1. Passenger Rail Risk Management Issues
Allison I. Fultz
Kaplan Kirsch & Rockwell LLP
Washington, DC
2013 APTA RISK MANAGEMENT SEMINAR
Cincinnati, OH
June 10, 2013

2. Overview 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
Rail System Safety Plans – Rail Safety Improvement Act of 2008
Transit System Safety Plans – Moving Ahead for Progress in the 21st Century Act – MAP-21
Operator Safety – Rail Safety Improvement Act
Shared Used of Freight Corridors – Liability Limitations at 49 USC and by contract with freight railroad
Primarily from passenger rail perspective, but some issues encompass bus operations –
FTA Transit System Safety addresses all modes
Use of cameras to monitor operators

3. Overview
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
Policy, law and regulation – system safety and operator requirements
Shared use – some statutory criteria, but largely contract matter

4. 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

5. System Safety - FRA
Railroad Safety Risk Reduction Programs (RSIA Sec. 103, codified at 49 U.S.C ) - 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
FRA expects to issue final rule this summer.
Emphasize that this rule applies to commuter rail operators, not to heavy rail, light rail, or systems that are not regulated by FRA

6. 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

7. System Safety - FRA Required components of SSP: Risk mitigation plan
Technology implementation plan
Fatigue management plan

8. 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
Comprehensive risk analysis required pursuant to 39 USC 20156(c):
Mix of objective (operating rules and practices, employee levels and schedules), subjective (safety culture) and mixed (condition of infrastructure and equipment) analysis
Permits each system to identify characteristics unique to its circumstances
Examines physical, operational and cultural elements
Other matters could include, for example, behavior of passengers and other members of the surrounding community

9. 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
Elements may include:
Processor-based technologies
Positive train control systems (PTC)
Electronically controlled pneumatic brakes,
Rail integrity inspection systems and rail integrity warning systems
Switch position monitors and indicators
Trespasser prevention technology
Highway- rail grade crossing technology
Other new or novel railroad safety technology, as appropriate

10. 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
Later in presentation, will address specific rules aimed at employee fatigue and situational awareness
Hours of service
Use of handheld electronic devices
SSP intended to incorporate regulatory requirements into agency’s broader safety plan – context will vary in each instance

11. 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 )
Protection would apply to:
Information generated by railroad in course of conducting risk analysis
Statement of mitigation measures identified to address those risks
NPRM proposes to shield information compiled or collected solely for the purpose of developing, implementing or evaluating a SSP
FRA analyzed provisions applicable to other federal safety programs to guide development

12. System Safety - FRA Implementation
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

13. System Safety - FTA Transit System Safety
MAP-21, Sec (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
Pre-existing regulatory gap – As artifact of development of local transit systems, transit system safety was matter of state oversight
MAP-21 gives FTA for first time – authority to establish and enforce national safety standards

14. System Safety - FTA FTA framework
Emphasis on mitigating risks to prevent accidents – all hazards approach
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 controls
Promotion: Create safety culture through communication and employee training
Similar to FRA – emphasis on mitigating risks to PREVENT accidents
Not similar to FRA – Safety Management Systems framework – more performance-based than prescriptive
However, this may ultimately be distinction without difference – FRA SSPs require means of measuring success of program implementation

15. System Safety - FTA
FTA: National Public Transportation Safety Plan (MAP-21 Sec (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

16. System Safety - FTA
Individual agency: Public Transportation Agency Safety Plan (MAP-21 Sec (b), codified at 49 U.S.C. 5329)
Develop agency safety plan and certify that plan meets FTA requirements:
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 criteria
Establish staffing levels
Staff training and certification program

17. System Safety - FTA
State Safety Oversight (SSO) Program (MAP-21 Secs (b), (e), codified at 49 U.S.C , 5330):
Applies to states that have rail systems not already regulated by FRA
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 oversees
Prohibition on funding from transit agencies – FTA aims to eliminate any conflict of interest
SSO agency will be funded by FTA and sources other than any agency it oversees

18. 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 rulemaking

19. System Safety - FTA Enforcement: 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
FTA does not have authority to impose civil penalties
Other means of ensuring compliance

20. 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
Separate regimes –
Established through different legislative efforts
Many agencies will be subject to both

21. System Safety Resources
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)
Separate regimes –
Established through different legislative efforts
Many agencies will be subject to both

22. 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
Moving back to the realm of FRA regulation -

23. Operator Safety
Hours of Service regulations for passenger operators (RSIA Sec. 108, codified at 49 U.S.C , 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
Studies have shown fatigue to be a contributing factor in rail accidents attributable to human error
Reducing rail employee fatigue a significant goal of RSIA
First significant revision to regulations governing rail employee work hours in 40 years
First time passenger rail operations have been regulated separately from freight

24. 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

25. 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
New rule requires 10 rather than 8 hours off duty during previous 24 hours

26. 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 models
Train employees in fatigue mitigation

27. 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 purpose
Electronic device includes cell phones, laptops, GPS devices, and electronic book-reading devices, but excludes (a) electronic control systems and information displays within a locomotive cab necessary to operate a train or control switching operations and (b) digital watches whose only purpose is as a timepiece.
Personal electronic devices distinguished from those supplied by the railroad for an authorized business purpose
Restrictions on devices supplied by RR not necessarily less stringent – these devices may be used in certain circumstances

28. 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 device:
(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
Devices must be off when any employee is in a locomotive while train is moving or while any operating employee is performing a safety-related task
Some exceptions apply

29. Operator Safety Exceptions, including:
To respond to an emergency situation involving the operation of the railroad or encountered while performing a duty for the railroad
Deadheading employees not in controlling locomotive
Use of medical device consistent with railroad’s standards of medical fitness for duty
Enforcement:
FRA may assess civil penalties
Railroad may impose more stringent requirements
Enforcement -
FRA may assess civil penalties against RR and against employee as well if employee’s actions were willful violation
If RR imposes more stringent requirements, must first satisfy requirements of rule and inform employees of distinction between FRA requirements and RR’s requirements
Inward-facing cameras: Not included within scope of rule, but no FRA regulation prohibits
Metrolink has successfully implemented video monitoring and prevailed in state and federal litigation aimed at halting implementation

30. 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

31. Shared Use of Freight Corridors
$200 million limitation on liability – 49 U.S.C :
Applies to damages arising out of the operation of rail passenger transportation
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
Cap has not yet been tested in litigation
Insurance available, but has at times been difficult to obtain
Discussion of establishing risk pool

32. 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
Allocation of liability –
Railroads typically take a but-for stance in allowing passenger operations on their corridors, and will demand stringent liability and indemnification obligations from agencies
Frequent hard-fought negotiating point
Environmental liability –
RRs not amenable to shouldering cost of remediation of past releases
During construction of any passenger facilities, agency typically responsible for any release it causes, cost of removing contaminated material
During shared use of corridor, may be able to negotiate cap on agency’s liability – recognition of past and current use
Separation of operations –
Temporal separation – operating windows
Anticipate that implementation of positive train control may allow more scheduling flexibility – remains to be seen

33. QUESTIONS? Allison I. Fultz Kaplan Kirsch & Rockwell LLP
Washington, DC
(202)