49 CFR Part 270

§ 269.15

49 CFR Ch. II (10–1–16 Edition)

the fiscal year in which the petition
was received, adjusted for inflation,
and for any subsequent years at such
level, adjusted for inflation;
(3) Condition the operating and subsidy rights upon the winning bidder
continuing to provide passenger rail
service on the route that is no less frequent, nor over a shorter distance,
than Amtrak provided on that route
before the award;
(4) Condition the operating and subsidy rights upon the winning bidder’s
compliance with the minimum standards established under section 207 of
the Act and such additional performance standards as FRA may establish;
and
(5) Subject the winning bidder to the
grant conditions established by 49
U.S.C. 24405.
(c) Staffing Plan Publication. The winning bidder shall make their staffing
plan required by § 269.9(b)(4) of this part
available to the public after the bid
award.

lpowell on DSK54DXVN1OFR with $$_JOB

§ 269.15

Access to facilities; employees.

(a) Access to facilities. If the award
under § 269.13 of this part is made to a
railroad other than Amtrak, Amtrak
must provide access to its reservation
system, stations, and facilities directly
related to operations to the winning
bidder awarded a contract under this
part, in accordance with section 217 of
the Act, necessary to carry out the
purposes of this part.
(b) Employees. The employees of any
person used by a railroad in the operation of a route under this part shall be
considered an employee of that railroad and subject to the applicable Federal laws and regulations governing
similar crafts or classes of employees
of Amtrak, including provisions under
section 121 of the Amtrak Reform and
Accountability Act of 1997 relating to
employees who provide food and beverage service.
(c) Hiring preference. The winning bidder shall provide hiring preference to
qualified Amtrak employees displaced
by the award of the bid, consistent
with the staffing plan submitted by the
winning bidder.

§ 269.17

Cessation of service.

If a railroad awarded a route under
this part ceases to operate the service
or fails to fulfill its obligations under
the contract required under § 269.13 of
this part, the Administrator, in collaboration with the Surface Transportation Board, shall take any necessary
action consistent with title 49 of the
United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service provider
and re-bidding the contract to operate
the service. The entity providing service shall either be Amtrak or a railroad
eligible for this pilot program under
§ 269.7 of this part.

PART 270—SYSTEM SAFETY
PROGRAM
Subpart A—General
Sec.
270.1 Purpose and scope.
270.3 Application.
270.5 Definitions.
270.7 Penalties and responsibility for compliance.

Subpart B—System Safety Program
Requirements
270.101 System safety program; general.
270.103 System safety program plan.
270.105 Discovery and admission as evidence
of certain information.
270.107 Consultation requirements.

Subpart C—Review, Approval, and
Retention of System Safety Program Plans
270.201 Filing and approval.
270.203 Retention of system safety program
plan.

Subpart D—System Safety Program Internal
Assessments and External Auditing
270.301 General.
270.303 Internal system safety program assessment.
270.305 External safety audit.
APPENDIX A TO PART 270—SCHEDULE OF CIVIL
PENALTIES
APPENDIX B TO PART 270—FEDERAL RAILROAD
ADMINISTRATION GUIDANCE ON THE SYSTEM SAFETY PROGRAM CONSULTATION
PROCESS

1220

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01230

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

§ 270.5

APPENDIX C TO PART 270—PROCEDURES FOR
SUBMISSION OF SSP PLANS AND STATEMENTS FROM DIRECTLY AFFECTED EMPLOYEES

AUTHORITY: 49 U.S.C. 20103, 20106–20107,
20118–20119, 20156, 21301, 21304, 21311; 28 U.S.C.
2461, note; and 49 CFR 1.89.
SOURCE: 81 FR 53896, Aug. 12, 2016, unless
otherwise noted.
EFFECTIVE DATE NOTE: At 81 FR 53896, Aug.
12, 2016, part 270 was added, effective Oct. 11,
2016

Subpart A—General

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.1 Purpose and scope.
(a) The purpose of this part is to improve railroad safety through structured, proactive processes and procedures developed and implemented by
railroads. This part requires certain
railroads to establish a system safety
program that systematically evaluates
railroad safety hazards and the resulting risks on their systems and manages
those risks 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 railroad system safety programs.
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 generated solely
for the purpose of planning, implementing, or evaluating a system safety
program under this part.
§ 270.3 Application.
(a) Except as provided in paragraph
(b) of this section, this part applies to
all—
(1) Railroads that operate intercity
or commuter passenger train service on
the general railroad system of transportation; and
(2) 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.
(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; or
(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 § 270.5).
§ 270.5 Definitions.
As used in this part—
Administrator means the Federal Railroad Administrator or his or her delegate.
Configuration management means a
process that ensures that the configurations of all property, equipment, and
system design elements are accurately
documented.
FRA means the Federal Railroad Administration.
Fully implemented means that all elements of a system safety program as
described in the SSP plan are established and 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) that
can cause injury, illness, or death;
damage to or loss of a system, equipment, or property; or damage to the
environment.
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.
Person means an entity of any type
covered under 1 U.S.C. 1, 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; and any employee of such owner, manufacturer,
lessor, lessee, or independent contractor or subcontractor.
Plant railroad means a plant or installation that owns or leases a locomotive, uses that locomotive to switch

1221

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01231

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.7

49 CFR Ch. II (10–1–16 Edition)

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-totrain 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.
Rail vehicle means railroad rolling
stock, including, but not limited to,
passenger and maintenance vehicles.
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 hazard management means
the processes (including documentation) used to identify and analyze hazards, assess and rank corresponding
risks, and eliminate or mitigate the resulting risks.
Safety culture means the shared values, actions and behaviors that demonstrate commitment to safety over
competing goals and demands.
SSP plan means system safety program plan.
System safety means the application
of management, economic, and engineering principles and techniques to
optimize all aspects of safety, within
the constraints of operational effectiveness, time, and cost, throughout all
phases of a system life cycle.
System safety program means a comprehensive process for the application
of management and engineering principles and techniques to optimize all
aspects of safety.
System safety program plan means a
document developed by the railroad
that implements and supports the railroad’s system safety program.
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.
§ 270.7 Penalties and responsibility for
compliance.
(a) Any person who violates any requirement of this part or causes the
violation of any such requirement is
subject to a civil penalty of at least
$839 and not more than $27,455 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 violation has created an imminent hazard of death or injury to persons, or has caused death or injury, a

1222

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01232

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

§ 270.103

penalty not to exceed $109,819 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Any person who knowingly and willfully falsifies a record or
report required by this part may be
subject to criminal penalties under 49
U.S.C. 21311 (formerly codified in 45
U.S.C. 438(e)). Appendix A to this part
contains a schedule of civil penalty
amounts used in connection with this
part.
(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.

