News & Publications

Rail Law Alert No. 3

FRA Releases Proposed Rule on System Safety Programs for Passenger Railroads

On August 7, 2012, the Federal Railroad Administration (FRA) issued a notice of proposed rulemaking to establish requirements for commuter and intercity passenger rail system safety programs. Section 103 of the Rail Safety and Improvement Act of 2008 (RSIA) mandated that U.S. DOT require certain railroads, including passenger railroads, to develop and implement structured programs to identify, analyze, and mitigate safety risks. As authorized by Section 109 of RSIA, the proposed rule includes regulations addressing litigation protections for documents generated for the purpose of developing, implementing or evaluating a system safety program.

Comments in Docket No. FRA-2011-0060 are due no later than November 6, 2012.

General requirements. The proposed rule characterizes its requirements as performance-based, and would require railroads to conduct risk-based hazard analysis in order to formulate a risk-based hazard management program that responds to the particular circumstances of each railroad. Together, these elements are intended to identify hazards and resulting risks on the railroad’s system, to identify methods to mitigate or eliminate those hazards and risks, and to establish a plan to implement the proposed methods.

Protection of certain information. In the course of formulating the proposed rule, FRA commissioned a study to determine whether the public interest would benefit if railroads were permitted 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. The study concluded, based on an analysis of other federally-mandated safety programs, that it would be in the public interest to withhold this type of information in such proceedings because the protections would encourage railroads to conduct a thorough and candid assessment of hazards and risks in their systems.

The proposed rule addresses the results of the study and establishes protections for certain types of information from discovery, admission into evidence, or use for other purposes in a proceeding for damages.

Labor coordination. Additionally, the proposed rule would require railroads to consult in good faith and to use best efforts to reach agreement with all of its directly affected employees on the contents of the railroad’s system safety program plan and any amendments. An appendix to the rule provides guidance regarding what constitutes “good faith” and “best efforts” in this context.

Approval and costs. A railroad’s proposed system safety program must be reviewed and approved by FRA before it can be implemented. FRA indicates that it intends to work with each railroad during the formulation of system safety programs, and that it expects to issue guidance on the development, implementation and evaluation of system safety programs shortly after the final rule is issued. FRA remarks that most passenger railroads affected by the proposed rule already participate in the voluntary system safety program organized by the American Public Transportation Association (APTA), and that any costs associated with implementing the new regulation will likely be driven by incremental measures to address elements not currently included in the APTA program.