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Daily Rules, Proposed Rules, and Notices of the Federal Government

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 270

[Docket No. FRA-2011-0060, Notice No. 1]

RIN 2130-AC31

System Safety Program

AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
SUMMARY: FRA proposes to require commuter and intercity passenger railroads to develop and implement a system safety program (SSP) to improve the safety of their operations. An SSP would be a structured program with proactive processes and procedures developed and implemented by commuter and intercity passenger railroads to identify and mitigate or eliminate hazards and the resulting risks on each railroad's system. A railroad would have a substantial amount of flexibility to tailor an SSP to its specific operations. An SSP would be implemented by a written SSP plan and submitted to FRA for review and approval. A railroad's compliance with its SSP would be audited by FRA.
DATES: Written comments must be received by November 6, 2012. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to October 9, 2012, one will be scheduled and FRA will publish a supplemental notice in theFederal Registerto inform interested parties of the date, time, and location of any such hearing.

ADDRESSES: *Web site:The Federal eRulemaking Portal,www.regulations.gov.Follow the Web site's online instructions for submitting comments.

*Fax:202-493-2251.

*Mail:Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, DC 20590.

*Hand Delivery:Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground level of the West Building, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Instructions:All submissions must include the agency name, docket name, and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AC31). Note that all comments received will be posted without change tohttp://www.regulations.gov,including any personal information provided. Please see the Privacy Act heading in theSUPPLEMENTARY INFORMATIONsection of this document for Privacy Act information related to any submitted comments or materials.

Docket:For access to the docket to read background documents or comments received, go tohttp://www.regulations.govat any time or visit the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground level of the West Building, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director, Passenger Rail Division, U.S. Department of Transportation, Federal Railroad Administration, Office of Railroad Safety, Mail Stop 25, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 631-965-1827),Daniel.Knote@dot.gov;or Matthew Navarrete, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, Mail Stop 10, West Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-0138),Matthew.Navarrete@dot.gov.
SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary II. Background & History A. System Safety Program—Generally B. System Safety Program—History i. System Safety in FRA ii. Federal Transit Administration's Part 659 Program iii. FRA's Confidential Close Call Reporting System and Clear Signal for Action Program C. FRA's Railroad Safety Advisory Committee i. Overview ii. Passenger Safety Working Group iii. General Passenger Safety Task Force iv. System Safety Task Group v. RSAC Vote III. Statutory Background and History A. Rail Safety Improvement Act of 2008 B. Related Risk Reduction Rulemaking C. System Safety Information Protection i. Exemption from Freedom of Information Act Disclosure ii. Discovery and Other Use of Risk Analysis Information in Litigation 1. RSIA Mandate 2. The Study and its Conclusions 3. FRA's Proposal IV. Guidance Manual V. Section-by-Section Analysis VI. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272 C. Federalism D. International Trade Impact Assessment E. Paperwork Reduction Act F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Privacy Act I. Executive Summary

This proposal would require commuter and intercity passenger railroads to develop and implement a system safety program (SSP). An SSP is a structured program with proactive processes and procedures developed and implemented by commuter and intercity passenger railroads (passenger railroads) to identify and mitigate or eliminate hazards and the resulting risks on the railroad's system. An SSP encourages a railroad and its employees to work together to proactively identify hazards and to jointly determine what, if any, action to take to mitigate or eliminate the resulting risks. The proposed rule would provide each railroad with a substantial amount of flexibility to tailor its SSP to its specific operations. FRA is proposing the SSP rule as part of its efforts to continuously improve rail safety and to satisfy the statutory mandate contained in sections 103 and 109 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, Division A, 122 Stat. 4848et seq.,codified at 49 U.S.C. 20156, and 20118-20119.

Section 103 of RSIA directs the Secretary of Transportation (Secretary) to issue a regulation requiring certain railroads, including passenger railroads, to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. The proposed rule would implement this safety risk mandate for passenger railroads. Section 109 of RSIA authorizes the Secretary to issue a regulation protecting from discovery and admissibility into evidence in litigation documents generated for the purpose of developing, implementing, or evaluating a SSP. The proposed rule would implement section 109 with respect to the system safety program covered by part 270 and a railroad safetyrisk reduction rule required by FRA for Class I freight railroads and railroads with an inadequate safety performance. The Secretary has delegated the responsibility to carry out his responsibilities under both sections 103 and 109 of RSIA, as well as the general responsibility to conduct rail safety rulemakings, codified at 49 U.S.C. 20103, to the Administrator of FRA. 49 CFR 1.49(m) and (oo). The proposed SSP rule is a performance-based rule and FRA seeks comments on all aspects of the proposed rule.

An SSP would be implemented by a written system safety program plan (SSP plan). The proposed regulation sets forth various elements that a railroad's SSP plan would be required to contain to properly implement an SSP. The main components of an SSP would be the risk-based hazard management program and risk-based hazard analysis. A properly implemented risk-based hazard management program and risk-based hazard analysis would identify the hazards and resulting risks on the railroad's system, develop methods to mitigate or eliminate, if practicable, these hazards and risks, and set forth a plan to implement these methods. As part of its risk-based hazard analysis, a railroad would consider various technologies that may mitigate or eliminate the identified hazards and risks, as well as consider the role of fatigue in creating hazards and risks.

As part of its SSP plan, a railroad would also be required to describe the various procedures, processes, and programs it has in place that support the goals of the SSP. These procedures, processes, and programs include, but are not limited to, the following: a maintenance, inspection, and, repair program; rules compliance and procedures review(s); SSP employee/contractor training; and a public safety outreach program. Since most of these are procedures, processes, and programs railroads should already have in place, the railroads would most likely only have to identify and describe such procedures, processes, and programs to comply with the regulation.

