[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Rules and Regulations]
[Pages 68862-68910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27641]
[[Page 68861]]
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Part II
Department of Transportation
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Federal Railroad Administration
49 CFR Part 225
Miscellaneous Amendments to the Federal Railroad Administration's
Accident/Incident Reporting Requirements; Final Rule
Federal Register / Vol. 75 , No. 216 / Tuesday, November 9, 2010 /
Rules and Regulations
[[Page 68862]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA-2006-26173; Notice No. 3]
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: Final rule.
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SUMMARY: This final rule revises FRA's existing regulations addressing
accident/incident reporting in order to clarify ambiguous regulations
and to enhance the quality of information available for railroad
casualty analysis. In addition, FRA has revised the FRA Guide for
Preparing Accident/Incident Reports (FRA Guide), its accident/incident
recording and reporting forms and its Companion Guide: Guidelines for
Submitting Accident/Incident Reports by Alternative Methods (Companion
Guide).
DATES: The final rule is effective Wednesday, June 1, 2011.
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 Christenson, 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:
I. The FRA Guide and the Companion Guide
In addition to revising its regulations in the Code of Federal
Regulations, FRA has revised the FRA Guide. The FRA Guide is posted on
FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety. Hard
copies of the FRA Guide will be available upon request. Information on
requesting hard copies of the FRA Guide can be found in Sec. 225.21,
``Forms,'' of this final rule.
FRA has also revised its Companion Guide containing instructions
for electronically submitting monthly reports to FRA. The Companion
Guide is posted on FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety.
II. Background
A. Statutory Authority for the Accident/Incident Reporting Requirements
in 49 CFR Part 225 (Part 225)
FRA's accident/incident reporting requirements \1\ in Part 225,
both as they exist today and as they are amended by this final rule,
were issued under the statutory authority of the following three
statutes: \2\
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\1\ The discussion under this section (II)(A) concerns the
statutory authority for the reporting provisions of Part 225 only,
e.g., 49 CFR 225.11 and 225.21, and does not address the statutory
authority for the penalty, investigative, or other provisions of
Part 225.
\2\ This final rule adds a fourth statute to the statutory
foundation for the accident/incident reporting requirements in Part
225: 28 U.S.C. 1746, Unsworn declarations under penalty of perjury.
Public Law 94-550, sec. 1(a), Oct. 18, 1976, 90 Stat. 2534. Pursuant
to that statute, the requirement in 49 U.S.C. 20901 that accident
reports be submitted ``under oath'' (and, therefore, signed and
notarized) has been converted into one of two alternative
requirements, the second being submission of a signed, unsworn
declaration saying that it is being made subject to penalty of
perjury.
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49 U.S.C. 20901 (formerly, part of the Accident Reports
Act);
49 U.S.C. 20103(a) (formerly, part of the Federal Railroad
Safety Act of 1970); and
49 U.S.C. 322(a) (formerly, part of the Department of
Transportation Act).
The Accident Reports Act was enacted in 1910,\3\ Public Law 165,
the Act of May 6, 1910, ch. 208, 36 Stat. 350 (1910). Section 1 of the
Accident Reports Act required--
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\3\ Federal requirements that railroads report their accidents
date back to before 1910, as evidenced by two provisions in the
Accident Reports Act as originally enacted. The first section of the
Accident Reports Act contained a proviso that relieved carriers
``from the duty of reporting accidents in their annual financial and
operating reports made to the commission[,]'' and Section 6 repealed
an accident reporting law enacted in 1901, `An Act requiring common
carriers * * * to make full reports of all accidents to the
Interstate Commerce Commission.` Approved March third, nineteen
hundred and one * * *''
every common carrier engaged in interstate or foreign commerce by
railroad to make to the Interstate Commerce Commission [ICC] * * * a
monthly report, under oath, of all collisions, derailments, or other
accidents arising from the operation of such railroad under such
rules and regulations as may be prescribed by the [ICC,] which
report shall state the nature and causes thereof and the
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circumstances connected therewith * * *.
Emphasis added. In addition, Section 5 of the Accident Reports Act
authorized the ICC ``to prescribe for such common carriers a method and
form for making the reports hereinbefore provided.'' Together, Sections
1 and 5 of the Accident Reports Act afforded the ICC authority to
promulgate regulations to carry out the reporting provisions of the
Accident Reports Act.
In 1960, the Accident Reports Act was amended to remove language in
Section 1 conferring rulemaking authority on the ICC to require
railroads to (``report * * * under such rules and regulations as may be
prescribed by the [ICC]'') and to add to Section 5 clearer language
conferring that rulemaking authority (``The [ICC] is authorized to
prescribe such rules and regulations and such forms for making the
reports herein before provided as are necessary to implement and
effectuate the purpose of this Act.''). Public Law 86-762 (September
13, 1960), 74 Stat. 903. In 1966, the Department of Transportation Act
transferred the responsibility for prescribing regulations to carry out
the Accident Reports Act, as amended, from the ICC to the Secretary of
Transportation. Sec. 6(e)(1)(K) of Public Law 89-670 (October 15,
1966), 80 Stat. 939. In addition, the Secretary delegated this
responsibility to the Administrator of the Federal Railroad
Administration by regulation. 49 CFR 1.49(c)(11). Later, in 1988, the
Accident Reports Act was amended so as to expand its applicability from
``common carriers engaged in interstate commerce by railroad'' to
include all ``railroads.'' Sec. 15 of Public Law 100-342 (June 22,
1988), 102 Stat. 633. The same legislation required railroads to
include in any of their reports that assigned employee error as a cause
of an accident/incident to include, at the employee's option, a
statement ``explaining any factors the employee alleges contributed to
the accident or incident.'' Id. at Sec. 24.
