By: Michael J. Barron

FRA has issued a final rule, effective April 11, 2020, mandating that each Class I and any railroad deemed to have an inadequate safety performance develop a Risk Reduction Program (RRP).  An RRP is a comprehensive approach to safety “that determines a railroad operation’s level of risk by identifying and analyzing applicable hazards, and involves developing plans to mitigate, if not eliminate, that risk.” (See Federal Register – Summary of the Rule).  While railroads have flexibility in developing their plans, the plans require FRA approval and must be submitted to the FRA for review by August 16, 2021.  Railroads shall internally assess the RRP’s annually.  The RRP’s are subject to FRA audit.  Notably, the rule provides that information compiled or collected by a railroad solely for the purpose of planning, implementing, or evaluating an RFP is protected from discovery or admissibility in a personal injury, wrongful death, or property damage claim.  Likewise the rule preempts state discovery rules or sunshine laws requiring disclosure of the protected information.

The new rules do not apply to Class II and Class III railroads, unless  a Class II or Class III railroad is deemed to have inadequate safety performance under the requirements of the new rule.  The rule has a quantitative and a qualitative process to determine if a railroad has an inadequate safety performance.  The rule summary goes into great detail on the analysis the FRA performed in reaching the final rule language for determining inadequate safety performance so as not to unfairly weight quantitative and qualitative factors for small railroads.

The Federal Register publication of the rule is attached here.  Contact Michael Barron at Fletcher & Sippel if you have questions.