An SSP can be successful only if a railroad engages in a robust assessment of the hazards and resulting risks on its system. However, a railroad may be reluctant to reveal such hazards and risks if there is the possibility that such information may be used against it in a court proceeding for damages. Congress directed FRA to conduct a study to determine if it was in the public interest to withhold certain information, including the railroad's assessment of its safety risks and its statement of mitigation measures, from discovery and admission into evidence in proceedings for damages involving personal injury and wrongful death.See49 U.S.C. 20119. FRA contracted with an outside organization to conduct this study and the study concluded that it was in the public interest to withhold this type of information from these types of proceedings.SeeFRA,Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations for and Against protecting Railroad Safety Risk Reduction Program Information,docket no. FRA-2011-0025-0031, Oct. 21, 2011, available athttp://www.fra.dot.gov/Downloads/FRA-Final-Study-Report.pdf.Furthermore, Congress authorized FRA, by delegation from the Secretary, to prescribe a rule, subject to notice and comment, to address the results of the study. 49 U.S.C. 20119(b). The proposed rule addresses the study's results and sets forth protections of certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages.

An SSP will affect almost all facets of a railroad's operations. To ensure that all employees directly affected by an SSP have an opportunity to provide input on the development, implementation, and evaluation of a railroad's SSP, a railroad would be required to consult in good faith and use its best efforts to reach agreement with all of its directly affected employees on the contents of the SSP plan and amendments to the plan. In an appendix, the proposed rule provides guidance regarding what constitutes “good faith” and “best efforts.”

FRA anticipates the rule would become effective 60 days after the publication of the final rule. However, by statute, the protection of certain information from discovery, admission into evidence, or use for other purposes in a proceeding for damages will not become applicable until one year after the publication of the final rule. A railroad would be required to submit its SSP plan to FRA for review not more than 90 days after the applicability date of the discovery protections, i.e., 395 days after the effective date of the final rule, or not less than 90 days prior to commencing operations, whichever is later. Within 90 days of receipt of the SSP plan, or within 90 days of receipt of an SSP plan submitted prior to the commencement of railroad operations, FRA would review the plan and determine if it meets all the requirements set forth in the regulation. If, during the review, FRA determines that the railroad's SSP plan does not comply with the requirements, FRA would notify the railroad of the specific points in which the plan is deficient. The railroad would then have 60 days to correct these deficient points and resubmit the plan to FRA. Whenever a railroad amends its SSP, it would be required to submit an amended SSP plan to FRA for approval and provide a cover letter describing the amendments. A similar approval process and timeline would apply whenever a railroad amends its SSP.

A railroad's submission of its SSP plan to FRA would not be FRA's first interaction with the railroad. FRA plans on working with the railroad throughout the development of its SSP to help the railroad properly tailor the program to its specific operation. To this end, shortly after publication of the final rule, FRA would publish a guidance manual to assist a railroad in the development, implementation, and evaluation of its SSP.

Most of the passenger railroads affected by this proposal already participate in the American Public Transportation Association (APTA) System Safety Program, which also has a triennial audit program. FRA currently provides technical assistance to new passenger railroads for the development and implementation of system safety programs and conduct of preliminary hazard analyses in the design phase. Thus, the economic impact of the proposed rule is generally incremental in nature for documentation of existing information and inclusion of certain elements not already addressed by railroads in their programs. Total estimated twenty-year costs associated with implementation of the proposed rule, for existing passenger railroads, range from $1.8 million (discounted at 7%) to $2.5 million (discounted at 3%).

FRA believes that there will be new, startup, passenger railroads, that will be formed during the twenty-year analysis period. FRA is aware of two passenger railroads that intend to commence operations in the near future. FRA assumed that one of these railroads would begin developing its SSP in Year 2, and that the other would begin developing its SSP in Year 3. FRA further assumed that one additional passenger railroad would be formed and develop its SSP every other year after that, in Years 5, 7, 9, 11, 13, 15, 17 and 19. Total estimated twenty-year costs associated with implementation of the proposed rule, for startup passenger railroads, range from $270 thousand (discounted at 7%) to $437 thousand (discounted at 3%).

Total estimated twenty-year costs associated with implementation of the proposed rule, for existing passengerrailroads and startup passenger railroads, range from $2.0 million (discounted at 7%) to $3.0 million (discounted at 3%).

Properly implemented SSPs are successful in optimizing the returns on railroad safety investments. Railroads can use them to proactively identify potential hazards and resulting risks at an early stage, thus minimizing associated casualties and property damage or avoiding them altogether. Railroads can also use them to identify a wide array of potential safety issues and solutions, which in turn allows them to simultaneously evaluate various alternatives for improving overall safety with available resources. This results in more cost effective investments. In addition, system safety planning helps railroads maintain safety gains over time. Without an SSP plan railroads could adopt countermeasures to safety problems that become less effective over time as the focus shifts to other issues. With SSP plans, those safety gains are likely to continue for longer time periods. SSP plans can also be instrumental in addressing casualties resulting from hazards that are not well-addressed through conventional safety programs, such as slips, trips and falls, or risks that occur because safety equipment is not used correctly, or routinely.

During the course of daily operations, hazards are continually discovered. Railroads must decide which hazards to address and how to do so with the limited resources available. Without a SSP plan in place, the decision process might become arbitrary. In the absence of the protections provided by the NPRM against discovery in legal proceedings for damages, railroads might also be reluctant to keep detailed records of known hazards. With a SSP plan in place, railroads are able to identify and implement the most cost effective measures to reduce casualties.

Railroad operations and maintenance activities have inherent safety critical elements. Thus, every capital expenditure is likely to have a safety component, whether for equipment, right-of-way, signaling or infrastructure. SSPs can increase the safety return on any investment related to the operation and maintenance of the railroad. FRA believes a very conservative estimate of all safety-related expenditures by all passenger railroads affected by the NPRM is $11.6 billion per year. In the first twenty years of the proposed rule, SSP plans can result in improved cost effectiveness of investments totaling between $92 billion (discounted at 7%) and $139 billion (discounted at 3%). Through anecdotal evidence, FRA is aware of situations where railroads unknowingly introduced hazards because they did not conduct hazard analyses. If the cost to remedy such situations is $100,000 on average and five remedies are avoided per year, railroads can save $500,000 per year and the proposed rule would be justified. FRA believes that it is reasonable to expect higher savings when considering there are 30 existing passenger rail operators impacted. The impact on the effectiveness of investments by startup railroads would likely be greater than for existing railroads, as more of their expenses are for new infrastructure or other systems that can have safety designed in from the start at little or no marginal cost.

