BUILD America 250 Act

(a) Confidential close call reporting system required. Not later than 180 days after the date of enactment of this Act, the Secretary shall initiate a rulemaking to establish a confidential close call reporting system that requires each Class I freight railroad carrier to—

(1) enter into an implementing memorandum of understanding (in this section referred to as an IMOU) with the Secretary and employees (or any nonprofit employee labor organization representing a class or craft of the railroad’s employees) to participate in a confidential close call reporting system program (in this section referred to as the C³RS Program); and

(2) comply with—

(A) the requirements of the IMOU; and

(B) any additional requirements the Secretary may prescribe.

(b) Confidential close call reporting system

(1) Reporting of unsafe events. An IMOU entered into under this section shall provide a process for railroad employees to report a close call event to an independent third party, as determined by the Secretary

(2) Reporting procedures

(A) Report form. The independent third party designated under paragraph (1) shall provide a reporting form to employees covered by a memorandum of understanding under subsection (a) to report each observed close call event in detail, including information such as the date, time, location, contributing factors, actions taken, along with any other information necessary to fully describe the event.

(B) Multiple events. To report multiple close call events experienced during a single tour of duty, the IMOU shall require that a separate close call report form is required for each event.

(C) Public form. The designated independent third party shall make available on a public website a report form for a close call event that includes instructions on the submission of such form.

(c) Screening required

(1) In general. The designated independent third party shall conduct an initial screening of reports submitted under subsection (b) to determine if the initial close call report contains insufficient information to determine acceptance. If the designated independent third party determines that—

(A) the report contains insufficient information, the designated independent third party shall notify the reporting employee that the report contains insufficient information; and

(B) the report can be accepted, the designated independent third party shall notify the reporting employee with a physical confirmation of the report’s acceptance and provide a report number or ID strip as confirmation of the acceptance.

(2) Criteria for close call report acceptance. In conducting the initial screening under this subsection, the designated independent third party—

(A) may accept any report for a close call event; and

(B) may reject the following types of reports:

(i) Any train incident that meets the train incident reporting threshold in effect on the date the reported event occurred.

(ii) Any reported close call event that caused or is alleged to have caused any fatality, injury, illness, or medical treatment of any kind to any individual (including passengers) involved in the event.

(iii) Reports unrelated to the safety of activities performed in support of railroad operations.

(iv) Willful violations of part A of subtitle V of title 49, United States Code, and any rules, regulations, orders, and standards issued pursuant to such part, including violations related to the use of alcohol and controlled substances.

(v) An event resulting in an identifiable release of hazardous material.

(vi) Acts of sabotage or other criminal offenses.

(vii) Report that exclusively involve a personal grievance, including—

(I) a rejected time slip; or

(II) perceived unfairness by a railroad manager or supervisor.

(viii) Reports not filed within 3 business days of the date on which the event occurred.

(d) Reporting employee protections

(1) Confidentiality. A close call report submitted under this section by an employee shall not be disclosed in a personally identifiable form.

(2) Personally identifiable information. For purposes of section 552 of title 5, United States Code, the identity of an employee who submitted a close call report under this section, or information that could lead to the identification of such an employee, shall be exempt from such section.

(e) Condition under which a reporting employee is not protected from railroad discipline, railroad revocation of certification, or other FRA civil enforcement

(1) Second screening. For each accepted close call report, a peer review team shall conduct a second screening to determine whether the reporting employee is protected from discipline, revocation of certification, or FRA civil enforcement.

(2) Determination criteria. The PRT shall determine that the protection described under paragraph (1) is afforded to a reporting employee for a reported event unless 1 or more of the following conditions occurred:

(A) The report is rejected under subsection (c)(2)(B), or the PRT has information that was unavailable to the designated independent third party during the initial screening indicating the report should have been rejected under subsection (c)(2)(B).

(B) The employee’s action or lack of action was intended to damage the railroad or another entity’s operations or equipment or to injure other individuals, or intentionally place an individual in danger, including sabotage.

(C) The event is a real time observation not eligible for reporting as described in subsection (k).