In 1994, the Accident Reports Act, as amended (then codified at 45
U.S.C. 38-43a), along with virtually all of the other Federal railroad
safety laws, was repealed, and its provisions were revised, reenacted
as positive law, and recodified without substantive change at 49 U.S.C.
20901-20903, Accidents and Incidents, with its penalty provisions in 49
U.S.C. chapter 213, Penalties, Public Law 103-272, 108 Stat. 745 (July
5, 1994). During the 1994 recodification of the rail safety laws,
Congress repealed, but did not reenact or recodify the text of Section
5 of the Accident Reports Act, as amended (then codified at 45 U.S.C.
42), which authorized the Secretary ``to prescribe such rules and
regulations and such forms for making the reports hereinbefore provided
as are necessary to implement and effectuate the purposes of [the
Accident Reports Act].'' Congress concluded that this section was
``[un]necessary because of
[[Page 68863]]
49 [U.S.C.] 322(a).'' See H.R. Rep. No. 103-180, 502, 584 (1993);
reprinted in 1994 U.S.C.C.A.N. 1319, 1401. Although Public Law 103-272
was not intended to change the substance of the laws as recodified,
this is an example of how its repeal of an ``unnecessary'' law
apparently changed the statutory basis of a regulation. Of course,
recodification did not change any law substantively, so in a sense,
Section 5 of the Accident Reports Act survives to the extent that it is
legally necessary.
The preamble to this final rule refers to the current, recodified
version of what was formerly known as the Accident Reports Act, by its
section numbers in title 49 of the U.S. Code. Currently, Sec. 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.''
The second major statutory authority for the accident/incident
reporting requirements in Part 225 is 49 U.S.C. 20103, formerly Sec.
202 of the Federal Railroad Safety Act of 1970 (FRSA). Public Law 91-
458 (October 16, 1970), 84 Stat. 971. Like the Accident Reports Act,
the FRSA was repealed in 1994, and its provisions were revised,
reenacted as positive law, and recodified without substantive change
primarily at 49 U.S.C. chapter 201, with penalty provisions in 49
U.S.C. chapter 213. As amended, 49 U.S.C. 20103(a) provides, in
pertinent part, 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 also delegated this authority to the
Administrator of FRA. 49 CFR 1.49(m). In 1974, FRA reissued its
accident reporting regulations under the added authority of the FRSA to
cover additional railroads and require reporting of occupational
illnesses. 39 FR 43222, December 11, 1974.
The third major statutory authority for the accident/incident
reporting requirements in Part 225 is 49 U.S.C. 322(a), which was
enacted in 1966, and codified in Sec. 9(e) of the Department of
Transportation Act. The statutory provision at 49 U.S.C. 322(a) reads
as follows:
The Secretary of Transportation may prescribe regulations to
carry out the duties and powers of the Secretary. An officer of the
Department of Transportation may prescribe regulations to carry out
the duties and powers of the officer.
Under 49 U.S.C. 322(a), an officer of the Department of Transportation
may prescribe regulations to carry out the duties of the officer.
Section 103(d) of title 49, U.S. Code, provides that the head of the
FRA is the Administrator, and the Administrator of FRA is an ``officer
of the Department of Transportation,'' within the meaning of 49 U.S.C.
322(a). Section 103(g)(1) of title 49, U.S. Code, provides that ``the
Administrator shall carry out--* * * duties and powers related to
railroad safety vested in the Secretary by * * * chapters 203-211 of
this title, and by chapter 213 of this title for carrying out chapters
203 through 211.'' Consequently, the duty of carrying out 49 U.S.C.
chapter 209 is clearly one of the ``duties of the officer,'' within the
meaning of 49 U.S.C. 322(a). Accordingly, the FRA Administrator may
prescribe regulations to carry out 49 U.S.C. chapter 209.
B. Occupational Safety and Health Act
Although not a statutory authority for the accident/incident
reporting requirements of Part 225, the Occupational Safety and Health
Act (OSH Act), which Congress enacted in 1970, has shaped these
requirements. Public Law 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. 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 49
U.S.C. chapter 201, 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,
OSHA's 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. Conrail (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.' '' \4\ 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 the Department of Labor's national occupational
injury and illness database.
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\4\ It should be noted that the OSHA 200 form has been
subsequently renamed as the OSHA 300 form.
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C. Overview of Part 225 and Recent Amendments
Part 225 contains a series of specific accident/incident recording
and reporting requirements. The purpose of 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
[[Page 68864]]
comparative trends of railroad safety and to develop hazard elimination
and risk reduction programs that focus on preventing 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 corresponds 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; 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). 68 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.''
III. Proceedings to Date
On September 9, 2008, FRA published a Notice of Proposed Rulemaking
(NPRM), which proposed miscellaneous amendments to FRA's accident/
incident reporting regulations in order to clarify ambiguous
regulations and to enhance the quality of information available for
railroad casualty analysis. See 73 FR 52496. The NPRM also proposed
revisions to the 2003 FRA Guide and FRA's Accident/Incident recording
and reporting forms.
The NPRM further requested comments and suggestions on four issues
of concern. First, FRA requested 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 requested comments and
suggestions on whether FRA should require railroads to complete the
longitude and latitude blocks on Form FRA F 6180.55a, ``Railroad Injury
and Illness Summary (Continuation Sheet)'' (blocks 5s and 5t), for
reportable trespasser casualties only, and on Form FRA F 6180.54,
``Rail Equipment Accident/Incident Report'' (blocks 50 and 51). Third,
FRA requested comments and suggestions on whether FRA should change the
method by which telephonic reports of accidents/incidents, as required
by Sec. 225.9, are made to FRA. Fourth, FRA requested comments and
suggestions on whether FRA should require railroads to report to FRA on
Form FRA F 6180.55a suicides and attempted suicides, otherwise referred
to as ``suicide data,'' and on concerns regarding State access to such
reports.
