A
very small administrative burden may result.
    Under the proposed rule, contractors (small or large) who provide
significant safety-related services are not required to do anything
under the rule. While the proposed rule requires the railroad to
involve the persons that provide significant safety-related services in
the railroad's RRP, it doesn't require the entity to do any training.
Thus, any burdens imposed on contractors would be indirect or taken
into account in the contract with the pertinent railroad or both. FRA
requests comment on these findings and conclusions.
4. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule
    There are reporting, recordkeeping, and compliance costs associated
with the proposed regulation.
    FRA believes that the added burden is marginal due to the proposed
NPRM requirements. The total 10-year cost of this proposed rulemaking
is $18.6 million, of which FRA estimates $3.2 million or less will be
attributable to small entities ($3.2 million in current dollars, $2
million at a 7-percent discount rate, or $2.6 million at a 3-percent
discount rate.) Based on FRA's RIA, which has been placed in the docket
for this proposed rulemaking, the average railroad with inadequate
safety performance would incur an average of $13,500 (non-discounted)
of burden per year. If on average railroads with inadequate safety
performance were in the RRP for eight years, then the life-time cost
would be approximately $108,000. Previously, FRA sampled small
railroads and found that revenue averaged approximately $4.7 million
(not discounted) in 2006. One percent of average annual revenue per
small railroad, or $47,000, is more than three times the average annual
cost that these railroads will incur because of this proposed rule. FRA
realizes that some railroads will have lower revenue than $4.7 million.
However, FRA believes that this average provides a good representation
of the small railroads, in general.
    Overall, FRA believes that the proposed regulation would not be a
significant economic burden for small entities. However, due to the
small number of small railroads that are estimated to be impacted by
this proposed rule, the cost per railroad could be found to be
significant. For a thorough presentation of cost estimates, please
refer to the RIA, which has been placed in the docket for this proposed
rulemaking. FRA expects that most of the skills necessary to comply
with the proposed regulation would be professional hazard assessment
personnel, and recordkeeping and reporting personnel.
    The following section outlines the potential additional burden on
small railroads for each subpart of the proposed rule:
 Subpart A--General: Risk Reduction Program Regulation
    The policy, purpose, and definitions outlined in subpart A, alone,
would not impose a significant burden on small railroads. However,
there is the small requirement for notifying employees of the railroad
that FRA has found that the railroad may have inadequate safety
performance. This subpart of the proposed rule would impose less than 1
percent of the total burden for small entities.
 Subpart B--Risk Reduction Program Requirements
    Subpart B of the proposed rule would have a more or less
proportional effect directly related to the size and complexity of a
railroad. This subpart of the proposed rule would impose approximately
63 percent of the total burden for small entities. The proposed
requirements in this subpart describe what must be developed and placed
in the RRP to properly implement the RRP. More specifically, it
requires the development of the risk-based hazard analysis, risk-based
hazard management processes, and technology implementation plans.
Because of the scalable nature of the proposed rule, the requirements
of an RRP would be much less complex for a small railroad than they
would be for a Class I railroad. This is due to several characteristics
of small railroads, such as the concentrated geography of operation in
a small area, the short distance of operation, and a non-fragmented and
non-diffused work force (in other words, most employees of a small
railroad are located in one place). Hence, the number and types of
hazards for a small railroad should be limited. Also, such RRP
requirements as technology plans should not be burdensome. A small
railroad is very limited in the investments it can place in new
technologies, and what they do invest in would quite likely be a tried-
and-true technology that has been thoroughly tested elsewhere.
 Subpart C--Risk Reduction Program Plan Requirements
    Subpart C of the proposed rule would have a more or less
proportional effect directly related to the size and complexity of a
railroad. In other words, it would have less impact on small entities
than it would on Class I railroads. This subpart of the proposed rule
would impose approximately 23 percent of the total burden for small

entities. These proposed requirements describe what must be developed
and placed in the RRP plan to properly implement the RRP. Specifically,
it requires a plan statement on each element of the RRP, including
safety policy and goals, system description, consultation process,
risk-based hazard management processes, technology plans, internal
assessment process, and an RRP implementation plan. This proposed
subpart is primarily the paperwork or written plan that supports the
processes and programs in the RRP.
 Subpart D--Review, Approval, and Retention of Risk Reduction
Program Plans
    Subpart D of the proposed rule would impose less than 1 percent of
the total burden for small entities. The proposed requirements of this
subpart are for the initial delivery and review of the RRP plan, as
well as delivery of any ongoing amendments. Since this is initially
only expected to have 10 small railroads submitting plans for approval
and approximately 5 railroads each year thereafter, this subpart should
have a very small economic impact.
 Subpart E--Internal Assessments
    Subpart E of the proposed rule would impose approximately 12
percent of the total burden for small entities. This burden is for the
ongoing cost for the small railroads to perform an internal assessment
and report on internal audits on annual basis. As noted above,
initially very few small railroads would be performing internal
assessments, which would serve to minimize the economic impact on small
railroads.
 Subpart F--External Audits
    Subpart F of the proposed rule would impose approximately 1 percent
of the total burden for small entities. This burden is for the ongoing
cost for the small railroads to host an external audit by FRA or its
designees on a periodic basis. This includes the burden to produce an
improvement plan if such were required as a result of the external
audit findings. FRA does not expect more than five of these railroads
to receive an external audit for any given year.
Market and Competition Considerations
    The railroad industry has several significant barriers to entry,
such as the need to own or otherwise obtain access to rights-of-way and
the high capital expenditure needed to purchase a fleet, as well as
track and equipment. Furthermore, the small railroads under
consideration would potentially be competing only with the trucking
industry and typically deal with the transport of commodities or goods
that are not truck-friendly. Thus, while this proposed rule would have
an economic impact on Class I freight railroads and railroads with
inadequate safety performance, it should not have an impact on the
competitive position of small railroads. FRA requests comment on these
findings and conclusions.
5. Identification of Any Duplicative, Overlapping, or Conflicting
Federal Rules
    FRA is not aware of any relevant Federal rules that may duplicate,
overlap, or conflict with the proposed rule. In fact, the rule would
support most other safety regulations for railroad operations.
    The Federal Transit Administration (FTA) first implemented
requirements similar to an RRP in 49 CFR part 659 in 1995, and its
requirements can be much more systemic and encompassing. However, FTA's
part 659 program applies to only rapid transit systems, or portions
thereof, that are not subject to FRA's rules. See 49 CFR 659.3 and
659.5. Therefore, FTA's part 659 does not apply to any of the railroads
that are within the scope of the proposed RRP rule.
    FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from the adoption of the proposals in this NPRM. As noted above
FRA has estimated that railroads with inadequate safety performance
would incur less than 12 percent of the total cost of this proposed
rule. Based on FRA's RIA, the average railroad with inadequate safety
performance would incur an average of $13,500 (non-discounted) of
burden per year. If on average railroads with inadequate safety
performance were in the RRP for eight years, then the life-time cost
would be approximately $108,000. Previously, FRA sampled small
railroads and found that revenue averaged approximately $4.7 million
(not discounted) in 2006. One percent of average annual revenue per
small railroad, or $47,000, is more than three times the average annual
cost that these railroads will incur because of this proposed rule. FRA
realizes that some railroads will have lower revenue than $4.7 million.
However, FRA believes that this average provides a good representation
of the small railroads, in general. FRA specifically requests comments
as to whether small railroads would incur a significant economic impact
from this proposed rule. FRA will consider all comments received in the
public comment process when making a final determination regarding the
economic impact on small entities.

C. Federalism

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local governments
or the agency consults with State and local government officials early
in the process of developing the regulation. Where a regulation has
federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
    This NPRM has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132. FRA has determined that
the proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that this
proposed rule will not impose substantial direct compliance costs on
State and local governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    This NPRM proposes to add part 271, Risk Reduction Programs. FRA is
not aware of any State having regulations similar to proposed part 271.
However, FRA notes that this part could have preemptive effect by the
operation of law under a provision of the former Federal Railroad
Safety Act of 1970, repealed and codified at 49 U.S.C. 20106 (Sec.
20106). Sec. 20106 provides that States may not adopt or continue in
effect any law, regulation, or order related to railroad safety or
security that covers the subject matter of a regulation prescribed or
order issued by the

Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``essentially local safety or security hazard''
exception to Sec. 20106. Although FRA is proposing to specify in
proposed Sec.  271.11(c) that state discovery rules and sunshine laws
that could be used to require the disclosure of information protected
by Sec.  271.11(a) are preempted, the purpose of this language is only
to clarify the preemptive effect of Sec. 20106, and is not intended to
have preemptive effect that goes beyond the operation of Sec. 20106.
The proposed information protection provisions clearly relate to
matters of railroad safety because, as previously discussed, 49 U.S.C.
20119(b) authorizes FRA to issue a rule governing the discovery and use
of risk analysis information in litigation.
    In sum, FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this proposed rule has no
federalism implications, other than preemption of State laws under 49
U.S.C. 20106 and 20119. Accordingly, FRA has determined that
preparation of a federalism summary impact statement for this proposed
rule is not required.