Another way to look at the benefits that might accrue from implementing the proposed rule is based on potential accident prevention. Between 2001 and 2010, on average, passenger railroads had an average of 3,723.2 accidents, resulting in 207 fatalities, 3,543 other casualties, and $21.1 million in damage to railroad track and equipment each year. Total quantified twenty-year accident costs total between $24 billion (discounted at 7%) and $36 billion (discounted at 3%). Of course, these accidents also resulted in damage to other property, delays to both railroads and highway users, emergency response and clean-up costs, and other costs not quantified in this analysis. FRA estimated the accident reduction benefits necessary for the NPRM benefits to at least equal the implementation costs and found that a reduction of approximately 0.007% would suffice. FRA believes that such risk reduction is more than attainable.

FRA also believes that the SSP Plans will identify numerous unnecessary risks that are avoidable at no additional cost but simply through the selection of the most appropriate safety measure to address a hazard. For instance, railroads may mitigate or eliminate hazards that cause or contribute to slips, trips and falls, such as through measures that ensure the proper use of safety equipment. FRA believes that railroads will make additional investments to mitigate or eliminate many risks identified through the SSPs. FRA cannot reasonably predict the kinds of measures that may be adopted or the additional costs and benefits that will result from these. Nonetheless, FRA believes that such measures will not be undertaken unless the benefits exceed the costs and the funding is available.

In conclusion, FRA is confident that the accident reduction and cost effectiveness benefits together would justify the $2.0 million (discounted at 7%) to $3.0 million (discounted at 3%) implementation cost over the first twenty years of the proposed rule.

II. Background III. System Safety Program—Generally

Railroads operate in a dynamic, fast-paced environment that at one time posed extreme safety risks. Through concerted efforts by railroads, labor organizations, the U.S. DOT, and many other entities, railroad safety has vastly improved. But even though FRA has issued safety regulations and guidance that address many aspects of railroad operations, gaps in safety exist, and hazards and risks may arise from these gaps. FRA believes that railroads are in an excellent position to identify some of these gaps and take the necessary action to mitigate or eliminate the arising hazards and resulting risks. Rather than prescribing the specific actions the railroads need to take, FRA believes it would be more effective to allow the railroads to use their knowledge of their unique operating environment to identify the gaps and determine the best methods to mitigate or eliminate the hazards and resulting risks. An SSP would provide a railroad with the tools to systematically and continuously evaluate its system to identify the hazards and risks that result from gaps in safety and to mitigate or eliminate these hazards and risks.

There are many programs that are similar to the SSP proposed by this part. Most notably, the Federal Aviation Administration (FAA) has published an NPRM proposing to require each certificate holder operating under 14 CFR part 121 to develop and implement a safety management system (SMS). 75 FR 68224, Nov. 5, 2010; and 76 FR 5296, Jan. 31, 2011. An SMS “is a comprehensive, process-oriented approach to managing safety throughout the organization.” 75 FR 68224, Nov. 5, 2010. An SMS includes: “an organization-wide safety policy; formal methods for identifying hazards, controlling, and continually assessing risk; and promotion of safety culture.”Id.Under FAA's proposed regulation, an SMS would have four components: Safety Policy, Safety Risk Management, Safety Assurance, and Safety Promotion.Id.at 68225.

The U.S. Department of Defense (DoD) has also set forth guidelines for a System Safety Program. In July 1969, DoD published “System Safety Program Plan Requirements” (MIL-STD-882). MIL-STD-882 is DoD's standard practice for system safety, with the most recent version, MIL-STD-882E, published on May 11, 2012. DoD,MIL-STD-882E, Department of Defense Standard Practice System Safety(May 11, 2012). MIL-STD-882 is used by many industries in the U.S. and internationally and certainly could be of use to a railroad when trying to determine which methods to use to comply with the proposed rule. In fact, MIL-STD-882 is cited in FRA's safety regulations for railroad passenger equipment, 49 CFR part 238, as an example of a formal safety methodology to use in complying with certain analysis requirements in that rule.See49 CFR 238.103 and 238.603.

A. System Safety Program-History i. System Safety in FRA

System safety is not a new concept to FRA. On February 20, 1996, in response to New Jersey Transit (NJT) and Maryland Rail Commuter Service accidents in early 1996, FRA issued Emergency Order No. 20, Notice No. 1 (EO 20). 61 FR 6876, Feb. 22, 1996. EO 20 required, among other things, commuter and intercity passenger railroads to promptly develop an interim system safety plan addressing the safety of operations that permit passengers to occupy the leading car in a train. In particular, EO 20 required “railroads operating scheduled intercity or commuter rail service to conduct an analysis of their operations and file with FRA an interim safety plan indicating the manner in which risk of a collision involving a cab car is addressed.”Id.at 6879. FRA intended these plans to serve as a temporary measure in the light of the passenger equipment safety standards that FRA was developing. The plans were submitted to FRA and FRA initially determined that they were inadequate. As part of the Advance Notice of Proposed Rulemaking for the passenger equipment safety standards, FRA proposed system safety program and plans for railroads. 61 FR 30672, 30684, June 17, 1996.

On June 24, 1996, the chairman of APTA's Commuter Railroad Committee sent a letter to FRA to announce that APTA commuter railroads were in compliance with the requirements of EO 20 and agreed to adopt additional safety measures, including comprehensive system safety plans. These comprehensive system safety plans were broader in scope than the interim plans had been and were modeled after the Federal Transit Administration's (FTA) part 659 system safety plans, which were being successfully used by rapid transit authorities and include a triennial audit process.See49 CFR part 659. In 1997, APTA and the commuter railroads, in conjunction with FRA and the U.S. DOT, developed the Manual for the Development of System Safety Program Plans for Commuter Railroads. Pursuant to APTA's manual, the existing commuter railroads developed system safety plans, and the triennial audit process of these plans began in early 1998 with FRA's participation.