On September 10, 2008, during the 36th Railroad Safety Advisory
Committee (RSAC) meeting, RSAC Task No. 2008-02 was presented for
acceptance. The task offered to the RSAC for consideration was to
review comments received on FRA's NPRM and would have allowed the RSAC
to make recommendations for the content of the final rule. The task was
withdrawn at the meeting without RSAC acceptance.
Following publication of the NPRM in the Federal Register, FRA held
a public hearing in Washington, DC on December 18, 2008, and extended
the comment period for an additional thirty (30) days following the
hearing. The hearing enabled the exchange of information regarding
FRA's proposed amendments, and allowed the public to articulate their
issues and concerns regarding the NPRM, so that such concerns could be
addressed in the final rule. The hearing was attended by a number of
railroads, organizations representing railroads, and labor
organizations. FRA received oral and written testimony at the hearing
as well as written comments during the extended comment period. A copy
of the hearing transcript was placed in Docket No. FRA-2006-26173 on
http://www.regulations.gov. During the initial and extended comment
period, FRA received comments and heard testimony from the following
organizations, in addition to comments from individuals, listed in
alphabetical order:
American Association for Justice (AAJ);
Association for American Railroads (AAR);
American Train Dispatchers Association (ATDA);
BNSF Railway Company (BNSF);
Brotherhood of Locomotive Engineers and Trainmen
(BLET);
Brotherhood of Maintenance of Way Employees Division
(BMWED);
Brotherhood of Railroad Signalman (BRS);
California Public Utilities Commission (CPUC);
U.S. Department of Labor (DOL);
Illinois Commerce Commission/Transportation Bureau/Rail
Safety Section (ICC);
Kansas City Southern Railway Company (KCS);
Metro-North Commuter Railroad Company (MNCW);
National Railroad Passenger Corporation (Amtrak);
New York State Metropolitan Transportation Authority
(NYSMT);
NJ Transit Rail Operations (NJT);
Norfolk Southern Corporation (NS);
Southeastern Pennsylvania Transportation Authority
(SPTA);
Union Pacific Railroad Company (UP); and
United Transportation Union (UTU).
As an initial matter, when developing this final rule, FRA
carefully considered all of the comments, information, data, and
proposals submitted to Docket No. FRA-2006-26173 and discussed during
the hearing. In addition, FRA's extensive knowledge and experience with
enforcing the existing accident/incident reporting regulations was also
relied upon when developing this final rule. FRA addresses the comments
in the Section-by-Section Analysis of this final rule and elsewhere as
appropriate.
One such comment to the NPRM stated that FRA should have used an
RSAC working group for this rulemaking. FRA, however, is not required
to engage the RSAC in formulating regulations. Here, as discussed
above, FRA held a hearing and provided two comment periods during which
interested parties had opportunities to comment on the NPRM.
IV. Section-by-Section Analysis
Technical Amendment
Throughout the rule text, this final rule updates the agency's
address and other mailing addresses, when appropriate, 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. This
change is also reflected in the FRA
[[Page 68865]]
Guide, the accident/incident reporting and recording forms, and the
Companion Guide.
Sec. 225.1 Purpose.
The final rule removes the preemption language dealing with part
225 from this section. FRA believes that this language is unnecessary
because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of
FRA's regulations. Providing a separate Federal regulatory provision
concerning the regulation's preemptive effect is duplicative and
unnecessary.
Sec. 225.3 Applicability.
In this section, the final rule makes 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. The final rule revises the
paragraph to include element number 11 (added in FRA's 2003 Final
Rule), which requires railroads to include in their ICPs 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 the location of such documents. See 68 FR 10107, 10139,
March 3, 2003.
Sec. 225.5 Definitions.
The final rule amends paragraph (1) of the definition of
``Accident/incident'' to clarify the definition and to conform to the
FRA Guide. In the NPRM, FRA set forth to clarify the definition of
accident/incident with respect to impacts at highway-rail grade
crossings. Commenters generally indicated that further clarification
was necessary regarding under what circumstances sidewalks and pathways
are considered to be part of a highway-rail grade crossing site.
In response to these comments, FRA determined that the proposed
definition required revision. As such, the final rule provides that
``Accident/incident'' means, in part, any impact between railroad on-
track equipment and a highway user at a highway-rail grade crossing.
The final rule, elsewhere in Sec. 225.5, defines the term ``highway-
rail grade crossing'' to mean a location where a public highway, road,
street, or a private roadway, including associated sidewalks, crosses
one or more railroad tracks at grade, or a location where a pathway
explicitly authorized by a public authority or a railroad carrier that
is dedicated for the use of non-vehicular traffic, including
pedestrians, bicyclists, and others, that is not associated with a
public highway, road, street, or a private roadway, crosses one or more
railroad tracks at grade. The definition of ``highway-rail grade
crossing'' further provides that the term ``sidewalk'' means that
portion of a street between the curb line, or the lateral line of a
roadway, and the adjacent property line or, on easements of private
property, that portion of a street that is paved or improved and
intended for use by pedestrians. The FRA Guide provides a diagram
illustrating the definition of the term sidewalk. See FRA Guide,
Chapter 2. In addition, the final rule provides that the term ``highway
user'' may include an automobile, bus, truck, motorcycle, bicycle, farm
vehicle, pedestrian, or any other mode of surface transportation
motorized and un-motorized.
FRA does not believe that this clarifying amendment increases the
burden on railroads because it is consistent with common industry
practice as well as FRA's long-standing policy. Moreover, even if
reporting accidents at such pathways was not standard industry
practice, any increased burden would be nominal. Based on the U.S. DOT
National Highway-Rail Crossing Inventory, FRA estimates that there are
approximately 2,000 grade crossings in the United States that are not
associated with highways, roads, streets, or private roadways and that
very few highway-rail grade crossing accidents/incidents occur at these
locations each year. Accordingly, even if this did place a new burden
on railroads to report accidents/incidents not previously reported, the
burden would be insignificant in light of the small number of
additional reports that would be required.