(f) Revocation of certification. The Administrator of the FRA shall not require the railroad employing the reporting employee to revoke the certification of the employee if—

(1) such report is accepted by the designated independent third party; and

(2) the PRT determines that none of the conditions described in subsection (e)(2) occurred.

(g) Railroad protections

(1) Civil enforcement action. The Administrator of the FRA shall afford the same protection from FRA civil enforcement action to a railroad involved in a close call event as the protection afforded to an employee reporting through the confidential close call reporting system for any event for which an accepted close call report is filed.

(2) Exception. If an employee report falls under an exception under subsection (e)(2) and the reporting employee is not afforded protection, the employing railroad shall not receive protection from FRA civil enforcement.

(h) Collection and confidentiality of reported information

(1) Maintenance of information reported under program. The designated independent third party shall act as the owner of the information a reporting employee reports under the confidential close call reporting program and shall protect the confidentiality of such information.

(2) Compiled confidential report. The designated independent third party shall compile into a unified document all information relevant to the reported close call event, including information from the close call report and all other information collected by the designated independent third party through follow-up calls, for further analysis by the PRT.

(3) Protection from disclosure. The designated independent third party shall de-identify the unified document so that the identity of the reporting employee and any other involved employee, individual, or third party involved in the report can no longer be determined. At minimum, the following shall be removed:

(A) The employee close call report form and the content of such form.

(B) The name of the individual reporting on such event.

(C) The name of any other employee mentioned in the report.

(D) Any third-party identifying information.

(E) Any information that would make it obvious that fewer than 3 easily identifiable individuals could have submitted the close call report, including—

(i) the exact location and time of a close call; and

(ii) a description of specific, rarely used equipment models.

(4) Limitation on provision of report to railroad. In any case in which the designated independent third party is unable to protect the confidentiality of the reporter or any other employee, individual, or third party involved in the event the designated independent third party shall not forward the report to the PRT.

(5) Publicly-available database. After providing a unified document to the PRT, the designated independent third party may upload the report to a searchable database available to the public, provided that the report does not contain any information that could identify the railroad involved.

(6) Perpetuity of confidentiality. The confidentiality of the information collected under this section shall be preserved in perpetuity.

(7) Limitation on access and ownership of information. The designated independent third party may grant all internal third-party C³RS Program staff access to confidential information for internal use only on a need-to-know basis and only for the purposes of completing their work assignments.

(8) Additional. In any case in which a railroad employee is unaware that such employee was involved in a close call event that was properly reported by another employee, upon notification by the investigating railroad officer, the railroad employee may—

(A) complete and submit a close call report containing any information known to such railroad employee regarding such event; and

(B) upon submission of a report described in subparagraph (A), receive the same protections as the individual who initially reported the close call.

(i) Limitation on witness testimony. An employee who has received protection from the adverse actions described in subsection (e) shall not be required by the railroad to appear as a witness in a railroad investigation of an employee who did not file a close call report.

(j) Requirements involving ID strip

(1) Lost or misplaced ID strip. If a reporting employee facing discipline has lost or misplaced the ID strip assigned under subsection (c)(1)(C), the reporting employee may request a verification letter from the designated independent third party. The designated independent third party shall provide the letter as soon as is practicable.

(2) Discipline pending investigation. In any case in which a railroad initiates an investigation of a close call report, a railroad shall not carry out any disciplinary action until an ID strip is issued with respect to such report.

(3) Id strip applicability. Upon availability of an ID strip for a close call event, the reporting employee shall present the ID strip to the charging railroad manager or supervisor. If such railroad manager or supervisor determines that the provided ID strip applies to the event, the railroad shall close the discipline portion of the investigation into the event. If the railroad manager or supervisor and employee do not agree that the ID strip is applicable to the event and the employee presents a copy of the ID strip to the PRT, the PRT shall determine whether the event qualifies for protection against discipline, certification revocation, and FRA civil enforcement under this section.

(4) Dismissal of charges. If the PRT determines the event qualifies for discipline protection under this section, the railroad shall dismiss all charges or assessed discipline, including any revocation of certification, and all lost time shall be paid.