In January of 2005, in Glendale, CA, a Southern California Regional Rail Authority (Metrolink) commuter train derailed after striking an abandon vehicle left on the tracks. The derailment caused the Metrolink train to collide with the trains on both sides of it, a Union Pacific Railroad Company (UP) freight train and another Metrolink train and resulted in the death of 11 people. After this incident, FRA developed a Collision Hazard Analysis Guide to assist in conducting collision hazard assessments. The Collision Hazard Analysis Guide supports APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads by providing a “step-by-step procedure on how to perform hazard analysis and how to develop effective mitigation strategies that will improve passenger rail safety.” FRA,Collision Hazard Analysis Guide: Commuter and Intercity Passenger Rail Service,5 (October 2007), available on FRA's Web site atwww.fra.dot.gov. The hazard guidelines used in the Collision Hazard Analysis Guide are based on MIL-STD-882 and the hazard identification/resolution processes described in APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads.” Id. After the publication of the Collision Hazard Analysis Guide, the commuter railroads, in conjunction with APTA, requested a meeting with FRA to discuss the implications of conducting a collision hazard analysis and having a record of such an analysis. The railroads expressed concern that to the extent the analysis revealed information about a railroad's operations that was not currently available, the information could be used against the railroad in court proceedings.

FRA has codified certain discrete aspects of system safety planning in the Passenger Train Emergency Preparedness regulations, issued in May 1998, and the Passenger Equipment Safety Standards, issued in May 1999, but comprehensive system safety planning has remained the province of the individual passenger railroads. A majority of commuter railroads still participate in the system safety program established in 1997 by APTA. The latest version of APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads was published on May 15, 2006. As mentioned previously, the Manual for the Development of System Safety Program Plans for Commuter Railroads was developed jointly with FRA, and FRA participates in the audits of the railroad's system safety plans based on this guide. From this experience, FRA has gained substantial knowledge regarding the best methods to develop, implement, and evaluate an SSP. Many components of the proposed rule are modeled after elements in APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads.

ii. Federal Transit Administration's Part 659 Program

In 1991, Congress required FTA to establish a program that required State-conducted oversight of the safety and security of rail fixed guideway systems that were not regulated by FRA.SeeIntermodal Surface Transportation Efficiency Act of 1991, Public Law 102-240, sec. 3029, also codified at 49 U.S.C. 5330. In December 1995, FTA adopted 49 CFR part 659, Rail Fixed Guideway Systems; State Safety Oversight, which implemented Congress's mandate. 60 FR 67034, Dec. 27, 1995. In April 2005, FTA amended part 659 to incorporate the experience and insight it had gained regarding the benefits of and recommended practices for implementing State safety oversight requirements. 70 FR 22562, Apr. 29, 2005.

FTA's part 659 program applies only to rapid transit systems or portions thereof not subject to FRA's regulations. 49 CFR 659.3 and 659.5. Therefore, the requirements of FTA's part 659 would not overlap with any of the requirements proposed in this SSP regulation. However, as mentioned previously, APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads is based on FTA's part 659, so many of the elements in APTA's system safety program are based on FTA's part 659 program. FRA has always maintained a close working relationship with FTA and the implementation of the part 659 program and proposes to use many of the same concepts from the part 659 program in the SSP rule. FRA has noted where the elements in the proposed SSP rule are directly from or are based on elements from FTA's part 659.

iii. FRA's Confidential Close Call Reporting System and Clear Signal for Action Program

FRA believes that in addition to process and technology innovations, human factors-based solutions can makea significant contribution to improving safety in the railroad industry. Based on this belief, FRA implemented the Confidential Close-Call Reporting System (C3RS). The C3RS includes: (1) Voluntary confidential reporting of close-call events by employees and root-cause-analysis problem solving by a Peer Review Team composed of labor, management, and FRA; (2) identification and implementation of corrective actions; (3) tracking the results of change; and (4) reporting the results of change to employees. Confidential reporting and joint labor-management-FRA root-cause problem solving are the most innovative of these characteristics for the railroad industry. Demonstration pilot sites for C3RS are at Union Pacific Railroad, Canadian Pacific Railway, New Jersey Transit, and Amtrak. C3RS is in the pilot stage and, currently, only implemented by two railroads providing intercity and passenger service, New Jersey Transit and Amtrak. Ranney, J. and Raslear, T.,Derailments decrease at a C3RS site at midterm,FRA Research Results: RR12-04, April 2012, available athttp://www.fra.dot.gov/rpd/downloads/RR_Derailments_Decrease_C3RS_Site_at_Midterm_final.pdf.

FRA also implemented the Clear Signal for Action (CSA) program, another human factors-based solution shown to improve safety. The CSA Program includes: (1) Voluntary, anonymous labor peer-to-peer feedback in the work environment on risky behaviors and conditions; (2) labor Steering Committee root cause analysis and the development of behavior and condition-related corrective actions; (3) Steering Committee implementation of behavior-related corrective actions; (4) joint labor-management Barrier Removal Team refining condition-related corrective actions and implementation; (5) tracking the results of the change; and (6) reporting the results of change to employees. Anonymous labor peer to peer feedback on risky behaviors and conditions, root cause analysis and cooperation between labor and management in corrective actions are the most innovative of these characteristics for the railroad industry. FRA considers the CSA program ready for broad implementation across the industry with three demonstration pilots completed demonstrating its applicability in diverse railroad work settings. One setting was with Amtrak baggage handlers; a second was with UP yard crews; and a third was with UP road crews. Currently FRA is funding the development of low cost program materials to aid in its distribution starting with passenger rail. Coplen, M. Ranney, J. & Zuschlag, M.,Promising Evidence of Impact on Road Safety by Changing At-risk Behavior Process at Union Pacific,FRA Research Results: RR08-08, June 2008, available athttp://www.fra.dot.gov/downloads/Research/rr0808.pdf; Coplen, M. Ranney, J., Wu, S. & Zuschlag, M.,Safe Practices, Operating Rule Compliance and Derailment Rates Improve at Union Pacific Yards with STEEL Process—A Risk Reduction Approach to Safety,FRA Research Results: RR09-08, May 2009, available athttp://www.fra.dot.gov/downloads/research/rr0908Final.pdf.