D. International Trade Impact Assessment

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

E. Paperwork Reduction Act

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

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
       CFR section/subject         Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
271.7--Waiver Petitions to FRA...  22 railroads.......  1 petition.........  80 hours...........              80
271.13--Determination of           22 railroads.......  120 notices........  30 minutes.........              60
 Inadequate Safety Performance
 (ISP)--Notice to Employees of
 ISP Designation by FRA.
    --Employee Confidential        100 employees......  10 comments........  30 minutes.........               5
     Comments to FRA regarding RR
     ISP Designation.
    --RR Documentation to FRA      10 railroads.......  10 document........  8 hours............              80
     Refuting ISP Designation.
271.101(a)--Risk Reduction         7 railroads........  7 RRPs.............  6,987 hours........          48,910
 Programs (RRPs)--Class I
 Railroads.
    --Risk Reduction Programs      10 railroads.......  10 RRPs............  343 hours..........           3,430
     (RRPs)--Inadequate Safety
     Performance (ISP) Railroads.
    (c)--Communication by RRs      7 railroads........  40 consults........  2 hours............              80
     that host passenger train
     service with Class I RRs
     subject to FRA System Safety
     Program Requirements.
    (d)--RR Identification/        7 railroads........  318 consults.......  2 hours............             636
     Communication with railroads
     performing significant
     safety-related services--
     Class I RRs.
    --RR Identification/           7 railroads........  1,488 consult......  1 hour.............           1,488
     Communication with
     contractors performing
     significant safety related
     services.
    (d)--ISP RRs identification/   10 railroads.......  10 consults........  4 hours............              40
     communication w/entities
     performing significant
     safety-related services.
271.107--Reporting to management   7 railroads........  84 reports.........  30 minutes.........              42
 risk-based HMP Activities--Class
 I.
    --Reporting to management--    10 railroads.......  120 reports........  3 hours............             360
     ISP RRs.
271.111--Implementation Training.
    --Employee RRP training--      150,000 employees..  1,400 worker.......  2 hours............           2,800
     Class I RR.
    --Replacement/new employees:   150,000 employees..  140 workers........  2 hours............             280
     Class I.
    --Employee RRP training--ISP   1,000 employees....  100 workers........  2 hours............             200
     RRs.
    --Employee RRP training        17 railroads.......  1,640 records......  3 minutes..........              82
     records (Class I RRs + ISP
     RRs).
271.201/203--Written Risk          7 railroads........  7 RRP Plans........  1,152 hours........           8,064
 Reduction Plans (RRPs)--Adoption
 and Implementation of RRP Plans--
 Class I.
    --Written RRP Plans--ISP RRs.  10 railroads.......  10 RRP Plans.......  240 hours..........           2,400
271.207--RR Good Faith             7 Railroads........  7 consults.........  200 hours..........           1,400
 Consultation w/Directly Affected
 Employees--Class I RRs.
    --RR Good Faith                10 Railroads.......  10 consults........  20 hours...........             200
     Consultations--ISP RRs.
    --RR Notification to           7 Railroads........  2 notices..........  8 hours............              16
     Employees of Consultation
     Meeting--Class I RRs.
    --ISP RR Notification to       10 Railroads.......  1 notice...........  30 minutes.........               1
     Employees.

    --Voluntarily compliant RR     72 railroads.......  1 consult/statement  20 hours...........              20
     consultation with directly
     affected employees on RRP
     Plan contents.
    --Copy of RRP Plan/            7 Railroads........  380 plan copies +    2 minutes..........              25
     Consultation Statement to                           380.
     General Chair of Labor Union
     and to Individuals
     Identified in RRP Plan
     Service List.
    --Statements from Directly     10 Labor Unions....  3 statements.......  6 hours............              18
     Affected Employees--Class I
     RRs.
271.209--Substantive Amendments    7 Railroads........  7 amended plans....  40 hours...........             280
 to RRP Plan--Class I RRs.
    Substantive Amendments to RRP  10 Railroads.......  10 amended plans...  4 hours............              40
     Plan--ISP RRs.
271.301--Filing of RRP Plan w/     17 railroads.......  17 filed plans.....  2 hours............              34
 FRA--Class I RRs + ISP RRs.
    --Class I RR corrected RRP     7 railroads........  2 RRP plans........  2 hours............               4
     Plan.
    --FRA requested Class I RR     7 railroads........  2 consulting         3 hours............               6
     consultation with directly                          statements.
     affected employees regarding
     substantive corrections/
     changes to RRP Plan.
271.303--Amendments Consultation   17 railroads.......  2 consults.........  60 minutes.........               2
 w/Directly Affected Employees on
 Substantive Amendments to RRP
 Plan--Class I RRs + ISP RRs.
    --Amended RRP Plan--Class I    7 railroads........  7 plans............  6 hours............              42
     RRs.
    --Amended RRP Plan--ISP RRs..  10 railroads.......  1 plan.............  1 hour.............               1
    --Amended RRP Plan             7 Railroads........  1 corrected RRP      80 hours...........              80
     Disapproved by FRA and                              Plan.
     Requiring Correction.
271.307--Retention of RRP Plans--  17 railroads.......  34 plan copies.....  10 minutes.........               6
 Copies of RRP Plan/Amendments by
 RR at System/Division
 Headquarters.
217.401/403--RR Internal           7 railroads........  7 plans............  120 hours..........             840
 Assessment/Improvement Plans--
 Class I RRs.
    --ISP RR Improvement Plans...  10 railroads.......  10 plans...........  32 hours...........             320
271.405--Internal Assessment       7 railroads........  7 reports/copies...  8 hours............              56
 Report Copy to FRA--Class I RRs.
    --Internal Assessment Report   10 railroads.......  10 reports/copies..  2 hours............              20
     Copy to FRA--ISP RRs.
271.503--External Audit            7 railroads........  2 plans............  40 hours...........              80
 Improvement Plans--Submission of
 Improvement Plans upon FRA
 Written Notice of Agency Audit
 Results--Class I RRs.
    --External Audit Improvement   10 railroads.......  1 plan.............  4 hours............               4
     Plans--Submission of
     Improvement Plans upon FRA
     Written Notice of Agency
     Audit Results--Class I RRs.
    --Submission of Amended        7 railroads........  1 plan.............  8 hours............               8
     Improvement Plan after FRA
     Disapproval.
    --Status Report Requested by   7 railroads........  1 status report....  8 hours............               8
     FRA concerning
     Implementation of
     Improvements in Improvement
     Plan.
Appendix B--Request by FRA for     7 railroads........  3 documents........  40 hours...........             120
 Additional Information/Documents
 to determine whether Railroad
 has met Good Faith and Best
 Efforts Consultation
 Requirements of Section 271.207.
    --Further Railroad             7 railroads........  1 consult..........  8 hours............               8
     Consultation w/employees
     after determination by FRA
     that railroad did not use
     Good Faith/Best Efforts.
    --Meeting to discuss           7 railroads........  7 meetings/consults  2 hours............              14
     Administrative Details of
     Consultation Process during
     the time between Initial
     Meeting and Applicability
     Date--Class I RRs.
    --Meeting to discuss           10 railroads.......  10 meetings/         1 hour.............              10
     Administrative Details of                           consults.
     Consultation Process during
     the time between Initial
     Meeting and Applicability
     Date -ISP RRs.
    --Draft RRP Plan Proposal to   10 railroads.......  2 proposals/copies.  20 hours...........              40
     Employees--ISP RRs.
    --Employee comments on RRP     100 Employees......  6 comments.........  1 hour.............               6
     Plan Draft Proposal.
----------------------------------------------------------------------------------------------------------------

    The estimates in this table are based upon FRA's general experience
and expertise regarding the railroad industry and the development of
plans. All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.

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

F. Environmental Assessment

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

G. Unfunded Mandates Reform Act of 1995

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

H. Energy Impact

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

I. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.

List of Subjects in 49 CFR Part 271

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

The Proposal

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

PART 271--RISK REDUCTION PROGRAM

Subpart A--General
Sec.
271.1 Purpose and scope.
71.3 Application.
71.5 Definitions.
271.7 Waivers.

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

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

Subpart A--General

Sec.  271.1  Purpose and scope.

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

Sec.  271.3  Application.

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

Sec.  271.5  Definitions.