The final rule also clarifies that sidewalks that may be used to
cross railroad tracks at grade are considered to be part of (i.e.,
associated with) the highway-rail grade crossing. The definition of
sidewalk included in the final rule clarifies which sidewalks are
considered associated with the crossing. FRA does not believe this
clarification will result in any change to current railroad reporting
practices. In addition, the definition of the term ``sidewalk'' is
based on the definition of the term as articulated in the 2009 edition
of the Federal Highway Administration's Manual on Uniform Traffic
Control Devices. The FRA Guide includes an illustrative diagram to help
clarify the meaning of the term ``sidewalk.'' See FRA Guide, Chapter 2.
A comment to the NPRM suggested that FRA use the term ``road user''
rather than the term ``highway user.'' The final rule does not adopt
this suggestion in order to maintain consistency between the terms
``highway user'' and ``highway-rail grade crossing.'' A comment also
sought clarification that there are no exceptions to reporting
collisions between on-track equipment and highway users. FRA believes
that the final rule is clear that any impact between a highway user and
on-track equipment at a highway-rail grade crossing qualifies as a
highway-rail grade crossing accident/incident and that further
clarification is not required. A comment also recommended that impacts
at highway-rail grade crossings be referred to as ``train-vehicle
collisions,'' rather than ``accidents/incidents.'' The final rule does
not adopt this suggestion because such an amendment is not consistent
with the historical use of such terms.
The final rule also amends paragraph (3) of the definition of
``Accident/incident'' to conform to the revised language in 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).
In the NPRM, FRA proposed amending the definition of ``Accountable
injury or illness'' to mean any abnormal condition or disorder of a
railroad employee that manifests within the work environment and causes
or requires a 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)
regardless of whether the condition or disorder is discernably caused
by an event or exposure in the work environment.
The final rule amends the definition of ``Accountable injury or
illness'' to conform to the amended definition of ``injury or
illness;'' to eliminate redundancy by removing the word ``activity''
from the phrase ``by an event, exposure, or activity in the work
environment'' as the amended definition of ``event or exposure'' in the
final rule includes activities; to eliminate potential underreporting
of work-related injuries and illnesses; to ensure that potentially
reportable injuries and illnesses are documented, tracked, and
evaluated for reporting and auditing purposes; and to delete the phrase
``not otherwise reportable'' due to its ambiguity. See Section-by-
Section Analysis for Sec. 225.19(d), ``Primary groups of accidents/
incidents; Death, injury and occupational illness.'' The final rule
amends the definition of ``Accountable injury or illness'' to mean
[[Page 68866]]
``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, regardless of whether or not it
meets the general reporting criteria listed in Sec. 225.19(d)(1)
through (d)(6), and the railroad employee claims that, or the railroad
otherwise has knowledge that, an event or exposure arising from the
operation of the railroad is a discernable cause of the abnormal
condition or disorder.''
The language proposed in the NPRM specified that an accountable
injury or illness is one that ``does not meet the general reporting
criteria.'' The final rule replaced this with ``regardless of whether
or not it meets the general reporting criteria'' because an injury or
illness may eventually become reportable or the railroad may not have
enough information at the time to determine whether the injury or
illness is reportable. These are clarifications and do not pose any
change to FRA's accident/incident recording or reporting requirements.
The purpose of Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record,'' is to create an initial record of, and audit trail
for, each potentially reportable injury or illness. As such, under the
previous recording requirements, railroads were required to complete
the Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness
Record,'' for each accountable and reportable injury or illness within
seven (7) working days after first becoming aware of the accountable or
reportable injury or illness. As a result, under FRA's 2003 Final
Rule's definition of accountable and reportable injury and illness, a
railroad had to make an initial determination with regard to the work-
relatedness of an injury or illness within seven working days. Once a
railroad determined that an employee injury or illness was not work-
related, the railroad was not obligated to create any record or report
of the casualty.
In many cases, injuries and illnesses, and/or the signs and
symptoms thereof, manifest in the work environment without the cause(s)
being readily apparent. Therefore, a railroad, during its initial seven
day investigation, may have determined that an injury or illness was
not work-related when additional investigation and time would have
shown that the injury or illness was in fact work-related.
Consequently, FRA is concerned that some railroads are prematurely
attributing the cause of an injury or illness solely to a non-work-
related event or exposure occurring outside the work environment. FRA
was similarly concerned that some railroads were not investigating
pertinent information about employee injuries and illnesses to make an
accurate work-relatedness determination. As a result, FRA believes that
some railroads may have under-reported employee injuries and illnesses,
and, because a Form FRA F 6180.98 was not completed to initially record
the injury or illness, no audit trail was created. In such
circumstances, FRA and the railroads were left unaware of the
potentially reportable or accountable injury. Moreover, by only
requiring a record for those casualties that were ultimately determined
to be work-related within the initial seven days period, FRA was
prevented from later evaluating the reportability of the injury or
illness in order to determine whether the reporting officer made an
appropriate reporting decision or whether the railroad complied with
its duty to investigate the injury or illness.
