FRA Publishes Railroad Risk Reduction NPRM

On Friday the DOT’s Federal Railroad Administration (FRA) published a notice of proposed rulemaking in the Federal Register (80 FR 10949-10999) concerning the establishment of railroad risk reduction programs (RRP) as required by the Rail Safety Improvement Act of 2008 (49 USC 20156). Readers of this blog might remember that it was over a month ago that the OMB’s Office of Information and Regulatory Affairs (OIRA) approved this NPRM for publication.

This NPRM would add a new Part 271 to 49 CFR. It would be consist of 6 subparts and three appendices:

● Subpart A—General

● Subpart B—Risk Reduction Program Requirements

● Subpart C—Risk Reduction Program Plan Requirements

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

● Subpart E—Internal Assessments

● Subpart F—External Audits

● 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

Risk Reduction Program

This NPRM would apply to all Class I railroads and any railroad determined to have inadequate safety performance (as determined by the FRA). A separate but similar rulemaking would apply to passenger rail systems.

The risk reduction programs required by this rulemaking would be an “ongoing risk-based hazard management program (risk-based HMP), supported by a risk-based hazard analysis.” It would:

● Identify hazards and the associated risks on the railroad's system;

● Compare and prioritize the identified risks for mitigation purposes; and

● Develop mitigation strategies to address the risks.

An RRP would include:

● A safety performance evaluation;

● A safety outreach component;

● A technology analysis and implementation plan; and

● A training program for employees with responsibilities under the program.

RRP Plan

A key component of the RRP would be a written Risk Reduction Program Plan (RRP Plan). This would be a formal document that would describe “the railroad's processes and procedures for implementing the requirements for an RRP”. It would include:

● A policy statement;

● A statement of the railroad's RRP goals;

● A description of the railroad's system; and

● An RRP implementation plan.

The RRP plan would not be expected to include the details of the railroads risked-based hazard analysis or details about how they planned to mitigate the hazards identified. The RRP plan submitted to the FRA would be protected from the public disclosure requirements of the Freedom of Information Act (FOIA). There would also be some protections against requiring disclosure of RRP plan information from discovery and admissibility into evidence in litigation.

FRA Approval of RRP Plans

Under this rulemaking the affected railroads would be required to submit their RRP plan to the FRA for approval within 545 days of the regulations effective date (or 90 days after the railroad is notified that it is covered by the Class I designation or has been found to have inadequate safety performance, which ever is later).

The FRA would have 90 days to approve or reject an RRP plan. That assessment would be based upon whether or not it met the requirements set forth in Part 271. The FRA’s approval/rejection would not be based upon “a railroad's risk-based hazard analysis or selection of particular mitigation strategies as part of its RRP plan”.

Missing Risk Reduction Elements

There are some very interesting things missing from the requirements for the RRP. The most obvious is that there is no mention of railcar safety issues. This is almost certainly due to two specific factors; railroads don’t typically own railcars and second the standards for railcar safety are set by the Pipeline and Hazardous Material Safety Administration (PHMSA) not the FRA.

The second element that is conspicuously missing is any mention of emergency response standards or requirements for coordination with emergency response agencies along the railroad routes. Again, much of this is covered by PHMSA regulations.

Another important reason for the lack of mention is almost certainly due to the RRP information protection standards established in the proposed regulations. The railroads can be expected to protect their own information as can the FRA bureaucracy. Establishing and enforcing rules for protecting such information shared with the large number of emergency response agencies would be an extreme burden on the FRA and would be essentially unenforceable as a matter of practice. If there is no requirement to share information there is no need to establish rules to protect that information.

Public Comments

The FRA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # FRA-2009-0038). Comments should be submitted before April 28^th, 2015.