    As used in this part only--
    Accident/incident means--
    (1) Any impact between railroad on-track equipment and a highway
user at a highway-rail grade crossing. The term ``highway user''
includes automobiles, buses, trucks, motorcycles, bicycles, farm
vehicles, pedestrians, and all other modes of surface transportation
(motorized and un-motorized);
    (2) Any collision, derailment, fire, explosion, act of God, or
other event involving operation of railroad on-track equipment
(standing or moving) that results in reportable damages greater than
the current reporting threshold identified in part 225 of this chapter
to railroad on-track equipment, signals, track, track structures, and
roadbed;
    (3) Each death, injury, or occupational illness that is a new case
and meets the general reporting criteria listed in Sec.  225.19(d)(1)
through (6) of this chapter if any event or exposure arising from the
operation of a railroad is a discernible cause of a significant
aggravation to a pre-existing injury or illness. The event or exposure
arising from the operation of a railroad need only be one of the
discernible causes; it need not be the sole or predominant cause.
    Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
    FRA means the Federal Railroad Administration.
    FRA Associate Administrator means the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad Administration,
or the Associate Administrator's delegate.
    Fully implemented means that all elements of an RRP as described in
the RRP plan are established and applied to the safety management of
the railroad.
    Hazard means any real or potential condition that can cause injury,
illness, or death; damage to or loss of a system, equipment, or
property; or damage to the environment.
    Inadequate safety performance means safety performance that FRA has
determined to be inadequate based on the criteria described in Sec.
271.13.
    Mitigation strategy means an action or program intended to reduce
or eliminate the risk associated with a hazard.
    Person means an entity of any type covered under 1 U.S.C. 1,
including, but not limited to, the following: A railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor or subcontractor providing goods
or services to a railroad; and any employee of such owner,
manufacturer, lessor, lessee, or independent contractor or
subcontractor.
    Pilot project means a limited scope project used to determine
whether

quantitative proof suggests that a particular system or mitigation
strategy has potential to succeed on a full-scale basis.
    Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
is not considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
    Positive train control system means a system designed to prevent
train-to-train collisions, overspeed derailments, incursions into
established work zone limits, and the movement of a train through a
switch left in the wrong position, as described in subpart I of part
236 of this chapter.
    Railroad means--
    (1) Any form of non-highway ground transportation that runs on
rails or electromagnetic guideways, including--
    (i) Commuter or other short-haul rail passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (ii) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads, but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation; and
    (2) A person or organization that provides railroad transportation,
whether directly or by contracting out operation of the railroad to
another person.
    Risk means the combination of the probability (or frequency of
occurrence) and the consequence (or severity) of a hazard.
    Risk-based HMP means a risk-based hazard management program.
    Risk reduction means the formal, top-down, organization-wide
approach to managing safety risk and assuring the effectiveness of
safety risk mitigation strategies. It includes systematic procedures,
practices, and policies for the management of safety risk.
    RRP means a Risk Reduction Program.
    RRP plan means a Risk Reduction Program plan.
    Safety culture means the shared values, actions, and behaviors that
demonstrate a commitment to safety over competing goals and demands.
    Safety performance means a realized or actual safety accomplishment
relative to stated safety objectives.
    Safety outreach means the communication of safety information to
support the implementation of an RRP throughout a railroad.
    Senior management means personnel at the highest level of a
railroad's management who are responsible for making major policy
decisions and long-term business plans regarding the operation of the
railroad.
    STB means the Surface Transportation Board of the United States.
    Tourist, scenic, historic, or excursion operations means railroad
operations that carry passengers, often using antiquated equipment,
with the conveyance of the passengers to a particular destination not
being the principal purpose. Train movements of new passenger equipment
for demonstration purposes are not tourist, scenic, historic, or
excursion operations.

Sec.  271.7  Waivers.

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

Sec.  271.9  Penalties and responsibility for compliance.

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

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

    (a) Any information (including plans, reports, documents, surveys,
schedules, lists, or data) compiled or collected for the sole purpose
of developing, implementing, or evaluating an RRP under this part,
including a railroad carrier's analysis of its safety risks conducted
pursuant to Sec.  271.103(b) and a statement of the mitigation measures
with which it would address those risks created pursuant to Sec.
271.103(c), shall not be subject to discovery, admitted into evidence,
or considered for other purposes in a Federal or State court proceeding
for damages involving personal injury, wrongful death, or property
damage.
    (b) This section does not affect the discovery, admissibility, or
consideration for other purposes of information (including plans,
reports, documents, surveys, schedules, lists, or data) compiled or
collected for a purpose other than that specifically identified in
paragraph (a) of this section. Such information shall continue to be
discoverable, admissible into evidence, or considered for other
purposes if it was discoverable, admissible, or considered for other
purposes prior to the existence of this section. This includes such
information that either:
    (1) Existed prior to [365 DAYS AFTER THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER];
    (2) Was compiled or collected prior to [365 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE

IN THE FEDERAL REGISTER] and that continues to be compiled or
collected; or
    (3) Is compiled or collected after [365 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER].
    (c) State discovery rules and sunshine laws that could be used to
require the disclosure of information protected by paragraph (a) of
this section are preempted.

Sec.  271.13  Determination of inadequate safety performance.

    (a) General. (1) This section describes FRA's methodology for
determining which railroads are required to establish an RRP because
they have inadequate safety performance. FRA's methodology will consist
of a two-phase annual analysis, comprised of both a quantitative
analysis and qualitative assessment, which will include all railroads
except for:
    (i) Railroads excluded from this part under Sec.  271.3(b);
    (ii) Railroads already required to comply with this part;
    (iii) Railroads that are voluntarily complying with this part under
Sec.  271.15; and
    (iv) Except as provided in paragraph (a)(2) of this section, new
start-up railroads that have reported accident/incident data to FRA
pursuant to part 225 of this chapter for fewer than three years.
    (2) Notwithstanding paragraph (a)(1)(iv) of this section, railroads
formed through amalgamation of operations (for example, railroads
formed through consolidations, mergers, or acquisitions of control)
will be included in the analysis using the combined data of the pre-
amalgamation entities.
    (b) Quantitative analysis. (1) Methodology. The first phase of
FRA's annual analysis will be a statistically-based quantitative
analysis of each railroad within the scope of the analysis, using
historical safety data maintained by FRA for the three most recent full
calendar years. The purpose of the quantitative analysis is to make a
threshold identification of railroads that possibly have inadequate
safety performance. This quantitative analysis will calculate the
following four factors:
    (i) A railroad's number of on-duty employee fatalities during the
3-year period, calculated using ``Worker on Duty-Railroad Employee
(Class A)'' information reported on FRA Form 6180.55a pursuant to FRA's
accident/incident reporting regulations in part 225 of this chapter;
    (ii) A railroad's on-duty employee injury/illness rate, calculated
using ``Worker on Duty-Railroad Employee (Class A)'' information
reported on FRA Forms 6180.55a and 6180.55 pursuant to FRA's accident/
incident reporting regulations in part 225 of this chapter. This rate
will be calculated using the following formula, which gives the rate of
employee injuries and occupational illnesses per 200,000 employee hours
over a 3-year period:

Injury/Illness Rate = (Total FRA Reportable On-Duty Employee
Injuries + Total FRA Reportable On-Duty Employee Occupational
Illnesses over a 3-year period) / (Total Employee Hours over a 3-
year period/200,000)

    (iii) A railroad's rail equipment accident/incident rate,
calculated using information reported on FRA Forms 6180.54 and 6180.55
pursuant to FRA's accident/incident reporting regulations in part 225
of this chapter. This rate will be calculated using the following
formula, which gives the rate of rail equipment accidents/incidents per
1,000,000 train miles over a 3-year period:

Rail Equipment Accident/Incident Rate = Total FRA Reportable Rail
Equipment Accidents/Incidents over a 3-year period / (Total Train
Miles over a 3-year period/1,000,000)

    (iv) A railroad's violation rate. This rate will be calculated
using the following formula, which gives the rate of violations issued
by FRA to a railroad per 1,000,000 train miles over a 3-year period:

    Violation Rate = Total FRA Violations over a 3-year period /
(Total Train Miles over a 3-year period/1,000,000)

