[Federal Register Volume 73, Number 175 (Tuesday, September 9, 2008)]
[Proposed Rules]
[Pages 52496-52526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-20706]
[[Page 52495]]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 225
Miscellaneous Amendments to the Federal Railroad Administration's
Accident/Incident Reporting Requirements; Proposed Rule
Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 /
Proposed Rules
[[Page 52496]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA-2006-26173]
RIN 2130-AB82
Miscellaneous Amendments to the Federal Railroad Administration's
Accident/Incident Reporting Requirements
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM) and request for comments.
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SUMMARY: FRA proposes to amend its existing regulations addressing
accident/incident reporting in order to clarify ambiguous regulations
and enhance the quality of information available for railroad casualty
analysis. In addition to proposing revisions to its regulations, FRA is
proposing revisions to its Guide for Preparing Accident/Incident
Reports (FRA Guide) and its Accident/Incident recording and reporting
forms, and is requesting comments and suggestions on certain topics of
interest.
DATES: Written Comments: Written comments on the proposed rule must be
received by November 10, 2008. Comments received after that date will
be considered to the extent possible without incurring additional
expense or delay.
Public Hearing: If any person desires an opportunity for oral
comment, he or she should notify FRA in writing and specify the basis
for the request. FRA will schedule a public hearing in connection with
this proceeding if the agency received a written request for hearing by
October 9, 2008.
ADDRESSES: Anyone wishing to file a comment or request a public hearing
should refer to Docket Number FRA-2006-26173 in such comment or
request. You may submit your comments and related material or request
for a public hearing by any one of the following methods:
Fax: 1-202-493-2251;
Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590;
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays; or
Electronically through the Federal eRulemaking Portal. Go
to http://www.regulations.gov. Follow the online instructions for
submitting comments.
Instructions: All submissions must include the agency name, docket
name and docket number or Regulatory Identification Number (RIN) for
this rulemaking. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading under
Regulatory Notices.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Arnel B. Rivera, Staff Director, U.S.
Department of Transportation, Federal Railroad Administration, Office
of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room
W33-306, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone:
202-493-1331); or Gahan Christensen, Trial Attorney, U.S. Department of
Transportation, Federal Railroad Administration, Office of Chief
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-204,
1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-
1381).
SUPPLEMENTARY INFORMATION: Note that, for brevity, references to a
section in part 225 will omit ``49 CFR''; e.g. Sec. 225.5. References
to the FRA Guide for Preparing Accident/Incident Reports in part 225
will omit ``for Preparing Accident/Incident Reports,'' and refer only
to the ``FRA Guide.'' In addition to revising its regulations in the
Code of Federal Regulations, FRA is proposing to revise the FRA Guide.
The proposed FRA Guide is posted on FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for
Changes in Railroad Accident/Incident Recordkeeping and Recording.''
FRA is also revising its instructions for electronically submitting
monthly reports to FRA and will publish said instructions in a revised
Companion Guide: Guidelines for Submitting Accident/Incident Reports by
Alternative Methods (Companion Guide). Upon completion by FRA the
Companion Guide will be posted on FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for
Changes in Railroad Accident/Incident Recordkeeping and Recording.''
Background
In 1910 Congress enacted the Accident Reports Act, Public Law No.
165, recodified as amended at 49 U.S.C. 20901-20903, ``Accidents and
Incidents.'' Title 49 U.S.C. 20901 requires in part, that railroad
carriers file with the Secretary of Transportation reports on ``all
accidents and incidents resulting in injury or death to an individual
or damage to equipment or a roadbed arising from the carrier's
operations during the month'' (emphasis added). Title 49 U.S.C. 20902
authorizes the Secretary of Transportation to investigate accidents and
incidents. The Secretary delegated the authority to carry out the
Accident Reports Act to the Administrator of FRA. 49 U.S.C. 103(c)(1);
49 CFR 1.49(c)(11). FRA's accident/incident reporting requirements were
originally issued pursuant to the Accident Reports Act of 1910.
Sixty years later, Congress enacted the Federal Railroad Safety Act
of 1970 (FRSA). Public Law No. 91-458, recodified primarily at 49
U.S.C. chapter 201, with penalty provisions in 49 U.S.C. chapter 213,
as amended. Section 20103(a) provides that ``[t]he Secretary of
Transportation, as necessary, shall prescribe regulations and issue
orders for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.'' The Secretary delegated
this authority to the Administrator of FRA. 49 CFR 1.49(m). FRA
reissued its accident reporting regulations, 39 FR 43222, December 11,
1974, under the added authority of FRSA to cover additional railroads,
preempt the States from prescribing their own accident reporting
regulations, and require reporting of occupational illnesses. FRA's
accident/incident reporting requirements, 49 CFR part 225, are
currently issued under the dual statutory authority of the Accident
Reports Act of 1910 and FRSA.
In 1970, Congress also enacted the Occupational Safety and Health
Act (OSH Act). Public Law No. 91-596, codified as amended at 29 U.S.C.
651 et seq. While the OSH Act gives the Secretary of Labor a broad,
general authority to regulate working conditions that affect the
occupational safety and health of employees, it also recognized the
existence of similar authority in other Federal agencies. Section
4(b)(1) of the OSH Act, codified at 29 U.S.C.
[[Page 52497]]
653(b)(1), provides that the OSH Act shall not apply to working
conditions as to which another Federal agency exercises statutory
authority to prescribe or enforce standards or regulations affecting
occupational safety or health.
Because FRA exercises statutory authority to prescribe and enforce
standards and regulations for all areas of railroad safety under the
FRSA, OSHA's jurisdiction may be preempted by FRA under section 4(b)(1)
of the OSH Act with regards to certain matters related to railroad
safety. See Policy Statement asserting FRA jurisdiction over matters
involving the safety of railroad operations, 43 FR 10584, March 14,
1978.
With respect to employee injury and illness recordkeeping, however,
the Occupational Safety and Health Review Commission ruled that the
railroad industry must comply with OSHA requirements and must afford
the Secretary of Labor's representatives access to these records.
Secretary of Labor v. Contrail (OSHRC Docket No. 80-3495, 1982). In
doing so the Commission indicated that employee injury and illness
recordkeeping does not come within the purview of section 4(b)(1) of
the OSH Act and, therefore, OSHA's jurisdiction has not been displaced
by FRA's employee injury and illness recordkeeping and reporting
regulations. Nevertheless, the Commission did state, ``[t]his does not
mean that railroad industry employers must use the OSHA form, No. 200,
mentioned in section [29 CFR] 1904.2(a). Section 1904.2(a) allows an
employer to maintain `an equivalent which is as readable and
comprehensible [as the OSHA 200 form] to a person not familiar with
it.' '' Under OSHA's current regulations, 49 CFR 1904.3 states that
``[i]f you create records to comply with another government agency's
injury and illness recordkeeping requirements, OSHA will consider those
records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA
accepts the other agency's records under a memorandum of understanding
with that agency, or if the other agency's records contain the same
information as this Part 1904 requires you to record.'' Accordingly,
because FRA's employee injury and illness recordkeeping and reporting
requirements employ equivalent standards to those promulgated by OSHA,
OSHA does not require railroad carriers to maintain OSHA records in
addition to FRA records. Rather, railroad carriers are only required to
report employee injuries and illnesses to FRA in accordance with FRA's
regulations. FRA makes all railroad employee injury and illness data
available to OSHA for use in its complementary program of regulation,
and provides this data to the Bureau of Labor Statistics (BLS) each
year for inclusion in DOL's national occupational injury and illness
database.
Part 225 contains a series of specific accident/incident recording
and reporting requirements. The purpose of the FRA's accident/incident
recordkeeping and reporting regulations is ``to provide the Federal
Railroad Administration with accurate information concerning the
hazards and risks that exist on the Nation's railroads. FRA needs this
information to effectively carry out its statutory responsibilities
under 49 U.S.C. chapters 201-213. FRA also uses this information for
determining comparative trends of railroad safety and to develop hazard
elimination and risk reduction programs that focus on prevention
railroad injuries and accidents.'' 49 CFR 225.1. Part 225's central
provision requires that each railroad subject to part 225 submit to FRA
monthly reports of all accidents and incidents that meet FRA's
reporting criteria. 49 CFR 225.11. Railroad accidents/incidents are
divided into three groups, each of which correspond to the type of
reporting form that a railroad must file with FRA: (1) Highway-rail
grade crossing accidents/incidents; (2) rail equipment accidents/
incidents; and (3) deaths, injuries and occupational illnesses. See 49
CFR 225.19.
In 1996, FRA published extensive amendments to its accident/
incident reporting regulations. 61 FR 30940, June 18, 1996, and 61 FR
67477, December 23, 1996. This was the first major revision of the
accident/incident reporting requirements since 1974. The primary
purpose of the revision was to increase the accuracy, completeness, and
utility of FRA's accident database and to clarify certain definitions
and regulatory requirements. Among other things, these amendments
required railroads to adopt and comply with an internal control plan
(ICP) to ensure accurate reporting of accidents and incidents.
In 2003, FRA again published extensive amendments to its accident/
incident reporting regulations (FRA's 2003 Final Rule). 69 FR 10107-
10140, March 3, 2003. The primary purpose of these revisions was to
conform FRA's accident/incident reporting requirements to OSHA's newly
revised occupational injury and illness recording and reporting
requirements. 66 FR 5916-6135, January 19, 2001 (codified at 29 CFR
parts 1904 and 1952) (OSHA's 2001 Final Rule). FRA's 2003 Final Rule
also addressed other issues and provided for an alternative method of
recording claimed occupational illnesses with the advent of Form FRA F
6180.107, ``Alternative Record for Illness Claimed to be Work-
Related.''
In this document, FRA proposes to amend its accident/incident
reporting regulations in order to: Clarify ambiguous definitions and
regulations; add necessary definitions; require the reporting of
additional types of injuries to all persons; require the reporting of
suicide data; include a comprehensive list of accident/incident
reporting exceptions; allow for consolidated accident/incident
reporting by integrated railroad systems; require railroads to complete
(by amending the definition for ``Accountable Injury or Illness'') a
Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness Record''
of all injuries and illnesses when such abnormal condition or disorder
manifests within the work environment regardless of whether the
condition or disorder is discernably caused by an event or exposure in
the work environment; set forth requirements for railroad electronic
recordkeeping systems for purposes of part 225; update regulatory text,
as applicable; enhance the quality of information available for
railroad casualty analysis; clarify and limit which highway-rail grade
crossing fatalities must be telephonically reported to the National
Response Center (NRC); clarify and refine the requirements and criteria
for using and retaining Form FRA F 6180.107, ``Alternative Record for
Illnesses Claimed to be Work Related,'' and the alternative railroad-
designed record; eliminate the oath and notarization requirements for
Form FRA F 6180.55, ``Railroad Injury and Illness Summary''; allow for
the electronic submission via the Internet of Forms FRA F 6180.54,
``Rail Equipment Accident/Incident Report''; 6180.55, ``Railroad Injury
and Illness Summary''; 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet)''; 6180.57, ``Highway-Rail Grade Crossing
Accident/Incident Report''; and 6180.81, ``Employee Human Factor
Attachment''; set forth record retention requirements for certain
accident/incident recording and reporting records not previously
addressed; and update FRA's address information. In addition to
proposing revisions to its regulations, FRA is proposing revisions to
the FRA Guide and to certain accident/incident
[[Page 52498]]
recording and reporting forms. The proposed FRA Guide and forms are
posted for public notice and comment on FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety, and click on ``Click Here for
Changes in Railroad Accident/Incident Recordkeeping and Recording.''
FRA also requests comments and suggestions on four issues of
concern. First, FRA requests comments and suggestions for any
additional information that might be gathered on Form FRA F 6180.57,
``Highway-Rail Grade Crossing Accident/Incident Report,'' that would be
useful in determining how and why highway-rail grade crossing
accidents/incidents occur.
Second, FRA requests comments and suggestions on whether FRA should
require railroads to complete longitude and latitude blocks on Form FRA
F 6180.55a, ``Railroad Injury and Illness Summary (Continuation
Sheet)'' (blocks 5s and 5t) for trespassers only, and Form FRA F
6180.54, ``Rail Equipment Accident/Incident Report'' (blocks 50 and
51). Currently, completion of longitude and latitude data on both of
these forms is optional.
Traditionally, FRA and the railroad industry have relied on the
railroad milepost system to reference location, and in many cases,
location data derived from the milepost system is accurate for short-
term issues. Over the long-term, however, railroads do change mileposts
during mergers and reorganizations. Also, mileposts can be inaccurate
when a railroad is able to build a shorter link, or when a railroad
does not remove old mileposts when replacement mileposts, which have a
different starting location, are installed. Accordingly, both FRA and
the transportation industry are moving aggressively to collection of
geospatial data (i.e., longitude and latitude coordinates) in order to
better understand transportation needs, take counter measures when
there are problems with a specific area or transportation link, and
facilitate planning.
FRA is exploring the collection of longitude and latitude data (for
trespassers only) on Form FRA F 6180.55a, ``Railroad Injury and Illness
Summary (Continuation Sheet),'' as a means of improving railroad safety
in the area of trespasser injuries and fatalities. While there are no
Federal regulations dealing with unauthorized access to (i.e.,
trespassing on) railroad property, FRA has significantly contributed to
Operation Lifesaver, Inc. (a nonprofit organization devoted to highway-
rail crossing safety and trespasser prevention programs) in hopes of
reducing the number of trespasser incursions. FRA believes that the
collection of longitude and latitude coordinates when a trespasser is
injured is the beginning of the process to define ``hot spots'' of
unauthorized access to railroad property. Identification of such hot
spots may be used to target areas for increased law enforcement
surveillance by public and railroad security forces, and to assist
Operation Lifesaver in reaching out to schools and other organizations
in the hot zones for increased educational awareness of safety concerns
around railroad operations.
FRA is exploring the collection of longitude and latitude data on
Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' as a
means of improving railroad safety in the area of train accidents. FRA
needs a permanent means of determining the location of an accident.
This is especially meaningful when a release of hazardous materials or
leakage of diesel fuel has occurred. Having the geographic coordinates
for all train accidents will allow FRA to develop better inspection
planning, identify locations of hazardous materials contamination
affecting the health and/or environment, and provide to the
Transportation Security Administration another tool for security
planning.
Third, FRA is considering changing the method by which telephonic
reports of accidents/incidents, as required by Sec. 225.9, are made to
FRA. Under FRA's current regulations, railroads are required to
telephonically report certain accidents/incidents to the NRC, which in
turn, provides notification of the accident/incident to FRA. FRA is
reviewing whether it would be preferable for railroads to report these
accidents/incidents directly to FRA via electronic transmission, and
invites comments and suggestions on this issue.
Fourth, FRA is proposing in this NPRM to require railroads to
report to FRA on Form FRA F 6180.55a suicides and attempted suicides,
otherwise referred to as ``suicide data,'' and requests comments
addressing State access to such reports. Section Sec. 225.1 states
that, ``[i]ssuance of these regulations under the Federal railroad
safety laws and regulations preempts States from prescribing accident/
incident reporting requirements. Any State may, however, require
railroads to submit to it copies of accident/incident and injury/
illness reports filed with FRA under this part, for accidents/incidents
and injuries/illnesses that occur in that State.'' FRA realizes that
suicide data may provide valuable information to State research and
suicide prevention programs, and wants States to have needed access to
suicide data. At the same time, however, FRA is concerned about the use
and public availability of suicide data. Accordingly, FRA is requesting
comments on how to ensure that restrictions on the use and public
availability of suicide data at the State level remain consistent with
those FRA has prescribed in proposed Sec. 225.41. Specifically, that
suicide data (as defined in Sec. 225.5) will not be included in any
summaries of data on the number of injuries and illnesses associated
with railroad operations; that suicide data is not publicly accessible;
and that suicide data will only be available to the public in
aggregate.
Section-by-Section Analysis
Technical Amendment: Throughout the rule text FRA has updated the
agency's address to reflect FRA's relocation to the new U.S. Department
of Transportation headquarters building. This revision affects
Sec. Sec. 225.7(a), 225.11(b), 225.12(g)(3), and the introductory
paragraph of Sec. 225.21.
Section 225.3 Applicability
In this section, FRA proposes a technical amendment to the
introductory text of paragraph (b) with respect to that paragraph's
reference to FRA's required ICP elements. Currently, paragraph (b)
refers only to ICP elements 1 through 10. FRA proposes to revise the
paragraph to include element number 11 (added in FRA's 2003 Final
Rule), which requires railroads to include in their internal control
plans a statement that specifies the name, title, and address of the
custodian of the railroad's Form FRA F 6180.107, ``Alternative Record
for Illnesses Claimed to be Work-Related,'' records and all supporting
documentation, as well as where the documents are located. See 68 FR
10107, 10139, March 3, 2003.
Section 225.5 Definitions
FRA proposes to amend paragraph (1) of the definition of
``Accident/incident'' to conform to the language of the FRA Guide and
to clarify: That a highway-rail grade crossing accident/incident is not
limited only to ``impact between an automobile, bus, truck, motorcycle,
bicycle, farm vehicle or pedestrian'' as stated in the current
definition; that sidewalks, pathways, shoulders and ditches associated
with the crossing are considered to be part of the crossing site; and
that the term ``highway user'' includes pedestrians, cyclists, and all
other modes of surface transportation, motorized and unmotorized.
[[Page 52499]]
FRA proposes to amend paragraph (3) of the definition of
``Accident/incident'' to conform to the revised language proposed for
Sec. 225.19(d); and to reference, rather than explicitly list, the
general reporting criteria set forth in Sec. 225.19(d). See Section-
by-Section Analysis for Sec. 225.19(d), ``Primary groups of accidents/
incidents; Death, injury and occupational illness.''
FRA proposes to amend the definition of ``Accountable injury or
illness'' to conform to the definition of ``injury or illness'' as
proposed in this notice; to remove the word ``activity'' from the
phrase ``by an event, exposure, or activity in the work environment''
as redundant since the definition of ``event or exposure'' as proposed
in this notice is inclusive of activities; and to delete the phrase
``not otherwise reportable'' due to its to ambiguity and replace
referenced text with the specification that an accountable injury or
illness ``does not meet the general reporting criteria listed Sec.
225.19(d)(1) through (d)(6).'' See Section-by-Section Analysis for
Sec. 225.19(d), ``Primary groups of accidents/incidents; Death, injury
and occupational illness.'' These changes are clarifying in nature and
do not pose any change to FRA's accident/incident recording or
reporting requirements.
FRA is also proposing to amend the definition of ``Accountable
injury or illness'' related to injuries and illness that occur within
the work environment. Specifically, FRA is proposing that when an
abnormal condition or disorder of a railroad employee manifests within
the work environment and causes or requires the railroad employee to be
examined or treated by a qualified health care professional, but does
not meet the general reporting criteria listed in Sec. 225.19(d)(1)
through (d)(6); such condition or disorder is an accountable injury or
illness regardless of whether the condition or disorder is discernably
caused by an event or exposure in the work environment. When such
condition or disorder manifests outside the work environment it is an
accountable injury or illness if the condition or disorder is
discernably caused by an event or exposure in the work environment.
FRA's purpose in making this amendment is to ensure that each
potentially reportable injury and illness is tracked and evaluated. In
many cases injuries and illness, and/or the signs and symptoms thereof,
of one kind or another can be manifest in the work environment without
the reason(s) (i.e., causes of or contributors to) being apparent. In
such cases railroads may prematurely attribute the cause of the injury
or illness solely to a non-work-related event or exposure that occurred
outside the work environment. Consequently, the railroad does not
consider the injury or illness to be ``accountable'' and does not
complete a Form FRA F 6180.98, ``Railroad Employee Injury and/or
Illness Record'' for that injury or illness. In many of these cases
however, an event or exposure in the work environment may in fact be a
cause of, or contributor to, the injury or illness, but because the
railroad made a premature determination that the injury or illness is
not work-related, the railroad may not subsequently perform adequate
inquiry (e.g., communication with the employee when the employee
returns to the work environment after treatment, review of medical
records, etc.) to make an accurate causal determination. Ultimately,
this type of oversight will result in the under-reporting of employee
injuries and illnesses to FRA, and because the railroad did not
complete a Form FRA F 6180.98 to initially record the injury or
illness, no audit trail is created. Thus, FRA is unable to later
evaluate the reportability of the injury or illness. In order to
rectify this problem, FRA is proposing that the definition of
``Accountable Injury or Illness'' be amended to require railroads
complete Form FRA F 6180.98 records for all employee injuries and
illnesses that involve signs or symptoms that surface at work,
regardless of whether the injury or illness is discernably caused or
contributed to by an event or exposure in the work environment. Such
revision is necessary in order for FRA to effectively enforce its
railroad injury and illness reporting requirements. Unless FRA has the
opportunity to examine those injuries and illness which manifest in the
work environment but are deemed as being not work-related (thus
``nonreportable''), as well as those deemed ``reportable'' by the
railroad, it is difficult for FRA to determine whether a railroad is
making appropriate reporting decisions.
FRA proposes to amend the definition of ``Accountable rail
equipment accident/incident'' to mean ``a collision, derailment, fire,
explosion, act of God, or other event involving the operation of
railroad on-track equipment (standing or moving) that does not result
in reportable damages greater than the current reporting threshold to
railroad on-track equipment, signals, track, track structures, and
roadbed.''
Under the current definition, an accountable rail equipment
accident/incident must be both not reportable, and (if not attended to)
disrupt railroad service. This revision eliminates the disruption of
service criteria. The agency believes this change simplifies recording
requirements related to accountable rail equipment accidents/incidents,
and will result in railroads maintaining a more complete set of records
of accountable rail equipment accidents/incidents.
FRA proposes to add a definition for ``Discernable cause.'' FRA's
accident/incident reporting regulations that concern railroad
occupational casualties should be maintained, to the extent
practicable, in general conformity with OSHA's recordkeeping and
reporting regulations to permit comparability of data on occupational
casualties between various industries, to allow integration of railroad
industry data into national statistical databases, and to improve the
quality of data available for analysis of casualties in railroad
accidents/incidents. Moreover, maintaining such compatibility allows
railroads to report occupational casualties only to FRA, rather than to
OSHA and to FRA. OSHA's regulations provide that ``[i]f you create
records to comply with another government agency's injury and illness
recordkeeping requirements, OSHA will consider those records as meeting
OSHA's Part 1904 recordkeeping requirements if OSHA accepts the other
agency's records under a memorandum of understanding with that agency,
or if the other agency's records contain the same information as this
Part 1904 requires you to record.'' See 29 CFR 1904.3.