Subpart B—System Safety Program
Requirements

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.101 System safety program; general.
(a) Each railroad subject to this part
shall establish and fully implement a
system safety program that continually and systematically evaluates
railroad safety hazards on its system
and manages the resulting risks to reduce the number and rates of railroad
accidents, incidents, injuries, and fatalities. A system safety program shall
include a risk-based hazard management program and risk-based hazard
analysis designed to proactively identify hazards and mitigate or eliminate
the resulting risks. The system safety
program shall be fully implemented
and supported by a written SSP plan
described in § 270.103.
(b) A railroad’s system safety program shall be designed so that it promotes and supports a positive safety
culture at the railroad.
§ 270.103 System safety program plan.
(a) General. (1) Each railroad subject
to this part shall adopt and fully implement a system safety program
through a written SSP plan that, at a
minimum, contains the elements in
this section. This SSP plan shall be approved by FRA under the process specified in § 270.201.
(2) Each railroad subject to this part
shall communicate with each railroad

that hosts passenger train service for
that railroad and coordinate the portions of the SSP plan applicable to the
railroad hosting the passenger train
service.
(b) System safety program policy statement. Each railroad shall set forth in
its SSP plan a policy statement that
endorses the railroad’s system safety
program. This policy statement shall:
(1) Define the railroad’s authority for
the establishment and implementation
of the system safety program;
(2) Describe the safety philosophy
and safety culture of the railroad; and
(3) Be signed by the chief official at
the railroad.
(c) System safety program goals. Each
railroad shall set forth in its SSP plan
a statement defining the goals for the
railroad’s system safety program. This
statement shall describe clear strategies on how the goals will be achieved
and what management’s responsibilities are to achieve them. At a minimum, the goals shall be:
(1) Long-term;
(2) Meaningful;
(3) Measurable; and
(4) Focused on the identification of
hazards and the mitigation or elimination of the resulting risks.
(d) Railroad system description. (1)
Each railroad shall set forth in its SSP
plan a statement describing the railroad’s system. The description shall include: the railroad’s operations, including any host operations; the physical
characteristics of the railroad; the
scope of service; the railroad’s maintenance activities; and any other pertinent aspects of the railroad’s system.
(2) Each railroad shall identify the
persons that enter into a contractual
relationship with the railroad to either
perform significant safety-related services on the railroad’s behalf or to utilize significant safety-related services
provided by the railroad for purposes
related to railroad operations.
(3) Each railroad shall describe the
relationships and responsibilities between the railroad and: host railroads,
contract operators, shared track/corridor operators, and persons providing
or utilizing significant safety-related
services as identified by the railroad
pursuant to paragraph (d)(2) of this section.

1223

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01233

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.103

49 CFR Ch. II (10–1–16 Edition)

(e) Railroad management and organizational structure. Each railroad shall set
forth a statement in its SSP plan that
describes the management and organizational structure of the railroad. This
statement shall include the following:
(1) A chart or other visual representation of the organizational structure
of the railroad;
(2) A description of the railroad’s
management responsibilities within
the system safety program;
(3) A description of how safety responsibilities are distributed within
the railroad organization;
(4) Clear identification of the lines of
authority used by the railroad to manage safety issues; and
(5) A description of the roles and responsibilities in the railroad’s system
safety program for each host railroad,
contract operator, shared track/corridor operator, and any persons utilizing or providing significant safetyrelated services as identified by the
railroad pursuant to (d)(2) of this section. As part of this description, the
railroad shall describe how each host
railroad, contractor operator, shared
track/corridor operator, and any persons utilizing or providing significant
safety-related services as identified by
the railroad pursuant to paragraph
(d)(2) of this section supports and participates in the railroad’s system safety program, as appropriate.
(f) System safety program implementation process. (1) Each railroad shall set
forth a statement in its SSP plan that
describes the process the railroad will
use to implement its system safety
program. As part of the railroad’s implementation process, the railroad
shall describe:
(i) Roles and responsibilities of each
position that has significant responsibility for implementing the system
safety program, including those held
by employees and other persons utilizing or providing significant safetyrelated services as identified by the
railroad pursuant to (d)(2) of this section; and
(ii) Milestones necessary to be
reached to fully implement the program.
(2) A railroad’s system safety program shall be fully implemented within 36 months of FRA’s approval of the

SSP plan pursuant to subpart C of this
part.
(g) Maintenance, repair, and inspection
program. (1) Each railroad shall identify and describe in its SSP plan the
processes and procedures used for
maintenance and repair of infrastructure and equipment directly affecting
railroad safety. Examples of infrastructure and equipment that directly affect
railroad safety include: Fixed facilities
and equipment, rolling stock, signal
and train control systems, track and
right-of-way, passenger train/station
platform interface (gaps), and traction
power distribution systems.
(2) Each description of the processes
and procedures used for maintenance
and repair of infrastructure and equipment directly affecting safety shall include the processes and procedures
used to conduct testing and inspections
of the infrastructure and equipment.
(3) If a railroad has a manual or
manuals that comply with all applicable Federal regulations and that describe the processes and procedures
that satisfy this section, the railroad
may reference those manuals in its
SSP plan. FRA approval of a SSP plan
that contains or references such manuals is not approval of the manuals
themselves; each manual must independently comply with applicable regulations and is subject to a civil penalty
if not in compliance with applicable
regulations.
(4) The identification and description
required by this section of the processes and procedures used for maintenance, repair, and inspection of infrastructure and equipment directly affecting railroad safety is not intended
to address and should not include procedures to address employee working
conditions that arise in the course of
conducting such maintenance, repair,
and inspection of infrastructure and
equipment directly affecting railroad
safety as set forth in the plan. FRA
does not intend to approve any specific
portion of a SSP plan that relates exclusively to employee working conditions.
(h) Rules compliance and procedures review. Each railroad shall set forth a
statement describing the processes and
procedures used by the railroad to develop, maintain, and comply with the

1224

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01234

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Railroad Administration, DOT

§ 270.103

railroad’s rules and procedures directly
affecting railroad safety and to comply
with the applicable railroad safety laws
and regulations found in this chapter.
The statement shall identify:
(1) The railroad’s operating and safety rules and maintenance procedures
that are subject to review under this
chapter;
(2) Techniques used to assess the
compliance of the railroad’s employees
with the railroad’s operating and safety rules and maintenance procedures,
and applicable railroad safety laws and
regulations; and
(3) Techniques used to assess the effectiveness of the railroad’s supervision relating to the compliance with
the railroad’s operating and safety
rules and maintenance procedures, and
applicable railroad safety laws and regulations.
(i) System safety program employee/contractor training. (1) Each employee who
is responsible for implementing and
supporting the system safety program,
and any persons utilizing or providing
significant safety-related services will
be trained on the railroad’s system
safety program.
(2) Each railroad shall establish and
describe in its SSP plan the railroad’s
system safety program training plan. A
system safety program training plan
shall set forth the procedures by which
employees that are responsible for implementing and supporting the system
safety program, and any persons utilizing or providing significant safetyrelated services will be trained on the
railroad’s system safety program. A
system safety program training plan
shall help ensure that all personnel
who are responsible for implementing
and supporting the system safety program understand the goals of the program, are familiar with the elements of
the program, and have the requisite
knowledge and skills to fulfill their responsibilities under the program.
(3) For each position identified pursuant to paragraph (f)(1)(i) of this section, the training plan shall describe
the frequency and content of the system safety program training that the
position receives.
(4) If a position is not identified
under paragraph (f)(1)(i) of this section
as having significant responsibility to