    (2) Identification. The quantitative analysis will identify
railroads as possibly having inadequate safety performance if at least
one of the following two conditions exists within the scope and
timeframe of the analysis:
    (i) A railroad has one or more fatality; or
    (ii) A railroad is at or above the 95th percentile in at least two
of three factors described in paragraphs (b)(1)(ii) through (iv) of
this section.
    (c) Qualitative assessment. The second phase of FRA's analysis will
be a qualitative assessment of railroads identified in the quantitative
analysis as possibly having inadequate safety performance.
    (1) Notification and railroad/employee comment. FRA will notify a
railroad in writing if it will be subject to a qualitative assessment
because it was identified in the quantitative analysis as possibly
having inadequate safety performance.
    (i) No later than 15 days after receiving FRA's written notice, a
railroad shall notify its employees of FRA's written notice. This
employee notification shall be posted at all locations where the
railroad reasonably expects its employees to report and to have an
opportunity to observe the notice. The notification shall be posted and
remain continuously displayed until 45 days after FRA's initial written
notice. Employees who do not have a regular on-duty point for reporting
to work shall be notified by other means, in accordance with the
railroad's standard practice for communicating with employees. The
notification shall inform railroad employees that they may
confidentially submit comments to FRA regarding the railroad's safety
performance for a period of 45 days following FRA's initial written
notice, and shall contain instructions for doing so.
    (ii) No later than 45 days after receiving FRA's written notice, a
railroad may provide FRA documentation supporting any claims that the
railroad does not have inadequate safety performance.
    (2) Methodology. No later than 90 days after providing the initial
notice to a railroad identified by the quantitative analysis, FRA will
conduct a qualitative assessment of the identified railroad and make a
final determination regarding whether it has inadequate safety
performance. The qualitative assessment will consider any documentation
provided by the railroad, comments submitted by railroad employees, and
any other pertinent information.
    (d) Final notification and compliance. FRA will provide a final
written notice to each railroad that receives an initial written
notice, informing the railroad whether or not FRA determines that the
railroad has demonstrated inadequate safety performance. A railroad
with inadequate safety performance shall develop and implement an RRP
meeting the requirements of this part. As provided by Sec.  271.301(a),
a railroad with inadequate safety performance shall submit to FRA an
RRP plan no later than 90 days after receiving final written notice
from FRA that it shall comply with this part, or no later than [545
DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], whichever is later.
    (e) Compliance. A railroad with inadequate safety performance shall
comply with the requirements of this part for a minimum period of five
years, running from the date on which FRA approves the railroad's RRP
plan pursuant to subpart D of this part.

    (f) Petition. After the five-year compliance period, the railroad
may petition FRA for approval to discontinue compliance with this part.
A petition shall be filed according to the procedures for waivers
contained in part 211 of this chapter. Upon receiving a petition, FRA
will reevaluate the railroad's safety performance for the purpose of
determining whether the railroad's RRP has resulted in significant and
sustained safety improvements, and whether these measured improvements
are likely sustainable in the long term. FRA's evaluation will include
a quantitative analysis as described in paragraph (b) of this section.
FRA will also examine qualitative factors and review information from
FRA RRP audits and other relevant sources. After completing its
evaluation, FRA will notify the railroad in writing whether or not it
shall be required to continue compliance with this part.

Sec.  271.15  Voluntary compliance.

    (a) General. A railroad not otherwise subject to this part may
voluntarily comply by establishing and fully implementing an RRP
meeting the requirements of this part. A voluntary RRP shall be
supported by an RRP plan that has been submitted to FRA for approval
pursuant to the requirements of subpart D of this part. After FRA has
approved its RRP plan, a voluntarily-compliant railroad could be
subject to civil penalties or other enforcement action for failing to
comply with the requirements of this part.
    (b) Duration. A voluntarily-compliant railroad will be required to
comply with the requirements of this part for a minimum period of five
years, running from the date on which FRA approves the railroad's plan
pursuant to subpart D of this part.
    (c) Petition. After this five-year period, a voluntarily-compliant
railroad may petition FRA for approval to discontinue compliance with
this part. This petition shall be filed according to the procedures for
waivers contained in part 211 of this chapter.
    (d) Discovery and admission as evidence of certain information. The
information protection provisions found in Sec.  271.11 apply only to
information compiled or collected pursuant to a voluntary RRP that is
conducted in accordance with the requirements of this part.

Subpart B--Risk Reduction Program Requirements

Sec.  271.101  Risk reduction programs.

    (a) Program required. Each railroad shall establish and fully
implement an RRP meeting the requirements of this part. An RRP shall
systematically evaluate safety hazards on a railroad's system and
manage the resulting risks to reduce the number and rates of railroad
accidents/incidents, injuries, and fatalities. An RRP is not a one-time
exercise, but an ongoing program that supports continuous safety
improvement. An RRP shall include the following:
    (1) A risk-based hazard management program, as described in Sec.
271.103;
    (2) A safety performance evaluation component, as described in
Sec.  271.105;
    (3) A safety outreach component, as described in Sec.  271.107;
    (4) A technology analysis and technology implementation plan, as
described in Sec.  271.109; and
    (5) RRP implementation and support training, as described in Sec.
271.111.
    (b) RRP plans. A railroad's RRP shall be supported by an FRA-
approved RRP plan meeting the requirements of subpart C of this part.
    (c) Host railroads and system safety programs. As part of its RRP,
each railroad that hosts passenger train service for a railroad subject
to FRA system safety program requirements shall communicate with the
railroad that provides or operates such passenger service and
coordinate the portions of the system safety program applicable to the
railroad hosting the passenger train service.
    (d) Persons that utilize or perform significant safety-related
services. Under Sec.  271.205(b), a railroad's RRP plan shall identify
persons utilizing or performing on the railroad's behalf significant
safety-related services (including entities such as host railroads,
contract operators, shared track/corridor operators, or other
contractors utilizing or performing significant safety-related
services). A railroad shall ensure that these persons utilizing or
performing significant safety-related services on its behalf support
and participate in its RRP.

Sec.  271.103  Risk-based hazard management program.

    (a) General. (1) An RRP shall include an integrated, system-wide,
and ongoing risk-based hazard management program (HMP) that proactively
identifies hazards and mitigates the risks resulting from those
hazards.
    (2) A risk-based HMP shall be fully implemented (i.e., activities
initiated) within 36 months after FRA approves a railroad's RRP plan
pursuant to Sec.  271.301(b).
    (b) Risk-based hazard analysis. As part of its risk-based HMP, a
railroad shall conduct a risk-based hazard analysis that addresses, at
a minimum, the following aspects of a railroad's system:
Infrastructure; equipment; employee levels and work schedules;
operating rules and practices; management structure; employee training;
and other areas impacting railroad safety that are not covered by
railroad safety laws or regulations or other Federal laws or
regulations. A railroad shall make the results of its risk-based hazard
analysis available to FRA upon request. At a minimum, a risk-based
hazard analysis shall:
    (1) Identify hazards by analyzing:
    (i) Aspects of the railroad's system, including any operational
changes, system extensions, or system modifications; and
    (ii) Accidents/incidents, injuries, fatalities, and other known
indicators of hazards;
    (2) Calculate risk by determining and analyzing the likelihood and
severity of potential events associated with identified risk-based
hazards; and
    (3) Compare and prioritize the identified risks for mitigation
purposes.
    (c) Mitigation strategies. (1) As part of its risk-based HMP, a
railroad shall design and implement mitigation strategies that improve
safety by:
    (i) Mitigating or eliminating aspects of a railroad's system that
increase risks identified in the risk-based hazard analysis; and
    (ii) Enhancing aspects of a railroad's system that decrease risks
identified in the risk-based hazard analysis.
    (2) A railroad may use pilot projects, including pilot projects
conducted by other railroads, to determine whether quantitative data
suggests that a particular mitigation strategy has potential to succeed
on a full-scale basis.

Sec.  271.105  Safety performance evaluation.

    (a) General. As part of its RRP, a railroad shall develop and
maintain ongoing processes and systems for evaluating the safety
performance of its system and measuring its safety culture. A
railroad's safety performance evaluation shall consist of both a safety
monitoring and a safety assessment component.
    (b) Safety monitoring. A railroad shall monitor the safety
performance of its system by, at a minimum, establishing processes and
systems to acquire safety data and information from the following
sources:

    (1) Continuous monitoring of operational processes and systems
(including any operational changes, system extensions, or system
modifications);
    (2) Periodic monitoring of the operational environment to detect
changes that may generate new hazards;
    (3) Investigations of accidents/incidents, injuries, fatalities,
and other known indicators of hazards;
    (4) Investigations of reports regarding potential non-compliance
with Federal railroad safety laws or regulations, railroad operating
rules and practices, or mitigation strategies established by the
railroad; and
    (5) A reporting system through which employees can report safety
concerns (including, but not limited to, hazards, issues, occurrences,
and incidents) and propose safety solutions and improvements.
    (c) Safety assessment. For the purpose of assessing the need for
changes to a railroad's mitigation strategies or overall RRP, a
railroad shall establish processes to analyze the data and information
collected pursuant to paragraph (b) of this section (as well as any
other relevant data regarding its operations, products, and services).
At a minimum, this assessment shall:
    (1) Evaluate the overall effectiveness of the railroad's RRP in
reducing the number and rates of railroad accidents/incidents,
injuries, and fatalities;
    (2) Evaluate the effectiveness of the railroad's RRP in meeting the
goals described by its RRP plan (see Sec.  271.203(c));
    (3) Evaluate the effectiveness of risk mitigations in reducing the
risk associated with an identified hazard. Any hazards associated with
ineffective mitigation strategies shall be reevaluated through the
railroad's risk-based HMP, as described in Sec.  271.103; and
    (4) Identify new, potential, or previously unknown hazards, which
shall then be evaluated by the railroad's risk-based HMP, as described
in Sec.  271.103.

Sec.  271.107  Safety outreach.

