Legal Update

Passenger Rail
Risk Management Issues
Allison I. Fultz
Kaplan Kirsch & Rockwell LLP
Washington, DC
Cincinnati, OH
June 10, 2013
Today’s Topics:
System Safety
• FRA – Rail System Safety Planning
• FTA – Transit Safety Planning
Operator Safety and Situational Awareness
• Passenger Rail Hours of Service
• Use of Handheld Electronic Devices
Shared Use of Freight Corridors
Policy, Law and Regulation: Approach to safety – increasing
emphasis on risk reduction and avoidance rather than protecting
against aftereffects of incident
• Rail Safety Improvement Act of 2008 (RSIA)
• Moving Ahead for Progress in the 21st Century Act (MAP-21)
Shared Use: Allocation of risk
System Safety - FRA
FRA program: RSIA – new requirements for system safety programs
• Applies to commuter and intercity passenger rail operators
FTA program: MAP-21 – new authority for FTA to develop and enforce
nationwide safety standards for transit systems
• Applies to all transit modes, except those regulated by FRA
System Safety - FRA
Railroad Safety Risk Reduction Programs (RSIA Sec. 103, codified at
49 U.S.C. 20156) - FRA Notice of Proposed Rulemaking (77 Fed.
Reg. 55,372, Sept. 7, 2012), 49 CFR Part 270
Goal: to improve safety by reducing the number and rates of
accidents, incidents, injuries, and fatalities
System Safety Program (SSP) in FRA’s proposed rule
• Risk-based hazard analysis
• Technology implementation plan
• Fatigue management plan
System Safety - FRA
49 U.S.C. 20156:
Requires each commuter rail operator to develop a railroad safety
risk reduction program (system safety program) that systematically
evaluates railroad safety risks on its system and manages those
risks in order to reduce the numbers and rates of railroad accidents,
incidents, injuries, and fatalities
Conduct risk analysis
Mitigate aspects of system that increase risks to railroad safety
Enhance aspects of system that decrease risks to railroad safety
System Safety - FRA
Required components of SSP:
• Risk mitigation plan
• Technology implementation plan
• Fatigue management plan
System Safety - FRA
Risk analysis: Identify and analyze:
• Operating rules and practices
• Infrastructure
• Equipment
• Employee levels and schedules
• Safety culture
• Management structure
• Employee training
• Other matters, including those not covered by railroad safety
regulations or other Federal regulations, that impact railroad safety
System Safety - FRA
Technology implementation plan:
• 10-year plan to develop, adopt, implement, maintain and use
technology to reduce safety risks
• Analyze safety impact, feasibility and costs-benefits
• Provide implementation schedule
• Identify PTC implementation schedule
System Safety - FRA
Fatigue management plan
• Plan designed to reduce the fatigue experienced by safety-related
railroad employees and to reduce the likelihood of accidents,
incidents, injuries, and fatalities caused by fatigue
• 2 year updates
• Elements:
• Targeted fatigue countermeasures aimed at differing conditions
throughout system
• Employee training
• Scheduling practices
• Alertness strategies
System Safety - FRA
Protection of risk analysis information from discovery in litigation
or disclosure under FOIA:
• RSIA Sec. 109 (codified at 49 U.S.C. 20118-20119)
• Protection would apply to:
Information generated by railroad in course of conducting risk
• Statement of mitigation measures identified to address those
• NPRM proposes to shield information compiled or collected solely for
the purpose of developing, implementing or evaluating a SSP
System Safety - FRA
• Involvement of labor – agency must make good faith effort to reach
agreement with all directly affected employees on contents of SSP
• FRA has authority to impose civil penalties for failure to submit,
certify or comply with SSP
System Safety - FTA
Transit System Safety
• MAP-21, Sec. 20021 (codified at 49 U.S.C. 5329)
• Closes regulatory gap in safety oversight of transit systems
• Applies to:
• Heavy rail, light rail, streetcar, bus and ferry
• FTA authority to
• Issue safety regulations
• Inspect, monitor and enforce
• New FTA Office of Transit Safety and Oversight
• Rulemaking pending
System Safety - FTA
FTA framework
• Emphasis on mitigating risks to prevent accidents – all hazards
• Safety Management System (SMS)
• Policy: Define management and employee responsibilities
• Risk management: Analyze risks, identify strategies to mitigate
or eliminate
• Assurance: Inspection and data to ensure performance of risk
• Promotion: Create safety culture through communication and
employee training
System Safety - FTA
FTA: National Public Transportation Safety Plan (MAP-21 Sec.
20021(b), codified at 49 U.S.C. 5329)
Develop safety performance criteria for all modes of transportation:
• Minimum safety performance standards for vehicles not already
regulated by other DOT or other Federal agency
• Incorporate pass/fail safety criteria into Bus Testing Program
• Safety certification program for state and agency personnel
responsible for safety oversight
• Definition of state of good repair
System Safety - FTA
Individual agency: Public Transportation Agency Safety Plan (MAP21 Sec. 20021(b), codified at 49 U.S.C. 5329)
• Develop agency safety plan and certify that plan meets FTA
• Strategies for identifying risks and mitigating or eliminating
exposure to hazards
• Trained safety officer to report directly to general manager
• Performance targets based on national safety performance
• Establish staffing levels
• Staff training and certification program
System Safety - FTA
State Safety Oversight (SSO) Program (MAP-21 Secs. 20021(b),
20030(e), codified at 49 U.S.C. 5329, 5330):
• Applies to states that have rail systems not already regulated by
• State must establish SSO program establishing state responsibility
for oversight of rail fixed guideway transportation safety in
accordance with federal law
• SSO must encompass agency’s capacity, organizational structure,
financing, and activities.