implement the system safety program
but the position is safety-related or has
a significant impact on safety, personnel in those positions shall receive
training in basic system safety concepts and the system safety implications of their position.
(5) Training under this subpart may
include, but is not limited to, classroom, computer-based, or correspondence training.
(6) The railroad shall keep a record of
all training conducted under this part
and update that record as necessary.
The system safety program training
plan shall set forth the process used to
maintain and update the necessary
training records required by this part.
(7) The system safety program training plan shall set forth the process
used by the railroad to ensure that it is
complying with the training requirements set forth in the training plan.
(j) Emergency management. Each railroad shall set forth a statement in its
SSP plan that describes the processes
used by the railroad to manage emergencies that may arise within its system including, but not limited to, the
processes to comply with applicable
emergency equipment standards in
part 238 of this chapter and the passenger train emergency preparedness
requirements in part 239 of this chapter.
(k) Workplace safety. Each railroad
shall set forth a statement in its SSP
plan that describes the programs established by the railroad that protect the
safety of the railroad’s employees and
contractors. The statement shall include a description of:
(1) The processes that help ensure the
safety of employees and contractors
while working on or in close proximity
to the railroad’s property as described
in paragraph (d) of this section;
(2) The processes that help ensure
that employees and contractors understand the requirements established by
the railroad pursuant to paragraph
(f)(1) of this section;
(3) Any fitness-for-duty programs or
any medical monitoring programs; and
(4) The standards for the control of
alcohol and drug use in part 219 of this
chapter.
(l) Public safety outreach program.
Each railroad shall establish and set

1225

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01235

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.103

49 CFR Ch. II (10–1–16 Edition)

forth a statement in its SSP plan that
describes its public safety outreach
program to provide safety information
to railroad passengers and the general
public. Each railroad’s safety outreach
program shall provide a means for railroad passengers and the general public
to report any observed hazards.
(m) Accident/incident reporting and investigation. Each railroad shall set
forth a statement in its SSP plan that
describes the processes that the railroad uses to receive notification of accidents/incidents, investigate and report those accidents/incidents, and develop, implement, and track any corrective actions found necessary to address an investigation’s finding(s).
(n) Safety data acquisition. Each railroad establish and shall set forth a
statement in its SSP plan that describes the processes it uses to collect,
maintain, analyze, and distribute safety data in support of the system safety
program.
(o) Contract procurement requirements.
Each railroad shall set forth a statement in its SSP plan that describes the
process(es) used to help ensure that
safety concerns and hazards are adequately addressed during the safety-related contract procurement process.
(p) Risk-based hazard management program. Each railroad shall establish a
risk-based hazard management program as part of the railroad’s system
safety program. The risk-based hazard
management program shall be fully described in the SSP plan.
(1) The risk-based hazard management program shall establish:
(i) The processes or procedures used
in the risk-based hazard analysis to
identify hazards on the railroad’s system;
(ii) The processes or procedures used
in the risk-based hazard analysis to
analyze identified hazards and support
the risk-based hazard management program;
(iii) The methods used in the riskbased hazard analysis to determine the
severity and frequency of hazards and
to determine the corresponding risk;
(iv) The methods used in the riskbased hazard analysis to identify actions that mitigate or eliminate hazards and corresponding risks;

(v) The process for setting goals for
the risk-based hazard management program and how performance against the
goals will be reported;
(vi) The process to make decisions
that affect the safety of the rail system
relative to the risk-based hazard management program;
(vii) The methods used in the riskbased hazard management program to
support continuous safety improvement throughout the life of the rail
system; and
(viii) The methods used to maintain
records of identified hazards and risks
and the mitigation or elimination of
the identified hazards and risks
throughout the life of the rail system.
(2) The railroad’s description of the
risk-based hazard management program shall include:
(i) The position title of the individual(s) responsible for administering
the risk-based hazard management program;
(ii) The identities of stakeholders
who will participate in the risk-based
hazard management program; and
(iii) The position title of the participants and structure of any hazard management teams or safety committees
that a railroad may establish to support the risk-based hazard management program.
(q) Risk-based hazard analysis. (1)
Once FRA approves a railroad’s SSP
plan pursuant to § 270.201(b), the railroad shall apply the risk-based hazard
analysis methodology identified in
paragraphs (p)(1)(i) through (iii) of this
section to identify and analyze hazards
on the railroad system and to determine the resulting risks. At a minimum, the aspects of the railroad system that shall be analyzed include: Operating rules and practices, infrastructure, equipment, employee levels and
schedules, management structure, employee training, and other aspects that
have an impact on railroad safety not
covered by railroad safety regulations
or other Federal regulations.
(2) A risk-based hazard analysis shall
identify and the railroad shall implement specific actions using the methods described in paragraph (p)(1)(iv) of
this section that will mitigate or
eliminate the hazards and resulting

1226

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01236

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Federal Railroad Administration, DOT

§ 270.103

risks identified by paragraph (q)(1) of
this section.
(3) A railroad shall also conduct a
risk-based hazard analysis pursuant to
paragraphs (q)(1) and (2) of this section
when there are significant operational
changes, system extensions, system
modifications, or other circumstances
that have a direct impact on railroad
safety.
(r) Technology analysis and implementation plan. (1) A railroad shall develop,
and periodically update as necessary, a
technology analysis and implementation plan as described by this paragraph. The railroad shall include this
technology analysis and implementation plan in its SSP plan.
(2) A railroad’s technology analysis
and implementation plan shall describe
the process the railroad will use to:
(i) Identify and analyze current, new,
or novel technologies that will mitigate or eliminate the hazards and resulting risks identified by the riskbased hazard analysis pursuant to
paragraph (q)(1) of this section; and
(ii) Analyze the safety impact, feasibility, and costs and benefits of implementing the technologies identified by
the processes under paragraph (r)(2)(i)
of this section that will mitigate or
eliminate hazards and the resulting
risks.
(3) Once FRA approves a railroad’s
SSP plan pursuant to § 270.201(b), including the technology analysis and
implementation plan, the railroad
shall apply:
(i) The processes described in paragraph (r)(2)(i) of this section to identify
and analyze technologies that will
mitigate or eliminate the hazards and
resulting risks identified by the riskbased hazard analysis pursuant to
paragraph (q)(1) of this section. At a
minimum, the technologies a railroad
shall consider as part of its technology
analysis are: Processor-based technologies, positive train control systems, electronically-controlled pneumatic brakes, rail integrity inspection
systems, rail integrity warning systems, switch position monitors and indicators, trespasser prevention technology, and highway-rail grade crossing warning and protection technology;
and