The C3RS and CSA program embody many of the concepts and principles found in an SSP: proactive identification of hazards and risks, analysis of those hazards and risks, and implementing the appropriate action to eliminate or mitigate the hazards and risks. While FRA does not intend to require any railroad to implement a C3RS or CSA program as part of their SSP, FRA does believe that these types of programs would prove useful in the development of an SSP and encourages railroads to include such programs as part of their SSP. FRA seeks comment on the extent these programs might be useful in the development of an SSP or as a component of an SSP.

B. FRA's Railroad Safety Advisory Committee i. Overview

In March 1996, FRA established the Railroad Safety Advisory Committee (RSAC), which provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties.

An alphabetical list of RSAC members includes the following:

• American Association of Private Railroad Car Owners (AAPRCO);

• American Association of State Highway and Transportation Officials (AASHTO);

• American Chemistry Council;

• American Petroleum Institute;

• American Public Transportation Association (APTA);

• American Short Line and Regional Railroad Association (ASLRRA);

• American Train Dispatchers Association;

• Amtrak;

• Association of American Railroads (AAR);

• Association of Railway Museums;

• Association of State Rail Safety Managers;

• Brotherhood of Locomotive Engineers and Trainmen (BLET);

• Brotherhood of Maintenance of Way Employees Division (BMWED);

• Brotherhood of Railroad Signalmen (BRS);

• Chlorine Institute;

• FTA;*

• Fertilizer Institute;

• High Speed Ground Transportation Association;

• Institute of Makers of Explosives;

• International Association of Machinists and Aerospace Workers;

• International Brotherhood of Electrical Workers;

• Labor Council for Latin American Advancement;*

• League of Railway Industry Women;*

• National Association of Railroad Passengers (NARP);

• National Association of Railway Business Women;*

• National Conference of Firemen & Oilers;

• National Railroad Construction and Maintenance Association (NRCMA);

• National Transportation Safety Board (NTSB);*

• Railway Supply Institute (RSI);

• Safe Travel America (STA);

• Secretaria de Comunicaciones y Transporte;*

• Sheet Metal Workers International Association (SMWIA);

• Tourist Railway Association Inc.;

• Transport Canada;*

• Transport Workers Union of America (TWU);

• Transportation Communications International Union/BRC (TCIU);

• Transportation Security Administration (TSA); and

• United Transportation Union (UTU).

*Indicates associate, non-voting membership.

When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other task groups to develop facts and options on a particular aspect of a given task. The task force, or other task group, reports to the working group. If a working group comes to consensus on recommendations for action, the package is presented to the full RSAC for a vote. If the proposal is accepted bya simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff play an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended regulatory proposal achieves the agency's regulatory goals, is soundly supported, and is in accordance with applicable policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal or final rule. Any such variations would be noted and explained in the rulemaking document issued by FRA. However, to the maximum extent practicable, FRA utilizes RSAC to provide consensus recommendations with respect to both proposed and final agency actions. If RSAC is unable to reach consensus on a recommendation for action, the task is withdrawn and FRA determines the best course of action.

ii. Passenger Safety Working Group

The RSAC established the Passenger Safety Working Group to handle the task of reviewing passenger equipment safety needs and programs. The Passenger Safety Working Group recommends consideration of specific actions that could be useful in advancing the safety of rail passenger service and develop recommendations for the full RSAC to consider. Members of the Passenger Safety Working Group, in addition to FRA, include the following:

• AAR, including members from BNSF Railway Company, CSX Transportation, Inc., and UP;

• AAPRCO;

• AASHTO;

• Amtrak;

• APTA, including members from Bombardier, Inc., Herzog Transit Services, Inc., Interfleet Technology, Inc. (Interfleet, formerly LDK Engineering, Inc.), Long Island Rail Road, Maryland Transit Administration, Metrolink, Metro-North Commuter Railroad Company, Northeast Illinois Regional Commuter Railroad Corporation, and Southeastern Pennsylvania Transportation Authority;

• ASLRRA;

• BLET;

• BRS;

• FTA;

• NARP;

• NTSB;

• RSI;

• SMWIA;

• STA;

• TCIU/BRC;

• TSA;

• TWU; and

• UTU.

iii. General Passenger Safety Task Force

In 2006, the General Passenger Safety Task Force was established under the Passenger Safety Working Group to focus on door securement, passenger safety in train stations, and system safety plans. Members of the General Passenger Safety Task Force, in addition to FRA, include the following:

• AAR, including members from BNSF, CSXT, Norfolk Southern Railway Co., and UP;

• AASHTO;

• Amtrak;

• APTA, including members from Alaska Railroad Corporation, Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts Bay Commuter Railroad Company, Metro-North, MTA, NJT, New Mexico Rail Runner Express, Port Authority Trans-Hudson, SEPTA, Metrolink, and Utah Transit Authority;

• ASLRRA;

• ATDA;

• BLET;

• FTA;

• NARP;

• NRCMA;

• NTSB;

• Transport Canada; and

• UTU.