(5) Nonqualification for certain protection. If the PRT determines the event does not qualify for discipline protection, the PRT shall advise the charging railroad manager or supervisor and the time limits for initiating disciplinary proceedings may commence. In the case of a disciplinary proceeding described in the preceding sentence, no party to the applicable IMOU may use or reference the close call report in any disciplinary or revocation proceeding.

(6) Civil enforcement. Upon receiving notice of an FRA civil enforcement for an event covered by an accepted close call report, the reporting employee shall present the ID strip to the FRA for assistance in resolving such notice consistent with the confidential close call reporting system.

(k) Real-time observations

(1) Time limitation. In any case in which a real-time observation is made by a railroad manager or supervisor, the railroad manager or supervisor shall inform the observed employee of the observation as soon as possible, but not to exceed 2 hours from the time of the observation of the event.

(2) Violation of regulation or procedure. A close call event may be considered a real-time observation if an FRA safety inspector notifies the observed employee or the applicable railroad after observing the violation of a regulation or the railroad’s operating procedures or practices.

(3) Requirements. In reporting a real-time observation under this subsection, an FRA Safety Inspector shall document the time, date, location, and a description of the observation on an FRA inspection report. Such FRA Safety Inspector shall provide a copy of the inspection report to the appropriate railroad officer not later than 24 hours after the observation.

(l) Special criteria for known event reporting. The following special criteria apply:

(1) A report involving a known event is an eligible close call event.

(2) An employee shall provide notification of the known event in accordance with the railroad carrier’s operating rules without undue delay.

(3) An employee will file a close call report involving a known event to designated independent third party within the time limits set forth in subsection (c).

(4) The employing railroad of an employee who files a report involving a known event shall not initiate any discipline for an event such employee report to the designated independent third party and that the designated independent third party accepts.

(m) Oversight and non-access requirements

(1) Oversight by fra. The Administrator of the FRA—

(A) shall oversee the scope and quality of the C³RS Program; and

(B) shall not seek any information that may reveal the identity of any individuals, organizations, locations, or events included in a close call report.

(2) Nonaccess by railroads. No Class I railroad may have access to, or seek out, any information relating to a close call report that may reveal the identity of any individual or third party included in a close call report.

(n) Functions of PRT. A PRT’s primary responsibility shall be to accept for review de-identified close call reports from the designated independent third party, and to analyze such reports in order to—

(1) identify and analyze emerging patterns or trends in close call reports, relate such patterns or trends to corrective actions taken by the railroad carrier, and advise and assist with the implementation of corrective actions;

(2) create, review, and discuss a summary report comprised of the individual close call reports, emerging trends, identified root causes, and suggested corrective actions;

(3) assess the association between emerging patterns or trends in close call reports and relate such patterns or trends to corrective actions taken by the railroad carrier;

(4) review and determine whether close call reports are eligible for protections against discipline, certification revocation, or civil enforcement under this section, including determining whether reported events are ineligible for protection as described in subsection (e)(2); and

(5) ensure adherence to time limits within an IMOU.

(o) Responsibilities of the PRT support team. The responsibilities of the PRT and, as applicable, the PRT support team shall include—

(1) evaluating and, if appropriate, implementing corrective actions the PRT recommends in a timely manner;

(2) providing technical support to the PRT, including during implementation of PRT-recommended corrective actions;

(3) reviewing PRT decisions and providing feedback to the PRT, parties to the IMOU, and other stakeholders;

(4) reporting corrective actions the railroad carrier implements to the PRT or reporting why no action was taken;

(5) distributing information regarding the corrective actions to the employees at the locations to which an IMOU applies; and

(6) reporting on the measured effectiveness of corrective actions to the PRT.

(p) Definitions. In this section:

(1) Adverse consequence. The term adverse consequence means a negative impact that results from a human error or system failure.

(2) Certification. The term certification means—

(A) the qualification and certification of locomotive engineers under part 240 of title 49, Code of Federal Regulations, and the qualification and certification of conductors under part 242 of title 49, Code of Federal Regulations; and

(B) the qualification and certification of any other craft of railroad employees under regulations issued by Secretary or Administrator of the FRA.

