(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 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 a railroad compiles or collects solely for the purpose of planning, implementing, or evaluating an RRP under this part.

(d) This part does not require an RRP to address hazards completely unrelated to railroad safety and that fall under the exclusive jurisdiction of another Federal agency. Additionally, 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 exclusively to employee working conditions.

(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 § 271.13; and

(3) Railroads that voluntarily comply with the requirements of this part pursuant to § 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 § 271.5); and

(5) Commuter or intercity passenger railroads that are subject to Federal system safety program requirements contained in part 270 of this chapter.

(c) If a railroad contracts out significant portions of its operations, the contractor and the contractor's employees performing the railroad's operations shall be considered directly affected employees for purposes of this part.

As used in this part only—

Accident/incident means an “accident/incident” as defined in § 225.5 of this chapter.

Administrator means the Administrator of the Federal Railroad Administration or the Administrator's delegate.

Confidential Close Call Reporting System (C 3RS) means an FRA-sponsored voluntary program designed to improve the safety of railroad operations by allowing railroad employees to confidentially report currently unreported or underreported unsafe events.

FRA means the Federal Railroad Administration.

FRA Associate Administrator means the Associate Administrator for Railroad Safety and 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 § 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 49 U.S.C. 21301, 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; 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 evaluation and analysis 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 (HMP).

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.

[85 FR 9314, Feb. 18, 2020, as amended at 85 FR 12852, Mar. 4, 2020]

(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 the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty 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 the aggravated maximum civil monetary penalty per violation may be assessed. See 49 CFR part 209, appendix A. 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. See FRA's website at www.fra.dot.gov for a statement of agency civil penalty policy.

(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.

(a) Protected information. Except as provided in paragraph (a)(3) of this section, any information compiled or collected after February 17, 2021 solely for the purpose of planning, implementing, or evaluating a risk reduction program under this part 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. For purposes of this section:

(1) “Information” includes plans, reports, documents, surveys, schedules, lists, or data, and specifically includes a railroad's analysis of its safety risks under § 271.103(b) and a railroad's statement of mitigation measures under § 271.103(c);

(2) “Solely” means that a railroad originally compiled or collected the information for the exclusive purpose of planning, implementing, or evaluating a risk reduction program under this part. Information compiled or collected for any other purpose is not protected, even if the railroad also uses that information for a risk reduction program. “Solely” also means a railroad continues to use that information only for its risk reduction program. If a railroad subsequently uses for any other purpose information that was initially compiled or collected for a risk reduction program, this section does not protect that information to the extent that it is used for the non-risk reduction program purpose. The use of that information within the railroad's risk reduction program, however, remains protected. This section does not protect information that is required to be compiled or collected pursuant to any other provision of law or regulation; and

(3) A railroad may include a Confidential Close Call Reporting System (C 3RS) program in a risk reduction program established under this part. For Federal or State court proceedings described by this paragraph (a) that are initiated after March 4, 2021, the information protected by this paragraph (a) includes C 3RS information a railroad includes in its risk reduction program, even if the railroad compiled or collected the C 3RS information on or before February 17, 2021, for purposes other than planning, implementing, or evaluating a risk reduction program under this part.

(b) Non-protected information. This section does not affect the discovery, admissibility, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage of information 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, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage if it was discoverable, admissible, or considered for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage on or before February 17, 2021. Specifically, the types of information not affected by this section include:

(1) Information compiled or collected on or before February 17, 2021;

(2) Information compiled or collected on or before February 17, 2021 and that continues to be compiled or collected, even if used to plan, implement, or evaluate a railroad's risk reduction program; or

(3) Information that is compiled or collected after February 17, 2021, and is compiled or collected for a purpose other than that identified in paragraph (a) of this section.

(c) Information protected by other law or regulation. Nothing in this section shall affect or abridge in any way any other protection of information provided by another provision of law or regulation. Any such provision of law or regulation applies independently of the protections provided by this section.

(d) Preemption. To the extent that State discovery rules and sunshine laws would require disclosure of information protected by this section in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage, those rules and laws are preempted.

(e) Enforcement. This section does not apply to civil or criminal law enforcement proceedings.

[85 FR 9314, Feb. 18, 2020, as amended at 85 FR 12852, Mar. 4, 2020]

(a) General. (1) This section describes FRA's methodology for determining which railroads shall establish an RRP because they have inadequate safety performance. FRA's methodology consists of a two-phase annual analysis, comprised of both a quantitative analysis and qualitative assessment. FRA's methodology analyzes all railroads except for:

(i) Railroads excluded from this part under § 271.3(b);

(ii) Railroads already required to comply with this part;

(iii) Railroads that are voluntarily complying with this part under § 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) are 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 is 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. The quantitative analysis consists of a preliminary selection and a rate-based analysis. Only railroads that the preliminary selection identifies will proceed to the rate-based analysis.

(i) The preliminary selection calculates the following values:

(A) A railroad's number of worker on duty fatalities during the 3-year period, calculated using “Worker on Duty-Railroad Employee (Class A),” “Worker on Duty-Contractor (Class F),” and “Worker on Duty-Volunteer (Class H)” information reported on FRA Form 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter; and

(B) The sum total of a railroad's number of worker on duty injuries/illnesses during the 3-year period (calculated using “Worker on Duty-Railroad Employee (Class A),” “Worker on Duty-Contractor (Class F),” and “Worker on Duty-Volunteer (Class H)” information reported on FRA Form 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter) added to the number of rail equipment accidents/incidents during the 3-year period (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).