The General Passenger Safety Task Force was formed from the membership of the Passenger Safety Working Group and held its first meeting in February 2007 and the second meeting in April 2007 in conjunction with Passenger Safety Working Group. At the April 2007 meeting, the decision was made to create a System Safety Task Group to focus on the core elements and features of a system safety regulation and to draft language to recommend to the full RSAC for a system safety regulation.

iv. System Safety Task Group

The System Safety Task Group was formed from the membership of the General Passenger Safety Task Force and first met as an independent group in June 2008 in Baltimore, MD. Additional meetings were held on December 2-4, 2008 in Cambridge, MA, August 25-27, 2009 in Washington, DC, October 6-8, 2009 in Orlando, FL, March 16-17, 2010 in Washington, DC, February 1-2, 2012 in Cambridge, MA, and March 8, 2012 by teleconference. The System Safety Task Group produced recommended draft language for a system safety regulation, but work on this language was delayed until completion of the study to determine whether it was in the public interest 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 information (including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program.See49 U.S.C. 20119(a). This study was completed in October 2011 and is discussed further in the Statutory Background section of this preamble. The General Passenger Safety Task Force, including the members of the System Safety Task Group, met on February 1-2, 2012, and continued work on finalizing the language that it would recommend to the Passenger Safety Working Group. A final combined General Passenger Safety Task Force and System Safety Task Group meeting was held by teleconference on March 8, 2012.

v. RSAC Vote

On May 2, 2012, the General Passenger Safety Task Force formally voted to unanimously accept the system safety regulation language recommended by the System Safety Task Group. On May 10, 2012, the Passenger Safety Working Group voted to unanimously accept the system safety regulation language recommended by the General Passenger Safety Task Force. On May 21, 2012, the RSAC unanimously voted to accept the system safety regulation language recommended by the Passenger Safety Working Group. Thus, the Passenger Safety Working Group's recommendation was adopted by the full RSAC as a formal recommendation to FRA.

The proposed rule incorporates the majority of RSAC's recommendations. FRA decided not to incorporate certain recommendations because they were unnecessary or duplicative and their exclusion would not have a substantive effect on the rule. The proposed rule also contains elements that were not part of RSAC's recommendations. The majority of these elements are added to provide clarity and to conform withFederal Registerformatting requirements. However, FRA will note in this NPRM the areas in which the exclusion of the RSAC recommendations or the inclusion ofelements not part of the RSAC recommendations do have a substantive effect on the rule and will provide an explanation for doing so.

IV. Statutory Background A. The Rail Safety Improvement Act of 2008

The proposed SSP rule would implement sections 103 and 109 RSIA as they apply to railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads).See49 U.S.C. 20156, 20118, and 20119. In section 103 Congress directed the Secretary to issue a regulation requiring certain railroads to develop, submit to the Secretary for review and approval, and implement a railroad safety risk reduction program. The Secretary has delegated this responsibility to the FRA Administrator.See49 CFR 1.49(oo), 74 FR 26981, Jun. 5, 2009;see also49 U.S.C. 103(g). The railroads required to be subject to such a regulation include the following:

(1) Class 1 railroads;

(2) Railroad carriers with inadequate safety performance, as determined by the Secretary; and

(3) Railroad carriers that provide intercity rail passenger or commuter rail passenger transportation (passenger railroads).

This proposed SSP rule would implement this railroad safety risk reduction mandate (and the other specific safety risk reduction program requirements found in section 103) for passenger railroads. The SSP rule is a risk reduction program in that it would require a passenger railroad to assess and manage risk and to develop proactive hazard management methods to promote safety improvement. The proposed rule contains provisions that, while not explicitly required by the RSIA safety risk reduction program mandate, are necessary to properly implement the mandate and are consistent with the intent behind the mandate. Further, as mentioned previously, many of the elements in the proposed rule are modeled after APTA's Manual for the Development of System Safety Program Plans for Commuter Railroads. The majority of railroads, therefore, will have already implemented those elements. The proposed rule would also implement section 109 of the RSIA, which addresses the protection of information in railroad safety risk analyses and will be discussed later in this NPRM.

B. Related Risk Reduction Rulemaking

FRA is currently developing, also with the assistance of the RSAC, a separate risk reduction rule that would implement the requirements of sections 103 and 109 of the RSIA for Class I freight railroads and railroads with inadequate safety performance. Although passenger railroads could be subject to the requirements of this second risk reduction rule, the rule would specify that passenger railroads that are in compliance with the SSP rule be deemed in compliance with the risk reduction rule. Establishing separate safety risk reduction rules for passenger and freight railroads will allow those rules to account for the significant differences between passenger and freight operations. For example, passenger operations generate risks uniquely associated with the passengers that utilize their services. The proposed SSP rule can be specifically tailored to these types of risks, which are not independently generated by freight railroads.

C. System Safety Information Protection

Section 109 of the RSIA (codified at 49 U.S.C. 20118-20119) authorizes FRA to issue a rule protecting risk analysis information generated by railroads. These provisions would apply to information generated by passenger railroads pursuant to the proposed system safety rulemaking and to any railroad safety risk reduction programs required by FRA for Class I railroads and railroads with inadequate safety performance.

i. Exemption From Freedom of Information Act Disclosure

In section 109 of the RSIA (codified at 49 U.S.C. 20118-20119), Congress determined that for risk reduction programs to be effective, the risk analyses must be shielded from production in response to Freedom of Information Act (FOIA) requests.See49 U.S.C. 20118. FOIA is a Federal statute establishing certain requirements for the public disclosure of records held by Federal agencies.See5 U.S.C. 552. Generally, FOIA requires a Federal agency to make most records available upon request, unless a record is protected from mandatory disclosure by one of nine exemptions.

Section 109(a) of RSIA specifically provides that a record obtained by FRA pursuant to a provision, regulation, or order related to a risk reduction program or pilot program is exempt from disclosure under FOIA. The term “record” includes, but is not limited to, “a railroad carrier's analysis of its safety risks and its statement of the mitigation measures it has identified with which to address those risks.”Id.This FOIA exemption also applies to records made available to FRA for inspection or copying pursuant to a risk reduction program or pilot program.