Note that under OSHA's regulations, the term ``recording''' is
used. Under FRA's regulations and Guide, the term ``reporting'' is
used. FRA has always used the term ``reporting'' in its regulations and
the FRA Guide, and because the Accident Reports Act of 1910, as
amended, requires ``a railroad carrier [to] file a report * * * on all
accidents and incidents * * *'' 49 U.S.C. 20901.
With respect to employee injury and illness recording, OSHA's 2001
Final Rule, states that ``each employer * * * must record each
fatality, injury and illness that is work-related; and is a new case;
and meets one or more of the general recording criteria * * * or the
application to specific cases.'' 66 FR 5916, 5945, January 19, 2001,
codified at 29 CFR 1904.4(a). OSHA's 2001 Final Rule goes on to state
that ``[employers] must consider an injury or illness to be work-
related if an event or exposure in the work environment either caused
or contributed to the resulting condition or significantly aggravated a
pre-existing injury or illness,'' and that ``[w]ork-relatedness is
presumed for injuries and illnesses resulting from events or
[[Page 52500]]
exposures occurring in the work environment, unless an exception in [29
CFR] 1904.5(b)(2) specifically applies.'' 66 FR 5916, 5946, January 19,
2001, codified at 29 CFR 1904.5(a).
After OSHA's 2001 Final Rule was published, the National
Association of Manufacturers (NAM) filed a legal challenge to the final
rule, with respect to (among other things) the final rule's presumption
of work-relatedness, in the United States District Court for the
District of Columbia. On November 16, 2001, OSHA and NAM entered into a
settlement agreement to resolve NAM's legal challenge. The parties then
entered into a revised settlement agreement on November 29, 2001. The
revised settlement agreement was published in the Federal Register at
66 FR 66943, December 27, 2001. As part of the NAM-OSHA settlement, the
parties agreed to the following:
Section 1904.5(a) states that ``[the employer] must consider an
injury or illness to be work-related if an event or exposure in the
work environment either caused or contributed to the resulting
condition or significantly aggravated a pre-existing condition. Work
relatedness is presumed for injuries and illnesses resulting from
events or exposures occurring in the work environment * * *'' Under
this language [29 CFR 1904.5(a)], a case is presumed work-related
if, and only if, an event or exposure in the work environment is a
discernable cause of the injury or illness or of a significant
aggravation to [sic] pre-existing condition. The work event or
exposure need only be one of the discernable causes; it need not be
the sole or predominant cause.
Section 1904.5(b)(2) states that a case is not recordable if it
``involves signs or symptoms that surface at work but result solely
from a non-work-related event or exposure that occurs outside the
work environment.'' This language is intended as a restatement of
the principle expressed in 1904.5(a), described above. Regardless of
where signs or symptoms surface, a case is recordable only if a work
event or exposure is a discernable cause of the injury or illness or
of a significant aggravation to a pre-existing condition.
Section 1904.5(b)(3) states that if it is not obvious whether
the precipitating event or exposure occurred in the work environment
or elsewhere, the employer ``must evaluate the employee's work
duties and environment to decide whether or not one or more events
or exposures in the work environment caused or contributed to the
resulting condition or significantly aggravated a pre-existing
condition.'' This means that the employer must make a determination
whether it is more likely than not that work events or exposures
were a cause of the injury or illness, or a significant aggravation
to a pre-existing condition. If the employer decides the case is not
work-related, and OSHA subsequently issues a citation for failure to
record, the Government would have the burden of proving that the
injury or illness was work-related.''
In 2003, FRA revised its accident/incident reporting regulations to
conform, to the extent practicable, to OSHA's revised requirements. 68
FR 10108-10140, March 3, 2003. In doing so FRA took into account the
NAM-OSHA settlement agreement, in particular the agreement's reference
to the term ``discernable''' to qualify or describe cause. FRA included
the phrase ``discernable cause'' in its definitions of ``Accident/
incident,'' ``Accountable injury or illness,'' and ``Occupational
illness'' in Sec. 225.5, and added the phrase to its reporting
requirement for ``Deaths, injuries and occupational illnesses'' at
Sec. 225.19(d). While FRA did discuss the meaning of ``discernable
cause'' in the preamble of FRA's 2003 Final Rule, see 68 FR 10108,
10127, March 3, 2003, the agency did not explicitly define the term
``Discernable cause'' in the rule text. In order to clarify the meaning
of this term, FRA therefore proposes to include in Sec. 225.5 a
definition for ``Discernable cause'' to mean, ``a causal factor capable
of being recognized by the senses or the understanding.'' See Webster's
Third New International Dictionary, (1961). See also, Webster's Third
New International Dictionary, Unabridged, (1971). And to explain in the
text of the definition that ``[a]n event or exposure arising from the
operation of a railroad is a discernable cause of (i.e., discernably
caused) an injury or illness if, considering the circumstances, it is
more likely than not that the event or exposure is a cause of the
injury or illness. The event or exposure arising from the operation of
a railroad need not be a sole, predominant or significant cause of the
injury or illness, so long as it is a cause (i.e., a contributing
factor).''
For clarification purposes, FRA proposes to add a definition for
``Event or exposure'' to include an ``incident, activity, or
occurrence'' to clarify that event or exposure is a term that is to be
broadly interpreted and to eliminate redundant language in the rule
text.
FRA proposes to amend the definition of ``Event or exposure arising
from the operation of a railroad'' in order to clarify its meaning. The
term ``event or exposure arising from the operation of a railroad'' and
its definition were added to Sec. 225.5 in FRA's 2003 Final Rule to
replace ``arising from the operation of a railroad'' and its
definition. The agency made this amendment to tailor more narrowly what
types of accidents/incidents were considered to ``arise from the
operation of a railroad'' and therefore be potentially reportable. 68
FR 10108, 10115-16, March 3, 2003.
FRA's current definition of ``Event or exposure arising from the
operation of a railroad'' has a three-tier definition:
The first tier defines ``event or exposure arising from the
operation of a railroad'' broadly ``with respect to any person on
property owned, leased, or maintained by the railroad, an activity of
the railroad that is related to its rail transportation business or an
exposure related to the activity.'' FRA proposes to revise this first
tier of the definition by changing ``any person'' to ``a person who is
not an employee of the railroad.'' Such change is consistent with the
intent of the paragraph as stated in the preamble to FRA's 2003 Final
Rule:
FRA developed a compromise position, proposing that railroads
not be required to report deaths or injuries to persons who are not
railroad employees that occur while off railroad property unless
they result from a train accident, a train incident, a highway-rail
grade crossing accident/incident, or a release of a hazardous
material or other dangerous commodity related to the railroad's rail
transportation business.
68 FR 10108, 10109, March 3, 2003. This lends to the accuracy of the
definition, since tier one was intended to apply only to persons who
are not railroad employees. FRA also proposes to amend this paragraph
for purposes of clarification by removing the phrase ``any activity of
the railroad'' such that tier one of the definition, as proposed, would
indicate that with respect to a person who is not an employee of the
railroad, an event or exposure that occurs on property owned, leased,
or maintained by the railroad and is related to the performance of the
railroad's rail transportation business. FRA is proposing to delete the
reference to ``activity'' since the proposed definition of ``event or
exposure'' includes ``activity.''
The second tier also defines ``event or exposure arising from the
operation of a railroad'' broadly, but ``with respect to an employee of
the railroad (whether on or off property owned, leased or maintained by
the railroad), an activity of the railroad that is related to the
performance of its rail transportation business or an exposure related
to that activity.'' FRA proposes to amend this paragraph for purposes
of clarification by revising the definition to state ``with respect to
a person who is an employee of a railroad, an event or exposure that is
work-related.'' This amendment thus removes the phrase ``any activity
of the railroad,'' since the proposed definition of ``event or
exposure'' includes ``activity.'' It also removes the phrase ``(whether
on or off property owned, leased, or maintained by the railroad)'' and
``that is related to the performance
[[Page 52501]]
of the railroad's rail transportation business * * *'' since ``work-
related'' encompasses both of those requirements.
The third tier defines ``Event or exposure arising from the
operation of a railroad narrowly with respect to a person who is
neither on the railroad's property nor an employee of the railroad, to
include only certain enumerated events or exposures, i.e., a train
accident, a train incident, or a highway-rail crossing accident/
incident involving the railroad; or a release of hazardous material
from a railcar in the railroad's possession or a release of another
dangerous commodity if the release is related to the railroad's rail
transportation business.'' 68 FR 10108, 10116, March 3, 2003. FRA
proposes no substantive change to this tier of the definition, but is
incorporating the tier three definition into the tier one (paragraph
(1) of the definition of ``event or exposure arising from the operation
of a railroad'') since both tier one and tier three apply to persons
who are not railroad employees.
The amendments to tier one, tier two and tier three of the
definition of ``Event or exposure arising from the operation of a
railroad'' will then be organized such that paragraph (1) will be
applicable to non-employees and paragraph (2) will be applicable to
employees. These amendments are clarifying measures and do not change
the meaning of the term. The definition continues to mean, consistent
with FRA's 2003 Final Rule, ``that a railroad would not have to report
to FRA the death of or injury to an employee of a contractor to the
railroad who is off railroad property (or deaths or injuries to any
person who is not a railroad employee) unless the death or injury
results from a train accident, train incident, or highway-rail grade
crossing accident involving the railroad; or from a release of a
hazardous material or some other dangerous commodity in the course of
the railroad's rail transportation business. In addition, FRA would
require railroads to report work-related illnesses only of railroad
employees and under no circumstances the illness of employees of a
railroad contractor.'' 68 FR 10108, 10116, March 3, 2003.
FRA proposes a technical amendment to the definition of ``General
reporting criteria'' to include criteria number [225.19(d)] (6),
``Illness or injury that meets the application of any of the
[enumerated] specific case criteria,'' which was inadvertently omitted
in FRA's 2003 Final Rule.
FRA proposes to add a definition of ``Injury or illness'' to mean
``an abnormal condition or disorder,'' (this is consistent with OSHA's
definition at 29 CFR 1904.46), and to provide examples of injuries and
illnesses. In doing so, FRA clarifies that pain is an injury or illness
when it is sufficiently severe to meet the general reporting criteria
listed in Sec. 225.19(d)(1) through (d)(6). See OSHA's Final Rule, 66
FR 5916, 6080, January 19, 2001. FRA also clarifies that a
Musculoskeletal Disorder is an injury or illness. See OSHA's Final
Rule, 66 FR 5916, 6017, January 19, 2001 and 68 FR 38601, 38602, June
30, 2003. Incorporation of such definition does not represent any
change to FRA's current accident/incident recording and reporting
requirements. The definition has been included in an effort to
eliminate confusion as to what constitutes an injury or illness. FRA
wishes to emphasize that injuries and illnesses are reportable only if
they are new cases discernably caused or significantly aggravated by an
event or exposure arising from the operation of a railroad, that meet
one or more of the general reporting criteria.
FRA proposes to amend the definition of ``New case'' to apply to
all persons rather than only to employees. Correspondingly, FRA is
replacing the phrase ``in the work environment'' to ``arising from the
operation of a railroad'' since the term `` work environment'' also
applies only to employees. Such change is consistent with the statutory
requirement that railroads report to FRA ``all accidents and incidents
resulting in injury or death to an individual * * * arising from the
carrier's operations during the month,'' not just accidents and
incidents resulting in injury or death to railroad employees. See 49
U.S.C. 20901. FRA considers this amendment a correction to the current
definition that does not affect reporting requirements. FRA also
proposes to include the descriptor ``discernably'' before ``caused'' in
the definition of ``New case'' to be consistent with the rest of the
part 225 regulatory language.
FRA proposes to amend the definition of ``Qualified health care
professional'' to remove the example regarding an otolaryngologist. The
definition currently states, ``[f]or example, an otolaryngologist is
qualified to diagnose a case of noise induced hearing loss and identify
potential causal factors, but may not be qualified to diagnose a case
of repetitive motion injuries'' since, as a licensed physician, an
otolaryngologist can diagnose conditions other than those related to
the ears, nose, throat, and related structures of the head and neck.
FRA proposes to amend the definition of ``Railroad.'' Currently,
part 225 defines ``railroad'' as ``a person providing railroad
transportation.'' In order to attain better consistency with Congress'
1994 revisions to 49 U.S.C. 20102, FRA proposes to define ``railroad''
as meaning ``a railroad carrier,'' and add a definition to Sec. 225.5
for ``railroad carrier'' as meaning a ``person providing railroad
transportation.''
Congress added the term ``Railroad carrier'' to 49 U.S.C. 20102 in
1994 (Pub. L. No. 103-272, 108 Stat 745), as part of a larger effort
``[t]o restate the laws related to transportation in one comprehensive
title'' and ``attain uniformity [of language] within the title.'' See
House Report No. 103-180 at 3, reprinted in 1994 U.S.C.C.A.N. 818, 820.
Specifically, Congress defined ``railroad carrier'' at 49 U.S.C.
20102(2) as a ``person providing railroad transportation,'' in order to
``distinguish between railroad transportation and the entity providing
railroad transportation.'' See House Report No. 103-180 at 79,
reprinted in 1994 U.S.C.C.A.N. 818, 898. FRA's definition of ``railroad
transportation'' remains unchanged.
FRA proposes to add a definition for ``Significant aggravation of a
pre-existing injury or illness.'' This definition is consistent with
that of OSHA as set forth at 29 CFR 1904.5(b)(4) and the current
version (effective May 1, 2003) of the FRA Guide. FRA proposes to add
the definition to Sec. 225.5 for clarification and ease of reference.
FRA proposes to add a definition for ``Suicide data.'' Consistent
with FRA's proposal to remove suicide and attempted suicide from its
current Sec. 225.15 reporting exceptions (see Section-by-Section
Analysis for 225.15, ``Accidents/Incident not to be reported''), and
begin collecting suicide related data, FRA proposes to add to Sec.
225.5 a definition for ``Suicide data,'' to mean data regarding the
death of an individual due to that individual's commission of suicide
as determined by a coroner or other public authority; or injury to an
individual due to that individual's attempted commission of suicide as
determined by a public authority. FRA emphasizes that only the death of
or injury to the individual who committed the suicidal act is
considered to be suicide data. FRA will not report suicide data to
OSHA. FRA will not include suicide data (as defined in Sec. 225.5) in
its periodic summaries of data on the number of injuries and illnesses
associated with railroad operations. FRA will maintain suicide
[[Page 52502]]
data in a database that is not publicly accessible. Accordingly,
suicide data will not be available on FRA's Web site for individual
reports or downloads. Suicide data will be available to the public in
aggregate format on FRA's Web site and via requests under the Freedom
of Information Act. See Sec. 225.41, ``Suicide data'' as proposed in
this NRPM.
FRA proposes to amend the definition of ``Work environment'' to
explain that the work environment means the establishment and other
locations where on or more railroad employees are working or present as
a condition of employment. Such addition brings additional clarity and
better conforms FRA's definition to OSHA's definition at 29 CFR
1904.5(b)(1).
FRA proposes to revise the definition of ``Work-related'' by
removing the words ``incident, activity, * * * or the like'' and
replacing them with ``event or exposure'' since the definition of
``event or exposure'' as proposed in this section encompasses those
terms. FRA also explains in the definition that an injury or illness is
presumed work-related if an event or exposure in the work environment
is a discernable cause of the resulting condition or a discernable
cause of a significant aggravation to a pre-existing injury or illness;
that the causal event need not be peculiarly occupational in nature so
long as it occurs at work; that the causal event need only be a cause
(i.e., contributory factor); and that if an injury or illness is within
the presumption, the employer can rebut the work-relatedness only by
showing that the case falls within an exception listed in 49 CFR
225.15. Such presumption is consistent with the NAM-OSHA settlement
agreement, 66 FR 66943, December 27, 2001, and with OSHA's regulations
which require that ``[employers] must consider an injury or illness to
be work-related if an event or exposure in the work environment either
caused or contributed to the resulting condition or significantly
aggravated a pre-existing condition.'' 29 CFR 1904.5(a). OSHA's
regulation goes on to explain that ``[w]ork-relatedness is presumed for
injuries and illnesses resulting from events or exposures occurring in
the work environment, unless an exception in [29 CFR] 1904.5(b)
specifically applies.'' Id. At 29 CFR 1904.5(b)(2), OSHA sets forth
nine exceptions to its injury and illness reporting requirements. FRA's
reporting exceptions are currently set forth at Sec. 225.15 and in the
FRA Guide. FRA is proposing in this Notice to include all FRA accident/
incident reporting exceptions in Sec. 225.15. See Section-by-Section
Analysis for Sec. 225.15, ``Accidents/Incident not to be reported.''
In cases where it is not obvious whether a precipitating event or
exposure occurred in the work environment, the employer must evaluate
the employee's work duties and environment to decide whether it is more
likely than not that an event or exposure at work contributed to the
employee's injury or illness. FRA's requirement is consistent with that
of OSHA at 29 CFR 1904.5(b)(3) where OSHA addresses how an employer
should handle a case if it is not obvious whether the precipitating
event or exposure occurred in the work environment, stating ``in these
situations, [the employer] must evaluate the employee's work duties and
environment to decide whether or not one or more events or exposures in
the work environment either caused or contributed to the resulting
condition or significantly aggravated a pre-existing condition'' and
with the NAM-OSHA settlement agreement, 66 FR 66943, December 27, 2001.
FRA also wishes to clarify that an event or exposure that occurs in
the work environment need not have a clear connection to a specific
work activity, condition, or substance that is peculiar to the railroad
transportation business in order to be an ``event or exposure arising
from the operation of a railroad.'' Examples of events or exposures
arising from the operation of a railroad include an employee tripping
for no apparent reason while walking across a level floor; an employee
being sexually assaulted by a co-worker; or an employee being injured
by an act of violence perpetrated by one co-worker against a third
party. See OSHA's 2001 Rule, 66 FR 5916, 5946, January 19, 2001. In
such cases the employee's job-related tasks and exposures did not
create or contribute to the risk that an injury or illness would occur.
Id. Rather, these activities are events or exposures arising from the
operation of a railroad because they occurred in the work environment.
Likewise, normal body movements (e.g., walking, climbing a staircase,
bending down, sneezing) engaged in by an employee at the time of injury
are also events arising from the operation of a railroad, even if the
body movement is not related to the employee's job related tasks. See
66 FR 5916, 5957-5958, January 19, 2001. Correspondingly, events or
exposures involving contractors or volunteers that occur on property
owned, leased or maintained by the railroad, also arise from the
operation of a railroad even if they do not have a clear connection to
a specific work activity, condition, or substance that is peculiar to
the railroad transportation business.
Section 225.6 Consolidated Reporting
FRA proposes to add Sec. 225.6 addressing consolidated railroad
accident/incident reporting for certain integrated railroad systems.
Title 49 U.S.C. 20901 requires that each ``railroad carrier''
submit to FRA a monthly report of its accidents/incidents. Title 49
U.S.C. 20102 defines a ``railroad carrier'' as a ``person providing
railroad transportation.'' ``Person,'' as defined by 1 U.S.C. 1
``include[s] corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals.'' Generally, FRA has considered subsidiary corporations as
discrete ``persons'' or ``railroad carrier[s],'' each individually
responsible for complying with FRA's accident/incident reporting
requirements, regardless of the subsidiary's affiliation with any other
incorporated railroad. This interpretation is consistent with the
general rule that the corporate parent shareholder is not liable for
the debts of the subsidiary. As such, FRA has generally treated each
incorporated ``railroad carrier'' as an independent entity responsible
for complying with Federal railroad safety laws, regardless of the
railroad's affiliation with any other incorporated entity.
Due to the proliferation of mergers within the railroad industry
however (since 1970, the dozens of Class I railroads then in existence
have merged into an industry structure of just seven Class I
railroads), incorporation is no longer a reliable indicator of who is
truly ``providing railroad transportation'' since merged railroads do
not always become a single legal entity. Many railroad mergers were
structured so that the acquiring (i.e., parent) railroad allowed the
target (i.e., subsidiary) railroad to survive as a separate legal
entity after the merger. Acquiring railroads preferred this type of
merger because certain rights and properties of the target railroad
were more likely to remain intact than if the target disappeared. This
proclivity still holds true.
Because merged railroads may operate as independent entities, or as
a single larger commonly controlled integrated railroad system,
compliance with and enforcement of part 225 is increasingly difficult,
since the operations of merged railroads often become so integrated
that parent railroad corporations (and consequently FRA) are not
necessarily able to disaggregate their operations, especially in terms
of identifying which
[[Page 52503]]
subsidiary railroad employs a worker or owns the equipment or trackage
involved in an accident/incident. As a result, accident and incident
recording and reporting inaccuracies by the railroads are more likely
to occur, and remain undiscovered by FRA, thus undermining the
integrity of FRA's accident and incident databases. For these reasons,
Canadian National Railroad, in the latter half of 2004, requested that
FRA allow them to report their operationally integrated subsidiary's
accidents/incidents on a consolidated basis, rather than discreetly.
Upon review of the issue, for purposes of part 225 only, FRA proposes
to adhere to the view that where a parent corporation dominates its
subsidiary railroads and operates as a single, integrated United States
railroad system, FRA may consider the dominating corporation as
principal (i.e., the ``provider of railroad services'') for the entire
system, and the subsidiary corporation(s) as agent, thus making the
acts of the latter in effect the acts of the former. In other words,
FRA may treat the parent corporation as the ``railroad carrier'' for
that system. This means that the parent corporation is responsible for
the system's compliance with part 225, and that any time an FRA
representative finds an instance of noncompliance by any of the
subsidiaries making up the system, the FRA representative may recommend
to FRA's Office of Chief Counsel that a civil penalty be issued against
the parent corporation.