    (a) Outreach. An RRP shall include a safety outreach component that
communicates RRP safety information to railroad personnel (including
contractors) as that information is relevant to their positions. At a
minimum, a safety outreach program shall:
    (1) Convey safety-critical information;
    (2) Explain why RRP-related safety actions are taken; and
    (3) Explain why safety procedures are introduced or changed.
    (b) Reporting to management. The status of risk-based HMP
activities shall be reported to railroad senior management on an
ongoing basis.

Sec.  271.109  Technology analysis and technology implementation plan.

    (a) General. As part of its RRP, a Class I railroad shall conduct a
technology analysis and develop and adopt a technology implementation
plan no later than [1095 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER]. A railroad with inadequate safety
performance shall conduct a technology analysis and develop and adopt a
technology implementation plan no later than three years after
receiving final written notification from FRA that it shall comply with
this part, pursuant to Sec.  271.13(e), or no later than [1095 DAYS
AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER],
whichever is later. A railroad that the STB reclassifies or newly
classifies as a Class I railroad shall conduct a technology analysis
and develop and adopt a technology implementation plan no later than
three years following the effective date of the classification or
reclassification or no later than [1155 DAYS AFTER DATE OF PUBLICATION
OF THE FINAL RULE IN THE FEDERAL REGISTER], whichever is later. A
voluntarily-compliant railroad shall conduct a technology analysis and
develop and adopt a technology implementation plan no later than three
years after FRA approves the railroad's RRP plan.
    (b) Technology analysis. A technology analysis shall evaluate
current, new, or novel technologies that may mitigate or eliminate
hazards and the resulting risks identified through the risk-based
hazard management program. The railroad shall analyze the safety
impact, feasibility, and costs and benefits of implementing
technologies that will mitigate or eliminate hazards and the resulting
risks. At a minimum, the technologies a railroad shall consider as part
of its technology analysis are: processor-based technologies, positive
train control systems, electronically-controlled pneumatic brakes, rail
integrity inspection systems, rail integrity warning systems, switch
position monitors and indicators, trespasser prevention technology, and
highway-rail grade crossing warning and protection technology.
    (c) Technology implementation plan. A railroad shall develop, and
periodically update as necessary, a technology implementation plan that
contains a prioritized implementation schedule describing the railroad
carrier's plan for development, adoption, implementation, maintenance,
and use of current, new, or novel technologies on its system over a 10-
year period to reduce safety risks identified in the railroad's risk-
based hazard management program.
    (d) Positive train control. Except as required by subpart I of part
236 of this chapter, if a railroad decides to implement positive train
control systems as part of its technology implementation plan, the
railroad shall set forth and comply with a schedule for implementation
of the positive train control system no later than December 31, 2018.

Sec.  271.111  Implementation and support training.

    (a) A railroad shall provide RRP training to each employee,
including an employee of any person identified by the railroad's RRP
plan pursuant to Sec.  271.205(a)(3) as utilizing or performing
significant safety-related services on the railroad's behalf, who has
significant responsibility for implementing and supporting the
railroad's RRP. This training shall help ensure that all personnel with
significant responsibility for implementing and supporting the RRP
understand the goals of the program, are familiar with the elements of
the railroad's program, and have the requisite knowledge and skills to
fulfill their responsibilities under the program.
    (b) A railroad shall keep a record of training conducted under this
section and update that record as necessary.
    (c) Training under this section may include, but is not limited to,
interactive computer-based training, video conferencing, or formal
classroom training.

Subpart C--Risk Reduction Program Plan Requirements

Sec.  271.201  General.

    A railroad shall adopt and implement its RRP through a written RRP
plan containing the elements described in this subpart. A railroad's
RRP plan shall be approved by FRA according to the requirements
contained in subpart D of this part.

Sec.  271.203  Policy, purpose and scope, and goals.

    (a) Policy statement. An RRP plan shall contain a policy statement
endorsing the railroad's RRP. This statement shall be signed by the
chief official at the railroad (e.g., Chief Executive Officer).
    (b) Purpose and scope. An RRP plan shall contain a statement
describing the purpose and scope of the railroad's RRP.

This purpose and scope statement shall describe:
    (1) The railroad's safety philosophy and safety culture;
    (2) How the railroad promotes improvements to its safety culture;
    (3) The roles and responsibilities of railroad personnel (including
management) within the railroad's RRP; and
    (4) How any person that utilizes or provides significant safety-
related services to a railroad (including host railroads, contract
operators, shared track/corridor operators, or other contractors) will
support and participate in the railroad's RRP.
    (c) Goals. An RRP plan shall contain a statement that defines the
specific goals of the RRP and describes clear strategies for reaching
those goals. These goals shall be long-term, meaningful, measurable,
and focused on the mitigation of risks arising from identified safety
hazards.

Sec.  271.205  System description.

    (a) An RRP plan shall contain a description of the characteristics
of the railroad's system. At a minimum, the system description shall:
    (1) Support the identification of hazards by establishing a basic
understanding of the scope of the railroad's system;
    (2) Include components briefly describing the railroad's history,
operations, scope of service, maintenance, physical plant, and system
requirements; and
    (3) Identify all persons that utilize or perform significant
safety-related services on the railroad's behalf (including entities
such as host railroads, contract operations, shared track/corridor
operators, or other contractors).
    (b) [Reserved]

Sec.  271.207  Consultation process description.

    (a) General duty. (1) Each railroad required to establish an RRP
under this part shall in good faith consult with, and use its best
efforts to reach agreement with, all of its directly affected
employees, including any non-profit labor organization representing a
class or craft of directly affected employees, on the contents of the
RRP plan.
    (2) A railroad that consults with a non-profit employee labor
organization is considered to have consulted with the directly affected
employees represented by that organization.
    (3) A Class I railroad shall meet no later than [240 DAYS AFTER THE
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER] with its
directly affected employees to discuss the consultation process. The
Class I railroad shall notify the directly affected employees of this
meeting no less than 60 days before it is scheduled.
    (4) A railroad determined to have inadequate safety performance
shall meet no later than 30 days following FRA's notification with its
directly affected employees to discuss the consultation process. The
inadequate safety performance railroad shall notify the directly
affected employees of this meeting no less than 15 days before it is
scheduled.
    (5) A railroad that the STB reclassifies or newly classifies as a
Class I railroad shall meet with its directly affected employees to
discuss the consultation process no later than 30 days following the
effective date of the classification or reclassification. The
reclassified or newly classified Class I railroad shall notify the
directly affected employees of this meeting no less than 15 days before
it is scheduled.
    (6) A voluntarily-compliant railroad shall in good faith consult
with, and use its best efforts to reach agreement with, all of its
directly affected employees, including any non-profit labor
organization representing a class or craft of directly affected
employees, on the contents of the RRP plan. However, as there is no
deadline for a voluntarily-compliant railroad to file an RRP plan with
FRA, there is also no requirement for a voluntarily-compliant railroad
to meet with its directly affected employees within a certain
timeframe.
    (7) Appendix B to this part contains guidance on how a railroad
might comply with the requirements of this section.
    (b) Railroad consultation statements. A railroad required to submit
an RRP plan under Sec.  271.301(a) shall also submit, together with
that plan, a consultation statement that includes the following
information:
    (1) A detailed description of the process the railroad utilized to
consult with its directly affected employees;
    (2) If the railroad was not able to reach agreement with its
directly affected employees on the contents of its RRP plan,
identification of any known areas of non-agreement and an explanation
why it believes agreement was not reached;
    (3) If the RRP plan would affect a provision of a collective
bargaining agreement between the railroad and a non-profit employee
labor organization, identification of any such provision and an
explanation how the RRP plan would affect it; and
    (4) A service list containing the names and contact information for
the international/national president of any non-profit employee labor
organization representing a class or craft of the railroad's directly
affected employees and any directly affected employee not represented
by a non-profit employee labor organization who significantly
participated in the consultation process. If an international/national
president did not participate in the consultation process, the service
list shall also contain the name and contact information for a
designated representative who participated on his or her behalf. When a
railroad submits its RRP plan and consultation statement to FRA, it
shall also send a copy of these documents to all individuals identified
in the service list. A railroad may send the documents to the
identified individuals via electronic means or utilizing other service
means reasonably calculated to succeed.
    (c) Statements from directly affected employees. (1) If a railroad
and its directly affected employees cannot reach agreement on the
proposed contents of an RRP plan, then directly affected employees may
file a statement with the FRA Associate Administrator explaining their
views on the plan on which agreement was not reached. The FRA Associate
Administrator shall consider any such views during the plan review and
approval process.
    (2) As provided in Sec.  271.301(a)(4), a railroad's directly
affected employees have 60 days following the railroad's submission of
a proposed RRP plan to submit the statement described in paragraph
(c)(1) of this section.

Sec.  271.209  Consultation on amendments.

