Sec. 402. Confidential close call reporting system
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Not later than 3 years after the date of enactment of this Act, the Secretary shall promulgate a rule to encourage and facilitate the voluntary participation of railroad carriers, railroad carrier contractors, and employees of railroad carriers or railroad carrier contractors (including any non-profit labor organizations representing a class or craft of directly affected employees of railroads carriers or railroad carrier contractors) in a confidential close call reporting system.
The Secretary shall use any information and experience gathered through research and pilot programs on confidential close call reporting systems in developing a rule for the voluntary adoption of confidential close call reporting system programs under this section. Each confidential close call reporting system program shall be designed to improve railroad safety by facilitating greater collection and analysis of reports that describe unsafe conditions and events in the railroad industry, as reported voluntarily and confidentially by employees.
The rule shall specify— the use of independent third parties for the collection of close call reports, de-identification of data, and distribution of close call data; the criteria for participating voluntarily in the confidential close call reporting system; the criteria for accepting confidential close call reports; the appropriate use and protection, including the information protections described in subsection (d), of peer review teams and participation of the Secretary’s representatives; the relief from specific railroad safety regulatory provisions and the conditions under which the relief will and will not be granted; and the appropriate use and protection, including the information protections described in subsection (d), of confidential data generated under voluntary participation in the confidential close call reporting system.
A railroad carrier voluntarily participating in a confidential close call reporting system program, pursuant to program elements contained in the final rule promulgated under subsection
(b)and in collaboration with the Secretary, railroad carrier contractors (as appropriate), and employees of railroad carriers or railroad carrier contractors (including any non-profit labor organization representing a class or craft of directly affected employees of railroad carriers or railroad carrier contractors), shall develop an implementing memorandum of understanding that establishes agreed-upon terms for participation in the confidential close call reporting system. An implementing memorandum of understanding under paragraph
(1)shall be signed by— the Secretary or the Secretary's designee; the participating railroad carrier or the representative thereof; if appropriate, each participating railroad carrier contractor or the representative thereof; and the participating employees and contractors or the representative thereof (such as 1 or more non-profit labor organizations representing a class or craft of directly affected employees of the railroad carrier or railroad carrier contractor). For a confidential close call reporting system program established through an implementing memorandum of understanding described in subsection (c), the rule shall include provisions that withhold from discovery or admission into evidence (in a Federal or State court proceeding for damages involving personal injury, wrongful death, or property damage against a railroad carrier or railroad carrier contractor) any plan, document, report, survey, schedule, list, or data compiled or collected for the sole purpose of developing, evaluating, planning, or implementing a confidential close call reporting system program, including a railroad carrier's analysis of its close calls or near misses. With regard to a voluntary confidential close call reporting system that was in effect prior to the date of final rule under subsection (a), the Secretary— shall allow the parties participating in that system to sign a new or revised implementing memorandum of understanding that prospectively entitles the parties to the information protections under paragraph (1); and may retroactively apply the information protections under paragraph
(1)to any information and analyses that was generated under that system prior to the date of the final rule. For a confidential close call reporting system program established through an implementing memorandum of understanding described in subsection (c), the Secretary shall ensure that the Department of Transportation and any entity collecting close call reports, de-identifying data, or distributing close call data provide the same level of confidentiality as contained in the Confidential Information Protection and Statistical Efficiency Act of 2002 ( 44 U.S.C. 3501 note), as administered by the Bureau of Transportation Statistics. Nothing in this section shall— require a railroad carrier to adopt a confidential close call reporting system program; prohibit a railroad carrier from voluntarily adopting a confidential close call reporting system program outside of the rulemaking framework; and require the Secretary to develop a confidential close call reporting system program with a railroad carrier, a railroad carrier contractor, employees of the railroad carrier or railroad carrier contractor, or any non-profit labor organizations representing a class or craft of employees of a railroad carrier or a railroad carrier contractor. In this section, the term railroad carrier has the meaning given the term in section 20102 of title 49, United States Code. Section 20118 is amended— in subsection (a)— in the matter preceding paragraph (1)— by inserting “, confidential close call reporting system program,” after “safety risk reduction program”; and by inserting pursuant to section 552(b)(3) of that title, after section 552 of title 5 ; in paragraph (1), by inserting “, confidential close call reporting system program,” after “safety risk reduction program”; and in paragraph (2), by inserting “, confidential close call reporting system program,” after “safety risk reduction program”; in subsection (b), by inserting “, confidential close call reporting system program,” after “safety risk reduction program”; and in subsection (c), by inserting “, of any information or analyses generated as part of a confidential close call reporting system program,” after “risk mitigation analyses”.
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Sec. 402
Confidential close call reporting system
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