A parent corporation may request in writing that FRA treat its
commonly controlled railroad carriers, which operate as a single,
seamless, integrated United States rail system, as a single railroad
carrier for purposes of part 225 compliance. The written request must
provide a list of the subsidiary railroads controlled by the parent
corporation and an explanation as to how the subsidiary railroads
operate as a single, seamless, integrated United States railroad
system.
If, upon review of this information, it is FRA's belief that ``the
provider of railroad services'' is actually the parent corporation, FRA
may treat the parent corporation as the railroad carrier for purposes
of part 225. If the agency grants the request, the parent corporation
must enter into a written agreement with FRA specifying which
subsidiaries are included in its railroad system, consenting to assume
responsibility for compliance with part 225 for all named subsidiaries
making up the system, and consenting to guarantee any liabilities owed
to the United States government that are incurred by its named
subsidiaries for violating part 225. Any change to the subsidiaries
making up the railroad system will require execution of an amended
agreement.
This interpretation is consistent with the Surface Transportation
Board's (STB) Decision Ex Parte No. 634 (Proposal to Require
Consolidated Reporting by Commonly Controlled Railroads) (November 7,
2001). In this decision, STB required that each group of railroads that
operate as a single, integrated United States rail system whose
cumulative operating revenues meet the Class I threshold, submit
consolidated annual financial reports that combine the operations of
all their commonly controlled railroads that operate as an integrated
rail system within the United States. Prior to this decision, STB did
not require commonly owned railroads to report on a consolidated basis.
As such, families of railroads that were operated as an integrated
system with cumulative operating revenues well above the $250 million
threshold were not required to file financial reports so long as the
operating revenues of each individual railroad was less that $250
million. By requiring that all components of an integrated system be
combined, STB asserts that it is able to gather more meaningful and
accurate information on the large rail systems operating in the United
States, and determine whether the railroad systems are Class I (large
railroads), Class II (medium-sized railroads), or Class III (smaller
railroads). Likewise, FRA believes that by treating all components of
an integrated system as a single railroad, FRA will be able to gather
more meaningful and accurate accident/incident data.
Section 225.9 Telephonic Reports of Certain Accidents/Incidents and
Other Events
FRA proposes to clarify its accident/incident telephonic reporting
requirements related to fatalities that occur at highway-rail grade
crossings as a result of train accidents or train incidents.
Currently, FRA requires railroads to report immediately, via
telephone, to the NRC ``a fatality at a highway-rail grade crossing as
a result of a train accident or train incident.'' Sec.
225.9(a)(2)(iii). FRA has found that confusion exists as to the
applicability of this requirement when death does not actually occur at
the scene of the highway-rail grade crossing accident/incident, but
some hours or days later, after the fatally injured person is taken to
the hospital for treatment.
Upon review, FRA proposes to revise the telephonic reporting
requirement for highway-rail grade crossing fatalities to require that
such fatalities must be telephonically reported only if death occurs
within 24 hours of the accident/incident. This proposal is consistent
with Department of Transportation, Office of Inspector General's
November 28, 2005, recommendation (Report No. MH-2006-016) to FRA that
the FRA amend Sec. 225.9 to clarify reporting requirements and include
criteria that require railroads to report to NRC any death that occurs
within 24 hours of a highway-rail grade crossing accident/incident.
FRA also proposes a technical amendment to paragraph (a)(2)(iv) by
adding the words ``or more'' after $150,000 to clarify that the
telephonic reporting requirement is triggered when a train accident
results in damage of $150,000 or more to railroad and nonrailroad
property.
Section 225.11 Reporting of Accidents/Incidents
In this section, FRA proposes to list each primary accident/
incident group described in Sec. 225.19 (i.e., Highway-Rail Grade
Crossing; Rail Equipment; and Death, Injury and Occupational Illness)
by subsection. By identifying each group of accidents/incidents with a
different subsection, FRA will be better able to access data and
differentiate among data elements. For example, currently, if FRA
issues a violation against a railroad for alleged non-compliance with
Sec. 225.11, FRA's case tracking database captures this as a violation
of Sec. 225.11. With such limited information, FRA is unable to easily
identify what type of reporting non-compliance is alleged (i.e.,
failure to report a highway-rail grade crossing accident/incident;
failure to report a rail equipment accident/incident or failure to
report an accident/incident involving a death, injury or occupational
illness). Such capability will provide FRA with better and more useful
data, as well as quicker access to the data.
FRA also proposes to update this section to reflect the proposed
provisions in Sec. 225.37 regarding filing accident/incident reports
with FRA via optical media (CD-ROM) and electronically via the
Internet.
Sec. 225.15 Accidents/Incidents Not To Be Reported
In this section, FRA proposes to revise Sec. 225.15 to include a
comprehensive list of injury/illness and rail equipment accident/
incident reporting exceptions (formerly listed partially in Sec.
225.15 and in the FRA Guide). As discussed in the Section-by-Section
Analysis of Sec. 225.5, ``Definitions'' with respect to the
[[Page 52504]]
definition of ``Work-relatedness,'' OSHA's regulations require that
``[employers] must consider an injury or illness to be work-related if
an event or exposure in the work environment either caused or
contributed to the resulting condition or significantly aggravated a
pre-existing condition.'' 29 CFR Sec. 1904.5(a). OSHA's regulation
goes on to explain that ``Work-relatedness is presumed for injuries and
illnesses resulting from events or exposures occurring in the work
environment, unless an exception in [29 CFR] 1904.5(b) specifically
applies.'' 29 CFR 1904.5 (a). FRA has established certain reporting
exceptions in Sec. 225.15 and has also adopted OSHA's reporting
exceptions in the current FRA Guide.
FRA's proposed list of exceptions includes both the FRA orientated
exceptions and exceptions set forth by OSHA at 29 CFR 1904.5(b) as
adopted by FRA. Upon drafting this Notice to incorporate the reporting
exceptions into this section, FRA reviewed the applicability of each
injury and illness reporting exception as related to the class of
injured person, and incorporates this information into the rule text.
In making this revision, FRA leaves paragraph (a) substantively
unchanged.
In paragraph (b), FRA addresses reporting exceptions for Class A--
Worker on Duty--Employee injuries and illness. Paragraph (b)(1) retains
the current paragraph (b) reporting exception relating to injuries and
illnesses occurring in living quarters. To paragraph (b) FRA adds
additional reporting exceptions applicable to Employees on Duty--Class
A (paragraphs (b)(2) through (b)(3)). These exceptions do not affect a
railroad's obligation to report to FRA Class B--Employee not on duty
injuries.
Paragraph (c) contains reporting exceptions applicable to all
employees (whether on or off duty). With respect to the reporting
exception listed in paragraph (c)(3), FRA wishes to clarify that an
injury or illness that is solely the result of an employee eating,
drinking, or preparing food or drink for personal consumption is not
reportable. It does not matter if the employee bought the food on the
employer's premises or brought the food into work. For example, if the
employee is injured by choking on a sandwich while in the employer's
establishment, the case would not be considered work-related. If,
however, the employee is made ill by ingesting food contaminated by
workplace contaminants (such as lead), or gets food poisoning from food
supplied by the employer, the case would be considered reportable if
the case meets the general reporting criteria set forth at Sec.
225.19(d)(1)-(d)(6).
In paragraph (d), FRA addresses the applicability of the reporting
exceptions listed in paragraph (b) and (c) to contractors and
volunteers. The reporting exceptions for employee injuries and
illnesses apply equally to volunteer injuries and illnesses and to
contractor injuries (contractor illnesses are not reportable to FRA).
Because an injury to a contractor, or injury to or illness of a
volunteer, must occur on property owned, leased or maintained by the
railroad (rather than in the work environment), any reference to the
term ``work environment'' in paragraph (b) is construed to mean, for
the purposes of paragraph (d) only, on property owned, leased, or
maintained by the railroad. The application of the exceptions as stated
in paragraph (d) does not reflect any change to FRA's provisions, but
is included to clarify the applicability of the reporting exceptions to
contractors and volunteers. Paragraph (e) addresses reporting
exceptions for rail equipment accidents/incidents which are currently
included in the FRA Guide.
The agency believes these exceptions should be incorporated into
the rule, and that doing so will provide a better understanding of
FRA's employee injury and illness reporting requirements. The reporting
exceptions do not affect a railroad's obligation to maintain records of
accidents/incidents as required by Sec. 225.25 (Form FRA F 6180.98,
``Railroad Employee Injury and/or Illness Record'' and Form FRA F
6180.97, ``Initial Rail Equipment Accident/Incident Record''), as
applicable.
FRA also proposes to eliminate from the reporting exceptions
suicides and attempted suicides. In doing so FRA is proposing that
casualties due to suicides and attempted suicides, that meet the
general reporting criteria listed in Sec. 225.19(d)(1) through (d)(6),
be reported to the agency on Form FRA F 6180.55a, ``Railroad Injury and
Illness Summary (Continuation Sheet),'' as a new category of data
called ``suicide data.'' Under the proposed system, a fatality to a
person due to that person's commission of suicide as determined by a
coroner or other public authority; or a reportable injury to a person
due to that person's attempt to commit suicide as determined by a
public authority, would be reported to FRA regardless of the need for
other reporting of the event (i.e., the suicide resulted in a
reportable train accident or highway-rail grade crossing collision).
These suicide data cases would not be reported to OSHA by FRA. FRA will
not include suicide data (as defined in Sec. 225.5) in its periodic
summaries of data on the number of injuries and illnesses associated
with railroad operations. FRA will maintain suicide data in a database
that is not publicly accessible. Accordingly, suicide data will not be
available on FRA's Web site for individual reports or downloads.
Suicide data will, however, be available to the public in aggregate
format on FRA's Web site and via requests under the Freedom of
Information Act (FOIA). For additional information FOIA request see
FRA's Web site at http://www.fra.dot.gov/us/foia. Suicide data counts
will be included in casualty counts on Forms FRA F 6180.57, ``Highway-
Rail Grade Crossing Accident/Incident Report,'' and FRA F 6180.54,
``Rail Equipment Accident/Incident Report,'' in order that number of
casualties reported to FRA on Form FRA F 6180.55a, ``Railroad Injury
and Illness Summary (Continuation Sheet),'' for the month is consistent
with the number of casualties reported to FRA on each of these
accident/incident reporting forms. See Sec. 225.41, ``Suicide data.''
See also Section-by-Section Analysis for Sec. 225.5, ``Definitions,''
and Appendix H, ``Forms,'' for additional information.
FRA believes that it is important to collect data on suicides.
Death by suicide is a national problem as indicated by the fact that
more than 30,000 Americans die by suicide each year. Currently, there
are no reliable reports about how many of these deaths occur on
railroad property. The California Public Utilities Commission indicates
that more than 55 percent of pedestrian railroad fatalities in
California are attributed to suicide, and according to the American
Association of Suicidology, railroads that have tracked probable
suicides on the rail system report that suicides are responsible for 39
percent of pedestrian fatalities. Additionally, a March 3, 2005,
Chicago Tribune article, ``Suicide is Top Cause of Train Track Deaths;
State Looks for Ways to Prevent Fatalities,'' indicates that in 2004,
there were 30 probable suicide deaths and an additional three attempts
involving trains in Chicago alone, and that suicide was the leading
cause of rail-related fatalities in Illinois for 2004, which led
Illinois to implement a systematic tracking program of such incidents
on rail property. This information illustrates the fact that there are
a large number of fatalities occurring on railroad property without any
national initiative to collect data that might be used to address these
events.
Since it appears that suicides contribute significantly to the
total number of fatalities that are occurring
[[Page 52505]]
on railroad tracks, it is appropriate to report suicides in addition to
the other causes of death in the industry. By requiring the information
be reported as suicide data, these fatalities will not be included in
the normally reported fatality data. These new data may help FRA,
organizations promoting safety on and around railroad property, and
suicide prevention agencies, assess the problem and develop programs to
decrease the incidence of suicides by train.
FRA notes that the collection of suicide data will also aid the
Federal Transit Administration (FTA) in its collection and analysis of
commuter railroad accidents, since FRA provides certain commuter
railroad safety data to FTA. FTA relies on FRA to provide to it data on
the types of accidents occurring on commuter rail, their primary
causes, and the consequences, in terms of fatalities (which for FTA
includes suicides under 49 CFR part 659), injuries and property damage.
The data FRA provides to FTA, however, is somewhat incomplete, in that
FRA cannot provide suicide data to FTA. Consequently, FTA, which uses
this information to better inform their assessments of safety plans and
hazard analysis performed by commuter rail grantees applying for FTA
grants, must work with an incomplete data set.
In order for FRA to capture suicide data, FRA proposes to require
railroads to indicate suicide or attempted suicide on Forms FRA F
6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet)'';
FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; and FRA F
6180.57, ``Highway-Rail Grade Crossing Accident/Incident Report'' as
follows:
(1) Form FRA F 6180.55a--FRA proposes to require an ``X''
representative of ``suicide or attempted suicide'' be placed in
``Special Cause Code'' block 5r. FRA also proposes to change the title
of block 5m, currently ``Result,'' to ``Tools.'' This change is a
correction to the current form and is necessary to maintain consistency
with types of Circumstance Codes in Appendix F of the FRA Guide.
(2) Form FRA F 6180.54--FRA proposes to add four Miscellaneous
Cause Codes for use in block 38 as follows: (i) Code M309 ``Suicide
(Highway-Rail Grade Crossing Accident)''; (ii) Code M310 ``Attempted
Suicide (Highway-Rail Grade Crossing Accident)''; (iii) Code M509
``Suicide (Other Misc.)''; and (iv) Code M510 ``Attempted Suicide
(Other Misc.)''. These codes would be added to Appendix C, ``Train
Accident Cause Codes'' to refer to ``Suicide or Attempted Suicide'' for
use in ``Primary Cause Code'' block 38. Railroads would also be
required to include suicides and attempted suicides in the casualty
counts in blocks 46, 47, and 48, as applicable.
(3) Form FRA F 6180.57--FRA proposes to add to block 41, currently
titled ``Driver Action,'' (FRA is proposing to change this title to
``Highway User Action,'' for additional information see Changes to FRA
Guide, section N, ``Appendix H, ``Forms'', subsection 8, ``FRA Form FRA
F 6180.57'') a selection for ``Suicide or Attempted Suicide.''
Railroads would also be required to include suicides and attempted
suicides in the casualty counts in blocks 46, 49, and 52, as
applicable. See Section-by-Section Analysis for Appendix H, ``Forms''
for additional information.
FRA notes that it is also concerned that suicides are being
reported as trespasser fatalities, because railroads do not always make
reasonable inquiry in their efforts to determine the cause of death. In
fact, FRA has found that a number of reported trespasser fatalities are
actually suicides. Accordingly, FRA is revising Chapter 6 of the FRA
Guide to clarify that in order to fulfill its responsibilities to
maintain accuracy in reporting, a railroad must try to obtain
documentation indicating the cause of death by contacting the coroner
or other public official by telephone and, if unsuccessful in obtaining
the needed information, in writing. The railroad must continue its
efforts to obtain this information for a period of six months following
the month in which the fatality occurred. The railroad must keep a
record of its efforts to obtain such documentation. This record and any
documentation obtained must be available for review and copying by an
FRA representative under the same criteria as set forth in Sec.
225.35(b).
Section 225.17 Doubtful Cases
In this section, FRA proposes to revise part 225 by redesignating
the ``Alcohol or Drug Involvement'' provisions currently contained in
this paragraph (d) to a newly added Sec. 225.18. FRA has often
observed that the inclusion of the two unrelated topics in one section
has led to confusion among interested parties. The move is, therefore,
intended to reduce possible confusion and does not pose any substantive
change to FRA's current accident/incident reporting requirements. FRA
also proposes a technical amendment to the first sentence of paragraph
(a) by inserting the word ``of,'' which was inadvertently omitted,
between the words ``officer'' and ``a railroad'' revising the sentence
to read: ``The reporting officer of a railroad * * *.''
Section 225.18 Alcohol or Drug Involvement
As stated above, FRA proposes to add a new section, Sec. 228.18,
and redesignate the Alcohol and Drug provisions currently contained in
Sec. 225.17(d) to a new section, Sec. 225.18, for clarity purposes
only. FRA does propose technical amendments to proposed paragraph Sec.
225.18(b) (currently Sec. 225.17(d)(2)) changing the word ``title'' to
``chapter'' to reference the correct term and inserting ``49 CFR'' in
front of the reference to Sec. 219.209 for clarity. FRA also proposes
to amend Sec. 225.18(d) (currently Sec. 225.17(d)(4)) by changing the
word ``paragraph'' to ``section'' to accommodate the proposed
redesigation of Sec. 225.17(d) to Sec. 225.18(a)-(d).
Section 225.19 Primary Groups of Accidents/Incidents
In this section, FRA proposes to revise paragraph (d) to clarify
the agency's existing reporting requirements for death, injury and
occupational illness and to further conform those requirements to
OSHA's recordkeeping and reporting regulations.
FRA's accident/incident reporting regulations that concern railroad
occupational casualties should be maintained, to the extent
practicable, in general conformity with OSHA's recordkeeping and
reporting regulations to permit comparability of data on occupational
casualties between various industries, to allow integration of railroad
industry data into national statistical databases, and to improve the
quality of data available for analysis of casualties in railroad
accidents/incidents. See Section-by-Section Analysis for Sec. 225.5,
``Definitions'' with respect to ``Discernable cause.'' Moreover,
maintaining such compatibility allows railroads to report occupational
casualties only to FRA rather than to OSHA and to FRA. See 29 CFR
1904.3.
With respect to employee injury and illness recording, OSHA's
regulations requires that ``each employer * * * must record each
fatality, injury and illness that is work-related; and is a new case;
and meets one or more of the general recording criteria * * * or the
application to specific cases.'' 29 CFR 1904.4(a).
By rewording paragraph (d) to more closely model OSHA's wording,
FRA is better conforming its reporting requirements to that of OSHA.
FRA is also clarifying that only new cases are reportable. The current
regulation requires that the injury or illness must
[[Page 52506]]
be a new case or a significant aggravation of a pre-existing injury or
illness. FRA therefore proposes, that to be reportable, a significant
aggravation of a pre-existing case must be a ``new case'' (i.e., a case
in which either the employee has not previously experienced a reported
injury or illness of the same type that affects the same part of the
body, or the employee previously experienced a reported injury or
illness of the same type that affected the same part of the body but
had recovered completely (all signs had disappeared) from the previous
injury or illness and an event or exposure in the work environment
caused the signs or symptoms to reappear).
FRA also proposes to amend paragraph (d) by revising the general
reporting criteria, specifically paragraph (d)(2), which currently
states, ``injury to any person that results in medical treatment,'' to
include ``significant injury to any person'' and ``loss of
consciousness to any person.'' Failure to include these classes of
injuries as reportable for ``any person'' rather than just railroad
employees in the general criteria in the agency's 2003 Final Rule (68
FR 10107, March 3, 2003), has resulted in FRA not capturing data for
non-employees with respect to significant injuries.
In addition, FRA proposes to amend paragraph (d)(6)(v) to remove
the word ``independently'' for purposes of clarity. As explained in the
Section-by-Section Analysis the Sec. 225.5 definition of ``Injury or
Illness,'' MSD's are injuries and illnesses under the rule and are
subject to the same recording criteria that apply to other injuries and
illnesses.
Lastly, FRA proposes to amend paragraph (d)(6) to include covered
data cases. The addition of covered data cases to Sec. 225.19(d) is a
technical amendment and intended to correct the inadvertent omission of
the criteria in the current rule text. The addition does not alter
FRA's reporting criteria or its policy on covered data as stated in
Sec. 225.39.
Section 225.21 Forms
In this section, FRA proposes to amend paragraph (j) in relation to
the use of Form FRA F 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related.'' Specifically, FRA is proposing to make
use of the Form FRA F 6180.107, in place of Form FRA F 6180.98,
``Railroad Employee Injury and/or Illness Record,'' optional rather
than mandatory, and to amend and redesignate the instructions for use
of the form currently set forth at Sec. 225.21(j) to Sec. 225.25(i)
under the section entitled ``Recordkeeping.'' See Section-by-Section
Analysis for Sec. 225.25, ``Recordkeeping,'' for additional
information.
Section 225.25 Recordkeeping
In this section, FRA proposes to eliminate from paragraph (a) the
words ``that arise from the operation of the railroad'' in order to
maintain continuity with the agency's proposed definition of
``accountable injury or illness.'' See Section-by-Section Analysis for
Sec. 225.5, ``Definitions,'' for additional information. Moreover,
such language is redundant with respect to reportability, as Sec.
225.19(d) clearly indicates an injury or illness is only reportable if
an event or exposure arising from the operation of a railroad is a
discernable cause of the resulting condition or a discernable cause of
a significant aggravation to a pre-existing injury or illness.
FRA also proposes to revise the criteria for using Form FRA F
6180.107, ``Alternative Record for Illnesses Claimed to be Work-
Related'' and sets forth all of the information that must be included
in an alternative railroad-designed record that may be used in lieu of
the Form FRA F 6180.107.
Prior to FRA's most recent amendments to part 225 in 2003, FRA
required all accountable and reportable injuries and illnesses be
recorded on Form FRA F 6180.98, ``Railroad Employee Injury and/or
Illness Record,'' or an equivalent record containing the same
information. The subset of those cases that qualified for reporting
were then reported to FRA on Form FRA F 6180.55a, ``Railroad Injury and
Illness Summary (Continuation Sheet).'' If the case was not reported,
the railroad was required to state, on Form FRA F 6180.98, ``Railroad
Employee Injury and/or Illness Record,'' or the equivalent record, the
reason the injury or illness was not reportable. According to the final
rule preamble, 68 FR 10107, 10118, March 3, 2003:
[a]lthough this system has generally worked well, problems have
arisen with respect to accounting of claimed occupational illnesses.
As further explained below, railroads are subject to tort-based
liability for illnesses and injuries that arise as a result of
conditions in the workplace. By their nature, many occupational
illnesses, particularly repetitive stress cases, may arise either
from exposures outside the workplace, inside the workplace, or a
combination of the two. Accordingly, issues of work-relatedness
become very prominent. Railroads evaluate claims of this nature
using medical and ergonomic experts, often relying upon job analysis
studies as well as focusing on the individual claims.