(ii) For railroads that the preliminary selection identifies, as described in paragraph (b)(2)(i) of this section, the rate-based analysis calculates the following three factors:

(A) A railroad's number of worker on duty fatalities during the 3-year period, calculated using “Worker on Duty-Railroad Employee (Class A),” “Worker on Duty-Contractor (Class F),” and “Worker on Duty-Volunteer (Class H)” information reported on FRA Form 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter;

(B) A railroad's on duty employee injury/illness rate, calculated using “Worker on Duty-Railroad Employee (Class A),” “Worker on Duty-Contractor (Class F),” and “Worker on Duty-Volunteer (Class H)” information reported on FRA Form 6180.55 pursuant to FRA's accident/incident reporting regulations in part 225 of this chapter. FRA calculates this rate using the following formula, which gives the rate of employee injuries/illnesses per 200,000 employee hours over a 3-year period:

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

(C) 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. FRA calculates this rate using the following formula, which gives the rate of rail equipment accidents/incidents per 1,000,000 train miles operated 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)

(2) Identification. (i) The preliminary selection phase of the quantitative analysis identifies railroads for further analysis in the rate-based analysis if at least one of the following two conditions exist within the scope and timeframe of the analysis:

(A) A railroad has one or more worker on duty fatalities as calculated in paragraph (b)(1)(i)(A) of this section; or

(B) A railroad is at or above the 90th percentile for the sum total of worker on duty injuries/illnesses and rail equipment accidents/incidents, as calculated in paragraph (b)(1)(i)(B) of this section.

(ii) For railroads identified in the preliminary selection, the rate-based analysis identifies railroads as possibly having inadequate safety performance if at least one of the following two conditions exists within the scope and time frame of the analysis:

(A) A railroad has one or more worker on duty fatalities as calculated in paragraph (b)(1)(ii)(A) of this section; or

(B) A railroad is at or above the 90th percentile of railroads identified in the preliminary selection in either of the factors described in paragraphs (b)(1)(ii)(B) and (C) of this section.

(c) Qualitative assessment. The second phase of FRA's analysis is 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 FRA conducts a qualitative assessment of the railroad because the quantitative analysis identified the railroad 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. The railroad shall post this employee notification at all locations where the railroad reasonably expects its employees to report and to have an opportunity to observe the notice. The railroad shall post and continuously display the employee notification until 45 days after FRA's initial written notice. The railroad shall notify employees who do not have a regular on-duty point for reporting to work by other means, under 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 and that employees shall file any such comments with the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590 no later than 45 days following FRA's initial written notice.

(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, including information regarding violations FRA has issued against the railroad.

(d) Final notification. For each railroad that FRA provides an initial written notice, FRA will provide a final written notice informing the railroad whether or not FRA determines that the railroad has demonstrated inadequate safety performance.

(e) Compliance. (1) A railroad with inadequate safety performance shall develop and implement an RRP meeting the requirements of this part and submit an RRP plan meeting the filing and timing requirements in § 271.301.

(2) A railroad with inadequate safety performance must comply with the requirements of this part for a minimum of five years from the date FRA approves the railroad's RRP plan under subpart D of this part.

(f) Petition for reconsideration of inadequate safety performance determination. (1) To appeal a final written notice under paragraph (d) of this section, a railroad shall file a petition for reconsideration with the Administrator. To file a petition, the railroad must:

(i) File the petition no later than 30 days after the date the railroad receives FRA's final written notice under paragraph (d) of this section informing the railroad that it has demonstrated inadequate safety performance; and

(ii) File the petition in accordance with the procedures in §§ 211.7(b)(1) and 211.57 of this chapter.

(2) FRA will process petitions under § 211.59 of this chapter.

(g) Petition to discontinue compliance with this part. After the five-year compliance period, the railroad may petition FRA for approval to discontinue compliance with this part. A railroad shall file a petition, and FRA will process the petition, under the procedures contained in § 211.41 of this chapter. When processing a petition, FRA will reevaluate the railroad's safety performance to determine 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, although FRA will not automatically grant a petition to discontinue compliance if the quantitative analysis results do not meet the identification thresholds described in paragraph (b)(2) of this section. For all petitions under this section, FRA will also examine qualitative factors and review information from FRA RRP audits and other relevant sources.

(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 that fails to comply with the requirements of this part is subject to civil penalties or other FRA enforcement action.

(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) Notification to discontinue compliance. After this five-year period, a voluntarily-compliant railroad may discontinue compliance with this part by providing written notice to the FRA Associate Administrator for Railroad Safety and Chief Safety Officer, 1200 New Jersey Avenue SE, Washington, DC 20590.

(d) Discovery and admission as evidence of certain information. The information protection provisions in § 271.11 apply to information compiled or collected pursuant to a voluntary RRP that is conducted in accordance with the requirements of this part and as provided by § 271.301(b)(4)(ii).