In consideration of the comments and FRA's safety mission, the
final rule contains a revised definition. The definition contained in
the final rule triggers the railroads' responsibility to create a Form
FRA F 6180.98 for (i.e., an accountable injury or illness) 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 regardless of whether or not it meets the general
reporting criteria in Sec. 225.19(d), and the employee claims that, or
the railroad otherwise has knowledge that, the injury or illness is
work-related. Therefore, the definition in the final rule eliminates
the requirement that a railroad record all injuries or illnesses based
on manifestation regardless of cause. While railroads are still
required to complete the Form FRA F 6180.98, ``Railroad Employee Injury
and/or Illness Record,'' for each accountable and reportable injury or
illness within seven working days after first becoming aware of the
accountable or reportable injury or illness, the revised definition of
accountable injury/illness will alleviate the railroad's need to make a
final decision with regard to work-relatedness when an employee claims
or suspects that the injury or illness is in fact work-related and will
ensure that a record of each potentially reportable injury or illness
is created. See Section-by-Section Analysis of Sec. 225.25 for
additional information. This approach helps to ensure that railroads
record and thoroughly investigate injuries and illnesses where the
employee claims that an event or exposure in the work environment is a
discernable cause of the employee's injury or illness but additional
investigation is necessary. This approach creates an audit trail of
potentially work-related employee injuries and illnesses, and, because
the railroad need not make a final determination regarding work
relatedness within seven days, provides additional time for railroads
to complete the work-related analysis. Moreover, this approach allows
FRA to use the audit trail to better understand railroads' reporting
processes and their application of the applicable regulations.
FRA received numerous comments addressing the proposed definition
of ``Accountable injury or illness.'' Because of the language adopted
in the final rule, a majority of those comments are no longer
applicable. At the hearing and in the written comments, several
railroads and organizations representing labor and railroads asserted
that FRA's reporting requirements must be based upon work-relatedness
and, therefore, the proposed amendment was outside of FRA's authority.
While FRA disagrees with this assertion, this issue is no longer
relevant. FRA has been tasked with and given the authority to prescribe
regulations that ``promote safety in every area of railroad operations
and reduce railroad-related accidents and incidents.'' 49 U.S.C. 20102.
Moreover, FRA has the authority to investigate ``an accident or
incident resulting in serious injury to an individual or to railroad
property.'' Id. As such, the proposed changes were well within FRA's
authority as they were meant to improve FRA's safety data and to allow
FRA to audit railroad reporting decisions. Finally, although FRA makes
every effort to maintain consistent reporting requirements with those
of OSHA, FRA's accident/incident recording requirements are based
solely on FRA's program needs and purposes, and as such may differ from
OSHA's requirements to any extent FRA believes is necessary.
Comments by NJT, UP, and AAR, among others, asserted that the
proposed amendments could increase the misclassification of data by
capturing too much information. As an initial matter, these comments
concerned the language proposed in the NPRM. Regardless, with respect
to the language in the final rule, railroads should already be
reviewing all employee claimed or suspected work-related injuries and
illnesses. FRA is simply requiring that the railroad document these
suspected work-related injuries.
Many comments also stated that the proposed changes are not
connected to
[[Page 68867]]
identifying safety hazards and that the previous reporting scheme did
not result in underreporting. As explained above, the prior definition
created an inadequate audit trail. In addition, FRA believes that the
prior reporting system did result in underreporting due to the
difficulties related to making a final work-relatedness determination
within seven days for certain injuries and illnesses. Also, prior to
this final rule, when a railroad made an initial incorrect or premature
recording decision that an injury or illness was not recordable, the
reporting system did not ensure that the railroad would catch the
problem at a later time. Now, with the clarification that when an
employee claims that, or railroad otherwise has knowledge that, an
injury or illness is work-related, a railroad will be required to
record such injuries and illnesses. In addition, the final rule
improves the audit trail created by the railroads and better enables
FRA to review reporting decisions and to identify reporting problems.
Other comments suggested that the current reporting scheme captures
all of the necessary data. Specifically, AAR argued that there are
sufficient tools currently in place, such as the ICP, to identify
underreporting. UP argued that it is using a reliable review process
that allows it to identify where additional information is required so
that it is making accurate reporting decisions. The ICP requires the
railroad to audit its own reporting and make appropriate changes in its
reporting system to improve the quality of reporting. In the preamble
of the June 18, 1996 regulation, FRA challenged the railroads to
develop a Total Quality Management (TQM) system to have zero defects in
reporting. The final rule is consistent with the purpose of the ICP,
which is to have complete and accurate reporting. (49 CFR
225.33(a)(1)). FRA has found that the current tools do not always
capture injuries or illnesses where the cause of the injury or illness
is not readily apparent. The previous ICP did not create an audit trail
for a situation in which a railroad determined that the injury or
illness is not work-related, therefore, FRA and the railroads were
hindered in reviewing and auditing the initial reporting decisions. AAR
stated in post-hearing comments that disparities in reporting between
railroads is not a sign of underreporting. However, without making an
initial record and monitoring injuries and illnesses, it is difficult
for the railroads or FRA to completely understand or explain the
disparities in reporting. The changes in the final rule will allow FRA
to review the railroad's decision making process to better understand
those disparities and to better understand which safety measures are
effective in preventing certain types of injuries and illnesses.
Commenters also argued that the proposed amendments were overly
burdensome, suggesting that railroads would have to record every minor
injury or illness, and that they may somehow violate the Americans with
Disabilities Act (ADA), as railroads would be forced to follow up on
and collect non-work-related medical information. Again, these comments
relate to the proposed language in the NPRM, thus, they are not
entirely applicable to the language adopted in the final rule. The
final rule simply requires railroads to make a record of each injury or
illness that the employee suspects or claims, or the railroad otherwise
has knowledge that, is work-related. And, as noted, railroads should
already be investigating these potentially work-related injuries and
illnesses. FRA is simply asking the railroads to document their
investigation of all potentially work-related injuries and illnesses
where the employee claims or suspects the casualty is work-related,
rather than just those that are ultimately determined to be work-
related. During the hearing, in response to allegations that the
amendment would result in violations of privacy laws, FRA asked that
the railroads submit additional comments explaining how the amendment
would force railroads to violate privacy laws. AAR stated that the
proposed language would force employers to request personal information
without providing any safety benefit. As explained above, the changes
in the final rule are aimed at improving safety in the rail industry
and justify requesting sensitive information, particularly where the
employee suspects or claims, or the railroad knows, that the injury or
illness is work-related. Moreover, the definition in this final rule
does not expand the scope of the injuries or illnesses to be
investigated under FRA's 2003 Final Rule but simply creates a
recordkeeping requirement.