    A railroad's RRP plan shall include a description of the process
the railroad will use to consult with its directly affected employees
on any subsequent substantive amendments to the railroad's system
safety program. The requirements of this paragraph do not apply to non-
substantive amendments (e.g., amendments that update names and
addresses of railroad personnel).

Sec.  271.211  Risk-based hazard management program process.

    (a) Risk-based hazard analysis. An RRP plan shall describe the
railroad's method for conducting its risk-based hazard analysis
pursuant to Sec.  271.103(b). The description shall specify:
    (1) The processes the railroad will use to identify hazards and the
risks associated with those hazards;
    (2) The sources the railroad will use to support the ongoing
identification of

hazards and the risks associated with those hazards; and
    (3) The processes the railroad will use to compare and prioritize
identified risks for mitigation purposes.
    (b) Mitigation strategies. An RRP plan shall describe the
railroad's processes for:
    (1) Identifying and selecting mitigation strategies; and
    (2) Monitoring an identified hazard through the mitigation of the
risk associated with that hazard.

Sec.  271.213  Safety performance evaluation process.

    An RRP plan shall describe a railroad's processes for measuring its
safety culture pursuant to Sec.  271.105(a), monitoring safety
performance pursuant to Sec.  271.105(b), and conducting safety
assessments pursuant to Sec.  271.105(c).

Sec.  271.215  Safety outreach process.

    An RRP plan shall describe a railroad's process for communicating
safety information to railroad personnel and management pursuant to
Sec.  271.107.

Sec.  271.217  Technology implementation plan process.

    (a) An RRP plan shall contain a description of the railroad's
processes for:
    (1) Conducting a technology analysis pursuant to Sec.  271.109(b);
and
    (2) Developing a technology implementation plan pursuant to Sec.
271.109(c).
    (b) [Reserved]

Sec.  271.219  Implementation and support training plan.

    (a) An RRP plan shall contain a training plan describing the
railroad's processes, pursuant to Sec.  271.111, for training employees
with significant responsibility for implementing and supporting the RRP
(including employees of a person identified pursuant to Sec.
271.205(a)(3) as utilizing or performing significant safety-related
services on the railroad's behalf who have significant responsibility
for implementing and supporting the railroad's RRP).
    (b) The training plan shall describe the frequency and content of
the RRP training for each position or job function identified pursuant
to Sec.  271.223(b)(3) as having significant responsibilities for
implementing the RRP.

Sec.  271.221  Internal assessment process.

    (a) An RRP plan shall describe the railroad's process for
conducting an internal assessment of its RRP pursuant to subpart E of
this part. At a minimum, this description shall contain the railroad's
processes used to:
    (1) Conduct an internal assessment of its RRP;
    (2) Internally report the results of its internal assessment to
railroad senior management; and
    (3) Develop improvement plans, including developing and monitoring
recommended improvements (including any necessary revisions or updates
to the RRP plan) for fully implementing the railroad's RRP, complying
with the implemented elements of the RRP plan, or achieving the goals
identified in the railroad's RRP plan pursuant to Sec.  271.203(c).
    (b) [Reserved]

Sec.  271.223  RRP implementation plan.

    (a) An RRP plan shall describe how the railroad will implement its
RRP. A railroad may implement its RRP in stages, so long as the entire
RRP is fully implemented within 36 months of FRA's approval of the
plan.
    (b) At a minimum, a railroad's implementation plan shall:
    (1) Cover the entire implementation period;
    (2) Contain a timeline describing when certain implementation
milestones will be achieved. Implementation milestones shall be
specific and measurable;
    (3) Describe the roles and responsibilities of each position or job
function that has significant responsibility for implementing the
railroad's RRP or any changes to the railroad's RRP (including any such
positions or job functions held by an entity or contractor that
utilizes or performs on the railroad's behalf significant safety-
related services); and
    (4) Describe how significant changes to the RRP may be made.

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

Sec.  271.301  Filing and approval.

    (a) Filing. A Class I railroad shall submit one copy of its RRP
plan to the FRA Associate Administrator for Railroad Safety/Chief
Safety Officer at Mail Stop 25, 1200 New Jersey Avenue SE., Washington,
DC, 20590, no later than [545 DAYS AFTER THE DATE OF PUBLICATION OF THE
FINAL RULE IN THE FEDERAL REGISTER]. A railroad with inadequate safety
performance shall submit its RRP plan no later than 90 days after
receiving final written notification from FRA that it shall comply with
this part, pursuant to Sec.  271.13(d), or no later than [545 DAYS
AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL
REGISTER], whichever is later. A railroad that the STB reclassifies or
newly classifies as a Class I railroad shall submit its RRP plan no
later than 90 days following the effective date of the classification
or reclassification or no later than [545 DAYS AFTER THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], whichever is
later. A voluntarily-compliant railroad may submit an RRP plan at any
time. A railroad's submitted RRP plan shall include:
    (1) The signature, name, title, address, and telephone number of
the chief official responsible for safety and who bears the primary
managerial authority for implementing the submitting railroad's safety
policy. By signing, this chief official is certifying that the contents
of the RRP plan are accurate and that the railroad will implement the
contents of the program as approved by FRA;
    (2) The contact information for the primary person responsible for
managing the RRP;
    (3) The contact information for the senior representatives of the
persons that the railroad has determined utilize or provide significant
safety-related services (including host railroads, contract operators,
shared track/corridor operators, and other contractors); and
    (4) As required by Sec.  271.207(b), a statement describing how it
consulted with its directly affected employees on the contents of its
RRP plan. Directly affected employees have 60 days following the
railroad's submission of its proposed RRP plan to file a statement in
accordance with Sec.  271.207(c).
    (b) Approval. (1) Within 90 days of receipt of an RRP plan, or
within 90 days of receipt of each RRP plan submitted prior to the
commencement of railroad operations, FRA will review the proposed RRP
plan to determine if it sufficiently addresses the required elements.
This review will also consider any statement submitted by directly
affected employees pursuant to Sec.  271.207(c).
    (2) FRA will notify the primary contact person of the submitting
railroad in writing whether FRA has approved the proposed plan and, if
not approved, the specific points in which the RRP plan is deficient.
FRA will also provide this notification to each individual identified
in the service list accompanying the consultation statement required
under Sec.  271.207(b)(4).
    (3) If FRA does not approve an RRP plan, the submitting railroad
shall amend the proposed plan to correct all identified deficiencies
and shall provide FRA a corrected copy no later than 60

days following receipt of FRA's written notice that the submitted plan
was not approved. If FRA determines that the necessary corrections are
substantively significant, it will direct the railroad to consult
further with its directly affected employees regarding the corrections.
If the corrections are substantively significant, a railroad will also
be required to include an updated consultation statement, along with
its resubmitted plan, pursuant to Sec.  217.107(b). Directly affected
employees will also have 30 days following the railroad's resubmission
of its proposed RRP plan to file a statement addressing the
substantively significant changes in accordance with Sec.  271.207(c).
    (c) Electronic Submission. All documents required to be submitted
to FRA under this part may be submitted electronically pursuant to the
procedures in Appendix C to this part.

Sec.  271.303  Amendments.

    (a) Consultation requirements. For substantive amendments, a
railroad shall follow the process, described in its RRP plan pursuant
to Sec.  271.209, for consulting with its directly affected employees.
    (b) Filing. (1) A railroad shall submit any amendment(s) to its
approved RRP plan to FRA's Associate Administrator not less than 60
days prior to the proposed effective date of the amendment(s). The
railroad shall file the amendment(s) with a cover letter outlining the
proposed change(s) to the approved RRP plan.
    (2) If the proposed amendment is limited to adding or changing a
name, title, address, or telephone number of a person, FRA approval is
not required under the process of this section, although the railroad
shall still file the amended RRP plan with FRA's Associate
Administrator for Railroad Safety/Chief Safety Officer. These proposed
amendments may be implemented by the railroad upon filing with FRA. All
other proposed amendments must comply with the formal approval process
described by this section.
    (c) Review. (1) FRA will review a proposed amendment to an RRP plan
within 45 days of receipt. FRA will then notify the primary contact
person of the railroad, whether the proposed amendment has been
approved by FRA. If not approved, FRA will inform the railroad of the
specific points in which the proposed amendment is deficient.
    (2) If FRA has not notified the railroad by the proposed effective
date of the amendment whether the amendment has been approved or not,
the railroad may implement the amendment, subject to FRA's decision.
    (3) If a proposed RRP plan amendment is not approved by FRA, no
later than 60 days following the receipt of FRA's written notice, the
railroad shall either provide FRA a corrected copy of the amendment
that addresses all deficiencies noted by FRA or notice that the
railroad is retracting the amendment.

Sec.  271.305  Reopened review.

    Following approval of an RRP plan or an amendment to such a plan,
FRA may reopen consideration of the plan or amendment, in whole or in
part, for cause stated.

Sec.  271.307  Retention of RRP plans.