With respect to accounting and reportability under part 225,
railroad representatives asserted their concern that mere
allegations (e.g., receipt of a complaint in a tort suit naming a
large number of plaintiffs) not give rise to a duty to report. They
added that many such claims are settled for what amounts to nuisance
values, often with no admission of liability on the part of the
railroad, so even the payment of compensation is not clear evidence
that the railroad viewed the claim of work-relatedness as valid.
Although sympathetic to these concerns, FRA was disappointed in
the quality of data provided in the past related to occupational
illness. Indeed, in recent years the number of such events reported
to FRA has been extremely small. FRA has an obligation to verify,
insofar as possible, whether the railroad's judgments rest on a
reasonable basis, and discharging that responsibility requires that
there be a reasonable audit trail to verify on what basis the
railroad's decisions were made.
As a result, FRA established at Sec. 225.25(i)(1) a separate
category of claimed illnesses to be recorded on a new form, Form FRA F
6180.107, ``Alternative Record for Illnesses Claimed to be Work
Related.'' This category is comprised of: Illnesses for which there is
insufficient information to determine whether the illness is work-
related; illness for which the railroad has made a preliminary
determination that the illness was not work-related; and illnesses for
which the railroad has made a final determination that the illness is
not work-related.
For any case determined to be reportable, under Sec. 225.25(i)(2)
the railroad has been required to remove the designation ``illness
claimed to be work-related'' and transfer the record to the reporting
officer for retention and reporting in the normal manner. In the event
the railroad determined the case was not reportable, Sec. 225.25(i)(3)
requires that the railroad record an explanation in ``narrative'' block
19 of Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed
to be Work-Related,'' of the reason(s) the railroad made that
determination, making reference to the ``most authoritative''
information relied upon.
FRA believed that this system of accounting for contested illnesses
would focus responsibility for reporting decisions and provide an
appropriate audit trail. In addition, FRA thought that it would result
in a body of information that could be used for research into the
causes of prevalent illnesses, particularly in the case of
musculoskeletal disorders. See 68 FR 10107, 10118, March 3, 2003.
Unfortunately, this has not been the case.
Rather than use the Form FRA F 6180.107, ``Alternative Record for
[[Page 52507]]
Illnesses Claimed to be Work-Related,'' to record only those illnesses
for which the railroad: has insufficient information to determine
whether the illness is work-related; has made a preliminary
determination that the illness is not work-related; or has made a final
determination that the illness is not work-related, FRA found that
frequently railroads are recording all occupational illnesses on Form
FRA F 6180.107 as a matter of practice even before evaluating the
sufficiency of information provided and/or work-relatedness, and that
railroads allowed these records to remain unevaluated for periods of
several months or more without being updated or reviewed for work-
relatedness. Moreover, FRA has found that railroads are not creating
the Form FRA F 6180.107 record no later than seven working days after
receiving information or acquiring knowledge that an employee is
claiming they have incurred an occupational illness, as required by the
FRA Guide. Consequently, this system of accounting has not focused
responsibility for reporting decisions, not provided an appropriate
audit trail, not resulted in a body of information that can be used in
the future for research into the causes of prevalent illnesses, and has
not been helpful in correcting the under-reporting of occupational
illnesses to FRA.
In order to correct this problem, FRA proposes to refine the
circumstances and procedures related to the recording of claimed
occupational illnesses on Form FRA F 6180.107, ``Alternative Record for
Illnesses Claimed to be Work-Related.'' Specifically, FRA proposes to
allow the use of the Form FRA F 6180.107 to record only those claimed
occupational illnesses for which the railroad carrier has not received,
from the employee or their representative, information sufficient to
determine whether the occupational illness is work-related. FRA's
proposal also includes, among other things, requirements that
railroads: enter each illness claimed to be work-related on the record
no later than seven working days after receiving information or
acquiring knowledge that an employee is claiming they have incurred an
occupational illness; make a good faith effort to obtain information
necessary on occupational illness cases to make a reporting decision by
December 1 of the next calendar year; document the receipt of new or
additional case information in ``narrative'' block 19 of Form FRA F
6180.107 within seven days of receipt and to re-evaluate the case in
light of the new information within 30 days of receipt of the
information; complete a Form FRA F 6180.98 for any claimed occupational
illness case determined to be accountable or reportable within seven
days of making such determination; to retain the record in accordance
with the provisions set forth in Sec. 225.27 and report the illness in
accordance with regular reporting requirements; and provide complete
narratives on Form FRA F 6180.107 for those cases the railroad
determines are not reportable. The proposal also specifically defines
what data elements an alterative railroad-designed Form FRA F 6180.107
must contain.
FRA proposes to amend the requirement at paragraph Sec.
225.25(b)(6) so that the alternative railroad-designed record for Form
FRA F 6180.98, ``Railroad Employee Injury and/or Illness Record,''
require the input of the ``Employee identification number'' only, to
eliminate for privacy reasons the employee social security number
option. FRA is proposing a like requirement for the alternative
railroad-designed record for Form FRA F 6180.107, ``Alternative Records
for Illnesses Claimed to be Work-Related.'' FRA is also proposing
corresponding changes for Forms FRA F 6180.98 and 6180.107. See
Section-by-Section Analysis for Appendix H, ``Forms.''
FRA also proposes to replace the term ``log entry'' at Sec.
225.25(b)(28) with ``record'' and ``report'' at Sec. 225.25(e)(28)
with ``record.'' Both of these sections refer to ``records,''
specifically alternative railroad-designed Form FRA F 6180.98,
``Railroad Employee Injury and/or Illness Record'' and alternative
railroad-designed Form FRA F 6180.97, ``Initial Rail Equipment
Accident/Incident Record,'' respectively. This amendment is merely
technical and is not intended by the agency to affect any substantive
change.
FRA also proposes to amend the requirements for these alternative
railroad-designed records by amending Sec. Sec. 225.25(b)(28) and
(e)(28), and proposed (j)(25), respectively, to reflect that the date
required is the initial date the form was signed/completed. FRA finds
it necessary to make such change because certain railroads do not
retain the initial date a record was completed, but only the date of
the most recent update to the record. Consequently, FRA is unable to
discern if the railroad entered each reportable and accountable injury
and illness and each reportable and accountable rail equipment
accident/incident on the appropriate record, as required by Sec.
225.25(a) through (e), no later than seven working days after receiving
information or acquiring knowledge that an injury or illness or rail
equipment accident/incident has occurred, as required by Sec.
225.25(f). FRA believes that specifying the date which is required to
be maintained on the record will resolve any confusion regarding the
requirement. FRA is proposing a like requirement for the alternative
railroad-designed Form FRA 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related.'' FRA is proposing corresponding changes
for Forms FRA F 6180.98, 6180.97 and 6180.107. See Section-by-Section
Analysis for Appendix H, ``Forms.''
Section 225.27 Retention of Records
In this section, FRA proposes a five-year record retention
requirement for Form FRA F 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related.'' FRA does so because the current rule does
not set forth a retention period for these forms. Five years is the
same retention period as that of Form FRA F 6180.98, ``Railroad
Employee Injury and/or Illness Record,'' and appropriate for accurate
recordkeeping and auditing purposes. FRA also proposes a requirement
that in the event a railroad opts to submit their monthly Form FRA F
6180.55, ``Railroad Injury and Illness Summary'' via optical media or
electronically via the Internet, rather than in hard copy, the railroad
retain the original completed hard copy for a period of five years
after the calendar year to which it relates. If the railroad opts to
submit the report to FRA via the Internet, FRA proposes to require that
the railroad also retain a hard copy printout of FRA's electronic
notice acknowledging receipt of the submission for a period of five
years after the calendar year to which the report acknowledged relates.
FRA proposes these requirements in light of the new electronic
submission options proposed in Sec. 225.37, ``Magnetic media transfer
and electronic submission'' of this notice.
Lastly, FRA proposes system standards for the electronic retention,
by railroads, of accident/incident records. Historically, railroads
have retained these records in hard copy form. FRA, however, is not
opposed to railroads maintaining these records electronically so long
as the integrity of the record is maintained. In order to ensure such
integrity, FRA is proposing minimum system requirements for electronic
retention of accident/incident records.
Section 225.33 Internal Control Plan
In this section, FRA proposes to clarify current ambiguity of
element number 11 of the internal control plan
[[Page 52508]]
to allow railroads to have multiple named custodians and locations of
completed Forms FRA F 6180.107, ``Alternative Records for Illnesses
Claimed to be Work-Related,'' or the alternate railroad-designed forms
and supporting documentation. FRA recognizes that railroads do not
necessarily keep completed Claimed Occupational Illness Records in a
centralized location, and that different individuals may be responsible
for keeping the records. By amending the regulation, railroads will be
able to accurately indicate who the custodians are and where the
custodians and records are located.
Section 225.37 Magnetic Media Transfer and Electronic Submission
FRA is updating the title of this section to reflect changes in
technology. It will read, ``Optical media transfer and electronic
submission.'' FRA also is instituting two changes related to Form FRA F
6180.55, ``Railroad Injury and Illness Summary.'' FRA believes that
both of these changes will reduce railroad burdens related to
completing and submitting this form.
FRA has replaced the oath and notarization requirement for Form FRA
F 6180.55, ``Railroad Injury and Illness Summary,'' with a requirement
that the signature be signed under penalty of perjury in accordance
with 28 U.S.C. 1746.
Title 49 U.S.C. 20901 requires that a railroad file an Accident/
Incident report ``under oath'' no later than 30 days after the end of
each month. To fulfill this requirement, FRA currently requires that a
railroad reporting officer make a sworn statement, under oath, before a
notary public each month attesting to the accuracy that month's
submission. The question has arisen as to whether an unsworn,
unnotarized statement is adequate to fulfill the section 20901 oath
requirement.
In 1976, Congress addressed the use of ``unsworn declarations under
penalty of perjury,'' in lieu of a sworn affidavit. Title 28 U.S.C.
1746, ``Unsworn Declarations Under Penalty of Perjury,'' provides that
``wherever, under any law of the United States or under any rule,
regulation, order, or requirement made pursuant to law, any matter is
required or permitted to be supported, evidenced, established, or
proved by the sworn declaration, verification, certificate, statement,
oath, or affidavit, in writing of the person making the same (other
than a deposition, or an oath of office, or an oath required to be
taken before a specified official other than a notary public), such
matter may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated * * *''
and provides examples of the form the declaration, certificate,
verification, or statement must take. Consequently, the oath
requirement of 20901 can be met via an unsworn, unnotarized statement,
so long as the statement meets the requirements set forth in 28 U.S.C.
1746.
FRA is also updating the regulatory text to include provisions
allowing railroads to make their monthly reporting submissions (Forms
FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; 6180.55a,
``Railroad Injury and Illness Summary (Continuation Sheet)''; 6180.57,
``Highway-Rail Grade Crossing Accident/Incident Report'') to FRA via
optical media (CD-ROM) or electronically via the Internet. Batch
control forms (Form FRA F 6180.99) are no longer required for
submission. Form FRA F 6180.55, ``Railroad Injury and Illness
Summary,'' reports and Form FRA F 6180.81 ``Employee Human Factor
Attachment'' reports; may also be submitted through these means,
however the Form FRA F 6180.55 must submitted as an image of the
completed and signed hard copy and must be in .pdf or .jpg file format
only; and the Form FRA F 6180.81 must also be in .pdf or .jpg file
format. If a railroad opts to submit their completed Form FRA F 6180.55
to FRA via optical media or electronically via the Internet, the
railroad must maintain the original completed and signed Form FRA F
6180.55 for at least five years after the calendar year to which the
report relates in accordance with proposed Sec. 225.27(c). FRA will
provide to the railroad an electronic notice acknowledging the agency's
receipt Form FRA F 6180.55 reports which are filed electronically via
the Internet. The railroad must also maintain a hard copy print out
this acknowledgment notice for at least five years after the calendar
year to which the report acknowledged relates in accordance with
proposed Sec. 225.27(c).
FRA is also proposing to add a paragraph (f) a statement requiring
that railroads choosing to use the optical medical or electronic
submission via Internet option must use one of the approved formats
specified in the Companion Guide. FRA will reject submissions that do
not adhere to the required formats, which may result in the issuance of
one or more civil penalty assessments against a railroad for failing to
provide timely submissions of required reports as required by Sec.
225.11.
Section 225.41 Suicide Data
In this section, FRA proposes to add Sec. 225.41 ``Suicide Data,''
to detail FRA's intended use of suicide data. See Section-by-Section
Analysis for Sec. 225.15, ``Accidents/Incidents Not To Be Reported''
for additional information.
Appendix A to Part 225--Schedule of Civil Penalties
Appendix A to part 225 contains a schedule of civil penalties for
use in connection with this part. FRA may revise the schedule of civil
penalties in issuing the final rule to reflect revision made to part
225. Because such penalty schedules are statements of agency policy,
notice and comment are not required prior to their issuance. See 5
U.S.C. 553(b)(3)(A). Nevertheless, commenters are invited to submit
suggestions to FRA describing the types of actions or omissions for
each proposed regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalties may be appropriate, based upon the relative seriousness
of each type of violation.
FRA notes that in December 2006, it published proposed statements
of agency policy that would amend the 25 schedules of civil penalties
issued as appendixes to FRA's safety regulations, including part 225.
See 71 FR 70589, Dec. 5, 2006. The proposed revisions are intended to
reflect more accurately the safety risks associated with violations of
the rail safety laws and regulations, as well as to make sure that the
civil penalty amounts are consistent across all safety regulations.
Although the schedules are statements of agency policy, and FRA has
authority to issue revisions without having to follow the notice and
comment procedures of the Administrative Procedure Act, FRA has
provided members and representatives of the general public an
opportunity to comment on the proposed revisions before amending them.
FRA is currently evaluating all of the comments received in preparing
final statements of agency policy, and the schedule of civil penalties
to part 225 may be revised as a result, independent of the rulemaking
proceeding.
Proposed Revisions to the FRA Guide
Generally, FRA proposes to make the following changes to the FRA
Guide: Improve the table of contents; add a subject index; reorganize
chapter contents for ease of use; include
[[Page 52509]]
necessary updates; include new ``Questions and Answers'' and
``Scenarios'' taken from the FRA Safety Data Web page (http://safetydata.fra.dot.gov/officeofsafety) and from OSHA's Web page (http://www.osha.gov/comp-links.html) to clarify reporting issues; and to
eliminate redundant language by replacing verbatim reiterations of part
225 rule text where appropriate and instead, cite references to part
225 (for ease of reference FRA proposes to include the full regulatory
text of part 225 in a newly created appendix K of the FRA Guide). More
specific changes include:
A. Chapter 1, ``Overview of Accident/Incident Reporting and
Recordkeeping Requirements.'' FRA proposes to revise the paragraph
titled, ``Telephonic Reports of Certain Accidents/Incidents'' in
accordance with this amendments set forth in Sec. 225.9 of this
proposal, and to include the telephonic reporting requirements set
forth in 49 CFR parts 229, ``Railroad Locomotive Safety Standards'';
part 233, ``Signal Systems Reporting Requirements''; part 234, ``Grade
Crossing Signal System Safety''; and part 219, ``Control of Alcohol and
Drug Use.'' Such incorporation is for informational purposes only, and
places no new reporting requirements on railroads. By including these
requirements in the guide, FRA hopes to better disseminate its
telephonic reporting requirements, and improve railroad compliance by
providing a single reference location for determining when accident/
incident telephonic notification is required.
FRA also proposes to amend the section entitled ``Close of Calendar
Year'' by clarifying the requirements for submitting late and amended
reports, revising the time frame in which FRA will accept additional
late and amended accident/incident reports, and changing from optional
to mandatory the filing of amended reports for certain accidents/
incidents.
FRA publishes final accident/incident counts following the
conclusion of a reporting year. Submission of the December report
concludes the reporting year. However, railroads are still required to
provide to FRA late reports of unreported accidents/incidents and
amended reports that correct or update earlier submissions.
Currently, the FRA Guide (Chapter 1--Page 12 through 13) specifies
three cutoff dates for filing late and amended accident/incident
reports following the completion of the reporting year:
(1) April 15 of the of the next calendar year;
(2) December 1 of the following year: and
(3) Five years after the end of the calendar year to which the
accident/incident report relates.
FRA has found this reporting scheme to be confusing and outdated
with the advent of improved technology. Moreover, improvements in
database management strategies allow for contemporaneous viewing of
reporting accident/incident statistics and have eliminated the need to
impose artificial deadlines for keeping files open or for FRA to
publish interim reports. As such, FRA proposes to remove references to
the cutoff date of April 15th of the next calendar year for accepting
late reports and amendments. Accordingly, FRA will receive and process
any and all late and amended reports for a period of five years
following the calendar year to which an amended or late report relates.
This accommodation does not relieve a railroad of its obligation to
promptly file a late or amended report upon becoming aware of an
omission, mistake or otherwise, in accordance with Sec. 225.13 and the
late and amended reporting guidance set forth in this Guide. FRA will
continue to publish its Annual Report of Railroad Safety Statistics.
Because the accident/incident databases will remain open for updating
for a period of five years, the statistics published in the Annual
Report will be subject to change. The authoritative source for rail
safety statistics will now be the Office of Safety's Web site: http://
safetydata.fra.dot.gov/OfficeofSafety.
To clarify, FRA does not propose to change the following late and
amended reporting requirements which are currently set forth in the FRA
Guide:
(1) Railroads must file amended reports with FRA through December 1
of the year following the year in which the accident/incident was
initially reported.
(2) Railroads must file late reports with FRA for five years
(following the end of the calendar year to which the accident/incident
relates) for all unreported accident/incidents.
FRA does, however, propose to change its reporting requirements
with respect to certain specified accidents/incidents. Currently, the
FRA Guide states that railroads ``should'' continue to file amended
reports after December 1 of the following year (i.e., for five years
after the end of the calendar year to which they relate) for the
changes listed below. FRA proposes to make such amended reporting
mandatory. Accordingly, FRA proposes that railroads shall continue to
file amended reports for five years after the end of the calendar year
to which they relate for the following changes:
(1) Railroad Injury and Illness Summary (Continuation Sheet) (Form
FRA F 6180.55a): Change from Injury to Fatality (only if the injured
person dies within 180 days from the date of the injury);
(2) Highway-Rail Grade Crossing Accident/Incident Report (Form FRA
F 6180.57): Change from Injury to Fatality, change in Grade Crossing
ID, change in the Rail Equipment Involved;
(3) Rail Equipment Accident/Incident Report (Form FRA F 6180.54):
Change from Injury to Fatality, change in Grade Crossing ID, Rail
Equipment Involved, Primary Cause Code, Contributing Cause Code, Type
of Territory, Number of Cars Releasing or Evacuation.
FRA further proposes that railroads shall continue to file amended
reports for five years after the end of the calendar year to which they
relate for the additional changes listed below:
(1) Railroad Injury and Illness Summary (Continuation Sheet) (Form
FRA F 6180.55a): A significant change in the number of reportable days
away from work or days restricted; a significant change is at least a
10% variance in the number of actual reportable days away from work or
days restricted compared to the number of days already reported.
(2) Railroad Equipment Accident/Incident Report (Form FRA F
6180.54): A significant change in the damage costs for reportable rail
equipment accidents/incidents; a significant change is a 10% variance
between the damage amount reported to FRA and the current cost figures.
B. Chapter 2, ``Definitions.'' FRA proposes to revise or add
certain definitions for clarification or ease of reference and to
remove definitions that are simply reiterations of definitions set
forth in Sec. 225.5. FRA proposes to add definitions for ``Barricaded
Crossing'' to mean ``a highway-rail grade crossing that is temporarily
closed to highway users''; and ``Closed Crossing'' to mean a location
where a crossing has been physically removed or where rail operations
or highway traffic is not possible. This does not include crossings
that are temporarily closed for repairs to the track structure,
crossing surface, or roadway approaches. Examples are locations where
the crossing has been barricaded and highway crossing surface material
removed; where the railroad tracks have been cut or barricaded or
physically removed; where a connecting turnout has been removed; or
where rail operations are not possible because the railroad tracks are
paved over, etc. Crossings along such inactive railroad lines are
closed. FRA adds these
[[Page 52510]]
definitions to the FRA Guide to eliminate confusion about the meaning
of a ``closed'' versus ``barricaded'' crossing and to revise the
definition of ``closed crossing'' to agree with the definition used in
the Grade Crossing Inventory System (GCIS). The GCIS is a voluntary
system used by states, railroads and the Federal government to profile
crossings and determine which crossings need improved warning systems
for highway users. The FRA and other users regularly compare
information from the Highway-Rail Crossing Accident/Incident Reports
(Form FRA F 6180.57) to the GCIS. Clearly defining ``closed crossing''
and ``barricaded crossing,'' and making the GCIS and FRA definitions
consistent will reduce confusion and aid in grade crossing accident/
incident reporting accuracy.
FRA proposes to add a definition for ``Gap'' to mean, ``the
horizontal space between the edge of the passenger boarding platform
and the edge of the rail car door threshold plate, and the vertical
difference from the top of the passenger boarding platform and the top
of the rail car threshold.'' This definition with minor variation was
recommended by the RSAC General Passenger Safety (GPS) Task Force
reported to the full RSAC on October 25, 2007, along with the Cause
Code Recommendations for platform gap related injuries (see discussion
for Appendix F of the FRA Guide). The full RSAC agreed to the
recommendations on October 25, 2007.
FRA proposes to add a definition for ``Gap Incident'' to mean, ``an
event involving a person who, while involved in the process of boarding
or alighting a passenger train at a rail car door threshold plate at a
high level passenger boarding platform (i.e., a platform that is 48''
or more above the top of the rail), has one or more body parts enter
the area between the car body and the edge of the platform. The
following are examples of a Gap Incident:
--While boarding or alighting a passenger train at a high level
passenger boarding platform a person misjudges the gap, resulting in
the person's leg entering the gap.
--While boarding or alighting a passenger train at a high level
passenger boarding platform, a person is struck by a closing door,
resulting in the person's leg entering the gap.
The following are not examples of a Gap Incident:
--While boarding or alighting a passenger train at a high level
passenger boarding platform, a person misjudges the gap and falls into
the vestibule or platform, without a body part entering the gap.