Several commenters stated that the meaning of the terms
``manifests'' and ``abnormal'' were vague. As an initial matter, the
final rule does not include the term ``manifests.'' In addition, FRA's
use of the term ``abnormal'' is clear, and is consistent with OSHA's
language.
Finally, several commenters suggested that FRA should review
railroads' reporting and recording decisions based on whether or not a
decision is reasonable. AAR stated that employers are in the best
position to determine whether an injury or illness is work-related.
Pursuant to Sec. 225.17, ``Doubtful cases,'' FRA cannot delegate its
authority to decide matters of judgment when facts are in dispute. FRA
must be able to ensure that its accident/incident data is complete and
accurate. Consequently, the final reporting decision is FRA's. AAR also
stated that if OSHA disagrees with an employer's decision, OSHA has the
burden of proving that the injury or illness was work-related.
Consistent with OSHA, the FRA Guide explains that, once an employer
determines that an injury or illness is not reportable ``and FRA
subsequently issues a citation for failure to report, the Federal
Government would have the burden of proving that the injury or illness
was work-related.'' See FRA Guide. To meet its burden, FRA must show
that it is more likely than not that an event or exposure arising from
the operation of the railroad was a discernable cause of the injury or
illness or an event or exposure was a discernable cause of the
significant aggravation of a pre-existing injury or illness. Except
with respect to occupational illnesses, FRA's 2003 Final Rule states
that ``it is the railroad's responsibility to determine whether an
illness is work-related,'' meaning that ``FRA's role will be to
determine whether the reporting officer's determination was
reasonable.'' FRA emphasizes, this language refers to only occupational
illnesses and FRA retained the ability to present evidence that the
railroad's decision was in fact not reasonable. 68 FR 10119, March 3,
2003.
In the NPRM, FRA proposed amending 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.'' The final rule defines ``Accountable rail equipment
accident/incident'' to mean ``(1) any derailment regardless of whether
or not it causes any damage or (2) any collision, highway-rail grade
crossing accident/incident, obstruction accident, other impact, fire or
violent rupture, explosion-detonation, act of God, or other accident/
incident involving the operation of railroad on-track equipment
(standing or moving) that results in damage to the railroad on-track
equipment (standing or moving), signals, track, track structures or
roadbed and that damage impairs the
[[Page 68868]]
functioning or safety of the railroad on-track equipment (standing or
moving), signals, track, track structures or roadbed.''
Under the definition contained in FRA's 2003 Final Rule, generally,
an accountable rail equipment accident/incident meant an incident that
resulted in damage below the reporting threshold and that, if not
attended to, would disrupt railroad service. FRA has found through its
audits and enforcement tools that the term ``disruption of service''
has not been consistently understood or uniformly applied throughout
the railroad industry. Moreover, FRA found that the previous definition
of accountable rail equipment accident/incident failed to adequately
capture the accidents and incidents FRA originally intended and
currently requires to be recorded and/or reported for data analysis and
safety purposes. Specifically, FRA originally created the Form FRA F
6180.97 to establish a means by which railroads could record and FRA
could audit railroad reporting decisions with regard to the reporting
of railroad accidents/incidents on Form FRA F 6180.54. FRA has expanded
its use of the Form FRA F 6180.97 to identify safety hazards in yards
and terminals, which has benefited FRA's safety efforts, as those
incidents are precursors for reportable accidents and incidents.
Based upon FRA's thorough review and consideration of the comments
and FRA's goals of creating an audit trail, applying a uniform and
simpler standard and capturing data that will allow it to identify and
eliminate safety hazards, FRA believes that the language adopted in the
final rule is more appropriate than the language proposed in the NPRM.
FRA received numerous comments addressing the proposed amendments to
the definition of ``Accountable rail equipment accident/incident'' and,
based upon the language adopted in the final rule, a majority of those
comments are no longer applicable.
FRA received comments that the proposed definition would create a
substantial burden on the railroads as it would require them to record
every minor incident regardless of the amount of damage and the
connection to safety. The final rule does not require railroads to
report or record damage that is the result of normal wear and tear.
Rather, as in FRA's 2003 Final Rule, this final rule only classifies an
accident/incident as an ``accountable rail equipment accident/
incident'' when it results from a derailment, collision, highway-rail
grade crossing accident/incident, obstruction accident, other impact,
fire or violent rupture, explosion-detonation, act of God, or other
accident/incident involving the operation of railroad on-track
equipment (standing or moving). FRA intends to use the information
captured to learn about precursors to reportable accidents/incidents
and to improve safety. The final rule clarifies that, with the
exception of derailments, an incident must result in damage and that
damage must impair the functioning or safety of the railroad on-track
equipment (standing or moving), signals, track, track structures or
roadbed. Consequently, FRA is not requiring the railroads to record
minor incidents that result from normal wear and tear. Consistent with
FRA's 2003 Final Rule, FRA believes it is necessary to record every
derailment as such information will provide greater insight into their
causes and will prevent future reoccurrences, including those that may
result in hazardous material spills, significant damage, and/or
casualties. Finally, the definition adopted in the final rule, which
eliminates the disruption of service criteria, creates a clear
reporting standard that will allow for easier and more consistent
enforcement and compliance.
SEPTA suggested, in one comment, that FRA retain the disruption of
service criteria. FRA did not implement this suggestion. As discussed
above, the disruption of service criteria does not capture all of the
data FRA needs to ensure safety. Moreover, FRA has found that the
disruption of service criteria has not been uniformly applied. FRA
believes that the language adopted in the final rule is more
appropriate and not overly burdensome.