(3) Class I freight railroad. The term Class I freight railroad means a freight railroad that in the last year for which revenues were reported exceeded the threshold established under regulations of the Surface Transportation Board under section 1201.1–1 of title 49, Code of Federal Regulations.

(4) Close call. The term close call means a condition, event, or series of events that—

(A) if the condition or event recurs, such condition or event has the potential to result in an adverse consequence that is of increased seriousness to railroad safety; and

(B) an action taken to mitigate the recurrence of such condition or event may improve safety in support of railroad operations.

(5) Discipline. The term discipline means any action taken by a Class I freight railroad that would result in a materially adverse employment action including documented verbal or written conferences, counseling, warnings, suspension, termination, dismissal, and demotion.

(6) FRA. The term FRA means the Federal Railroad Administration.

(7) Fra safety inspector. The term FRA Safety Inspector means—

(A) an FRA safety inspector;

(B) a State inspector participating in railroad safety investigative and surveillance activities under part 212 of title 49, Code of Federal Regulations; or

(C) any other official duly authorized by the Administrator of the FRA.

(8) Hazardous material. The term hazardous material means a commodity designated as a hazardous material under part 72 of title 49, Code of Federal Regulations.

(9) ID strip. The term ID strip means the information contained in a close call report form that specifies the event location and the reporting employee’s personal and contact information that the designated independent third party dates and time stamps.

(10) Intercity rail passenger transportation; commuter authority. The terms intercity rail passenger transportation and commuter authority have the meanings given such terms in section 24102 of title 49, United State Code.

(11) Known event. The term known event means an event below the train incident reporting threshold that does not involve a fatality, injury, illness, or medical treatment, but would require managerial notification and protection under railroad policy or operating rules.

(12) Designated independent third party. The term designated independent third party means a federal agency designated by the Secretary to administer the C³RS program. Such agency must have with experience managing close call safety reporting programs.

(13) Need-to-know. The term need-to-know means any case in which internal designated independent third-party C³RS Program staff (including designated independent third party employees and contractors) may have access to information only if such access is necessary for Program management and programmatic evaluation and analysis that is administered by designated independent third party and access to which is granted in the sole discretion of the designated independent third party Program manager.

(14) Peer review team; PRT. The terms peer review team and PRT mean a problem-solving team that consists of—

(A) representatives from the primary stakeholders to an IMOU, including FRA, the railroad carrier, and representatives of the employees who are part to the IMOU;

(B) an equal number of management and labor organization members who will be appointed and approved by their respective organizations, and also consist of FRA personnel; and

(C) for each primary stakeholder, at least 1 primary PRT representative who attends PRT meetings and 1 secondary PRT representative who serves as a back-up to the primary PRT representative or representatives.

(15) Peer review support team; PRT support team. The terms peer review support team and PRT support team means a support team that—

(A) helps a PRT review and, if appropriate, recommend non-binding corrective actions based upon the PRT’s analysis of close call reports; and

(B) may, in recommending corrective action, accept, reject, or modify these recommendations;

(C) consists of an equal number of management and labor organization members who will be appointed and approved by their respective organizations; and

(D) may include FRA representatives that participate in the PRT support team when requested, including upon the request of the FRA.

(16) Railroad manager or supervisor. The term railroad manager or supervisor means an individual with direct supervisory authority over—

(A) an employee involved in a close call event; or

(B) an employee reporting a close call event.

(17) Railroad operations. The term railroad operations means the movement of equipment over rails and activities that support such movement, including deadheading as defined in section 228.5 of title 49, Code of Federal Regulations.

(18) Real-time observation. The term real-time observation means a direct visual observance by an FRA safety inspector or a Class I freight railroad manager or supervisor of a violation of FRA regulations or the operating procedures or practices of such Class I freight railroad, including visual observances that occur during operational testing performed by a supervisor or member of management of such railroad.

(19) Train incident reporting threshold. The term train incident reporting threshold means the monetary incident reporting threshold described in section 225.19(c) of title 49, Code of Federal Regulations.