SUPPLEMENTARY INFORMATION:

FRA's regulations at Subpart H of 49 CFR part 236 (Subpart H), most of which FRA issued in 2005, set forth minimum performance standards for the development and use of certain technologies, namely safety-critical processor-based signal or train control systems, including subsystems and components thereof, developed under the terms and conditions of that subpart. See 70 FR 11095 (Mar. 7, 2005); 49 CFR 236.0(h), 236.901. The term “processor-based” means dependent on a digital processor in order to function properly. See 49 CFR 236.903. The subpart does not apply to a processor-based signal or train control system (including a subsystem or component thereof) that was in service as of June 6, 2005. See 49 CFR 236.911(a). For brevity, the subpart defines the term “product” to mean “a processor-based signal or train control system, subsystem, or component.” See 49 CFR 236.903.

Under Subpart H, a railroad that wishes to develop and use a safety-critical product or products covered by Subpart H must develop a Railroad Safety Program Plan (RSPP). The RSPP is intended to serve as the railroad's principal safety document for all of the railroad's safety-critical products subject to Subpart H. The railroad's RSPP must outline its methods of evaluation, risk assessment, safety assessment, system verification and validation, human factors analysis, and configuration management practices for all of its products subject to Subpart H. Using the methods described in its RSPP, the railroad then must develop a Product Safety Plan (PSP), for each product, which is intended to describe in detail all of the safety aspects of each particular product. Then the railroad must submit its RSPP and PSP(s) to FRA for approval. See 49 CFR 236.905(c) and 236.913.

FRA recognizes that Subpart H does not explicitly discuss how a third party may use the same processor-based signal or train control technology after FRA has approved it for use on the basis of a different railroad's PSP. However, FRA did discuss the potential for “portable” PSPs to be used by multiple railroads. See70 FR 11080. This Interim Statement of Agency Interpretation describes the process by which a railroad may most readily receive FRA's approval for the railroad's implementation and use of a technology subject to Subpart H, where the technology has previously been approved for use by another railroad. This Interim Statement of Agency Interpretation does not amend Subpart H, but rather provides public notice of the standards that FRA will use to evaluate a PSP submitted under Subpart H by a third-party railroad. As indicated above, this interpretation becomes effective upon publication. RSPPs and PSPs that were acceptable prior to the effective date of this document will not be rendered unacceptable by this document; therefore, prior notice of the interpretation is not necessary.

Any third-party railroad seeking to implement a product subject to Subpart H must first develop and adopt its own RSPP in accordance with 49 CFR 236.905. This holds true even where a railroad will only be using technologies subject to an FRA-approved PSP developed by a different railroad. The third-party railroad must then submit an informational filing or petition for approval of a PSP in accordance with 49 CFR 236.913. An RSPP and PSP are necessary in order for a railroad to establish the performance requirements to which it will be held by FRA, and an RSPP and PSP are, therefore, required even for the use of previously-approved technologies. If a railroad submits an RSPP that includes only minor, non-safety-critical changes from an RSPP previously-approved by FRA and if the railroad indicates both the source of the RSPP and the variances from the FRA-approved version, FRA anticipates few difficulties in the RSPP-approval process. If a railroad does not plan to develop a PSP independently, the most important element of the RSPP is the “configuration management control plan” required by 49 CFR 236.905(b)(4).

Similarly, if a third-party railroad submits a PSP for a product based upon a PSP for the same product that was previously approved by FRA and if the third-party railroad identifies all variances in the product and its use from the approved version, FRA expects that the review process will focus only on those areas where variances exist in the product design or intended use. Where a PSP makes reference to a ( printed page 70890) previously-approved PSP, it is not necessary for a railroad to resubmit design information to demonstrate that the development of the technology complies with Subpart H, except where development changes were made from the approved version of the technology. Accordingly, in such cases the elements of the PSP defined in 49 CFR 236.907(a)(1)-(a)(11) are satisfied if the applicant makes explicit reference to an FRA-approved PSP; ^[2] the content of the original PSP relating to those paragraphs need not be repeated in the third-party PSP filings. However, because paragraphs (a)(12)-(a)(20) of 49 CFR 236.907 address a railroad's use of the technology, including training, installation, maintenance, security, and other elements, information called for by these paragraphs must be included within the third-party's PSP expressly. A railroad may choose to copy these elements from an approved PSP, and FRA encourages this practice, but it is necessary for railroads to explicitly adopt the practices required for the use of the technology. This reiteration of the description of these required practices will ensure that a railroad has adequate notice of its obligations under its PSP, which are subject to enforcement under Subpart H. If variances exist in the third-party railroad's PSP information responsive to paragraphs (a)(12)-(a)(20) of 49 CFR 236.907, then those variances must be supported by the safety analysis of the original railroad or the third-party railroad contained within the RSPP and material in the PSP responsive to paragraphs (a)(1)-(a)(11) of 49 CFR 236.907.

Once FRA approves a railroad's PSP (submitted through either an informational filing or a petition for approval), the submitting railroad becomes subject to Subpart H in its entirety, including the requirement set forth in 49 CFR 236.915 that the railroad comply with the terms of its FRA-approved PSP.

Authority: 49 U.S.C. 20102-20103, 20107, 20133, 20141, 20157, 20301-20303, 20306, 20701-20703, 21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89.

78 FR 70888