--While walking on a passenger station at a high level passenger
boarding platform, a person slips on the platform, at a location other
than the rail car door threshold, resulting in the person's leg
entering the gap.
The definition and examples of ``Gap Incident'' was recommended by
the RSAC General Passenger Safety (GPS) Task Force reported to the full
RSAC on October 25, 2007, along with Cause Code Recommendations for
platform gap related injuries (see discussion for Appendix F of the FRA
Guide). The full RSAC agreed to these recommendations on October 25,
2007. FRA has adopted these recommendations with slight variation. See
section on Changes to the FRA Guide, discussion of Appendix F.
FRA proposes to amend the definition of ``locomotive'' to support
changes necessary to include EMU and DMU cars on FRA Form F 6180.54,
``Rail-Equipment Accident/Incident Report.'' In the current FRA Guide
(May 1, 2003), a cab car is defined as a locomotive; there is no
definition for EMU and DMU cars, which created confusion because these
cars provide power to the consist can therefore also be classified as
locomotives.
FRA proposes to add a definition for ``vehicle'' to include
automobiles, buses, trucks, motorcycles, bicycles, farm vehicles, and
all other modes of surface transportation, motorized and unmotorized.
C. Chapter 3, Form FRA F 6180.55, ``Railroad Injury and Illness
Summary.'' FRA proposes to revise the instructions for the use of this
form consistent with the changes proposed in this NPRM. See Section-by-
Section Analysis for Sec. 225.27, ``Retention of records'' Sec.
225.37, ``Magnetic media transfer and submission,'' and Proposed
Revisions to the FRA Guide, Appendix H, ``Forms'' for additional
information.
D. Chapter 4, Form FRA F 6180.98, ``Railroad Employee Injury and/or
Illness Record.'' FRA proposes to revise the instructions for the use
of this form consistent with the changes proposed in this NPRM. See
Section-by-Section Analysis for Sec. 225.5, ``Definitions'' definition
for Accountable Injury or Illness; Sec. 225.25, ``Recordkeeping'' and
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information.
E. Chapter 5, Form FRA F 6180.97, ``Initial Rail Equipment
Accident/Incident Record.'' FRA proposes to revise the instructions for
the use of this form consistent with the changes proposed in this NPRM.
See Section-by-Section Analysis for Sec. 225.25, ``Recordkeeping'' and
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information.
F. Chapter 6, Form FRA F 6180.55a, ``Railroad Injury and Illness
Summary (Continuation Sheet).'' FRA proposes to revise the instructions
for the use of this form consistent with the changes proposed in this
NPRM. FRA also proposes to add instructions that if an injury is due to
a gap incident, the railroad must use in block 5n (``Cause''),
``Probable Reason for Injury/Illness Circumstance Codes'' code number
18--Slipped, fell, stumbled due to Gap, regardless of whether other
codes may also be applicable. See Section-by-Section Analysis for
Sec. Sec. 225.5, ``Definitions''; Sec. 225.15, ``Accidents/Incident
not to be reported''; Sec. 225.19 ``Primary Groups of Accidents/
Incidents''and Proposed Revisions to the FRA Guide, Appendix H,
``Forms'' for additional information.
FRA also proposes to revise Chapter 6 to instruct railroads that
they must presume that a highway user who is involved in a highway-rail
grade crossing accident/incident and is transported from the scene of a
highway-rail grade crossing accident/incident to a medical facility via
ambulance or other form of medical conveyance, did, more likely than
not, sustain an FRA reportable injury (i.e., an injury meeting the
general reporting criteria set forth at Sec. 225.19(d)(1) through
(d)(6)). Absent evidence to rebut the presumption, the railroad must
report the injury to FRA on Form FRA F 6180.55a, and include the
casualty on Form FRA F 6180.57. If the railroad later discovers that
the highway user did not sustain a reportable injury, the railroad must
notify FRA in accordance with the late reporting instructions set forth
at Sec. 225.13. FRA is proposing this change because the agency has
found that railroads are under-reporting highway-rail grade crossing
accidents/incidents related to injuries to persons other than railroad
employees due to the railroads' limited access to injured highway
users' medical records, especially in light of privacy protections
related to health information provided by the Health Insurance
Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191.
FRA emphasizes, however, that this presumption does not relieve
railroads of their duty to make reasonable inquiry to determine the
nature and severity of highway-rail grade crossing injuries and to
accurately report such injuries. FRA has found that railroads often do
not make such reasonable inquiry.
[[Page 52511]]
Accordingly, FRA is clarifying that in order to fulfill its
responsibilities in determining the nature and severity of highway-rail
grade crossing injuries and to accurately report such injuries, a
railroad must try to contact the injured individual or their
representative by telephone and, if unsuccessful in obtaining the
needed information, in writing. The railroad must keep a record of its
efforts to make such contact. This record and documentation of any
information obtained must be available for review and copying by an FRA
representative under the same criteria as set forth in Sec. 225.35
(b).
Lastly, FRA is concerned that fatalities that are actually suicides
are being reported as trespasser fatalities. Often this occurs because
railroads do not always make reasonable inquiry in their efforts to
determine the cause of death. In fact, FRA has found that a number of
reported trespasser fatalities are actually suicides. Accordingly, FRA
is revising Chapter 6 to clarify that in order to fulfill its
responsibilities in determining the nature of a trespasser fatality and
to accurately report such fatality, a railroad must try to obtain
documentation indicating the cause of death by contacting the coroner
or other public official by telephone and, if unsuccessful in obtaining
the needed information, in writing. The railroad must continue its
efforts to obtain this documentation for a period of six months
following the month in which the fatality occurred. The railroad must
keep a record of its efforts to obtain such documentation. This record
and any documentation obtained must be available for review and copying
by an FRA representative under the same criteria as set forth in Sec.
225.35 (b).
G. Chapter 7, pertaining to Form FRA F 6180.54, ``Rail Equipment
Accident/Incident Report.'' FRA proposes to revise the instructions for
the use of this form consistent with the changes proposed in this NPRM.
FRA also proposes to add instructions to Chapter 7 requiring that if an
accident is caused by a bond wire attachment issue (see proposed
Appendix C ``Train Accident Cause Codes''), information on the methods
and locations of those attachments be provided in the narrative block
52. See Section-by-Section Analysis for Sec. Sec. 225.5,
``Definitions''; Sec. 225.15, ``Accidents/Incident not to be
reported''; Sec. 225.19 ``Primary Groups of Accidents/Incidents''and
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information. See Section-by-Section Analysis for Sec.
225.5, ``Definitions,'' Sec. 225.15, ``Accidents/Incident not to be
reported'' and Proposed Revisions to the FRA Guide, Appendix H,
``Forms'' for additional information.
H. Chapter 10, pertaining to Form FRA F 6180.57, ``Highway-Rail
Grade Crossing Accident/Incident Report.'' FRA proposes to revise the
instructions for the use of this form consistent with the changes
proposed in this NPRM. See Section-by-Section Analysis for Sec.
225.15, ``Accidents/Incident not to be reported'' and Proposed
Revisions to the FRA Guide, Appendix H, ``Forms'' for additional
information.
FRA also proposes to revise Chapter 10 to instruct railroads that
they must presume that a highway user who is involved in a highway-rail
grade crossing accident/incident and is transported from the scene of a
highway-rail grade crossing accident/incident to a medical facility via
ambulance or other form of medical conveyance, did, more likely than
not, sustain an FRA reportable injury (i.e., an injury meeting the
general reporting criteria set forth at Sec. 225.19(d)(1) through
(d)(6)). Absent evidence to rebut the presumption, the railroad must
report the injury to FRA on Form FRA F 6180.55a, ``Railroad Injury and
Illness Summary (Continuation Sheet)'' and include the casualty on Form
FRA F 6180.57. In order to fulfill its responsibilities in determining
the nature and severity of a highway-rail grade crossing injury and to
accurately report such injury, a railroad must try to contact the
injured individual or their representative by telephone and, if
unsuccessful in obtaining the needed information, in writing. The
railroad must keep a record of its efforts to make such contact. This
record and documentation of any information obtained must be available
for review and copying by an FRA representative under the same criteria
as set forth in Sec. 225.35(b). For additional information see
Section-by-Section Analysis for Sec. 225.15 ``Accidents/Incidents not
to be reported'' and Proposed Revisions to the FRA Guide, Subsection F,
Form FRA F 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet).''
I. Chapter 13, pertaining to Form FRA F 6180.107, ``Alternative
Record for Illness Claimed to be Work-Related.'' FRA proposes to revise
the instructions for the use of the form consistent with the changes
proposed in this NPRM. See Section-by-Section Analysis for Sec.
225.21, ``Forms,'' Sec. 225.25, ``Recordkeeping,'' Sec. 225.27
``Record Retention,'' Sec. 225.33, ``Internal Control Plan'' and
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information.
J. Appendix A, ``Railroad Codes.'' FRA proposes to provide updates
to the railroad codes.
K. Appendix C, ``Train Accident Cause Codes.'' FRA proposes to add
or revise the following Train Accident Cause Codes:
T224 ``Rail defect originating from bond wire attachment.''
FRA proposes to add Train Accident Cause Code T224 response to the
National Transportation Safety Board's (NTSB) 2005 recommendation that
FRA provide a train accident cause code for derailments caused by bond
wire attachments. This recommendation arose from the NTSB's
investigation of the derailment of northbound National Railroad
Passenger Corporation (Amtrak) train No. 58 while operating on Canadian
National (CN) track near Flora, Mississippi, on April 6, 2004. The
derailment resulted in one fatality, 35 injuries (that were reportable
to FRA), and damage costs of approximately $7 million. The NTSB
recommended that FRA include in the FRA Guide a train accident cause
code for derailments caused by rail cracks originating from bond wire
attachments, and that information on the methods and locations of those
attachments be provided in the narrative section of the accident/
incident report ((NTSB Recommendation Number RAR-05/02);
S104 ``Radio controlled switch not locked effectively.'' FRA
proposes to amend Train Accident Cause Code S104 by adding ``(equipment
failure)'' to the code's description. The description of Cause Code
S104 as amended would read, ``Radio controlled switch not locked
effectively (equipment failure).'' FRA incorporated this change in
order to clarify that S104 pertains to equipment failure, not human
error.
H707 ``Radio controlled switch not locked effectively.'' FRA
proposes to amend Train Accident Cause Code H707 by adding ``(human
error)'' to the code's description. The proposed description for Cause
Code H707 denotes ``Radio controlled switch not locked effectively
(human error).'' FRA incorporated this change in order to clarify that
H707 pertains to human error, not equipment failure.
M 309 ``Grade Crossing Suicide''; M310 ``Grade Crossing
Attempted Suicide''; M509 ``Suicide Resulting in Train Accident''; and
M510 ``Attempted Suicide Resulting in
[[Page 52512]]
Train Accident'' for use in block 38 of Form FRA F 6180.54, ``Rail
Equipment Accident/Incident Report.'' See Section-by-Section Analysis
for Sec. 225.15, ``Accidents/incidents not to be reported'' and
Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information.
L. Appendix F, ``Circumstance Codes.'' FRA added the following
``Probable Reason for Injury/Illness Circumstance Codes,'' (Probable
Reason Circumstance Code) under the subtitle ``Remotely controlled
locomotive(s) environment'' to the Remote Control Locomotive Switching
Operations Fatality Analysis Codes (RCL SOFA Codes) to the May 1, 2003,
guide as amended:
R1 Object fouling track, related to using RCL.
R2 Outside caused (e.g., assaulted/attacked), related to
using RCL.
R3 Lack of communication, related to using RCL.
R4 Slack adjustment during switching operation, related to
using RCL.
R5 Insufficient training, related to using RCL.
R6 Failure to provide adequate space between equipment
during switching operation, related to using RCL.
R7 Close or no clearance, related to using RCL.
R8 Act of God, related to using RCL.
U1 Object fouling track, unrelated to using RCL.
U2 Outside caused (e.g., assaulted/attacked), unrelated to
using RCL.
U3 Lack of communication, unrelated to using RCL.
U4 Slack adjustment during switching operation, unrelated
to using RCL.
U5 Insufficient training, unrelated to using RCL.
U6 Failure to provide adequate space between equipment
during switching operations unrelated to using RCL.
U7 Close or no clearance, unrelated to using RCL.
U8 Act of God, unrelated to using RCL.
In the final regulation to 49 CFR part 225, 68 FR 10107, March 3,
2003, new codes and form changes were made to accommodate the recording
events when remote control locomotive operations (RCL) were involved.
A special task group of railroad safety officers representing labor
and industry and FRA members was created in the RSAC Accident/Incident
Working Group to discuss the coding of RCL. The results of the special
task group would be presented to the entire working group for approval.
The concern of the reporting officers was to prevent any major changes
to the then current forms or databases. In part, this rested on their
information technology offices' internal charges for making major
programming changes. The FRA team was tasked with finding a way to
include RCL involved accidents and incidents on the following three
forms: Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report'';
Form FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report'';
and Form FRA F 6180.55a, ``Railroad Injury/Illness Summary
(Continuation Sheet),'' without changing the database structures.
The FRA found a way to capture RCL-related incidents on both the
Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' and
Form FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report''
without expanding the database or making a major change on the form or
the respective database. Capturing this information on Form FRA F
6180.55a, ``Railroad Injury and Illness (Continuation Sheet),''
remained problematic due to the small number of data fields and limited
amount of data collected for each reportable event. FRA developed a
solution by expanding the number of Probable Causes in the Circumstance
Codes. The method chosen by FRA, and accepted by the RSAC Working
Group, was to take each code for Probable Reason Circumstance Codes and
create two additional codes, one for RCL-related to the event and
another for RCL involved but unrelated to the event. Therefore, the
probable reason of ``Equipment,'' code 04 had two additional codes:
``Equipment, related to using RCL,'' code 24, and ``Equipment,
unrelated to using RCL,'' code 44. This technique, although clumsy,
satisfied railroad safety reporting officers, rail labor officials, and
the FRA.
Codes 21 through 59 in Probable Reason for the ``Remotely
Controlled Locomotive(s) Environment'' was approved by the full RSAC
Working Group for Accident/Incident Reporting. At a later RSAC Working
Group Meeting in New Orleans, LA, a new discussion started about the
Probable Reason Circumstance Codes. This discussion centered on
Switching Operations Fatality Analysis (SOFA). SOFA events were
claiming 40 to 50 percent of all fatalities of railroad workers. The
Working Group decided to include new codes to insure that fatal and
non-fatal SOFA events were culled from other injuries. A small task
group was formed, and worked one evening to develop the eight new
codes. The full Working Group approved these SOFA codes the next day.
However, there was an oversight by the Working Group in the process.
There should have been two additional sets of codes for SOFA RCL events
(related to RCL and unrelated to RCL). This oversight was not
discovered until October 2003, well after the publication and effective
date of the revised regulation.
All of the parties to the Full Working Group agreed that any
omission in capturing SOFA related injuries was a serious problem. FRA
developed 16 additional codes to correspond to the previous eight
codes. The new codes R1 through R8 and U1 through U8 were promulgated
in December 2003, and were subsequently added to the FRA Guide to
remedy the immediate concern. While the initial publication of these
SOFA codes was not subject to a notice and comment period, FRA invites
comments on the addition of these SOFA codes in this NPRM.
FRA is also proposing to add new Circumstance Codes to Appendix F
of the FRA Guide for use on Form FRA F 6180.55a, ``Railroad Injury and
Illness Summary (Continuation Sheet),'' to better identify injuries
that occur in or due to platform gaps. FRA believes that the collection
of this information will allow the agency to assess the magnitude of
these types of injuries, identify locations where platform gap related
injuries frequently occur, and ultimately aid FRA in efforts to reduce
such injuries.
The RSAC General Passenger Safety (GPS) Task Force reported to the
full RSAC on October 25, 2007, its Cause Code Recommendations for
platform gap related injuries as follows:
(1) To the ``Physical Act Circumstance Codes'' add codes for:
Passenger Train-Boarding.
Passenger Train-Alighting.
Also revise the ``Physical Act Circumstance Codes'' to clarify that
codes 63 (stepping up) and 64 (stepping over) are to be used for
boarding/alighting at high level platforms.
(2) To Part III of the ``Location Circumstance Codes'' add codes
for:
Rail Car Door Threshold Plate to Edge of Platform Gap.
Area Between Coupled Cars and Platform.
Area Along Car body, other than Threshold Plate and
Platform Edge.
Car in Vestibule.
On Platform--Other.
Also change Location Circumstance Code C2--``On Platform'' to ``On
Platform Station.''
[[Page 52513]]
(3) To the ``Event Circumstance Codes'' add a code for:
Slipped, fell, stumbled due to Gap.
(4) To Part I of the ``Location Circumstance Codes'' add a code
for:
Other than Platform.
Also change the Location Circumstance Code ``P-Passenger Terminal''
to ``P-Passenger Station on Platform.''
(5) To the ``Tools, Machinery, Appliances, Structures, Surfaces,
(etc.) Circumstance Codes'' add codes for:
Door, End or Side--Passenger Train.
Door, Trap.
The full RSAC agreed to these recommendations on October 25, 2007.
Subsequently, FRA's Safety Knowledge Management Division's (SKMD)
database experts reviewed the RSAC approved coding scheme in an effort
to prevent redundant codes, develop ease in coding for reporting
officers and clerks not familiar with all the nuances in gap incidents,
and to develop a system to easily cull gap incidents from the casualty
database. Based on this review, FRA proposes to add the following new
codes to Appendix F--Circumstance Codes as follows:
(1) To the ``Physical Act Circumstance Codes'' FRA proposes to add
code:
80--Stepping across (passenger cars).
(2) To Part III of the ``Location Circumstance Codes'' FRA proposes
to add codes:
G1--Rail Car Door Threshold Plate to Edge of Platform--
Gap.
G2--Area Between Coupled Cars and Platform.
G3--Area Along Car body, other than Threshold Plate and
Platform Edge.
G4--Car in Vestibule.
(3) To the ``Probable Reason for Injury/Illness Circumstance
Codes'' FRA proposes to add code:
18--Slipped, fell, stumbled due to Gap.
(4) To the ``Tools, Machinery, Appliances, Structures, Surfaces,
(etc.) Circumstance Codes'' FRA proposes to add codes:
1G--Door, End or Side--Passenger Train.
2G--Door, Trap--Passenger Train.
The instructions for coding gap incidents will be included in the
proposed revisions to the FRA Guide.
M. Appendix G, ``FRA Regional Offices and Headquarters.'' FRA
proposes to update these entries.
N. Appendix H, ``Forms.'' FRA proposes to revise its forms, as
follows:
(1) Form FRA F 6180.97 and Form FRA F 6180.98. FRA proposes to
revise block 36 on Form FRA F 6180.97 ``Date'' to state ``Date
Initially Signed/Completed''; and block 44 on Form FRA F 6180.98
``Date'' to state ``Date Initially Signed/Completed'' to clarify that
the block must contain the initial date the form was completed. FRA
finds it necessary to make such change because certain railroads do not
retain the initial date a record was completed, but only the date of
the most recent update to the record. Consequently, FRA is unable to
discern if the railroad entered each reportable and accountable injury
and illness and each reportable and accountable rail equipment
accident/incident on the appropriate record, as required by Sec.
225.25 (a)-(e), no later than seven working days after receiving
information or acquiring knowledge that an injury or illness or rail
equipment accident/incident has occurred, as required by Sec.
225.25(f). FRA believes that specifying the date which is required to
be maintained on the record will resolve any confusion regarding the
requirement.
(2) Form FRA F 6180.97. FRA proposes to rename block 12,
``Division'' to ``Subdivision'' and require railroads to provide train
accident location by providing subdivision data in this block as a
means of improving railroad safety in the area of train accidents. If
the railroad is not so divided, enter the word ``system.'' If
subdivision data are not applicable, the railroad must enter terminal/
yard name. This change would also apply to alternative railroad-
designed Form FRA 6180.97. This change is consistent with the proposed
``Division'' to ``Subdivision'' change on Form FRA F 6180.54. See
paragraph N(6) of this appendix, ``Form FRA F 6180.54'' for additional
information.
FRA also wishes to clarify that in situations of joint operations,
block 26, ``Equipment Damage (in dollars)'' refers to the aggregate
amount of equipment damage incurred for all railroads involved, and
that Block 27, ``Track, Signal, Way & Structure Damage (in dollars)''
refers to the aggregate amount of track, signal, way and structure
damage incurred for all track owners. This revision does not change
existing reporting requirements, and should not represent an additional
reporting burden, because both railroads should already be exchanging
relevant cost data to determine if the accident was FRA reportable.
(3) Form FRA F 6180.98. FRA proposes to replace the ``Social
Security Number'' requirement in block 6 with a requirement for
``Employee Identification Number.'' FRA proposes this change in
response to privacy concerns. This chapter will include instructions
addressing FRA's proposed requirement that (by amending the definition
for ``Accountable Injury or Illness'') railroads complete a Form FRA F
6180.98, ``Railroad Employee Injury and/or Illness Record'' of all
injuries and illnesses when such abnormal condition or disorder
manifests within the work environment regardless of whether the
condition or disorder is discernably caused by an event or exposure in
the work environment.
(4) Form FRA F 6180.55. FRA has eliminated the notary requirement
on Form FRA F 6180.55 block 10, and replace it with a requirement that
the report be signed under penalty of perjury as follows:
(1) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and
correct. Executed on (date).
(Signature).''
(2) If executed without (i.e., outside of) the United States:
``I declare (or certify, verify, or state) under penalty of perjury
under the laws of the United States of America that the foregoing is
true and correct. Executed on (date).
(Signature).''
FRA is able to replace the oath requirement, mandated by 49 U.S.C.
20901 with a signature under penalty of perjury under 28 U.S.C. 1746.
See Section-by-Section analysis for proposed Sec. 225.37, ``Magnetic
media transfer and electronic submission,'' for additional information.
(5) Form FRA 6180.55a. FRA proposes to require railroads to place
an ``X'' representative of ``suicide'' or ``attempted suicide'' be in
block 5r when reporting a suicide or attempted suicide. FRA also
proposes to add instructions that if an in injury is due to a gap
incident, the railroad must use in block 5n (``Cause''), ``Probable
Reason for Injury/Illness Circumstance Codes'' code number 18--Slipped,
fell, stumbled due to Gap, regardless of whether other codes may also
be applicable. See Section-by-Section analysis for Sec. 225.15,
``Accidents/incidents not to be reported,'' for additional information.