(ii) The processes described in paragraph (r)(2)(ii) of this section to the
technologies identified by the analysis
under paragraph (r)(3)(i) of this section.
(4) If a railroad decides to implement
any of the technologies identified in
paragraph (r)(3) of this section, in the
technology analysis and implementation plan in the SSP plan, the railroad
shall:
(i) Describe how it will develop,
adopt, implement, maintain, and use
the identified technologies; and
(ii) Set forth a prioritized implementation schedule for the development,
adoption, implementation and maintenance of those technologies over a 10year period.
(5) Except as required by subpart I of
part 236 of this chapter, if a railroad
decides to implement a positive train
control system as part of its technology analysis and implementation
plan, the railroad shall set forth and
comply with a schedule for implementation of the positive train control system consistent with the deadlines in
the Positive Train Control Enforcement and Implementation Act of 2015,
Public Law 114–73, 129 Stat. 576–82 (Oct.
29, 2015), and 49 CFR 236.1005(b)(7).
(6) The railroad shall not include in
its SSP plan the analysis conducted
pursuant to paragraph (r)(3) of this section. The railroad shall make the results of any analysis conducted pursuant to paragraph (r)(3) of this section
available upon request to representatives of FRA and States participating
under part 212 of this chapter.
(s) Safety Assurance—(1) Change management. Each railroad shall establish
and set forth a statement in its SSP
plan describing the processes and procedures used by the railroad to manage
significant operational changes, system extensions, system modifications,
or other significant changes that will
have a direct impact on railroad safety.
(2) Configuration management. Each
railroad shall establish a configuration
management program and describe the
program in its SSP plan. The configuration management program shall—
(i) Identify who within the railroad
has authority to make configuration
changes;

1227

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01237

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

§ 270.105

49 CFR Ch. II (10–1–16 Edition)

lpowell on DSK54DXVN1OFR with $$_JOB

(ii) Establish processes to make configuration changes to the railroad’s
system; and
(iii) Establish processes to ensure
that all departments of the railroad affected by the configuration changes are
formally notified and approve of the
change.
(3) Safety certification. Each railroad
shall establish and set forth a statement in its SSP plan that describes the
certification process used by the railroad to help ensure that safety concerns and hazards are adequately addressed before the initiation of operations or major projects to extend, rehabilitate, or modify an existing system or replace vehicles and equipment.
(t) Safety culture. A railroad shall set
forth a statement in its SSP plan that
describes how it measures the success
of its safety culture identified in paragraph (b)(2) of this section.
§ 270.105 Discovery and admission as
evidence of certain information.
(a) Protected information. Any information compiled or collected after August 14, 2017, solely for the purpose of
planning, implementing, or evaluating
a system safety program under this
part shall not be subject to discovery,
admitted into evidence, or considered
for other purposes in a Federal or State
court proceedings 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 § 270.103(q)(1) and a railroad’s
statement of mitigation measures
under § 270.103(q)(2); and
(2) ‘‘Solely’’ means that a railroad
originally compiled or collected the information for the exclusive purpose of
planning, implementing, or evaluating
a system safety 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 system safety program.
‘‘Solely’’ also means that a railroad
continues to use that information only
for its system safety program. If a railroad subsequently uses for any other
purpose information that was initially

compiled or collected for a system safety program, this section does not protect that information to the extent
that it is used for the non-system safety program purpose. The use of that information within the railroad’s system
safety 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.
(b) Non-protected information. This
section does not affect the discovery,
admissibility, or consideration for
other purposes in a Federal or State
court proceedings 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 proceedings 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 proceedings for damages involving personal injury, wrongful death, or property damage on or before August 14,
2017. Specifically, the types of information not affected by this section include:
(1) Information compiled or collected
on or before August 14, 2017;
(2) Information compiled or collected
on or before August 14, 2017, and that
continues to be compiled or collected,
even if used to plan, implement, or
evaluate a railroad’s system safety program; or
(3) Information that is compiled or
collected after August 14, 2017, 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

1228

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01238

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

§ 270.107

lpowell on DSK54DXVN1OFR with $$_JOB

laws would require disclosure of information protected by this section in a
Federal or State court proceedings for
damages involving personal injury,
wrongful death, or property damage,
those rules and laws are preempted.
§ 270.107 Consultation requirements.
(a) General duty. (1) Each railroad required to establish a system safety program under this part shall in good
faith consult with, and use its best efforts to reach agreement with, all of its
directly affected employees, including
any non-profit labor organization representing a class or craft of directly affected employees, on the contents of
the SSP plan.
(2) A railroad that consults with such
a non-profit employee labor organization as required by paragraph (a)(1) of
this section is considered to have consulted with the directly affected employees represented by that organization. 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 the purposes of
this part.
(3) A railroad shall have a preliminary meeting with its directly affected
employees to discuss how the consultation process will proceed. A railroad is
not required to discuss the substance of
a SSP plan during this preliminary
meeting. A railroad must:
(i) Hold the preliminary meeting no
later than April 10, 2017; and
(ii) Notify the directly affected employees of the preliminary meeting no
less than 60 days before it is held.
(4) Appendix B to this part contains
non-mandatory guidance on how a railroad may comply with the requirements of this section.
(b) Railroad consultation statements. A
railroad required to submit a SSP plan
under § 270.201 must also submit, together with the plan, a consultation
statement that includes the following
information:
(1) A detailed description of the process the railroad utilized to consult with
its directly affected employees;
(2) If the railroad could not reach
agreement with its directly affected
employees on the contents of its SSP

plan, identification of any known areas
of disagreement and an explanation of
why it believes agreement was not
reached; and
(3) A service list containing the name
and contact information for each international/national president of any nonprofit employee labor organization representing a class or craft of the railroad’s directly affected employees. The
service list must also contain the name
and contact information for any directly affected employee who significantly participated in the consultation
process independently of a non-profit
employee labor organization. When a
railroad submits its SSP plan and consultation statement to FRA pursuant
to § 270.201, it must also simultaneously
send a copy of these documents to all
individuals identified in the service
list.
(c) Statements from directly affected employees. (1) If a railroad and its directly
affected employees cannot reach agreement on the proposed contents of a
SSP plan, the directly affected employees may file a statement with the FRA
Associate Administrator for Railroad
Safety and Chief Safety Officer explaining their views on the plan on
which agreement was not reached with
the FRA Associate Administrator for
Railroad Safety and Chief Safety Officer at Mail Stop 25, 1200 New Jersey
Ave SE., Washington, DC 20590. The
FRA Associate Administrator for Railroad Safety and Chief Safety Officer
shall consider any such views during
the plan review and approval process.
(2) A railroad’s directly affected employees have 30 days following the date
of the railroad’s submission of a proposed SSP plan to submit the statement described in paragraph (c)(1) of
this section.
(d) Consultation requirements for system safety program plan amendments. A
railroad’s SSP plan must include a description of the process the railroad
will use to consult with its directly affected employees on any subsequent
substantive amendments to the railroad’s system safety program. The requirements of this paragraph do not
apply to non-substantive amendments
(e.g., amendments that update names
and addresses of railroad personnel).

1229

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01239

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

§ 270.201

49 CFR Ch. II (10–1–16 Edition)

Subpart C—Review, Approval,
and Retention of System Safety Program Plans

lpowell on DSK54DXVN1OFR with $$_JOB

§ 270.201

Filing and approval.

