Yesterday, the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking (NPRM) from the DOT’s Federal Railroad Administration (FRA) on “Litigation Protections for System Safety Program and Risk Reduction Program Information”.
According to the 2026 Unified Agenda entry for this rulemaking:
“This rulemaking would propose revising 49 CFR 270.105 and 271.11 [links added] to broaden the scope of railroad safety risk reduction program information protected from use in litigation. The rulemaking would do so by removing the limitation that the protected information must have been compiled or collected solely” for a railroad safety risk reduction program purpose.”
It would appear that this rulemaking is proceeding under the authority of 49 USC 20119. That section required DOT to conduct a study to determine if:
“(I)t is in the public interest, including public safety and the legal rights of persons injured in railroad accidents, to withhold from discovery or admission into evidence in a Federal or State court proceeding for damages involving personal injury or wrongful death against a carrier any report, survey, schedule, list, or data compiled or collected for the purpose of evaluating, planning, or implementing a railroad safety risk reduction program required under this chapter, including a railroad carrier’s analysis of its safety risks and its statement of the mitigation measures with which it will address those risks”
Such a study would have been conducted before the two CFR sections were adopted in 2020. It will be interesting to see if the FRA is relying on that original study for this amendment, or if it has conducted a new study. It would seem to me that a firmer foundation for this revision would be a new study. I would expect that victims’ rights and many rail safety organizations would be leery of any expansion of the information protections involved.
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