    (a) Railroads. A railroad shall retain at its system and division
headquarters one copy of its RRP plan and each subsequent amendment(s)
to that plan. A railroad may comply with this requirement by making an
electronic copy available.
    (b) Inspection and copying. A railroad shall make a copy of the RRP
plan available to representatives of the FRA or States participating
under part 212 of this chapter for inspection and copying during normal
business hours.

Subpart E--Internal Assessments

Sec.  271.401  Annual internal assessments.

    (a) Beginning with the first calendar year after the calendar year
in which FRA approves a railroad's RRP plan pursuant to Sec.
271.301(b), the railroad shall annually (i.e., once every calendar
year) conduct an internal assessment of its RRP.
    (b) The internal assessment shall determine the extent to which the
railroad has:
    (1) Achieved the implementation milestones described in its RRP
plan pursuant to Sec.  271.223(b);
    (2) Complied with the implemented elements of the approved RRP
plan;
    (3) Achieved the goals described in its RRP plan pursuant to Sec.
271.203(c);
    (4) Implemented previous internal assessment improvement plans
pursuant to Sec.  271.403; and
    (5) Implemented previous external audit improvements plans pursuant
to Sec.  271.503.
    (c) A railroad shall ensure that the results of its internal
assessments are internally reported to railroad senior management.

Sec.  271.403  Internal assessment improvement plans.

    (a) Within 30 days of completing its internal assessment, a
railroad shall develop an improvement plan that addresses the findings
of its internal assessment.
    (b) At a minimum, a railroad's improvement plan shall:
    (1) Describe recommended improvements (including any necessary
revisions or updates to the RRP plan, which would be made through the
amendment process described in Sec.  271.303) that address the findings
of the internal assessment for fully implementing the railroad's RRP,
complying with the implemented elements of the RRP plan, achieving the
goals identified in the railroad's RRP plan pursuant to Sec.
271.203(c), and implementing previous internal assessment improvement
plans and external audit improvement plans;
    (2) Identify by position title the individual who is responsible
for carrying out the recommended improvements;
    (3) Contain a timeline describing when specific and measurable
milestones for implementing the recommended improvements will be
achieved; and
    (4) Specify processes for monitoring the implementation and
evaluating the effectiveness of the recommended improvements.

Sec.  271.405  Internal assessment reports.

    (a) Within 60 days of completing its internal assessment, a
railroad shall submit a copy of an internal assessment report to the
FRA Associate Administrator for Railroad Safety/Chief Safety Officer at
Mail Stop 25, 1200 New Jersey Avenue SE., Washington, DC, 20590.
    (b) This report shall be signed by the railroad's chief official
responsible for safety and who bears primary managerial authority for
implementing the railroad's safety policy. The report shall include:
    (1) A description of the railroad's internal assessment;
    (2) The findings of the internal assessment;
    (3) A specific description of the recommended improvements
contained in the railroad's internal assessment improvement plan,
including any amendments that would be made to the railroad's RRP plan
pursuant to Sec.  271.303; and
    (4) The status of the recommended improvements contained in the
railroad's internal assessment improvement plan and any outstanding
recommended improvements from previous internal assessment improvement
plans.

Subpart F--External Audits

Sec.  271.501  External audits.

    FRA will conduct (or cause to be conducted) external audits of a
railroad's RRP. Each audit shall evaluate the railroad's compliance
with the elements of its RRP required by this part. FRA will provide a
railroad written notice of the audit results.

Sec.  271.503  External audit improvement plans.

    (a) Submission. Within 60 days of receiving FRA's written notice of
the audit results, if necessary, a railroad shall submit for approval
an improvement plan addressing any instances of deficiency or non-
compliance found in the audit to the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer at Mail Stop 25, 1200 New Jersey
Avenue SE., Washington, DC, 20590.
    (b) Requirements. At a minimum, an improvement plan shall:
    (1) Describe the improvements the railroad will implement to
address the audit findings;
    (2) Identify by position title the individual who is responsible
for carrying out the improvements necessary to address the audit
findings; and
    (3) Contain a timeline describing when milestones for implementing
the recommended improvements will be achieved. These implementation
milestones shall be specific and measurable.
    (c) Approval. If FRA does not approve the railroad's improvement
plan, FRA will notify the railroad of the plan's specific deficiencies.
The railroad shall amend the proposed plan to correct the identified
deficiencies and provide FRA a corrected copy no later than 30 days
following receipt of FRA's notice that the proposed plan was not
approved.
    (d) Status reports. Upon the request of the FRA Associate
Administrator, a railroad shall provide FRA for review a status report
on the implementation of the improvements contained in the improvement
plan.

Appendix A to Part 271--Schedule of Civil Penalties

    [Reserved]

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

    A railroad required to develop a risk reduction program (RRP) under
this part shall in good faith consult with and use its best efforts to
reach agreement with its directly affected employees on the contents of
the RRP plan. See Sec.  271.207(a)(1). This appendix discusses the
meaning of the terms ``good faith'' and ``best efforts,'' and provides
guidance on how a railroad could comply with the requirement to consult
with directly affected employees on the contents of its RRP plan.
Specific guidance will be provided for employees who are represented by
a non-profit employee labor organization and employees who are not
represented by any such organization.
I. The Meaning of ``Good Faith'' and ``Best Efforts''
    ``Good faith'' and ``best efforts'' are not interchangeable terms
representing a vague standard for the Sec.  271.207 consultation
process. Rather, each term has a specific and distinct meaning. When
consulting with directly affected employees, therefore, a railroad
shall independently meet the standards for both the good faith and best
efforts obligations. A railroad that does not meet the standard for one
or the other will not be in compliance with the consultation
requirements of Sec.  271.207.
    The good faith obligation requires a railroad to consult with
employees in a manner that is honest, fair, and reasonable, and to
genuinely pursue agreement on the contents of an RRP plan. If a
railroad consults with its employees merely in a perfunctory manner,
without genuinely pursuing agreement, it will not have met the good
faith requirement. A railroad may also fail to meet its good faith
obligation if it merely attempts to use the RRP plan to unilaterally
modify a provision of a collective bargaining agreement between the
railroad and a non-profit employee labor organization.
    On the other hand, ``best efforts'' establishes a higher standard
than that imposed by the good faith obligation, and describes the
diligent attempts that a railroad shall pursue to reach agreement with
its employees on the contents of its RRP plan. While the good faith
obligation is concerned with the railroad's state of mind during the
consultation process, the best efforts obligation is concerned with the
specific efforts made by the railroad in an attempt to reach agreement.
This would include considerations such as whether a railroad had held
sufficient meetings with its employees, or whether the railroad had
made an effort to respond to feedback provided by employees during the
consultation process. For example, a railroad would not meet the best
efforts obligation if it did not initiate the consultation process in a
timely manner, and thereby failed to provide employees sufficient time
to engage in the consultation process. A railroad would also likely not
meet the best efforts obligation if it presented employees with an RRP
plan and only permitted the employees to express agreement or
disagreement on the plan (assuming that the employees had not
previously indicated that such a consultation would be acceptable). A
railroad may, however, wish to hold off substantive consultations
regarding the contents of its RRP plan until one year after publication
of the rule in order to ensure that information generated as part of
the process is protected from discovery and admissibility into evidence
under Sec.  271.11 of the rule. Generally, best efforts are measured by
the measures that a reasonable person in the same circumstances and of
the same nature as the acting party would take. Therefore, the standard
imposed by the best efforts obligation may vary with different
railroads, depending on a railroad's size, resources, and number of
employees.
    When reviewing RRP plans, FRA will determine on a case-by-case
basis whether a railroad has met its Sec.  271.207 good faith and best
efforts obligations. This determination will be based upon the
consultation statement submitted by the railroad pursuant to Sec.
271.207(b) and any statements submitted by employees pursuant to Sec.
271.207(c). If FRA finds that these statements do not provide
sufficient information to determine whether a railroad used good faith
and best efforts to reach agreement, FRA may investigate further and
contact the railroad or its employees to request additional
information. (FRA also expects a railroad's directly affected employees
to utilize good faith and best efforts when negotiating on the contents
of an RRP plan. If FRA's review and investigation of the statements
submitted by the railroad under Sec.  271.207(b) and the directly
affected employees under Sec.  271.207(c) reveal that the directly
affected employees did not utilize good faith and best efforts, FRA
could consider this as part of its approval process.)
    If FRA determines that a railroad did not use good faith and best
efforts, FRA may disapprove the RRP plan submitted by the railroad and
direct the railroad to comply with the consultation requirements of
Sec.  271.207. Pursuant to Sec.  271.301(b)(3), if FRA does not approve
the RRP plan, the railroad will have 60 days, following receipt of
FRA's written notice that the plan was not approved, to correct any
deficiency identified. In such cases, the identified deficiency would
be that the railroad did not use good faith and best efforts to consult
and reach agreement with its directly affected employees. If a railroad
then does not submit to FRA within 60 days