FRA also proposes to change the title of block 5m from ``Result'' to
``Tools'' to remain consistent with the wording in Appendix F.
(6) Form FRA F 6180.54. FRA proposes to revise block 30 by changing
the name of the block from ``Methods of Operation'' to ``Type of
Territory.'' The block will have five coding blocks. Each of the five
coding blocks printed in block 30 will be labeled for exclusive use in
accordance with codes listed in the proposed Appendix J. The coding
[[Page 52514]]
blocks are representative of the following information: The first block
(mandatory) will indicate the type of territory (signaled or non-
signaled); the second block (mandatory) will indicate the authority for
movement; and the third, fourth, and fifth blocks (optional) will
indicate additional information through the use of supplemental codes.
FRA proposes to make this change because in the past few years,
with the advancement of Positive Train Control (PTC), there has been a
growing requirement for FRA to definitively identify signalized versus
``dark'' territory.
The revisions should make completing the block less burdensome and
allow for the identification of territory in a manner compatible with
the railroads' internal railroad coding system. These changes are
consistent with suggestions by railroads and the AAR that such coding
be made easier and that the FRA Guide provide clearer instruction. They
also take into consideration railroad concerns about expense associated
with having to revise the form and expressed the desire for FRA to
retain the current form and redesign the coding system but not change
the database structure. See Proposed Revisions to the FRA Guide,
Appendix J, ``Type of Territory Codes'' for additional information.
FRA proposes to rename block 12, ``Division'' to ``Subdivision''
and require railroads to provide train accident location by subdivision
data (proposed block 12) on Form FRA F 6180.54 as a means of improving
railroad safety in the area of train accidents. If the railroad is not
so divided, enter the word ``system.'' If subdivision data is not
applicable, the railroad must enter terminal/yard name.
FRA needs a permanent means of determining the location of an
accident. This is especially meaningful when a release of hazardous
materials or leakage of diesel fuel has occurred. Having the location
information for all train accidents will allow FRA to develop better
inspection planning, identify locations of hazardous materials
contamination affecting the health and/or environment, and provide to
the Transportation Security Administration another tool for security
planning. Traditionally, FRA and the railroad industry have relied on
the railroad milepost system to reference location, and in many cases,
location data derived from the milepost system is accurate for short-
term issues. Over the long-term, however, railroads do change mileposts
during mergers and reorganizations. Also, mileposts can be inaccurate
when a railroad is able to build a shorter link, or when a railroad
does not remove old mileposts when replacement mileposts, which have a
different starting location, are installed.
Ultimately, FRA believes geographic coordinates (i.e., latitude/
longitude) are the best indicator of location, and the agency is
requesting public comment whether FRA should require railroads to
complete longitude and latitude data fields on Form FRA F 6180.54 and
Form FRA F 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet).'' See Background section of this notice. In the
interim, FRA believes that subdivision data is the best location
identifier available, and as such is proposing its inclusion on Form
FRA F 6180.54.
FRA proposes to add to block 49, ``Special Study Block''
descriptive references ``a.'' to line one and ``b.'' to line two for
ease of reference. FRA proposes to require railroads to indicate in
block ``Special Study Block'' 49a the type of track an accident/
incident occurred on, by using the codes ``CWR'' for continuous welded
rail or ``OTH'' for other. FRA notes that the special study block was
created to allow for the collection of specific accident information as
the need arises. See 61 FR 30940, June 18, 1996. The primary purpose of
these revisions to the rule is to increase the accuracy, completeness,
and utility of FRA's accident database and the clarity of the
definitions and requirements. In light of recent track-related
accidents/incidents, FRA finds it necessary to gather and analyze data
of this nature. The collection and analysis of this data is consistent
with 49 CFR part 213 regarding joint bar inspection and reporting.
To account for suicides and attempted suicides on Form FRA F
6180.54, FRA proposes add four Miscellaneous Cause Codes to Appendix C
for use in block 38, Primary Cause Code: M309 ``Suicide (Highway-Rail
Grade Crossing)''; M310 ``Attempted Suicide (Highway-Rail Grade
Crossing)''; M509 ``Suicide (Other Misc.)''; and M510 ``Attempted
Suicide (Other Misc.)'' to Appendix C, ``Train Accident Cause Codes''
to indicate ``Suicide or Attempted Suicide.'' Additionally, FRA
proposes to require railroads to include suicides and attempted
suicides in the casualty counts in boxes 46, 47, and 48, as applicable,
and to maintain consistent casualty counts between the different
reporting forms.
FRA proposes, for all highway-rail grade crossing fatalities, to
require railroads to include a brief description in narrative block 52
of the circumstances of the accident.
FRA also proposes that if an accident is caused by a bond wire
attachment issue (see proposed Appendix C ``Train Accident Cause
Codes''), information on the methods and locations of those attachments
be provided in the narrative block 52.
(7) Forms FRA F 6180.54 and FRA F 6180.57. FRA proposes to amend
the ``Type of Equipment,'' block 25 on Form FRA F 6180.54 and block 24
on Form FRA F 6180.57 as follows:
Code of ``2'' was ``Passenger Train''; this will be
changed to ``Passenger Train--Pulling.''
Code of ``3'' was ``Commuter Train''; this will be changed
to ``Commuter Train--Pulling.''
New code ``B'' will read ``Passenger Train--Pushing.''
New code ``C'' will read ``Commuter Train--Pushing.''
New Code ``D'' will read ``EMU Train.''
New Code ``E'' will read ``DMU Train.''
These amendments will allow for the delineation of additional types
of equipment in FRA's database. Specifically, locomotives pushing or
pulling, and EMU and DMU trains. The need for such requirement comes in
light of the 2004 passenger train collision in Glendale, California,
wherein a number of individuals were killed or injured. Subsequent to
this collision, FRA realized that under its current reporting criteria,
it could not determine from the database if the passenger or commuter
equipment being used was in ``pull'' or ``push'' mode at the time of an
accident/incident (i.e., whether the locomotive unit providing power
was in the front or back of the train); necessary analysis was
completed by determining railroad equipment and practice on individual
routes. Also, since EMU and DMU trains are neither pushing nor pulling
since all the cars are involved in providing power to the train, FRA
needed to provide a code to accurately describe that circumstance as
well.
(8) FRA Form FRA F 6180.57. FRA proposes to amend block 16,
``Position'' to read (1) Stalled or stuck on crossing (currently
``Stalled on Crossing''); (2) Stopped on Crossing; (3) Moving over
crossing; (4) Trapped on crossing by traffic (currently ``Trapped'');
(5) Blocked on crossing by gates. In doing so, FRA is clarifying the
difference between choices (1) and (4). FRA has found that under the
current options railroads do not necessarily understand that current
option (4) ``Trapped'' means trapped by traffic. FRA is also adding a
fifth option, (5) ``Blocked on crossing by gates'' to indicate those
situations
[[Page 52515]]
wherein a highway-user perceives that the user is prevented from
leaving the crossing because the highway user is blocked in by crossing
gates.
FRA proposes to amend Form FRA F 6180.57 by changing the title of
block 34 from ``Whistle Ban'' to ``Roadway Conditions'' and include the
following options: (A) Dry; (B) Wet; (C) Snow/Slush; (D) Ice; (E) Sand,
Mud, Dirt, Oil, Gravel; (F) Water (Standing, Moving). In this block the
railroad is to indicate roadway conditions at the time of the highway-
rail grade crossing accident/incident. This information is needed, as
data provided to FRA regarding ``Weather Conditions'' block 23 does not
necessarily indicate road conditions. For example, while the weather
may be clear at the time of a highway-rail grade crossing accident/
incident, the roadway may be wet, covered with snow, or icy. This
change will provide FRA with vital information useful in assessing
risks and causes of highway rail grade crossing accident/incidents. FRA
no longer needs to capture Whistle Ban/Quiet Zone information of Form
FRA 6180.57, as this information is provided to FRA in Quiet Zone
Notices of Establishment. See FRA 49 CFR part 222.
FRA proposes to change the title of blocks 38, ``Driver's Age'';
39, ``Driver's Gender''; 40, ``Driver Drove Behind or in Front of Train
and Struck or Was Struck by Second Train''; and 41, ``Driver,'' by
replacing the term ``Driver'' or ``Driver's'' with ``Highway User'' or
``Highway User's'' as applicable; and in blocks 40 (in block title) and
41 (in block's response options) also replace the term ``drove'' with
``went.'' Such change clarifies that FRA proposes that railroads
provide the information for all highway users involved in a highway-
rail grade crossing accident/incident, rather than just for drivers.
FRA is reviewing how best to collect this information, including
revising these blocks on Form FRA F 6180.57 and amending the
instructions in the FRA Guide for completing the form. Any such form
revisions and corresponding changes to the FRA Guide will be published
in the Final Rule. In the meantime, FRA welcomes comments and
suggestions on this issue.
FRA proposes to add the following descriptive options to block 41:
``Went around or thru temporary barricade'' and ``Suicide or attempted
suicide.'' FRA also proposes to revise the ``Drove around or thru the
gate'' descriptor to two separate descriptive choices: ``Went around
gate''; and ``Went thru gate.''
If ``Went around or thru temporary barricade'' is selected in block
41 due to the temporary closure of the crossing, explain in the
narrative block 54 the circumstance of the closure (e.g., the roadway
was closed for repair of crossing surface; maintenance/testing of
automated warning devices; etc.). Additionally, explain how the closure
was accomplished (e.g., roadway closed to traffic with jersey barriers
on both approaches; roadway closed with construction barrels on
easterly approach; etc.).
In the event of a suicide or attempted suicide, option 8, ``Suicide
or attempted suicide'' must be indicated in block 41, regardless of
whether other choices may also be applicable. FRA proposes to require
the inclusion of the suicide or attempted suicide in the casualty
counts in blocks 46, 49, and 52, as applicable, and to maintain
consistent casualty counts between the different reporting forms.
FRA proposes to amend the title of block 48, ``Total Number of
Highway-Rail Crossing Users'' to read ``Total Number of Vehicle
Occupants (including driver).'' Collection of this data allows FRA to
cross-check ``Casualty to:'' block 46 with the number of vehicle
occupants in block 48. FRA has found that collecting this information
serves as an important tool in analyzing reports and ensuring
continuity and compliance in reporting. In accordance with Chapter 2 of
the FRA Guide, vehicles include automobiles, buses, trucks,
motorcycles, bicycles, farm vehicles, and all other modes of surface
transportation, motorized and unmotorized.
FRA proposes to require in ``Special Study Block'' 53a, that
railroads are to indicate whether the highway-rail crossing accident/
incident was recorded by a locomotive video recorder; and if so,
whether information gathered in viewing the recording was used by the
railroad to complete the FRA Highway-Rail Grade Crossing Accident/
Incident Report. To facilitate the collection of this information, FRA
will include instructions in the FRA Guide and place two sets of ``yes
or no'' options in block 53a; one for ``video taken'' and one for
``video used.'' Collecting this information will provide FRA with
knowledge as to the availability of video footage for particular
accidents/incidents; give FRA an indication of how often and to what
degree railroads are collecting and reviewing video footage of these
accidents/incidents; and make available to FRA an additional tool to
study the causes and circumstances of these accidents/incidents.
Whether or not video footage was captured and reviewed for a particular
accident/incident may also serve as an indicator as to the accuracy or
detail of the railroad's accident/incident report. For additional
information on requirements related to event recorders, see 49 CFR
229.135, ``Event Recorders.''
FRA is proposing to include instructions that railroads should
limit the use of the ``unknown'' option in block 36, ``Crossing warning
Interconnected with Highway Signals'' and block 37, ``Crossing
Illuminated by Street Lights or Special Lights.'' FRA has found that an
inordinate number of completed Form FRA F 6180.57 forms are submitted
to the agency with ``unknown'' marked box 36 and/or 37. Railroads have
an obligation to submit accurate reports to FRA and not simply mark
``unknown'' without investigating the matter. Therefore, FRA is using
this opportunity to require that in Block 36, a railroad must only
enter option 3, ``unknown'' after having first consulted with the
signal department of the railroad responsible for track maintenance in
an effort to obtain the information. In Block 37, the railroad must
only enter option 3, ``unknown'' after the railroad has first made a
diligent effort to discern the relevant lighting conditions in an
effort to obtain the information, but still cannot make a
determination. FRA proposes these limitations in order to increase the
quantity and accuracy of data the agency gathers related to highway-
rail grade crossing accidents/incidents by requiring railroads to make
an effort to gather the information.
FRA notes that the agency is proposing many of the Form FRA F
6180.57 revisions in response to a November, 28, 2005, report by the
Department of Transportation's Office of Inspector General, ``Audit of
Oversight of Highway-Rail Grade Crossing Accident Reporting,
Investigations, and Safety Regulations, Report No. MH-2006-016.
(9) Form FRA F 6180.107. FRA proposes to revise block 6 on Form FRA
F 6180.107, ``Employee Number or Social Security Number'' to ``Employee
Identification Number'' to address privacy concerns.
FRA proposes to revise block 23 on Form FRA F 6180.107 ``Date the
Log Entry was Completed (mm/dd/yy)'' to state ``Date initially signed/
completed.'' FRA proposes this change to clarify that the block must
contain the initial date the form was completed. FRA finds it necessary
to make such change because the agency has found certain railroads do
not retain the initial date a record was completed, but only the date
of the most recent update to the record. FRA is making this revision to
ensure that it can discern if the railroad entered each
[[Page 52516]]
claimed occupational illness on the appropriate record no later than
seven working days after receiving information or acquiring knowledge
that an injury or illness or rail equipment accident/incident has
occurred, as proposed in this NPRM in Sec. 225.25(i)(2). FRA believes
that by specifying the date required to be maintained on the record,
any confusion regarding the requirement will be resolved.
O. Appendix I, ``Model Internal Control Plans, Including Model
Statement of Policy against Harassment and Intimidation and Model
Complaint Procedures.'' FRA proposes to reorder the ICP components in
Appendix I's sample Internal Control Plan (ICP) to more closely model
the listing of components as set forth in Sec. 225.33.
P. Appendix J, ``Type of Territory Codes.'' FRA proposes the
addition of an Appendix J, which will provide Type of Territory Codes
and instructions for use of those codes when completing proposed block
30, ``Type of Territory,'' on Form FRA F 6180.54, ``Rail Equipment
Accident/Incident Report.'' The codes will represent type of territory
(i.e., signaled territory versus non-signaled territory); the authority
for movement (i.e., signal indication; mandatory directive; other than
main track--Rule 105); and additional miscellaneous supplemental codes.
See Proposed Revisions to the FRA Guide, Appendix H, ``Forms'' for
additional information.
Q. Appendix K, ``Electronic Submission of Reports to FRA.'' FRA
proposes to add this appendix to specifically provide electronic
submission instructions and guidance.
R. Appendix L, ``49 CFR part 225.'' FRA proposes to include in this
section the full regulatory text of part 225.
Regulatory Impact and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule has been evaluated in accordance with existing policies
and procedures, and determined to be non-significant under both
Executive Order 12866 and DOT policies and procedures. 44 FR 11034,
February 26, 1979. FRA has prepared and placed in the docket a
regulatory analysis addressing the economic impact of this proposed
rule. Document inspection and copying facilities are available at U.S.
Department of Transportation, Docket Operations, West Building Ground
Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Docket material is also available for inspection on the Internet at
http://www.regulations.gov. Photocopies may also be obtained by
submitting a written request to the FRA Docket Clerk at the Office of
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration,
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to
Docket No. FRA-2006-26173.
A regulatory system should protect and improve the health and
safety of the American people. It should perform in a manner that
improves the performance of the economy without imposing unacceptable
or unreasonable costs on society. The changes in this proposed
rulemaking would serve to simplify accident/incident reporting for
railroads, ensure that railroad worker casualty statistics conform to
the same criteria as statistics from other Federal agencies, and
improve the quality of data available for analysis of railroad
accidents and incidents.
FRA believes that the amendments to part 225 will increase the
accuracy, precision, completeness of railroad accidents/incident
records and reports, and correspondingly, FRA's and the railroad
industry's information base related to accidents and incidents. This
increased awareness will not only aid FRA in assessing and managing
risk, but aid railroads and their employees in recognizing and
correcting dangerous conditions and practices in order to maintain a
safe and healthy environment for railroad workers and the public.
Accordingly, FRA is proposing the following regulatory changes:
Clarify ambiguous definitions and regulations;
Add necessary definitions;
Require railroads (by amending the definition of
``Accountable Injury or Illness'') to complete a Form FRA F 6180.98,
``Railroad Employee Injury and/or Illness Record'' of all injuries and
illnesses when such abnormal condition or disorder manifests within the
work environment regardless of whether the condition or disorder is
discernably caused by an event or exposure in the work environment;
Require the reporting of additional types of injuries to
all persons;
Require the reporting of suicides and attempted suicides;
Include a comprehensive list of accident/incident
reporting exceptions;
Allow for consolidated accident/incident reporting by
integrated railroad systems;
Set forth requirements for railroad electronic
recordkeeping systems for purposes of part 225;
Update regulatory text, as applicable;
Enhance the quality of information available for railroad
casualty analysis;
Clarify and limit which highway-rail grade crossing
fatalities must be telephonically reported to the National Response
Center;
Clarify and refine the criteria for using and retaining
Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to be
Work-Related,'' and the alternative railroad-designed record;
Eliminate the oath and notarization requirements for Form
FRA F 6180.55, ``Railroad Injury and Illness Summary'';
Allow for the electronic submission via CD ROM or the
Internet of Forms FRA F 6180.55, ``Railroad Injury and Illness
Summary'' and 6180.81, ``Employee Human Factor Attachment'' in .pdf or
.jpg format;
Set forth record retention requirements for certain
accident/incident recording and reporting records not previously
addressed; and
Update FRA's address information.
In addition to proposing revisions to its regulations, FRA is
proposing revisions to the FRA Guide and to certain accident/incident
recording and reporting forms.
For the twenty-year period, the estimated quantified costs would
total $6,721,717, and the PV of the estimated quantified costs is
$3,640,099. For the twenty-year period, the estimated quantified
benefits would total $1,772,811, and the PV of the estimated quantified
benefits would total $885,565.
The NPV of this analysis is a negative $2,754,533. This means that,
according to this analysis and methodology it utilizes for the given
twenty-year period, the discounted value of the estimated costs would
exceed the discounted value of the estimated benefits by approximately
$2,754,533.
FRA anticipates further substantial benefits flowing from more
precise and complete accident/incident reporting data. Not only does
the analysis of reported data provide information as to the cause of an
accident/incident, this data can help determine trends, assess hazards,
and assist in the development of effective countermeasures that may
then be implemented to prevent similar accidents and incidents from
occurring in the future. More precise and complete data will also help
to identify where safety-oriented programs should be focused and aid
railroads and the Agency in setting priorities among establishments for
inspection and safety improvement efforts.
[[Page 52517]]
Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, August 16, 2002) require agency
review of proposed and final rules to assess their impact on small
entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), FRA has prepared and placed in the docket a Certification
Statement that assesses the small entity impact of this proposed rule,
and certifies that this proposed rule is not expected to have a
significant economic impact on a substantial number of small entities.
Document inspection and copying facilities are available at the
Docket Management Facility, U.S. Department of Transportation, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Docket material is also available for inspection
on the Internet at http://www.regulations.gov. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk at
Office of Chief Counsel, Federal Railroad Administration, Mail Stop 10,
Room W31-109, 1200 New Jersey Avenue, SE., Washington, DC 20590; please
refer to Docket No. FRA 2006-26173.
``Small entity'' is defined in 5 U.S.C. 601 as including a small
business concern that is independently owned and operated, and is not
dominant in its field of operation. The U.S. Small Business
Administration (SBA) has authority to regulate issues related to small
businesses, and stipulates in its size standards that a ``small
entity'' in the railroad industry is a for profit ``line-haul
railroad'' that has fewer than 1,500 employees, a ``short line
railroad'' with fewer than 500 employees, or a ``commuter rail system''
with annual receipts of less than seven million dollars. See ``Size
Eligibility Provisions and Standards,'' 13 CFR part 121 subpart A.
SBA's ``size standards'' may be altered by Federal agencies, in
consultation with SBA and in conjunction with public comment. Pursuant
to that authority FRA has published a final statement of agency policy
that formally establishes ``small entities'' or ``small businesses'' as
being railroads, contractors and hazardous materials shippers that meet
the revenue requirements of a Class III railroad as set forth in 49 CFR
1201.1-1, which is $20 million or less in inflation-adjusted annual
revenues, and commuter railroads or small governmental jurisdictions
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003,
codified at Appendix C to 49 CFR part 209. The $20 million limit is
based on the Surface Transportation Board's revenue threshold for a
Class III railroad carrier. Railroad revenue is adjusted for inflation
by applying a revenue deflator formula in accordance with 49 CFR
1201.1-1.
This proposed rule applies to railroads. There are approximately
665 small railroads that could potentially be affected. FRA anticipates
that most of the recording and reporting burdens imposed by this
proposed regulation will be born by railroads that are not considered
small, due to the decreased likelihood that a small railroad will
experience an accident/incident necessitating such recording and/or
reporting. For example, on average over the 2005 to 2007 period, small
railroads reported approximately only nine percent of all reportable
casualties and only 10 percent of all reportable accidents/incidents.
FRA also anticipates that proposed computer related burdens will be
born by the larger railroads since smaller railroads since the large
railroads choose to retain their accident/incident records and reports
electronically in their own systems. Large railroads also submit their
accident/incident reports to FRA electronically via their own systems.
Most small railroads do their federally required accident/incident
recordkeeping and reporting on a personal computer using FRA supplied
Accident/Incident Report Generator (AIRG) software. This software
allows railroads to send reports to FRA on a CD-ROM or to transmit the
information to FRA over the Internet. FRA will send a free updated or
new version of the AIRG software to any railroad that requests it.
Other small railroads do not use a computer system for reporting.
Accordingly, FRA does not anticipate that these burdens will be imposed
on small entities.