(a) Filing. (1) Each railroad to which
this part applies shall submit one copy
of its SSP plan to the FRA Associate
Administrator for Railroad Safety and
Chief Safety Officer, Mail Stop 25, 1200
New Jersey Avenue SE., Washington,
DC 20590, no later than February 8, 2018
or not less than 90 days before commencing operations, whichever is later.
(2) The railroad shall not include in
its SSP plan the risk-based hazard
analysis
conducted
pursuant
to
§ 270.103(q). The railroad shall make the
results of any risk-based hazard analysis available upon request to representatives of FRA and States participating under part 212 of this chapter.
(3) The SSP plan shall include:
(i) The signature, name, title, address, and telephone number of the
chief safety officer who bears primary
managerial
authority
for
implementing the program for the submitting railroad. By signing, this chief official is certifying that the contents of
the SSP plan are accurate and that the
railroad will implement the contents of
the program as approved by FRA;
(ii) The contact information for the
primary person responsible for managing the system safety program; and
(iii) The contact information for the
senior representatives of any host railroad, contract operator, shared track/
corridor operator or persons utilizing
or providing significant safety-related
services.
(4) As required by § 270.107(b), each
railroad must submit with its SSP plan
a consultation statement describing
how it consulted with its directly affected employees on the contents of its
system safety program plan. Directly
affected employees may also file a
statement
in
accordance
with
§ 270.107(c).
(b) Approval. (1) Within 90 days of receipt of a SSP plan, FRA will review
the SSP plan to determine if the elements prescribed in this part are sufficiently addressed in the railroad’s submission. This review will also consider
any statement submitted by directly

affected
employees
pursuant
to
§ 270.107(c).
(2) FRA will notify each person identified by the railroad in § 270.201(a)(3) in
writing whether the proposed plan has
been approved by FRA, and, if not approved, the specific points in which the
SSP plan is deficient. FRA will also
provide this notification to each individual identified in the service list accompanying the consultation statement required under § 270.107(b).
(3) If FRA does not approve a SSP
plan, the affected railroad shall amend
the proposed plan to correct all deficiencies identified by FRA and provide
FRA with a corrected copy of the SSP
plan not later than 90 days following
receipt of FRA’s written notice that
the proposed SSP plan was not approved.
(4) Approval of a railroad’s SSP plan
under this part does not constitute approval of the specific actions the railroad will implement under its SSP plan
pursuant to § 270.103(q)(2) and shall not
be construed as establishing a Federal
standard regarding those specific actions.
(c) Review of amendments. (1)(i) A railroad shall submit any amendment(s) to
the SSP plan to FRA not less than 60
days before the proposed effective date
of the amendment(s). The railroad
shall file the amended SSP plan with a
cover letter outlining the changes
made to the original approved SSP
plan by the proposed amendment(s).
The cover letter shall also describe the
process the railroad used pursuant to
§ 270.107(d) to consult with its directly
affected employees on the amendment(s).
(ii) If an amendment is safety-critical and the railroad is unable to submit the amended SSP plan to FRA 60
days before the proposed effective date
of the amendment, the railroad shall
submit the amended SSP plan with a
cover letter outlining the changes
made to the original approved SSP
plan by the proposed amendment(s) and
why the amendment is safety-critical
to FRA as near as possible to 60 days
before the proposed effective date of
the amendment(s).
(iii) If the proposed amendment is
limited to adding or changing a name,
title, address, or telephone number of a

1230

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01240

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

§ 270.303

lpowell on DSK54DXVN1OFR with $$_JOB

person, FRA approval is not required
under the process in paragraphs (c)(1)(i)
and (ii) of this section, although the
railroad shall still file the proposed
amendment with FRA’s Associate Administrator for Railroad Safety and
Chief Safety Officer. These proposed
amendments may be implemented by
the railroad upon filing with FRA. All
other proposed amendments must comply with the formal approval process in
paragraph (c) of this section.
(2)(i) Except as provided in paragraph
(c)(1)(iii) of this section, FRA will review the proposed amended SSP plan
within 45 days of receipt. FRA will
then notify the primary contact person
of each affected railroad whether the
proposed amended plan has been approved by FRA, and if not approved,
the specific points in which each proposed amendment to the SSP plan is
deficient.
(ii) If FRA has not notified the railroad by the proposed effective date of
the amendment(s) whether the proposed amended plan has been approved
or not, the railroad may implement the
amendment(s) pending FRA’s decision.
(iii) If a proposed SSP plan amendment is not approved by FRA, no later
than 60 days following the receipt of
FRA’s written notice, the railroad
shall provide FRA either a corrected
copy of the amendment that addresses
all deficiencies noted by FRA or written notice that the railroad is retracting the amendment.
(d) Reopened review. Following initial
approval of a plan, or amendment, FRA
may reopen consideration of the plan
or amendment for cause stated.
(e) Electronic submission. All documents required to be submitted to FRA
under this part may be submitted electronically. Appendix C to this part provides instructions on electronic submission of documents.
§ 270.203 Retention of system safety
program plan.
Each railroad to which this part applies shall retain at its system headquarters, and at any division headquarters, one copy of the SSP plan required by this part and one copy of
each subsequent amendment to that
plan. These records shall be made
available to representatives of FRA

and States participating under part 212
of this chapter for inspection and copying during normal business hours.

Subpart D—System Safety Program Internal Assessments
and External Auditing
§ 270.301 General.
The system safety program and its
implementation shall be assessed internally by the railroad and audited externally by FRA or FRA’s designee.
§ 270.303 Internal system safety program assessment.
(a) Following FRA’s initial approval
of the railroad’s SSP plan pursuant to
§ 270.201, the railroad shall annually
conduct an assessment of the extent to
which:
(1) The system safety program is
fully implemented;
(2) The railroad is in compliance with
the implemented elements of the approved system safety program; and
(3) The railroad has achieved the
goals set forth in § 270.103(c).
(b) As part of its SSP plan, the railroad shall set forth a statement describing the processes used to:
(1) Conduct internal system safety
program assessments;
(2) Internally report the findings of
the internal system safety program assessments;
(3) Develop, track, and review recommendations as a result of the internal system safety program assessments;
(4) Develop improvement plans based
on the internal system safety program
assessments. Improvement plans shall,
at a minimum, identify who is responsible for carrying out the necessary
tasks to address assessment findings
and specify a schedule of target dates
with milestones to implement the improvements that address the assessment findings; and
(5) Manage revisions and updates to
the SSP plan based on the internal system safety program assessments.
(c)(1) Within 60 days of completing its
internal SSP plan assessment pursuant
to paragraph (a) of this section, the
railroad shall:
(i) Submit to FRA a copy of the railroad’s internal assessment report that