Railroad system safety records in FRA's possession, therefore, are generally exempt from mandatory disclosure under FOIA. The RSIA, however, establishes two exceptions to this prohibition on FOIA disclosure. The first exception permits disclosure when it is necessary to enforce or carry out any Federal law. The second exception permits disclosure when a record is comprised of facts otherwise available to the public and when FRA, in its discretion, has determined that disclosure would be consistent with the confidentiality needed for a risk reduction program or pilot program.

ii. Discovery and Other Use of Risk Analysis Information in Litigation 1. The RSIA Mandate

The RSIA also addressed the disclosure and use of risk analysis information in litigation. Section 109 directed FRA to conduct a study to determine whether it was in the public interest 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 information (including a railroad's analysis of its safety risks and its statement of the mitigation measures with which it will address those risks) compiled or collected for the purpose of evaluating, planning, or implementing a risk reduction program.See49 U.S.C. 20119(a). In conducting this study, the RSIA required FRA to solicit input from railroads, railroad non-profit employee labor organizations, railroad accident victims and their families, and the general public.See id.The RSIA also states that upon completion of the study, if in the public interest, FRA may prescribe a rule to address the results of the study (i.e., a rule to protect risk analysis information from disclosure during litigation).See49 U.S.C. 20119(b). The RSIA prohibits any such rule from becoming effective until one year after its adoption.See id.

2. The Study and Its Conclusions

FRA contracted with a law firm, Baker Botts L.L.P., to conduct the study on FRA's behalf. Various documents related to the study are available for review in public docket number FRA-2011-0025, which can be accessed online atwww.regulations.gov.As a first step, the contracted law firm prepared a comprehensive report identifying and evaluating other Federal safety programs that protect risk reduction informationfrom use in litigation.See Report on Federal Safety Programs and Legal Protections for Safety-Related Information,FRA, docket no. FRA-2011-0025-0002, April 14, 2011. Next, as required by section 109 of the RSIA, FRA published aFederal Registernotice seeking public comment on the issue of whether it would be in the public interest to protect certain railroad risk reduction information from use in litigation.See76 FR 26682, May 9, 2011. Comments received in response to this notice may be viewed in the public docket.

On October 21, 2011, the contracted law firm produced a final report on the study.See Study of Existing Legal Protections for Safety-Related Information and Analysis of Considerations for and Against protecting Railroad Safety Risk Reduction Program Information,FRA, docket no. FRA-2011-0025-0031, Oct. 21, 2011, available athttp://www.fra.dot.gov/Downloads/FRA-Final-Study-Report.pdf.The final report contained analyses of other Federal programs that protect similar risk reduction data, the public comments submitted to the docket, and whether it would be in the public interest, including the interests of public safety and the legal rights of persons injured in railroad accidents, to protect railroad risk reduction information from disclosure during litigation. The final report concluded that it would be within FRA's authority and in the public interest for FRA to promulgate a regulation protecting certain risk analysis information held by the railroads from discovery and use in litigation and makes recommendations for the drafting and structuring of such a regulation.See id.at 63-64.

3. FRA's Proposal

In response to the final study report, this NPRM is proposing to protect any information compiled or collected solely for the purpose of developing, implementing or evaluating an SSP from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage. The information protected would include a railroad's identification of its safety hazards, analysis of its safety risks, and its statement of the mitigation measures with which it would address those risks and could be in the following forms: Plans, reports, documents, surveys, schedules, lists, or data. (Similar protection will be proposed for railroad safety risk reduction programs required by FRA for Class I railroads and railroads with inadequate safety performance). Additional specifics regarding this proposal will be discussed in the section-by-section analysis of this NPRM.

V. Guidance Manual

FRA has been working with railroads for many years to implement many of the principles and elements that the SSP rule contains. From this experience, FRA has learned the best practices and the pitfalls of implementing an SSP. Since each railroad operation is unique, the best practices for each railroad will be different. Therefore, rather than setting forth specific requirements that may be applicable for one railroad, but unworkable for another, FRA will set forth general requirements of a SSP in the rule and allow each railroad the flexibility to tailor those requirements to their specific operations. To this end, FRA plans on providing the railroads with a guidance manual that will assist in the development, implementation, and evaluation of their SSPs. This guidance manual (“Guide”) will provide the railroads with the most efficient and effective methods to implement their SSPs. Regarding most aspects of an SSP, a railroad will be able to refer to this Guide for assistance in implementing its SSP. FRA expects to publish the Guide shortly after the publication of the final rule in this proceeding. FTA has published a similar document regarding implementation of its part 659 program.SeeResource Toolkit for State Oversight Agencies Implementing 49 CFR part 659 (March 2006).

VI. Section-by-Section Analysis

FRA proposes to add a new part 270 to chapter 49 of the CFR. Part 270 would satisfy the RSIA requirements regarding safety risk reduction programs for railroads providing intercity rail passenger or commuter rail passenger service. 49 U.S.C. 20156. It will also protect certain information compiled or collected pursuant to a safety risk reduction program from admission into evidence or discovery during court proceedings for damages. 49 U.S.C. 20119.

Subpart A—General Section 270.1Purpose and scope

Paragraph (a) states that the purpose of the proposed rule is to improve railroad safety through structured, proactive processes and procedures developed and implemented by railroads. The proposed rule would require a railroad to establish a program that systematically evaluates railroad safety hazards on its system and manages those risks in order to reduce the numbers and rates of railroad accidents, incidents, injuries, and fatalities.

Paragraph (b) states that the proposed rule prescribes minimum Federal safety standards for the preparation, adoption, and implementation of railroad system safety programs. The proposed rule would not restrict railroads from adopting and enforcing additional or more stringent requirements not inconsistent with this part.

Paragraph (c) states that the proposed rule provides for the protection of information generated solely for the purpose of developing, implementing, or evaluating a system safety program under this part or a railroad safety risk reduction program required by this chapter for Class I railroads and railroads with inadequate safety performance.

Section 270.3Application

The RSIA mandates that FRA require each railroad carrier that is a Class I railroad, a railroad carrier that has inadequate safety performance, or a railroad that provides intercity rail passenger or commuter rail passenger transportation to establish a railroad safety risk reduction program. 49 U.S.C. 20156(a)(1). This proposed rule sets forth the requirements related to a railroad safety risk reduction program for a railroad that provides intercity rail passenger or commuter rail passenger transportation. Safety risk reduction programs for Class I railroads and railroads with inadequate safety performance will be addressed in the separate Risk Reduction Program rulemaking proceeding.

