FRA to Require Railroad Risk Assessments - Data to be Excluded from Litigation

Today the Federal Railroad Administration (FRA) published a proposed rule (77 FR 55372) requiring passenger railroads to implement a System Safety Program (SSP), which requires railroads to "identify and mitigate or eliminate hazards and the resulting risks on each railroad's system." Although this rule, which is authorized by section 109 of the Rail Safety Improvement Act, 49 U.S.C. 20118 - 20119, addresses only passenger railroads, a similar rule-making is apparently in process that will cover "Class I railroads and railroads with inadequate safety performance." (77 FR 55379).

To create a SSP, which is to be developed by individual railroads and submitted to the FRA for approval, railroads must identify risk-based hazards, and then create a plan to reduce or eliminate identified risks. In order to ensure railroads conduct "a robust assessment of the hazards and resulting risks on its system," the proposed rule will protect information compiled or collected solely for the purpose of the SSP "from discovery, admission into evidence, or consideration for other purposes in a Federal or State court proceeding for damages involving personal injury, wrongful death, and property damage." (77 FR 55379).

Today's NPRM goes into significant detail regarding the reasons for excepting SSP risk analyses data for use in civil actions, and specifically cites 23 USC sec. 409, which generally excludes grade crossing safety assessments (under certain circumstances) from use in litigation as an example (the detailed discussion begins on page 55390). Not included in the statutory prohibition of evidence is material not " solely compiled or collected" for the purpose of the SSP.

With regard to the prohibition of SSP material from litigation, the FRA expanded the RSIA mandate to exclude data and analyses from civil discovery (including FOIA) and admission as evidence, to also include "consideration for other purposes." The "for other purposes" exclusion is meant to completely exclude the risk-analyses of the railroads, including any indirect use or reference such as refreshing a witnesses recollection or reliance by an expert witnesses. The FRA explained succinctly why this extra step was taken:

"The additional language, 'or considered for other purposes,' ensures that the protected information remains out of a proceeding completely. The protections would be useless if a litigant is able to use the information in the proceeding for another purpose. To encourage railroads to perform the necessary vigorous risk analysis and to implement truly effective elimination or mitigation measures, the protections should be extended to any use in a proceeding." (pg. 55391).

The effective date of the prohibition of evidence will be 1 year after the publication of the final rule, and will also apply to forthcoming risk reduction rule applicable to Class I railroads (pg. 55392).