an RRP plan meeting the consultation requirements of Sec.  271.207, the
railroad could be subject to penalties for failure to comply with Sec.
271.301(b)(3).
II. Guidance on How a Railroad May Consult With Directly Affected
Employees
    Because the standard imposed by the best efforts obligation will
vary depending upon the railroad, there may be countless ways for
various railroads to comply with the consultation requirements of Sec.
271.207. Therefore, FRA believes it is important to maintain a flexible
approach to the Sec.  271.207 consultation requirements, in order to
give a railroad and its directly affected employees the freedom to
consult in a manner best suited to their specific circumstances.
    FRA is nevertheless providing guidance in this appendix as to how a
railroad may proceed when consulting (utilizing good faith and best
efforts) with employees in an attempt to reach agreement on the
contents of an RRP plan. FRA believes this guidance may be useful as a
starting point for railroads that are uncertain about how to comply
with the Sec.  271.207 consultation requirements. This guidance
distinguishes between employees who are represented by a non-profit
employee labor organization and employees who are not, as the processes
a railroad may use to consult with represented and non-represented
employees could differ significantly.
    This guidance does not establish prescriptive requirements with
which a railroad shall comply, but merely outlines a consultation
process a railroad may choose to follow. A railroad's consultation
statement could indicate that the railroad followed the guidance in
this appendix as evidence that it utilized good faith and best efforts
to reach agreement with its employees on the contents of an RRP plan.
(a) Employees Represented by a Non-Profit Employee Labor Organization
    As provided in Sec.  271.207(a)(2), a railroad consulting with the
representatives of a non-profit employee labor organization on the
contents of an RRP plan will be considered to have consulted with the
directly affected employees represented by that organization.
    A railroad could utilize the following process as a roadmap for
using good faith and best efforts when consulting with represented
employees in an attempt to reach agreement on the contents of an RRP
plan.
    (1) Pursuant to Sec.  271.207(a)(3), a railroad shall meet with
representatives from a non-profit employee labor organization
(representing a class or craft of the railroad's directly affected
employees) within 240 days from [THE DATE OF PUBLICATION OF THE FINAL
RULE IN THE FEDERAL REGISTER] to begin the process of consulting on the
contents of the railroad's RRP plan. A railroad should provide notice
at least 60 days before the scheduled meeting.
    (2) During the time between the initial meeting and the
applicability date of Sec.  271.11 the parties may meet to discuss
administrative details of the consultation process as necessary.
    (3) Within 60 days after [365 DAYS AFTER THE DATE OF PUBLICATION OF
THE FINAL RULE IN THE FEDERAL REGISTER], a railroad should have a
meeting with the representatives of the directly affected employees to
discuss substantive issues with the RRP plan.
    (4) Within 180 days after [365 DAYS AFTER THE DATE OF PUBLICATION
OF THE FINAL RULE IN THE FEDERAL REGISTER], a railroad would file its
RRP plan with FRA.
    (5) As provided by Sec.  271.207(c), if agreement on the contents
of an RRP plan could not be reached, a labor organization (representing
a class or craft of the railroad's directly affected employees) could
file a statement with the FRA Associate Administrator explaining its
views on the plan on which agreement was not reached.
(b) Employees Who Are Not Represented by a Non-Profit Employee Labor
Organization
    FRA recognizes that some (or all) of a railroad's directly affected
employees may not be represented by a non-profit employee labor
organization. For such non-represented employees, the consultation
process described for represented employees may not be appropriate or
sufficient. For example, FRA believes that a railroad with non-
represented employees shall make a concerted effort to ensure that its
non-represented employees are aware that they are able to participate
in the development of the railroad's RRP plan. FRA therefore is
providing the following guidance regarding how a railroad may utilize
good faith and best efforts when consulting with non-represented
employees on the contents of its RRP plan.
    (1) Within 120 days from [THE DATE OF PUBLICATION OF THE FINAL RULE
IN THE FEDERAL REGISTER], a railroad should notify non-represented
employees that--
    (A) The railroad is required to consult in good faith with, and use
its best efforts to reach agreement with, all directly affected
employees on the proposed contents of its RRP plan;
    (B) Non-represented employees are invited to participate in the
consultation process (and include instructions on how to engage in this
process); and
    (C) If a railroad is unable to reach agreement with its directly
affected employees on the contents of the proposed RRP plan, an
employee may file a statement with the FRA Associate Administrator
explaining his or her views on the plan on which agreement was not
reached.
    (2) This initial notification (and all subsequent communications,
as necessary or appropriate) could be provided to non-represented
employees in the following ways:
    (A) Electronically, such as by email or an announcement on the
railroad's Web site;
    (B) By posting the notification in a location easily accessible and
visible to non-represented employees; or
    (C) By providing all non-represented employees a hard copy of the
notification.
    A railroad could use any or all of these methods of communication,
so long as the notification complies with the railroad's obligation to
utilize best efforts in the consultation process.
    (3) Following the initial notification (and before the railroad
submits its RRP plan to FRA), a railroad should provide non-represented
employees a draft proposal of its RRP plan. This draft proposal should
solicit additional input from non-represented employees, and the
railroad should provide non-represented employees 60 days to submit
comments to the railroad on the draft.
    (4) Following this 60-day comment period and any changes to the
draft RRP plan made as a result, the railroad should submit the
proposed RRP plan to FRA, as required by this part.
    (5) As provided by Sec.  271.207(c), if agreement on the contents
of an RRP plan cannot be reached, then a non-represented employee may
file a statement with the FRA Associate Administrator explaining his or
her views on the plan on which agreement was not reached.

Appendix C to Part 271--Procedures for Submission of Railroad Risk
Reduction Program Plans and Statements From Directly Affected Employees

    This appendix establishes procedures for the submission of a
railroad's RRP plan and statements by directly affected

employees in accordance with the requirements of this part.
Submission by a Railroad and Directly Affected Employees
    (a) As provided for in Sec.  271.101, each railroad must establish
and fully implement an RRP that continually and systematically
evaluates railroad safety hazards on its system and manages the
resulting risks to reduce the number and rates of railroad accidents,
incidents, injuries, and fatalities. The RRP shall be fully implemented
and supported by a written RRP plan. Each railroad must submit its RRP
plan to FRA for approval as provided for in Sec.  271.201.
    (b) As provided for in Sec.  271.207(c), if a railroad and its
directly affected employees cannot come to agreement on the proposed
contents of the railroad's RRP plan, the directly affected employees
have 30 days following the railroad's submission of its proposed RRP
plan to submit a statement to the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer explaining the directly affected
employees' views on the plan on which agreement was not reached.
    (c) The railroad's and directly affected employees' submissions
shall be sent to the Associate Administrator for Railroad Safety/Chief
Safety Officer, FRA. The mailing address for FRA is 1200 New Jersey
Avenue SE., Washington, DC 20590. When a railroad submits its RRP plan
and consultation statement to FRA pursuant to Sec.  270.201, it must
also simultaneously send a copy of these documents to all individuals
identified in the service list pursuant to Sec.  271.107(b)(4).
    (d) Each railroad and directly affected employee is authorized to
file by electronic means any submissions required under this part.
Prior to any person submitting anything electronically, the person
shall provide the Associate Administrator with the following
information in writing:
    (1) The name of the railroad or directly affected employee(s);
    (2) The names of two individuals, including job titles, who will be
the railroad's or directly affected employees' points of contact and
will be the only individuals allowed access to FRA's secure document
submission site;
    (3) The mailing addresses for the railroad's or directly affected
employees' points of contact;
    (4) The railroad's system or main headquarters address located in
the United States;
    (5) The email addresses for the railroad's or directly affected
employees' points of contact; and
    (6) The daytime telephone numbers for the railroad's or directly
affected employees' points of contact.
    (e) A request for electronic submission or FRA review of written
materials shall be addressed to the Associate Administrator for
Railroad Safety/Chief Safety Officer, Federal Railroad Administration,
1200 New Jersey Avenue SE., Washington, DC 20590. Upon receipt of a
request for electronic submission that contains the information listed
above, FRA will then contact the requestor with instructions for
electronically submitting its program or statement. A railroad that
electronically submits an initial RRP plan or new portions or revisions
to an approved program required by this part shall be considered to
have provided its consent to receive approval or disapproval notices
from FRA by email. FRA may electronically store any materials required
by this part regardless of whether the railroad that submits the
materials does so by delivering the written materials to the Associate
Administrator and opts not to submit the materials electronically. A
railroad that opts not to submit the materials required by this part
electronically, but provides one or more email addresses in its
submission, shall be considered to have provided its consent to receive
approval or disapproval notices from FRA by email or mail.

    Issued in Washington, DC on February 11, 2015, under the
authority provided by 49 U.S.C. 20156.
Sarah Feinberg,
Acting Administrator.
[FR Doc. 2015-03268 Filed 2-26-15; 8:45 am]
BILLING CODE 4910-06-P