Paragraph (a) proposes that this rule apply to railroads that operate intercity or commuter passenger train service on the general railroad system of transportation and railroads that provide commuter or other short-haul rail passenger train service in a metropolitan or suburban area (as described by 49 U.S.C. 20102(2)), including public authorities operating passenger train service. A public authority that indirectly provides passenger train service by contracting out the actual operation to another railroad or independent contractor would be regulated by FRA as a railroad under the provisions of the proposed rule. Although the public authority would ultimately be responsible for the development and implementation of an SSP (along with all related recordkeeping requirements), the railroad or other independent contractor that operates the authority's passengertrain service would be expected to fulfill all of the responsibilities under this part with respect to the SSP, including implementation.

FRA proposes to except certain railroads from the proposed rule's applicability. The first exception, proposed in paragraph (b)(1), covers rapid transit operations in an urban area that are not connected to the general railroad system of transportation. This paragraph is intended merely to clarify the circumstances under which rapid transit operations are not subject to FRA jurisdiction under this part. It should be noted, however, that some rapid transit type operations, given their links to the general system, are within FRA's jurisdiction and FRA specifically intends for part 270 to apply to those rapid transit type operations.

Paragraph (b)(2) proposes an exemption for operations commonly described as tourist, scenic, historic, or excursion service whether on or off the general railroad system. Tourist, scenic, historic, or excursion rail operations is defined by proposed § 270.5 and this exemption is consistent with FRA's other regulations concerning passenger operations.See49 CFR 238.3(c)(3) and 239.3(b)(3). Further, the basis of this exemption is consistent with that underlying FRA's other regulations concerning passenger operations.See63 FR 24644, May 4, 1998; 64 FR 25576, May 12, 1999.

Paragraph (b)(3) makes clear that the requirements of the proposed rule would not apply to the operation of private passenger train cars, including business or office cars and circus train cars. While FRA believes that a private passenger car operation should be held to the same basic level of safety as other passenger train operations, such operations were not specifically identified in the statutory mandate and FRA is taking into account the burden that would be imposed by requiring private passenger car owners and operators to conform to the requirements of this part. Private passenger cars are often hauled by host railroads such as Amtrak and commuter railroads, and these hosts often impose their own safety requirements on the operation of the private passenger cars. Pursuant to this proposal, these host railroads would already be required to have SSPs in place to protect the safety of their own passengers; the private car passengers would presumably benefit from these programs even without the rule directly covering private car owners or operators. In the case of non-revenue passengers, including employees and guests of railroads that are transported in business and office cars, as well as persons traveling on circus trains, the railroads would be expected to provide for their safety in accordance with existing safety operating procedures and protocols relating to normal freight train operations.

Finally, paragraph (b)(4) proposes an exception from the requirements of this part for 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 § 270.5). Plant railroads are typified by operations such as those in steel mills that do not go beyond the plant's boundaries and that do not involve the switching of rail cars for entities other than themselves.

Section 103(a)(4) of RSIA allows a railroad carrier that is not required to submit a railroad safety risk reduction program to voluntarily submit such a program. 49 U.S.C. 20156(a)(4). If the railroad voluntary submits a program, it shall comply with the requirements set forth in RSIA and is subject to approval by the Secretary.Id.FRA anticipates that railroads who voluntarily submit a railroad safety risk reduction program under RSIA would do so pursuant to the risk reduction program regulation that is currently being developed. Proposed paragraph (a) is broad and intended to cover the majority of the railroads that provide intercity and passenger service. Absent the exceptions in paragraph (b), if a railroad is not required by this proposed part to establish an SSP, that railroad more than likely does not provide intercity or passenger service and, therefore, may be required to establish a risk reduction program. If these railroads are not required to establish a risk reduction program but decide to voluntarily establish a railroad safety risk reduction program pursuant to RSIA, the risk reduction program regulation would more than likely be better suited for their operations. FRA does not intend to prohibit railroads that are not required to establish either an SSP or risk reduction program from voluntarily establishing an SSP. FRA seeks comment on whether a provision that allows a railroad to voluntary establish an SSP should be included in the proposed SSP rule.

Section 270.5Definitions

This proposed section contains a set of definitions that clarify the meaning of important terms as they are used in the rule. The proposed definitions are carefully worded in an attempt to minimize the potential for misinterpretation of the rule. Many of the proposed definitions are based on definitions in FTA's part 659 and APTA's system safety program. FRA requests comment and input regarding the terms defined in this section and specifically whether other terms should be defined.

“Administrator” refers to Federal Railroad Administrator or his or her delegate.

“Configuration management” means the process a railroad would use to ensure that the configurations of all property, equipment and system design elements are properly documented.

“FRA” means the Federal Railroad Administration.

“Fully implemented” means that all the elements of the railroad's SSP plan required by this part are established and applied to the safety management of the railroad. A railroad's SSP is considered “fully implemented” when all of the elements described in the railroad's SSP plan are properly established and effectively applied to the safety management of the railroad.

“Hazard” means any real or potential condition, as identified in the railroad's risk-based hazard analysis under § 270.103(r), that can cause injury, illness, or death; damage to or loss of a system; or damage to equipment, property, or the environment. This definition is based on the existing definition of the term contained in FTA's part 659. 49 CFR 659.5.

“Passenger” means a person, excluding an on-duty employee, who is on board, boarding, or alighting from a rail vehicle for the purpose of travel. This definition is modeled after the definition of “passenger” contained in FTA's regulations at part 659, which “means a person who is on board, boarding, or alighting from a rail transit vehicle for the purpose of travel.” 49 CFR 659.5. FRA has added the phrase “excluding an on-duty employee” to the proposed definition to clarify that, if a person is engaging in these activities (on board, boarding, or alighting) and they are an off-duty railroad employee, that person is considered a passenger for the purposes of this rule.

“Person” means an entity of any type covered under 1 U.S.C. 1, including, but not limited to, the following: a