In addition, several commenters suggested that the proposed
definition was unclear and that it was unclear what information FRA was
attempting to capture. FRA believes that the language adopted in this
final rule, however, is clear and will allow for the uniform
application of the standard.
The final rule includes a definition for ``Discernable cause.'' In
order to clarify the meaning of this term and to ensure consistency
with OSHA's reporting requirements, the final rule defines
``Discernable cause'' in Sec. 225.5 to mean, ``a causal factor capable
of being recognized by the senses or the understanding.'' See also,
Webster's Third New International Dictionary (1961); Webster's Third
New International Dictionary, Unabridged (1971). The definition further
provides 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).''
FRA's accident/incident reporting regulations concerning railroad
occupational casualties are maintained, to the extent practicable, in
general conformity with OSHA's recordkeeping and reporting regulations,
in order 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.\5\ 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.
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\5\ It should be noted that under OSHA's regulations, the term
``recording'' is used. Under FRA's regulations and the FRA Guide,
the term ``reporting'' is used. The OSHA system requires recording
into the OSHA 300 Log whereas FRA has always used the term
``reporting'' in its regulations and in the FRA Guide 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 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. 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
[[Page 68869]]
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, 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. See
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.
On January 15, 2008, FRA received a letter from the DOL's Office of
the Solicitor (OSHA Letter) confirming FRA's understanding and
application of the NAM-OSHA settlement agreement and OSHA's
recordkeeping requirements with regard to ``work-relatedness,'' in
addition to providing further clarification on particular points of
law. In the OSHA Letter, OSHA stated that ```[d]iscernable' is used in
the ordinary sense; that is, capable of being recognized by the senses
or the understanding.'' OSHA Letter at 3. OSHA's definition came from
Webster's Third International Dictionary. The OSHA Letter goes on to
state that an event or exposure is a discernable cause if,
``considering the circumstances, it is more likely than not that the
event or exposure is a cause of the injury or illness.'' Id. FRA
submitted the OSHA Letter to Docket Number FRA 2006-26173 on December
10, 2008.
FRA received several comments from the railroads and other
organizations regarding the proposed definition of discernable cause.
Many comments stated that the proposed definition was inconsistent with
OSHA's reporting requirements. As explained above, FRA adopted a
definition that is virtually identical to and consistent with OSHA's
definition to ensure that railroads need to report only to one agency
and that there is consistent reporting across industries. One comment
suggested that OSHA requires that the cause be distinguishable from
other causes, and that FRA's definition is inconsistent. Although OSHA
requires that an event or exposure be a tangible cause, it does not
require that the event or exposure be the main or predominate cause of
the injury or illness. In addition, neither OSHA nor FRA require that
the railroad calculate the exact amount of cause a particular event or
exposure played in the subsequent injury or illness, only that it be a
cause. Moreover, like OSHA, where it is difficult to determine whether
the event or exposure is a cause, FRA requires that the employer
consider the circumstances surrounding the event or exposure to
determine whether it is more likely than not a cause.
Other comments suggested requiring that the event or exposure in
the work environment be the predominant or main cause to ease the
reporting burden and to simplify the reporting scheme. However, this
suggestion would make the definition inconsistent with OSHA. In the
OSHA Letter, OSHA stated, with regards to ``causation,'' that ``the
employer need not weigh the relative contributions of occupational and
non-occupational factors to the injury or quantify the extent of the
occupational contributions.'' Id. As such, ``discernable'' in this
context does not mean obvious. In addition, requiring that the event or
exposure be the predominant or main cause would exclude certain
injuries and illnesses, and would be difficult to measure and enforce.
Some comments requested that medical evidence factor into the
causation decision. Consistent with OSHA, FRA recognizes that when
causation is not obvious, that ``consultation with a health care
professional'' may play a part in the reportability determination. Id.
However, the final reporting decision is made by a railroad's reporting
officer and the responsibility cannot be delegated to another
individual. Railroads also asked what weight FRA gives to medical
evidence compared to other types of evidence. Again, FRA, like OSHA,
acknowledges that medical consultation may be a factor the railroad
reporting officer considers, but the reporting officer may not delegate
the reporting decision to a health care professional. As stated in the
definition, ``[i]f it is unclear whether the work event was a cause of
the injury, the employer must evaluate the employee's work duties and
environment and decide whether it is more likely than not that work was
a cause.'' Id. Thus, an employer is responsible for considering all of
the relevant evidence obtained through its inquiry when making a
reporting decision. When reviewing the railroad's reporting decision,
FRA considers various factors when giving weight to a health care
professional's opinion, including, but not limited to, whether the
health care professional clearly documented his or her findings,
whether the conclusion is supported by evidence, and whether the health
care professional provided a medical assessment or, instead, a
conclusory statement.
Finally, commenters asserted that FRA ``always'' takes employees at
their word and, therefore, railroads are not truly free to consider
contradictory medical evidence. However, that is not the case. As
stated in Sec. 225.17, ``Doubtful cases,'' FRA has the authority to
resolve factual disputes. During its audit, FRA reviews the basis for a
railroad's reporting decision, in addition to the ``investigatory
materials,
[[Page 68870]]
including, but not limited to, the following: The initial report filed
by the affected person, witness statements, transcripts of hearings,
medical records, time and attendance records, and the purpose of
payouts made in connection with the accident/incident.'' See FRA Guide,
Chapter 1. Moreover, FRA conducts additional investigation and consults
with its own health care professional when appropriate. At the
conclusion of its investigation, FRA will review the railroad's
reporting decision and all of the associated evidence to determine
whether it is more likely than not that an event or exposure arising
from the operation of the railroad is a discernable cause of the
injury.