• Establish State Safety Oversight agency
• SSO agency may not derive any funds from any transit agency it
System Safety - FTA
State Safety Oversight (SSO) Program, cont’d:
• Up to 80% federal funding
• $21.9 m available – 78 Fed. Reg. 28,014 (May 13, 2013)
• Implements SMS in collaboration with states in advance of
System Safety - FTA
• FTA has authority to:
• Inspect, audit and issue directives
• Issue subpoenas and conduct discovery
• Prescribe recordkeeping requirements
• Investigate accidents in cooperation with NTSB
• Require more frequent oversight
• Require that formula grant funds be used to correct safety
deficiencies before being allocated to other projects
System Safety
Looking ahead:
• FRA and FTA safety programs clearly two separate regimes
• FRA final rule anticipated this summer
• FTA rulemaking not yet initiated
• Office of Transit Safety and Oversight to begin working with
states and agencies
System Safety
• FTA MAP-21 website:
• FTA Office of Transit Safety and Oversight:
• February 7, 2013 Dear Colleague Letter to states outlining actions
necessary to establish and finance SSO agency, at:
• Notice of availability of funding to establish SSO agencies: 78 Fed.
Reg. 28,014 (May 13, 2013)
Operator Safety
Important element of FRA-mandated System Safety Plans
Focus on individual’s role in maintaining safe operating environment
Situational awareness
• Alertness
• Minimizing distractions
We’ll cover
• Hours of service rules for passenger rail operating employees
• Rules governing the use of personal electronic devices
Operator Safety
Hours of Service regulations for passenger operators (RSIA Sec.
108, codified at 49 U.S.C. 20116, 21102, 21109) FRA Final Rule (76
Fed. Reg. 50,360, Aug. 12, 2011) – in effect since Oct. 15, 2011
• Commuter and freight operations differ significantly:
• Scheduling practices
• Patterns of operation
• Conditions of operation
Operator Safety
Personnel governed by new legislation:
• “Train employees”: a railroad’s personnel engaged in or
connected to the movement of a train
• “Signal employees”: a railroad’s personnel or those of a
contractor (expansion of class of covered personnel) who are
engaged in signal activities
Operator Safety
On-duty and related time limitations:
• Time spent by a train employee on duty or in other mandatory
service (i.e., deadhead or limbo time) cannot exceed 276 hours
per month
• Time spent by a train employee on duty cannot exceed 12 hours
• A train employee cannot go on duty unless that employee has
had at least 10 consecutive hours off duty during the preceding
24 hours
• For every 6 consecutive days a train employee is on duty for
some period of each day, the employee must have at least 48
hours off duty at the employee’s home terminal
Operator Safety
New concept: Requires railroads to perform fatigue modeling to
determine effect of working schedules on fatigue:
• Analyze the risk of fatigue during night time duty hours
• Implement fatigue mitigation plans on the basis of the completed
• Train employees in fatigue mitigation
Operator Safety
Restrictions on handheld electronic devices
• FRA Final Rule, 75 Fed. Reg. 59,580 (September 27, 2010),
amending 49 CFR Part 220
• Effort to reduce distractions, increase situational awareness
• Electronic device
• Personal electronic devices
• Devices supplied by the railroad for an authorized business
Operator Safety
Rule restricts a railroad operating employee’s use of electronic
devices when the use of such a device would affect the employee’s
or another employee’s performance of safety-related duties
Both locomotive engineers and other categories of railroad operating
employees are generally prohibited from using any electronic
(1) when they are on a moving train,
(2) when any crewmember is on the ground or riding rolling
equipment during a switching operation, or
(3) when any railroad employee is assisting in preparation of
the train for movement
Operator Safety
Exceptions, including:
• To respond to an emergency situation involving the operation of
the railroad or encountered while performing a duty for the
• Deadheading employees not in controlling locomotive
• Use of medical device consistent with railroad’s standards of
medical fitness for duty
• FRA may assess civil penalties
• Railroad may impose more stringent requirements
Shared Use of Freight Corridors
Use of freight rail corridors by commuter rail operators:
• Federal statutory limitation on liability
• Allocation of liability
• Environmental issues
• Separation of operations
Shared Use of Freight Corridors
$200 million limitation on liability – 49 U.S.C. 28103:
• Applies to damages arising out of the operation of rail passenger
• Caps total aggregate awards to all passengers as the result of a
single accident or incident at $200 million
• Encompasses punitive damages, but only if such damages are
recoverable under state law
Shared Use of Freight Corridors
Direct negotiations with freight railroads:
• Allocation of liability – RRs assume but-for standard
• Environmental liability
• Acquisition due diligence
• Allocation of liability during construction and shared operations
• Separation of operations
• Temporal separation
• Positive train control
Allison I. Fultz
Kaplan Kirsch & Rockwell LLP
Washington, DC
(202) 955-5600