FRA invites comments from all interested parties concerning the
potential economic impact on small entities caused by the proposed rule
amendments.
Paperwork Statement--Accident/Incident Reporting and Recordkeeping
The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections of this regulation that contain the new information
collection requirements and the estimated time to fulfill each
requirement are as follows:
----------------------------------------------------------------------------------------------------------------
Respondent Total annual Average time Total annual Total annual
CFR section--49 CFR universe responses per response burden hours burden cost
----------------------------------------------------------------------------------------------------------------
225.6--Consolidated Reporting 718 railroads.. 10 Reports..... 40 hours....... 400 $20,400
(New Requirements).
--Written agreements on 718 railroads.. 10 agreements.. 2 hours........ 20 1,020
subsidiaries.
--Notifications on 718 railroads.. 2 notifications 1 hr. + 1 hr... 4 204
changes to subsidiaries + 2 agreements.
and amended written
agreement.
225.9--Telephone Reports-- 718 railroads.. 3,300 Reports.. 15 minutes..... 825 42,075
Certain Accidents/Incidents
and Other Events.
225.11--Reporting of Rail 718 railroads.. 3,600 forms.... 2 hours........ 7,200 367,200
Equipment Accidents/
Incidents (Form FRA F
6180.54).
225.12(a)--Rail Equipment 718 railroads.. 1,600 forms.... 15 minutes..... 400 20,400
Accident/Incident Reports--
Human Factor (Form FRA F
6180.81).
225.12(b)--Rail Equipment 718 railroads.. 1,000 notices + 10 minutes + 3 367 18,717
Accident/Incident Reports-- 4,010 copies. minutes.
Human Factor--Part I Form
FRA F 6180.78.
225.12(c)--Rail Equipment 718 railroads.. 100 requests... 20 minutes..... 33 1,683
Accident/Incident Reports--
Human Factor--Joint
Operations.
[[Page 52518]]
225.12(d)--Rail Equipment 718 railroads.. 20 attachments 15 minutes..... 10 510
Accident/Incident Reports-- + 20 notices.
Human Factor--Late
Identification.
225.12(g)--Rail Equipment Railroad 75 statements.. 1.5 hours...... 113 5,311
Accident/Incident Reports-- Employees.
Human Factor--Employee
Supplement--Part II Form FRA
F 6180.78.
225.12(g)--Rail Equipment Railroad 10 letters..... 2 hours........ 20 940
Accident/Incident Reports-- Employees.
Human Factor--Employee
Confidential Letter.
225.13--Late Reports......... 718 railroads.. 25 reports..... 1 hour......... 25 1,275
--Amended Rail Equipment 718 railroads.. 50 amended 1 hour + 3 52 2,652
Accident/ Incident reports/40 minutes.
Reports. copies.
225.18--Alcohol or Drug 718 railroads.. 80 reports..... 30 minutes..... 40 2,040
Involvement.
--Appended Reports....... 718 railroads.. 5 reports...... 30 minutes..... 3 153
225.19(a)--Highway-Rail Grade 718 railroads.. 2,880 forms.... 2 hours........ 5,760 293,760
Crossing Accident/Incident
Reports--(Form FRA F
6180.57).
--(c) Death, Injury, or 718 railroads.. 12,180 forms... 20 min.; 50 4,810 245,310
Occupational Illness-- min..
Form FRA F 6180.55a.
225.21--Forms:
--Form FRA F 6180.55-- 718 railroads.. 8,616 forms.... 10 minutes..... 1,436 73,236
Railroad Injury/Illness
Summary.
--Form FRA F 6180.56-- 718 railroads.. 718 forms...... 15 minutes..... 180 9,180
Railroad Annual Report
of Manhours By State.
--Form FRA F 6180.98-- 718 railroads.. 22,500 forms... 1 hour......... 22,500 1,147,500
Railroad Employee Injury
and/or Illness Record.
--Form FRA F 6180.98-- 718 railroads.. 675 copies..... 2 minutes...... 23 1,081
Copies.
--Form FRA F 6180.97-- 718 railroads.. 14,000 forms... 30 minutes..... 7,000 357,000
Initial Rail Equipment
Accident/Incident Record.
--Form FRA F 6180.107-- 718 railroads.. 300 forms...... 15 minutes..... 75 3,825
Alternate Record For
Illnesses Claimed to Be
Work Related.
--Form FRA F 6180.39i-- 654 railroads.. 1,000 forms.... 90 minutes..... 1,500 76,500
Notific. & Investigation
Rpt..
225.25--Posting of Monthly 718 railroads.. 8,616 lists.... 16 minutes..... 2,298 117,198
Summary.
225.27--Retention of Records. 718 railroads.. 1,900 records.. 2 minutes...... 63 3,213
225.33--Internal Control 718 railroads.. 25 amendments.. 14 hours....... 350 17,850
Plans--Amended.
225.35--Access to Records and 15 railroads... 400 lists...... 20 minutes..... 133 6,783
Reports--Lists.
--Subsequent Years....... 4 railroads.... 16 lists....... 20 minutes..... 5 255
225.37--Optical Media 8 railroads.... 200 transfers.. 3 minutes...... 10 510
Transfer and Electronic 718 railroads.. 2,400 elec 3 minutes...... 120 6,120
Submission. submissions.
----------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions; searching
existing data sources; gathering or maintaining the needed data; and
reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA
solicits comments concerning: Whether these information collection
requirements are necessary for the proper performance of the functions
of FRA, including whether the information has practical utility; the
accuracy of FRA's estimates of the burden of the information collection
requirements; the quality, utility, and clarity of the information to
be collected; and whether the burden of collection of information on
those who are to respond, including through the use of automated
collection techniques or other forms of information technology, may be
minimized. For information or a copy of the paperwork package submitted
to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at
202-493-6292, or Ms. Nakia Jackson at 202-493-6073.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following
address: [email protected]; [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this proposed rule between 30 and
60 days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal. .
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the
[[Page 52519]]
effective date of the final rule. The OMB control number, when
assigned, will be announced by separate notice in the Federal Register.
Federalism Implications
Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the proposed regulation. Where a regulation
has federalism implications and preempts State law, the agency seeks to
consult with State and local officials in the process of developing the
regulation.
This is a rule with preemptive effect. The requirements of this
rule establish uniform Federal railroad safety laws that must be met,
and State requirements covering the same subject are displaced, whether
those standards are in the form of State statutes, regulations, local
ordinances, or other forms of State law, including State common law.
Section 20106 of Title 49 of the United States Code provides that all
regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety hazard that is not incompatible with a Federal
law, regulation, or order and that does not unreasonably burden
interstate commerce. This is consistent with past practice at FRA, and
within the Department of Transportation.
However, while FRA's regulations under part 225 preempt States from
prescribing accident/incident reporting requirements, there is nothing
in our regulations that preempts States from having their own accident
notification requirements. Under Sec. 225.1, ``[i]ssuance of these
regulations under the Federal railroad safety laws and regulations
preempts States from prescribing accident/incident reporting
requirements. Any State may, however, require railroads to submit to it
copies of accident/incident and injury/illness reports filed with FRA
under this part, for accidents/incidents and injuries/illnesses that
occur in that State.'' FRA does not propose to change this provision
that a State may require a railroad to submit to the State copies of
accident/incident and injury/illness reports that occur in that State.
However, FRA may need to amend the provision with respect to ``suicide
data.'' FRA is requesting comments on how to ensure that restrictions
on the use and public availability of suicide data at the State level
remain consistent with those FRA has prescribed in proposed Sec.
225.41. Specifically, that suicide data (as defined in Sec. 225.5)
will not be included in any summaries of data on the number of injuries
and illnesses associated with railroad operations; that suicide data is
not publicly accessible; and that suicide data will only be available
to the public in aggregate format.
Additionally, section 20902 of title 49 of the United States Code,
which authorized the Secretary of Transportation to investigate certain
accidents and incidents, provides: ``[i]f the accident or incident is
investigated by a commission of the State in which it occurred, the
Secretary, if convenient, shall carry out the investigation at the same
time as, and in coordination with, the commission's investigation.''
This section contemplates that States have an interest in carrying out
simultaneous investigation in coordination with the Secretary, where
convenient. It would be consistent with this interest to permit States
to adopt their own accident notification requirements so as to allow a
prompt, and perhaps coordinated investigation.
FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. This
proposed rule will not have a substantial effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among various levels of
government. FRA concludes that this proposed rule will not impose any
direct compliance costs on State and local governments and has no
federalism implications, other than the preemption of State laws
covering the subject matter of this final rule, which occurs by
operation of law under 49 U.S.C. 20106 whenever FRA issues a rule or
order. For the foregoing reasons, FRA believes that this proposed rule
is in accordance with the principles and criteria contained in
Executive Order 13132.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards.
This rulemaking is purely domestic in nature and is not expected to
affect trade opportunities for U.S. firms doing business overseas or
for foreign firms doing business in the United States.
Environmental Impact
FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this proposed rule is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
See 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:
(c) Actions categorically excluded. Certain classes of FRA actions
have been determined to be categorically excluded from the requirements
of these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * * (20)
Promulgation of railroad safety rules and policy statements that do not
result in significantly increased emissions or air or water pollutants
or noise or increased traffic congestion in any mode of transportation.
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
proposed rule is not a major Federal
[[Page 52520]]
action significantly affecting the quality of the human environment.
Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. No. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) [$141,000,000 in 2008] in any 1 year, and
before promulgating any final rule for which a general notice of
proposed rulemaking was published, the agency shall prepare a written
statement'' detailing the effect on State, local, and tribal
governments and the private sector. The proposed rule would not result
in the expenditure, in the aggregate, of $141,000,000 or more in any
one year, and thus preparation of such a statement is not required.
Energy Impact
Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355, May 22, 2001. Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this final rule in accordance with Executive
Order 13211. FRA has determined that this final rule is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. Consequently, FRA has determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
Privacy Act
FRA wishes to inform all potential commenters that anyone is able
to search the electronic form of all comments received into any agency
docket by the name of the individual submitting the comment (or signing
the comment, if submitted on behalf of an association, business, labor
union, etc.). To get more information on this matter and to view the
Regulations.gov Privacy Notice go to http://www.regulations.gov/search/footer/privacyanduse.jsp. You may review DOT's complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (65 FR
19477-78).
List of Subjects in 49 CFR Part 225
Accident investigation, Penalties, Railroad safety, Railroads,
Reporting and recordkeeping requirements, Safety and transportation.
The Proposed Rule
For the reasons discussed in the preamble, FRA proposes to amend
part 225 of chapter II, subtitle B of Title 49, Code of Federal
Regulations as follows:
PART 225--[AMENDED]
1. The authority citation for part 225 continues to read as
follows:
Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 21301,
21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.
2. Section 225.3 is amended by revising the introductory text of
paragraph (b) to read as follows:
Sec. 225.3 Applicability.
* * * * *
(b) The Internal Control Plan requirements in Sec. 225.33(a)(3)
through (a)(11) do not apply to--
* * * * *
3. Section 225.5 is amended by adding definitions for discernable
cause, event or exposure, injury or illness, railroad carrier,
significant aggravation of a pre-existing injury or illness, and
suicide data; and by revising paragraphs (1) and (3) of the definition
for accident/incident, and the definitions of accountable injury or
illness, accountable rail equipment accident/incident, event or
exposure arising from the operation of a railroad, general reporting
criteria, new case, qualified health care professional, railroad, work
environment and work-related to read as follows:
Sec. 225.5 Definitions.
* * * * *
Accident/incident means:
(1) Any impact between railroad on-track equipment and a highway
user (e.g., an automobile, bus, truck, motorcycle, bicycle, farm
vehicle, pedestrian or other highway user) at a highway-rail grade
crossing. Sidewalks, pathways, shoulders and ditches associated with
the crossing are considered to be part of the crossing site. The term
``highway user'' includes pedestrians, cyclists, and all other modes of
surface transportation, motorized and unmotorized.
* * * * *
(3) Each death, injury, or occupational illness that is a new case
and meets the general reporting criteria listed in Sec. 225.19(d)(1)
through (d)(6) if an event or exposure arising from the operation of a
railroad is a discernable cause of the resulting condition or a
discernable cause of a significant aggravation to a pre-existing injury
or illness. The event or exposure arising from the operation of a
railroad need only be one of the discernable causes; it need not be the
sole or predominant cause.
Accountable injury or illness means any abnormal condition or
disorder of a railroad employee that causes or requires the railroad
employee to be examined or treated by a qualified health care
professional but does not meet the general reporting criteria listed in
Sec. 225.19(d)(1) through (d)(6). When such condition or disorder
manifests within the work environment it is an accountable injury or
illness regardless of whether the condition or disorder is discernably
caused by an event or exposure in the work environment. When such
condition or disorder manifests outside the work environment it is an
accountable injury or illness if the condition or disorder is
discernably caused by an event or exposure in the work environment.
Accountable rail equipment accident/incident means a collision,
derailment, fire, explosion, act of God, or other event involving the
operation of railroad on-track equipment (standing or moving) that does
not result in reportable damages greater than the current reporting
threshold to railroad on-track equipment, signals, track, track
structures, and roadbed.
* * * * *
Discernable cause means a causal factor capable of being recognized
by the senses or the understanding. An event or exposure arising from
the operation of a railroad is a discernable cause of (i.e.,
discernably caused) an injury or illness if, considering the
circumstances, it is more likely than not that the event or exposure is
a cause of
[[Page 52521]]
the injury or illness. The event or exposure arising from the operation
of a railroad need not be a sole, predominant or significant cause of
the injury or illness, so long as it is a cause (i.e., a contributing
factor).
* * * * *
Event or exposure includes an incident, activity, or occurrence.
Event or exposure arising from the operation of a railroad
includes--
(1) With respect to a person who is not an employee of the
railroad:
(i) An event or exposure that occurs on property owned, leased, or
maintained by the railroad and is related to the performance of the
railroad's rail transportation business; or
(ii) An event or exposure that occurs off property owned, leased,
or maintained by the railroad directly resulting from one or more of
the following railroad operations:
(A) A train accident, a train incident, or a highway-rail grade
crossing accident or incident involving the railroad; or
(B) A release of a hazardous material from a railcar in the
possession of the railroad or of another dangerous commodity that is
related to the performance of the railroad's rail transportation
business.
(2) With respect to a person who is an employee of the railroad, an
event or exposure that is work-related.
* * * * *
General reporting criteria means the criteria listed in Sec.
225.19(d)(1), (2), (3), (4), (5) and (6).
* * * * *
Injury or illness means an abnormal condition or disorder. Injuries
include cases such as, but not limited to, a cut, fracture, sprain, or
amputation. Illnesses include both acute and chronic illnesses, such as
but not limited to, a skin disease, respiratory disorder, or poisoning.
A musculoskeletal disorder is also an injury or illness. Pain is an
injury or illness when it is sufficiently severe to meet the general
reporting criteria listed in Sec. 225.19(d)(1) through (d)(6).
* * * * *
New case means a case in which either the injured or ill person has
not previously experienced a reported injury or illness of the same
type that affects the same part of the body, or the injured or ill
person previously experienced a reported injury or illness of the same
type that affected the same part of the body but had recovered
completely (all signs had disappeared) from the previous injury or
illness, and an event or exposure arising from the operation of a
railroad discernably caused the signs or symptoms to reappear.
* * * * *
Qualified health care professional is a health care professional
operating within the scope of his or her license, registration, or
certification. In addition to licensed physicians, the term qualified
health care professional includes members of other occupations
associated with patient care and treatment such as chiropractors,
podiatrists, physicians assistants, psychologists, and dentists.
Railroad means a railroad carrier.
Railroad carrier means a person providing railroad transportation.
* * * * *
Significant aggravation of a pre-existing injury or illness means
aggravation of a pre-existing injury or illness that is discernably
caused by an event or exposure arising from the operation of a railroad
that results in:
(1) With respect to any person:
(i) Death, provided that the pre-existing injury or illness would
likely not have resulted in death but for the event or exposure;
(ii) Loss of consciousness, provided that the pre-existing injury
or illness would likely not have resulted in loss of consciousness but
for the event or exposure; or
(iii) Medical treatment in a case where no medical treatment was
needed for the injury or illness before the event or exposure, or a
change in the course of medical treatment that was being provided
before the event or exposure.
(2) With respect to a railroad employee, one or more days away from
work, or days of restricted work, or days of job transfer that
otherwise would not have occurred but for the event or exposure.
* * * * *
Suicide data means data regarding the death of an individual due to
that individual's commission of suicide as determined by a coroner or
other public authority; or injury to an individual due to that
individual's attempted commission of suicide as determined by a public
authority. Only the death of, or injury to, the individual who
committed the suicidal act is suicide data.
* * * * *
Work environment means the establishment and other locations where
one or more railroad employees are working or present as a condition of
their employment. The work environment includes not only physical
locations, but also the equipment or materials processed or used by an
employee during the course of his or her work, and activities of a
railroad employee associated with his or her work, whether on or off
the railroad's property.
Work related means related to an event or exposure occurring within
the work environment. An injury or illness is presumed work related if
an event or exposure occurring in the work environment is a discernable
cause of the resulting condition or a discernable cause of a
significant aggravation to a pre-existing injury or illness. The causal
event or exposure need not be peculiarly occupational so long as it
occurs at work. For example, a causal event or exposure may be outside
the employer's control, such as a lightening strike; involve activities
that occur at work but are not directly productive, such as horseplay;
or involve activities that are not peculiar to work, such as walking on
a level floor, bending down, climbing stairs or sneezing, which
activities, along with other normal body movements, are considered work
events. Regardless, so long as the event or exposure occurred at work
and is a discernable cause of the injury or illness, the injury or
illness is work related. It does not matter whether there are other or
bigger causes as well, or that the activity at work is no different
from actions performed outside work. If an injury is within the
presumption of work-relatedness, the employer can rebut work-
relatedness only by showing that the case falls within an exception
listed in Sec. 225.15. In cases where it is not obvious whether a
precipitating event or exposure occurred at work or outside work, the
employer must evaluate the employee's work duties and environment and
decide whether it is more likely than not that an event or exposure at
work was at least one of the causes of the injury or illness.
4. Section 225.6 is added to read as follows:
Sec. 225.6 Consolidated reporting.
A parent corporation may request in writing that FRA treat its
commonly controlled railroad carriers, which operate as a single,
seamless, integrated United States rail system, as a single railroad
carrier for purposes of this part.
(a) The written request must include the following:
(1) A list of the subsidiary railroads controlled by the parent
corporation; and
(2) An explanation as to how the subsidiary railroads operate as a
single, seamless, integrated United States railroad system.
(b) The request must be sent to the FRA Docket Clerk, Federal
Railroad Administration, U.S. Department of Transportation, RCC-10,
Mail Stop 10,
[[Page 52522]]
West Building 3rd Floor, Room W31-109, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Each request received shall be acknowledged in
writing. The acknowledgment shall contain the docket number assigned to
the request and state the date the request was received.
(c) FRA will notify the applicant parent corporation of the
agency's decision within 90 days of receipt of the application.
(d) If FRA approves the request, the parent corporation must enter
into a written agreement with FRA specifying which subsidiaries are
included in its railroad system, agreeing to assume responsibility for
compliance with this part for all named subsidiaries making up the
system, and consenting to guarantee any monetary penalty assessments or
other liabilities owed to the United States government that are
incurred by the named subsidiaries for violating Federal accident/
incident reporting requirements. Any change in the subsidiaries making
up the railroad system requires immediate notification to FRA and
execution of an amended agreement. Executed agreements will be
published in the docket.
5. Section 225.7 is amended by revising paragraph (a) to read as
follows:
Sec. 225.7 Public examination and use of reports.
(a) Accident/Incident reports made by railroads in compliance with
these rules shall be available to the public in the manner prescribed
by part 7 of this title. Accident/Incident reports may be inspected at
the U.S. Department of Transportation, Federal Railroad Administration,
Office of Safety, West Building 3rd Floor, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Written requests for a copy of a report should be
addressed to the Freedom of Information Act Coordinator, Office of
Chief Counsel, Federal Railroad Administration, U.S. Department of
Transportation, RCC-10, Mail Stop 10, West Building 3rd Floor, Room
W33-437, 1200 New Jersey Avenue, SE., Washington, DC 20590, and be
accompanied by the appropriate fee prescribed in part 7 of this title.
To facilitate expedited handling, each request should be clearly marked
``FOIA Request for Accident/Incident Report.'' For additional
information on submitting a FOIA request to FRA see FRA's Web site at
http://www.fra.dot.gov/us/foia.
* * * * *
6. Section 225.9 is amended by revising paragraph (a)(2)(iii) and
(iv) to read as follows:
Sec. 225.9 Telephonic reports of certain accidents/incidents and
other events.
(a) * * *
(2) * * *
(iii) A fatality resulting from a train accident or train incident
at a highway-rail grade crossing when death occurs within 24 hours of
the accident/incident;
(iv) A train accident resulting in damage (based on a preliminary
gross estimate) of $150,000 or more to railroad and nonrailroad
property; or
* * * * *
7. Section 225.11 is revised to read as follows:
Sec. 225.11 Reporting of accidents/incidents.
(a) Each railroad subject to this part shall submit to FRA a
monthly report of all railroad accidents/incidents described below:
(1) Highway-rail grade crossing accidents/incidents described in
Sec. 225.19;
(2) Rail equipment accidents/incidents described in Sec. 225.19;
and
(3) Death, injury and occupational illness accidents/incidents
described in Sec. 225.19.
(b) The report shall be made on the forms prescribed in Sec.
225.21 in hard copy or, alternatively, by means of optical media or
electronic submission via the Internet, as prescribed in Sec. 225.37,
and shall be submitted within 30 days after expiration of the month
during which the accidents/incidents occurred. Reports shall be
completed as required by the current FRA Guide. A copy of the FRA Guide
may be obtained from the U.S. Department of Transportation, Federal
Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop
25 West Building 3rd Floor, Room W33-107, 1200 New Jersey Avenue, SE.,
Washington, DC 20590 or downloaded from FRA's Office of Safety Analysis
Web site at http://safetydata.fra.dot.gov/officeofsafety/, and click on
``Click Here for Changes in Railroad Accident/Incident Recordkeeping
and Reporting.''