1231

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01241

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31

§ 270.305

49 CFR Ch. II (10–1–16 Edition)

includes a system safety program assessment and the status of internal assessment findings and improvement
plans to the FRA Associate Administrator for Railroad Safety and Chief
Safety Officer, Mail Stop 25, 1200 New
Jersey Avenue SE., Washington, DC
20590; and
(ii) Outline the specific improvement
plans for achieving full implementation of the SSP plan, as well as achieving the goals of the plan.
(2) The railroad’s chief official responsible for safety shall certify the results of the railroad’s internal SSP
plan assessment.
§ 270.305 External safety audit.
(a) FRA may conduct, or cause to be
conducted, external audits of a railroad’s system safety program. Each
audit will evaluate the railroad’s compliance with the elements required by
this part in the railroad’s approved
SSP plan. FRA shall provide the railroad written notification of the results
of any audit.
(b)(1) Within 60 days of FRA’s written
notification of the results of the audit,
the railroad shall submit to FRA for
approval an improvement plan to address the audit findings that require

corrective action. At a minimum, the
improvement plan shall identify who is
responsible for carrying out the necessary tasks to address audit findings
and specify target dates and milestones
to implement the improvements that
address the audit findings.
(2) If FRA does not approve the railroad’s improvement plan, FRA will notify the railroad of the specific deficiencies in the improvement plan. The
affected railroad shall amend the proposed plan to correct the deficiencies
identified by FRA and provide FRA
with a corrected copy of the improvement plan no later than 30 days following its receipt of FRA’s written notice that the proposed plan was not approved.
(3) Upon request, the railroad shall
provide to FRA and States participating under part 212 of this chapter
for review a report upon request regarding the status of the implementation of the improvements set forth in
the improvement plan established pursuant to paragraph (b)(1) of this section.
APPENDIX A TO PART 270—SCHEDULE OF
CIVIL PENALTIES

PENALTY SCHEDULE 1
Violation

Willful violation

Subpart B—System Safety Program Requirements
270.101—System safety program; general:
(a) Failure to establish a system safety program ...........................................................
(a) Failure to include a risk-based hazard management program in the railroad’s system safety program .....................................................................................................
270.103—System safety program plan:
(a)(1) Failure to include and comply with any required element or any sub-element in
the SSP plan ...............................................................................................................
(a)(2) Failure to communicate and coordinate with host railroad on the SSP plan .......
270.107—Consultation Requirements:
(a)(1) Failure to consult with directly affected employees ..............................................
Failure to consult in good faith and/or use best efforts ..................................................
(a)(3) Failure to hold preliminary meeting ......................................................................
Failure to hold preliminary meeting within April 10, 2017 ..............................................
Failure to notify directly affected employees no less than 60 days before meeting is
held ..............................................................................................................................
(b) Failure to submit consultation statement with plan submission ...............................
Failure to include all required elements in consultation statement ................................
(d) Failure to submit consultation statement with submission of plan amendment .......

$15,000

$30,000

10,000

20,000

7,500
7,500

15,000
15,000

10,000
10,000
7,500
5,000

20,000
20,000
15,000
10,000

7,500
7,500
5,000
5,000

15,000
15,000
10,000
10,000

10,000
10,000
5,000
7,500
7,500
5,000

20,000
20,000
10,000
15,000
15,000
10,000

lpowell on DSK54DXVN1OFR with $$_JOB

Subpart C—Review, Approval, and Retention of SSP Plans
270.201—Filing and approval:
(a)(1) Failure to file an initial SSP plan ..........................................................................
Failure to file a SSP plan within 90 days of commencing operations ...........................
(a)(3) Failure to include all required information in submission .....................................
(b)(3) Failure to correct identified deficiencies and amend SSP plan ...........................
Failure to submit amended SSP plan .............................................................................
Failure to submit amended SSP plan within 90 days ....................................................

1232

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01242

Fmt 8010

Sfmt 8002

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

Pt. 270, App. B

PENALTY SCHEDULE 1—Continued
Violation
(c)(1)(i) Failure to submit amendment to SSP plan .......................................................
Failure to submit amendment to SSP plan within 60 days ............................................
(c)(2)(iii) Failure to submit corrected amendment or notify FRA of retraction ...............
Failure to submit corrected amendment within 60 days ................................................
270.203—Retention of SSP plan:
Failure to retain a copy of the SSP plan at the system/division headquarters ..............
Failure to make records available to representatives of FRA and States participating
under part 212 of this chapter .....................................................................................

Willful violation

7,500
5,000
7,500
5,000

15,000
10,000
15,000
10,000

10,000

20,000

7,500

15,000

Subpart D—System Safety Program Internal Assessments and External Auditing
270.303—Internal program assessment:
(a) Failure to conduct an annual internal assessment ...................................................
Failure to include all required elements in the internal assessment ..............................
(b) Failure to include a statement in the SSP plan describing the required elements ..
(c)(1)(i) Failure to submit to FRA the internal assessment report .................................
Failure for the internal assessment report to contain all required elements and subelements ......................................................................................................................
(c)(1)(ii) Failure to develop and outline improvement plans ...........................................
Failure to comply with improvement plans .....................................................................
(c)(2) Failure of chief official responsible for safety to certify the results of the internal
assessment .................................................................................................................
270.305—External safety audit:
(b)(1) Failure to submit improvement plans ...................................................................
Failure to submit improvement plans within 60 days .....................................................
Failure to include all required elements in the improvement plans ...............................
(b)(2) Failure to amend and submit to FRA the improvement plan ...............................
Failure to submit amended improvement plan within 30 days .......................................
(b)(3) Failure to provide a report regarding the status of the implementation of the improvements set forth in the improvement plan ...........................................................

10,000
7,500
5,000
7,500

20,000
15,000
10,000
15,000

5,000
7,500
7,500

10,000
15,000
15,000

5,000

10,000

7,500
5,000
5,000
7,500
5,000

15,000
10,000
10,000
15,000
10,000

7,500

15,000

1A

penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a
penalty of up to $109,819 for any violation where circumstances warrant. See 49 CFR part 209, appendix A.

APPENDIX B TO PART 270—FEDERAL
RAILROAD ADMINISTRATION GUIDANCE ON THE SYSTEM SAFETY PROGRAM CONSULTATION PROCESS
A railroad required to develop a system
safety program under this part must in good
faith consult with and use its best efforts to
reach agreement with its directly affected
employees on the contents of the SSP plan.
See § 270.107(a). This appendix discusses the
meaning of the terms ‘‘good faith’’ and ‘‘best
efforts,’’ and provides non-mandatory guidance on how a railroad may comply with the
requirement to consult with directly affected employees on the contents of its SSP
plan. Guidance is provided for employees
who are represented by a non-profit employee labor organization and employees who
are not represented by any such organization.