8. Section 225.12 is amended by revising paragraph (g)(3) to read
as follows:
Sec. 225.12 Rail Equipment Accident/Incident Reports alleging
employee human factor as cause; Employee Human Factor Attachment;
notice to employee; employee supplement.
* * * * *
(g) * * *
(3) Information that the employee wishes to withhold from the
railroad must not be included in this Supplement. If an employee wishes
to provide confidential information to FRA, the employee should not use
the Supplement form (part II of Form FRA F 6180.78, ``Notice to
Railroad Employee Involved in Rail Equipment Accident/Incident
Attributed to Employee Human Factor; Employee Statement Supplementing
Railroad Accident Report''), but rather provide such confidential
information by other means, such as a letter to the employee's
collective bargaining representative, or to the U.S. Department of
Transportation, Federal Railroad Administration, Office of Safety
Analysis, RRS-22, Mail Stop 25 West Building 3rd Floor, Room W33-306,
1200 New Jersey Avenue, SE., Washington, DC 20590. The letter should
include the name of the railroad making the allegations, the date and
place of the accident, and the rail equipment accident/incident number.
* * * * *
9. Section 225.15 is revised to read as follows:
Sec. 225.15 Accidents/incidents not to be reported.
The following accidents/incidents are not reportable:
(a) With respect to persons other than railroad employees. A
railroad is not to report injuries that occur at highway-rail grade
crossings that do not involve the presence or operation of on-track
equipment, or the presence of railroad employees then engaged in the
operation of a railroad;
(b) With respect to railroad employees on duty. A railroad is not
to report the following injuries to or illnesses of a railroad employee
as Class A--Worker on Duty--Employee, if any of the following
conditions in paragraphs (b)(1) through (b)(3) of this section are met.
This exception does not affect a railroad's obligation to report
injuries to an employee not on duty (Class B--Employee not on Duty), or
a railroad's obligation to maintain a ``Railroad Employee Injury/
Illness Record'' (Form FRA F 6180.98 or alternative railroad-designed
form).
(1) The injury or illness occurred in or about living quarters not
arising from the operation of a railroad;
(2) At the time of the injury or illness, the employee was present
in the work environment as a member of the general public rather than
as an employee; or
(3) The injury or illness is caused by a motor vehicle accident and
occurs on a company parking lot or company access road while the
employee is commuting to or from work.
(c) With respect to railroad employees on or off duty. A railroad
is not to report the following injuries to or illnesses of a railroad
employee, Class A--Worker
[[Page 52523]]
on Duty--Employee or Class B--Employee not on Duty, if any of the
following conditions in paragraphs (c)(1) through (c)(7) of this
section are met.
(1) The injury or illness involves signs or symptoms that surface
at work but result solely from a non-work-related event or exposure
that occurs outside the work environment;
(2) The injury or illness results solely from voluntary
participation in a wellness program or in a medical, fitness, or
recreational activity such as blood donation, physical examination, flu
shot, exercise class, racquetball, or baseball;
(3) The injury or illness is solely the result of an employee
eating, drinking, or preparing food or drink for personal consumption.
However, if the employee is made ill by ingesting food contaminated by
workplace contaminants (such as lead), or gets food poisoning from food
supplied by the employer, the case would be considered work-related and
reported as either a Class A--Worker on Duty--Employee or Class B--
Employee not on Duty depending on the employee's duty status;
(4) The injury or illness is solely the result of an employee doing
personal tasks (unrelated to their employment) at the establishment
outside of the employee's assigned working hours;
(5) The injury or illness is solely the result of personal
grooming, self medication for a non-work-related condition, or is
intentionally self-inflicted;
(6) The illness is the common cold or flu (Note: Contagious
diseases such as tuberculosis, brucellosis, hepatitis A, or plague are
considered work-related if the employee is infected at work); or
(7) The illness is a mental illness. Mental illness will not be
considered work-related unless the employee voluntarily provides the
employer with an opinion from a physician or other licensed health care
professional with appropriate training and experience (psychiatrist,
psychologist, psychiatric nurse practitioner, etc.) stating that the
employee has a mental illness that is work-related.
(d) With respect to contractors and volunteers. A railroad is not
to report injuries to contractors and volunteers that are listed in
paragraphs (b) and (c) of this section. For purposes of this paragraph
only, an exception listed in paragraphs (b) and (c) referencing ``work
environment'' is construed to mean for contractors and volunteers only,
on property owned, leased, or maintained by the railroad.
(e) With respect to rail equipment accident/incidents. A railroad
is not to report the following rail equipment accidents/incidents:
(1) Cars derailed on industry tracks by non-railroad employees or
non-railroad employee vandalism, providing there is no involvement of
railroad employees; and
(2) Damage to out of service cars resulting from high water or
flooding (e.g., empties placed on a storage or repair track). This
exception does not apply if such cars are placed into a moving consist
and as a result of this damage a reportable rail equipment accident
results.
10. Section 225.17 is amended by revising paragraph (a) and
removing paragraph (d) to read as follows:
Sec. 225.17 Doubtful cases.
(a) The reporting officer of a railroad will ordinarily determine
the reportability or nonreportability of an accident/incident after
examining all evidence available. The FRA, however, cannot delegate
authority to decide matters of judgment when facts are in dispute. In
all such cases the decision shall be that of the FRA.
* * * * *
11. Section 225.18 is added to read as follows:
Sec. 225.18 Alcohol or drug involvement.
(a) In preparing Form FRA F 6180.54, ``Rail Equipment Accident/
Incident Report,'' under this part, the railroad shall make such
specific inquiry as may be reasonable under the circumstances into the
possible involvement of alcohol or drug use or impairment in such
accident or incident. If the railroad comes into possession of any
information whatsoever, whether or not confirmed, concerning alleged
alcohol or drug use or impairment by an employee who was involved in,
or arguably could be said to have been involved in, the accident/
incident, the railroad shall report such alleged use or impairment as
provided in the current FRA Guide. If the railroad is in possession of
such information but does not believe that alcohol or drug impairment
was the primary or contributing cause of the accident/incident, then
the railroad shall include in the narrative statement of such report a
brief explanation of the basis of such determination.
(b) For any train accident within the requirement for post-accident
testing under Sec. 219.201 of this chapter, the railroad shall append
to the Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,''
any report required by 49 CFR 219.209(b) (pertaining to failure to
obtain samples for post-accident toxicological testing).
(c) For any train or non-train incident, the railroad shall provide
any available information concerning the possible involvement of
alcohol or drug use or impairment in such accident or incident.
(d) In providing information required by this section, a railroad
shall not disclose any information concerning use of controlled
substances determined by the railroad's Medical Review Officer to have
been consistent with 49 CFR 219.103.
12. Section 225.19 is amended by revising paragraph (d) to read as
follows:
Sec. 225.19 Primary groups of accidents/incidents.
* * * * *
(d) Group III--Death, injury, or occupational illness. Each death,
injury, or occupational illness that is a new case and meets the
general reporting criteria listed in paragraphs (d)(1) through (d)(6)
of this section shall be reported to FRA on Form FRA F 6180.55a,
``Railroad Injury and Illness Summary (Continuation Sheet)'' if an
event or exposure arising from the operation of a railroad is a
discernable cause of the resulting condition or a discernable cause of
a significant aggravation to a pre-existing injury or illness. The
event or exposure arising from the operation of a railroad need only be
one of the discernable causes; it need not be the sole or predominant
cause. The general injury/illness reporting criteria are as follows:
(1) Death to any person;
(2) Injury to any person that results in:
(i) Medical treatment;
(ii) Significant injury diagnosed by a physician or other licensed
health care professional even if it does not result in death, a day
away from work, restricted work activity or job transfer, medical
treatment, or loss of consciousness; or
(iii) Loss of consciousness;
(3) Injury to a railroad employee that results in:
(i) A day away from work; or
(ii) Restricted work activity or job transfer;
(4) Occupational illness of a railroad employee that results in:
(i) A day away from work;
(ii) Restricted work activity or job transfer;
(iii) Loss of consciousness; or
(iv) Medical treatment;
(5) Significant illness of a railroad employee diagnosed by a
physician or other licensed health care professional even if it does
not result in death, a day away from work, restricted work activity
[[Page 52524]]
or job transfer, medical treatment, or loss of consciousness;
(6) Illness or injury that:
(i) Meets the application of any of the following specific case
criteria:
(A) Needlestick or sharps injury to a railroad employee;
(B) Medical removal of a railroad employee;
(C) Occupational hearing loss of a railroad employee;
(D) Occupational tuberculosis of a railroad employee;
(E) Musculoskeletal disorder of a railroad employee if this
disorder is reportable under one or more of the general reporting
criteria; or
(ii) Is a covered data case.
* * * * *
13. Section 225.21 is amended by revising the introductory text and
paragraph (j) to read as follows:
Sec. 225.21 Forms.
The following forms and copies of the ``FRA Guide for Preparing
Accident/Incident Reports'' may be obtained from the U.S. Department of
Transportation, Federal Railroad Administration, Office of Safety
Analysis, RRS-22, Mail Stop 25, West Building, 3rd Floor, Room W33-107,
1200 New Jersey Avenue, SE., Washington, DC 20590 or downloaded from
FRA's Office of Safety Analysis Web site at http://safetydata.fra.dot.gov/officeofsafety/, and click on ``Click Here for
Changes in Railroad Accident/Incident Recordkeeping and Reporting.''
* * * * *
(j) Form FRA 6180.107--Alternative Record for Illnesses Claimed To
Be Work-Related. Form FRA F 6180.107 or an alternative railroad-
designed record may be used by a railroad in lieu of Form FRA F
6180.98, ``Railroad Employee Injury and/or Illness Record'' (described
in paragraph (h) of this section), to record each illness claimed by an
employee to be work-related that is reported to the railroad for which
there is insufficient information for the railroad to determine whether
the illness is work-related. This record shall be completed and
retained in accordance with the requirements set forth in Sec. 225.25
and Sec. 225.27.
14. Section 225.25 is amended by revising paragraphs (a), (b)(6)
and (b)(28), paragraph (e)(28) and paragraph (i), and by adding
paragraph (j) to read as follows:
Sec. 225.25 Recordkeeping.
(a) Each railroad shall maintain either the Railroad Employee
Injury and/or Illness Record (Form FRA F 6180.98) or an alternative
railroad-designed record as described in paragraph (b) of this section
of all reportable and accountable injuries and illnesses of its
employees for each railroad establishment where such employees report
to work, including, but not limited to, an operating division, general
office, and major installation such as a locomotive or car repair or
construction facility.
(b) * * *
(6) Employee identification number;
* * * * *
(28) The railroad shall identify the preparer's name; title;
telephone number with area code; and the date the record was initially
signed/completed.
* * * * *
(e) * * *
(28) Date the record was initially signed/completed.
* * * * *
(i) Claimed Occupational Illnesses. (1) Each railroad may maintain
a Form FRA F 6180.107, ``Alternative Records for Illnesses Claimed To
Be Work-Related,'' or an alternate railroad-designed record as
described in paragraph (j) of this section, in place of Form FRA F
6180.98, ``Railroad Employee Injury and/or Illness Record,'' only for
those claimed occupational illnesses for which the railroad has not
received information sufficient to determine whether the occupational
illness is work-related.
(2) Each railroad shall enter each illness claimed to be work-
related on the appropriate record, as required by paragraph (i)(1) of
this section, as early as practicable, but no later than seven working
days after receiving information or acquiring knowledge that an
employee is claiming they have incurred an occupational illness.
(3) When a railroad does not receive information sufficient to
determine whether a claimed occupational illness case is accountable or
reportable, the railroad shall make a good faith effort to obtain the
necessary information by December 1 of the next calendar year.
(4) Within seven calendar days of receiving additional information
regarding a claimed occupational illness case, each railroad shall
document receipt of the information, including date received and type
of document/information received, in narrative block 19 of Form FRA F
6180.107, ``Alternative Record for Illnesses Claimed To Be Work-
Related.''
(5) Within 30 calendar days of receiving additional information
regarding a claimed occupational illness, each railroad shall re-
evaluate the claimed occupational illness to determine work-
relatedness, taking into account the new information, and document any
findings resulting from the re-evaluation in narrative block 19 of Form
FRA F 6180.107, ``Alternative Record for Illnesses Claimed To Be Work-
Related.''.
(6) For any claimed occupational illness case determined to be
accountable or reportable, each railroad shall:
(i) Complete a Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record'' or alternative railroad-designed form within seven
days of making such determination;
(ii) Retain the Form FRA F 6180.98 ``Railroad Employee Injury and/
or Illness Record'' in accordance with Sec. 225.27; and
(iii) Report the occupational illness, as applicable, in accordance
with Sec. 225.11.
(7) For any claimed occupational illness case determined not to be
accountable or reportable, each railroad shall include the following
information in narrative block 19 of Form FRA F 6180.107, ``Alternative
Record for Illnesses Claimed To Be Work-Related'' or alternative
railroad-designed form:
(i) Why the case does not meet reporting criteria;
(ii) The basis upon which the railroad made this determination; and
(iii) The most authoritative information the railroad relied upon
to make the determination.
(8) Although Form FRA 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related'' (or the alternate railroad-designed form),
may not include all supporting documentation, such as medical records,
the alternative record shall note the custodian of those documents and
where the supporting documents are located so that they are readily
accessible to FRA upon request.
(j) An alternative railroad-designed record may be used in lieu of
the Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to
be Work-Related.'' Any such alternative record shall contain all of the
information required on the Form FRA F 6180.107. Although this
information may be displayed in a different order from that on Form FRA
F 6180.107, the order of the information shall be consistent from one
such record to another such record. The order chosen by the railroad
shall be consistent for all of the railroad's reporting establishments.
Railroads may list additional information in the alternative record
beyond the information required on Form FRA F 6180.107. The alternative
record shall contain, at a minimum, the following information:
(1) Name of Reporting Railroad;
(2) Case/Incident Number;
[[Page 52525]]
(3) Employee's Name (first, middle, last);
(4) Employee's Date of Birth (mm/dd/yy);
(5) Employee's Gender;
(6) Employee Identification Number;
(7) Date Employee was Hired (mm/dd/yy);
(8) Employee's Home Address (include street address, city, State
and Zip code);
(9) Employee's Home Telephone Number (with area code);
(10) Name of Facility Where Railroad Employee Normally Reports to
Work;
(11) Location, or Last Know Facility, Where Employee Reports to
Work;
(12) Job Title of Railroad Employee;
(13) Department to Which Employee is Assigned;
(14) Date on Which Employee or Representative Notified Company
Personnel of Condition (mm/dd/yy);
(15) Name of Railroad Official Notified;
(16) Title of Railroad Official Notified;
(17) Nature of Claimed Illness;
(18) Supporting Documentation;
(19) Custodian of Documents (Name, Title, and Address);
(20) Location of Supporting Documentation;
(21) Narrative;
(22) Preparer's Name;
(23) Preparer's Title;
(24) Preparer's Telephone Number (with area code); and
(25) Date the record was initially signed/completed (mm/dd/yy).
15. Section 225.27 is amended by revising paragraph (a) and adding
paragraphs (c) and (d) to read as follows:
Sec. 225.27 Retention of records.
(a) Each railroad shall retain the Form FRA F 6180.98, ``Railroad
Employee Injury and/or Illness Record''; Form FRA F 6180.107,
``Alternative Record for Illnesses Claimed to be Work-Related''; and
the Monthly List of Injuries and Illnesses required by Sec. 225.25 for
at least five years after the end of the calendar year to which they
relate. Each railroad shall retain Form FRA F 6180.97, ``Initial Rail
Equipment Accident/Incident Record,'' required by Sec. 225.25 for at
least two years after the end of the calendar year to which it relates.
Each railroad must retain the Employee Human Factor Attachments (Form
FRA F 6180.81, ``Employee Human Factor Attachment'') required by Sec.
225.12, the written notices to employees required by Sec. 225.12 (Part
I of Form FRA F 6180.78, ``Notice to Railroad Employee Involved in Rail
Equipment Accident/Incident Attributed to Employee Human Factor;
Employee Statement Supplementing Railroad Accident Report''), and the
Employee Statements Supplementing Railroad Accident Reports described
in Sec. 225.12(g) (Part II of Form FRA F 6180.78, ``Notice to Railroad
Employee Involved in Rail Equipment Accident/Incident Attributed to
Employee Human Factor; Employee Statement Supplementing Railroad
Accident Report'') that have been received by the railroad for at least
two years after the end of the calendar year to which they relate.
* * * * *
(c) Each railroad must retain the original hard copy of each
completed and signed Form FRA F 6180.55, ``Railroad Injury and Illness
Summary,'' that the railroad submits to FRA on optical media (CD-ROM)
or electronically via the Internet to [email protected] for at
least five years after the calendar year to which it relates. If the
railroad opts to submit the report to FRA electronically via the
internet, the railroad must also retain a hard copy print out of FRA's
electronic notice acknowledging receipt of the railroad's submission
for a period of five years after the calendar year to which the report
acknowledged relates.
(d) Railroads may retain accident/incident records as required by
paragraphs (a) and (b) of this section in hard copy format or in
electronic format subject to the following system requirements:
(1) Design Requirements. Any electronic record keeping system used
to retain a record required to be retained by this part shall meet the
following design parameters:
(i) The electronic record system shall be designed such that the
integrity of each record is retained through appropriate levels of
security such as recognition of an electronic signature, or other
means, which uniquely identify the initiating person as the author of
that record. No two persons shall have the same electronic identity;
(ii) The electronic system shall ensure that each record cannot be
modified, or replaced, once the record is submitted to FRA;
(iii) Any amendment to a record shall be electronically stored
apart from the record which it amends. Each amendment to a record shall
uniquely identify the person making the amendment and the date the
amendment was made;
(iv) The electronic system shall provide for the maintenance of
reports as originally submitted to FRA without corruption or loss of
data; and
(v) Policies and procedures must be in place to prevent persons
from altering electronic records, or otherwise interfering with the
electronic system.
(2) Accessibility and Availability. Any electronic record system
used to create, maintain, or transfer a record required to be
maintained by this part shall meet the following access and
availability parameters:
(i) Paper copies of electronic records and amendments to those
records that may be necessary to document compliance with this part
shall be provided to any representative of the FRA or of a State agency
participating in investigative and/or surveillance activities under
part 212 of this chapter or any other authorized representative for
inspection and photocopying upon request in accordance with Sec.
225.35; and
(ii) Paper copies provided to FRA or of a State agency
participating in investigative and/or surveillance activities under
part 212 of this chapter or any other authorized representative shall
be produced in a readable text format and all data shall be identified
by narrative descriptions (e.g., ``accident/incident number,'' ``number
of days away from work,'' ``date of occurrence,'' etc.).
16. Section 225.33 is amended by revising paragraph (a)(11) to read
as follows:
Sec. 225.33 Internal Control Plans.
(a) * * *
(11) In the case of the Form FRA F 6180.107 or the alternate
railroad-designed form, a statement that specifies the name(s),
title(s) and address(es) of the custodian(s) of these records, all
supporting documentation, such as medical records, and where the
documents are located.
* * * * *
17. Section 225.37 is revised to read as follows:
Sec. 225.37 Optical media transfer and electronic submission.
(a) A railroad has the option of submitting the following reports,
updates, and amendments by way of optical media (CD-ROM), or by means
of electronic submission via the Internet:
(1) The Rail Equipment Accident/Incident Report (Form FRA F
6180.54);
(2) The Railroad Injury and Illness Summary (Form FRA F 6180.55);
(3) The Railroad Injury and Illness Summary (Continuation Sheet)
(Form FRA F 6180.55a);
(4) The Highway-Rail Grade Crossing Accident/Incident Report (Form
FRA F 6180.57); and
(5) The Employee Human Factor Attachment (Form FRA F 6180.81) (the
[[Page 52526]]
Employee Human Factor Attachment must be in .pdf or .jpg format only).
(b) Each railroad utilizing the optical media option shall submit
to FRA a computer CD-ROM containing the following:
(1) An electronic image of the completed and signed hard copy of
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or
.jpg format only; and
(2) The completed accident/incident report submissions.
(c)(1) Each railroad utilizing the electronic submission via the
Internet option shall submit to FRA at [email protected]:
(i) An electronic image of the completed and signed hard copy of
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or
.jpg format only; and
(ii) The completed accident/incident report submissions.
(2) FRA will provide to the railroad an electronic notice
acknowledging receipt of submissions filed electronically via the
Internet.
(d) Each railroad employing either the optical media or electronic
submission via the Internet option, shall submit its monthly reporting
data for the reports identified in paragraph (a) of this section in a
year-to-date file format as described in the FRA Guide.
(e) In addition to fulfilling the requirements stated in paragraph
(b) through (d) of this section, each railroad initially utilizing
either the optical media or electronic submission via the Internet
option, shall also initially submit the hard copy report(s) for each
accident/incident it reports by such means. FRA will continually review
the railroad's submitted hard copy reports against the data the
railroad has submitted by means of optical media or electronically via
the Internet. Once the optical media or electronic submission via the
Internet is in total agreement with the submitted hard copies of the
reports for three consecutive reporting months, FRA will notify the
railroad, in writing, that submission of the hard copy reports is no
longer required.
(f) A railroad choosing to use optical media or electronic
submission via the Internet must use one of the approved formats
specified in the Companion Guide. FRA will reject submissions that do
not adhere to the required formats, which may result in the issuance of
one or more civil penalty assessments against a railroad for failing to
provide timely submissions of required reports as required by Sec.
225.11.
18. Section 225.41 is added to read as follows:
Sec. 225.41 Suicide data.
FRA does not include suicide data (as defined in Sec. 225.5) in
its periodic summaries of data on the number of injuries and illnesses
associated with railroad operations. FRA will maintain suicide data in
a database that is not publicly accessible. Suicide data will not be
available on FRA's Web site for individual reports or downloads.
Suicide data will be available to the public in aggregate format on
FRA's Web site and via requests under the Freedom of Information Act.
Issued in Washington, DC, on September 2, 2008.
Joseph H. Boardman,
Administrator.
[FR Doc. E8-20706 Filed 9-5-08; 11:15 am]
BILLING CODE 4910-06-P