lpowell on DSK54DXVN1OFR with $$_JOB

THE MEANING OF ‘‘GOOD FAITH’’ AND ‘‘BEST
EFFORTS’’
‘‘Good faith’’ and ‘‘best efforts’’ are not
interchangeable terms representing a vague
standard for the § 270.107 consultation process. Rather, each term has a specific and distinct meaning. When consulting with directly affected employees, therefore, a railroad must independently meet the standards
for both the good faith and best efforts obli-

gations. A railroad that does not meet the
standard for one or the other will not be in
compliance with the consultation requirements of § 270.107.
The good faith obligation requires a railroad to consult with employees in a manner
that is honest, fair, and reasonable, and to
genuinely pursue agreement on the contents
of a SSP plan. If a railroad consults with its
employees merely in a perfunctory manner,
without genuinely pursuing agreement, it
will not have met the good faith requirement. For example, a lack of good faith may
be found if a railroad’s directly affected employees express concerns with certain parts
of the railroad’s SSP plan, and the railroad
neither addresses those concerns in further
consultation nor attempts to address those
concerns by making changes to the SSP
plan.
On the other hand, ‘‘best efforts’’ establishes a higher standard than that imposed
by the good faith obligation, and describes
the diligent attempts that a railroad must
pursue to reach agreement with its employees on the contents of its system safety program. While the good faith obligation is concerned with the railroad’s state of mind during the consultation process, the best efforts
obligation is concerned with the specific efforts made by the railroad in an attempt to

1233

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01243

Fmt 8010

Sfmt 8002

Q:\49\49V4.TXT

31

Pt. 270, App. B

49 CFR Ch. II (10–1–16 Edition)

lpowell on DSK54DXVN1OFR with $$_JOB

reach agreement. This would include considerations such as whether a railroad had held
sufficient meetings with its employees to address or make an attempt to address any
concerns raised by the employees, or whether the railroad had made an effort to respond
to feedback provided by employees during
the consultation process. For example, a
railroad would not meet the best efforts obligation if it did not initiate the consultation
process in a timely manner, and thereby
failed to provide employees sufficient time
to engage in the consultation process. A railroad may, however, wish to hold off substantive consultations regarding the contents of its SSP until one year after the publication date of the rule to ensure that certain information generated as part of the
process is protected from discovery and admissibility into evidence under § 270.105 of
the rule. Generally, best efforts are measured by the measures that a reasonable person in the same circumstances and of the
same nature as the acting party would take.
Therefore, the standard imposed by the best
efforts obligation may vary with different
railroads, depending on a railroad’s size, resources, and number of employees.
When reviewing SSP plans, FRA will determine on a case-by-case basis whether a railroad has met its § 270.107 good faith and best
efforts obligations. This determination will
be based upon the consultation statement
submitted by the railroad pursuant to
§ 270.107(b) and any statements submitted by
employees pursuant to § 270.107(c). If FRA
finds that these statements do not provide
sufficient information to determine whether
a railroad used good faith and best efforts to
reach agreement, FRA may investigate further and contact the railroad or its employees to request additional information. If
FRA determines that a railroad did not use
good faith and best efforts, FRA may disapprove the SSP plan submitted by the railroad and direct the railroad to comply with
the consultation requirements of § 270.107.
Pursuant to § 270.201(b)(3), if FRA does not
approve the SSP plan, the railroad will have
90 days, following receipt of FRA’s written
notice that the plan was not approved, to
correct any deficiency identified. In such
cases, the identified deficiency would be that
the railroad did not use good faith and best
efforts to consult and reach agreement with
its directly affected employees. If a railroad
then does not submit to FRA within 90 days
a SSP plan meeting the consultation requirements of § 270.107, the railroad could be
subject to penalties for failure to comply
with § 270.201(b)(3).
GUIDANCE ON HOW A RAILROAD MAY CONSULT
WITH DIRECTLY AFFECTED EMPLOYEES
Because the standard imposed by the best
efforts obligation will vary depending upon

the railroad, there may be countless ways for
various railroads to comply with the consultation requirements of § 270.107. Therefore,
FRA believes it is important to maintain a
flexible approach to the § 270.107 consultation
requirements, to give a railroad and its directly affected employees the freedom to
consult in a manner best suited to their specific circumstances.
FRA is nevertheless providing guidance in
this appendix as to how a railroad may proceed when consulting (utilizing good faith
and best efforts) with employees in an attempt to reach agreement on the contents of
a SSP plan. FRA believes this guidance may
be useful as a starting point for railroads
that are uncertain about how to comply with
the § 270.107 consultation requirements. This
guidance distinguishes between employees
who are represented by a non-profit employee labor organization and employees who
are not, as the processes a railroad may use
to consult with represented and non-represented employees could differ significantly.
This guidance does not establish prescriptive requirements with which a railroad
must comply, but merely outlines a consultation process a railroad may choose to
follow. A railroad’s consultation statement
could indicate that the railroad followed the
guidance in this appendix as evidence that it
utilized good faith and best efforts to reach
agreement with its employees on the contents of a SSP plan.
Employees Represented by a Non-Profit
Employee Labor Organization
As provided in § 270.107(a)(2), a railroad consulting with the representatives of a nonprofit employee labor organization on the
contents of a SSP plan will be considered to
have consulted with the directly affected
employees represented by that organization.
A railroad may utilize the following process as a roadmap for using good faith and
best efforts when consulting with represented employees in an attempt to reach
agreement on the contents of a SSP plan.
• Pursuant to § 270.107(a)(3)(i), a railroad
must meet with representatives from a nonprofit employee labor organization (representing a class or craft of the railroad’s directly affected employees) no later than
April 10, 2017, to begin the process of consulting on the contents of the railroad’s SSP
plan. A railroad must provide notice at least
60 days before the scheduled meeting.
• During the time between the initial
meeting and the applicability date of § 270.105
the parties may meet to discuss administrative details of the consultation process as
necessary.
• Within 60 days after the applicability
date of § 270.105 a railroad should have a

1234

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01244

Fmt 8010

Sfmt 8002

Q:\49\49V4.TXT

31

Federal Railroad Administration, DOT

Pt. 270, App. C

meeting with the directed affected employees to discuss substantive issues with the
SSP.
• Pursuant to § 270.201(a)(1), a railroad
would file its SSP plan with FRA no later
than February 8, 2018, or not less than 90
days before commencing operations, whichever is later.
• As provided by § 270.107(c), if agreement
on the contents of a SSP plan could not be
reached, a labor organization (representing a
class or craft of the railroad’s directly affected employees) may file a statement with
the FRA Associate Administrator for Railroad Safety and Chief Safety Officer explaining its views on the plan on which agreement
was not reached.

lpowell on DSK54DXVN1OFR with $$_JOB

Employees Who Are Not Represented by a NonProfit Employee Labor Organization
FRA recognizes that some (or all) of a railroad’s directly affected employees may not
be represented by a non-profit employee
labor organization. For such non-represented
employees, the consultation process described for represented employees may not
be appropriate or sufficient. For example,
FRA believes that a railroad with non-represented employees should make a concerted
effort to ensure that its non-represented employees are aware that they are able to participate in the development of the railroad’s
SSP plan. FRA therefore is providing the following guidance regarding how a railroad
may utilize good faith and best efforts when
consulting with non-represented employees
on the contents of its SSP plan.
• By December 12, 2016 (i.e., within 60 days
of the effective date of the final rule), a railroad may notify non-represented employees
that—
(1) The railroad is required to consult in
good faith with, and use its best efforts to
reach agreement with, all directly affected
employees on the proposed contents of its
SSP plan;
(2) The railroad is required to meet with
its directly affected employees within 180
days of the effective date of the final rule to
address the consultation process;
(3) Non-represented employees are invited
to participate in the consultation process
(and include instructions on how to engage
in this process); and
(4) If a railroad is unable to reach agreement with its directly affected employees on
the contents of the proposed SSP plan, an
employee may file a statement with the FRA
Associate Administrator for Railroad Safety
and Chief Safety Officer explaining his or her
views on the plan on which agreement was
not reached.
• This initial notification (and all subsequent communications, as necessary or appropriate) could be provided to non-represented employees in the following ways:

(1) Electronically, such as by email or an
announcement on the railroad’s Web site;
(2) By posting the notification in a location easily accessible and visible to non-represented employees; or
(3) By providing all non-represented employees a hard copy of the notification. A
railroad could use any or all of these methods of communication, so long as the notification complies with the railroad’s obligation to utilize best efforts in the consultation process.
• Following the initial notification and
initial meeting to discuss the consultation
process (and before the railroad submits its
SSP plan to FRA), a railroad should provide
non-represented employees a draft proposal
of its SSP plan. This draft proposal should
solicit additional input from non-represented
employees, and the railroad should provide
non-represented employees 60 days to submit
comments to the railroad on the draft.
• Following this 60-day comment period
and any changes to the draft SSP plan made
as a result, the railroad should submit the
proposed SSP plan to FRA, as required by
this part.
• As provided by § 270.107(c), if agreement
on the contents of a SSP plan cannot be
reached, then a non-represented employee
may file a statement with the FRA Associate Administrator for Railroad Safety and
Chief Safety Officer explaining his or her
views on the plan on which agreement was
not reached.

APPENDIX C TO PART 270—PROCEDURES
FOR SUBMISSION OF SSP PLANS AND
STATEMENTS FROM DIRECTLY AFFECTED EMPLOYEES
This appendix establishes procedures for
the submission of a railroad’s SSP plan and
statements by directly affected employees
consistent with the requirements of this
part.
SUBMISSION BY A RAILROAD AND DIRECTLY
AFFECTED EMPLOYEES
As provided for in § 270.101, a system safety
program shall be fully implemented and supported by a written SSP plan. Each railroad
must submit its SSP plan to FRA for approval as provided for in § 270.201.
As provided for in § 270.107(c), if a railroad
and its directly affected employees cannot
come to agreement on the proposed contents
of the railroad’s SSP plan, the directly affected employees have 30 days following the
railroad’s submission of its proposed SSP
plan to submit a statement to the FRA Associate Administrator for Railroad Safety and
Chief Safety Officer explaining the directly
affected employees’ views on the plan on
which agreement was not reached.

1235

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01245

Fmt 8010

Sfmt 8002

Q:\49\49V4.TXT

31

lpowell on DSK54DXVN1OFR with $$_JOB

Pt. 272

49 CFR Ch. II (10–1–16 Edition)

The railroad’s and directly affected employees’ submissions shall be sent to the
FRA Associate Administrator for Railroad
Safety and Chief Safety Officer, Mail Stop
25, 1200 New Jersey Avenue SE., Washington,
DC 20590. When a railroad submits its SSP
plan and consultation statement to FRA
pursuant to § 270.201, it must also simultaneously send a copy of these documents to
all individuals identified in the service list
pursuant to § 270.107(b)(3).
Each railroad and directly affected employee is authorized to file by electronic
means any submissions required under this
part. Before any person submitting anything
electronically, the person shall provide the
FRA Associate Administrator for Railroad
Safety and Chief Safety Officer with the following information in writing:
(1) The name of the railroad or directly affected employee(s);
(2) The names of two individuals, including
job titles, who will be the railroad’s or directly affected employees’ points of contact
and will be the only individuals allowed access to FRA’s secure document submission
site;
(3) The mailing addresses for the railroad’s
or directly affected employees’ points of contact;
(4) The railroad’s system or main headquarters address located in the United
States;
(5) The email addresses for the railroad’s or
directly affected employees’ points of contact; and
(6) The daytime telephone numbers for the
railroad’s or directly affected employees’
points of contact.
A request for electronic submission or FRA
review of written materials shall be addressed to the FRA Associate Administrator
for Railroad Safety and Chief Safety Officer,
Mail Stop 25, 1200 New Jersey Avenue SE.,
Washington, DC 20590. Upon receipt of a request for electronic submission that contains
the information listed above, FRA will then
contact the requestor with instructions for
electronically submitting its program or
statement. A railroad that electronically
submits an initial SSP plan or new portions
or revisions to an approved program required
by this part shall be considered to have provided its consent to receive approval or disapproval notices from FRA by email. FRA
may electronically store any materials required by this part regardless of whether the
railroad that submits the materials does so
by delivering the written materials to the
Associate Administrator and opts not to submit the materials electronically. A railroad
that opts not to submit the materials required by this part electronically, but provides one or more email addresses in its submission, shall be considered to have provided
its consent to receive approval or disapproval notices from FRA by email or mail.

PART 272—CRITICAL INCIDENT
STRESS PLANS
Subpart A—General
Sec.
272.1 Purpose.
272.3 Application.
272.5 General duty.
272.7 Coverage of a critical incident stress
plan.
272.9 Definitions.
272.11 Penalties.

Subpart B—Plan Components and
Approval Process
272.101 Content of a critical incident stress
plan.
272.103 Submission of critical incident
stress plan for approval by the Federal
Railroad Administration.
272.105 Requirement to file critical incident
stress plan electronically.
APPENDIX A TO PART 272—SCHEDULE OF CIVIL
PENALTIES
AUTHORITY: 49 U.S.C. 20103, 20107, 20109,
note; 28 U.S.C. 2461, note; 49 CFR 1.89; and
sec. 410, Div. A, Pub. L. 110–432, 122 Stat. 4888.
SOURCE: 79 FR 16233, Mar. 25, 2014, unless
otherwise noted.

Subpart A—General
§ 272.1 Purpose.
(a) The purpose of this part is to promote the safety of railroad operations
and the health and safety of railroad
employees, especially those who are directly involved in a critical incident by
requiring that the employing railroad
offers and provides appropriate support
services, including appropriate relief,
to the directly-involved employees following that critical incident.
(b) Nothing in this part constrains a
railroad from implementing a critical
incident stress plan that contains additional provisions beyond those specified in this part (including provisions
covering additional incidents or persons), provided that such additional
provisions are not inconsistent with
this part.
§ 272.3 Application.
This part applies to each
(a) Class I railroad, including the National Railroad Passenger Corporation;
(b) Intercity passenger railroad; or
(c) Commuter railroad.

1236

VerDate Sep<11>2014

10:29 Feb 08, 2017

Jkt 238228

PO 00000

Frm 01246

Fmt 8010

Sfmt 8010

Q:\49\49V4.TXT

31