Commenters suggested using an evidence-based approach to determine
causation. During his testimony, Dr. M. Hadler commented that
individuals often have difficultly recognizing what caused their
injuries and tend to attribute cause to the environment they are in at
the time their pain becomes unbearable. Consequently, Dr. Hadler
suggested using a more scientific approach (such as a pain diary) to
determine causation. Additionally, KCS and UP suggested that FRA use
the National Institute for Occupational Safety and Health's (NIOSH)
approach to determine causation. FRA, however, has chosen to adopt
OSHA's language and method of determining causation so that railroads
may report injuries and illnesses to only one agency, FRA. If FRA
adopted the NIOSH approach then railroads would be responsible for
reporting employee injuries and illnesses separately to both OSHA and
FRA. FRA collection of employee injuries and illnesses must be
consistent with OSHA's system to make a reliable national database.
Failure to be consistent with OSHA would trigger dual reporting
requirements for railroads (to OSHA and to FRA). UP supported adopting
the NIOSH approach because it believes that each person shows injuries
and illnesses differently. Thus, UP and KCS would like an approach that
considers the unique factors for each person. Under FRA's approach, a
railroad should conduct an inquiry into any potentially reportable or
accountable injury or illness. At the conclusion of its investigation,
the railroad must decide whether, considering the circumstances, it is
more likely than not that an event or exposure arising from the
operation of the railroad is a discernable cause of an injury or
illness. Consequently, under this approach, a railroad may consider the
various unique factors associated with each employee's potentially
reportable or accountable injury or illness, including but not limited
to an employee's medical and work history, in addition to an employee's
statements regarding his or her injury or illness.
Commenters also suggested that the definition of discernable cause
is too broad. Specifically, commenters suggested that the definition
requires railroads to collect information that is not relevant to
occupational safety and will result in over-reporting. Again, the
definition of discernable cause is consistent with FRA's longstanding
policy and with OSHA's interpretation. As a result, the definition will
not change railroad reporting responsibilities and, in fact, will ease
the reporting burden (as railroads have to report to only one agency).
Like OSHA, FRA does not require that the cause be occupational in
nature. See also Section-by-Section Analysis for Sec. 225.5,
``Definitions--Work-related.'' Also, the definition is appropriate as
it allows FRA to identify injuries and illnesses for which events or
exposures arising from the operation of the railroad play a role, and
it is not overly broad as the injuries and illnesses must also meet one
of the reporting criteria. In addition to the benefits of collecting
uniform data across industries, FRA is not collecting information
regarding minor injuries with no safety impact as an event or exposure
arising from the operation of the railroad must be a discernable cause
and the injury or illness must be severe enough to meet one of the
reporting criteria.
Commenters also stated that the definition of discernable cause is
vague and fails to provide clear guidance to railroads. Specifically,
one comment stated that the dictionary definition was uninformative. As
explained above, the cause need not be the sole or predominant cause,
rather it must be a contributing factor. If it is not clear whether the
event or exposure was a discernable cause, the employer must consider
the surrounding circumstances to determine reportability. FRA believes
that the definition and standard are clear. Moreover, when a railroad
is unsure about the reportability of an injury or illness, FRA
recommends that a railroad make a report or utilize FRA's ``claimed but
not admitted'' process as described in 49 CFR 225.17(c).
Commenters suggested that FRA is creating a geographic presumption
and, therefore, the definition is inconsistent with OSHA. Moreover,
commenters want to limit the cause to just those injuries that are
occupational in nature (i.e., related to performing job-related
activities). See Section-by-Section Analysis for Sec. 225.5,
``Definitions--Event or exposure arising from the operation of the
railroad'' and ``Definition Work related.'' For employees, consistent
with OSHA, the final rule requires that an event or exposure in the
work environment be a discernable cause of the injury or illness.
Therefore, FRA is still requiring causation and, as such, an injury or
illness is not work-related simply because signs or symptoms arise in
the work environment. For non-employees, FRA requires that an event or
exposure arising from the operations of the railroad be a discernable
cause of the casualty, and, as such, FRA did not create a geographic
presumption. Although the railroads would like to limit reportable
injuries and illnesses to those caused by events and exposure that are
uniquely occupational, consistent with OSHA, FRA simply requires for
employees that an event or exposure arising from the operation of the
railroad be a discernable cause of the injury or illness. See Section-
by-Section Analysis for Sec. 225.5, ``Definition--Work related.''
Finally, commenters suggest that employers, and not FRA, are in the
best position to determine causation. Consistent with OSHA, for
purposes of Sec. 225.11, FRA is not reviewing a railroad's reporting
decision to determine whether it was reasonable (except in the case of
occupational illness (See FRA's 2003 Final Rule)); rather, FRA is
determining whether an injury or illness is reportable.
The final rule defines an ``Event or exposure'' as an ``incident,
activity, or occurrence.'' FRA included the definition to clarify that
event or exposure is a term that is to be broadly interpreted and to
eliminate redundant language in the rule text.
Many of the comments that FRA received suggested that normal body
movements such as walking or sneezing do not constitute an event or
exposure. However, consistent with OSHA, FRA considers ``normal body
movements'' to be events within the definition. See OSHA Letter at 3.
Such normal body movement cases are only reportable if they arise from
the operation of the railroad and cause or contribute to the injury or
illness. See Section-by-Section Analysis for Sec. 225.5,
``Definition--Work related'' and ``Definition--Discernable cause.''
Consistent with OSHA's requirements, FRA does not require that the
event or exposure be an ``obvious cause'' of the injury or illness, or
be occupational in nature and, therefore, normal body movements may
result in reportable injuries or illnesses.
[[Page 68871]]
The final rule amends and restructures the definition of ``Event or
exposure arising from the operation of a railroad'' to clarify its
meaning. The term ``event or exposure arising from the operation of a
railroad'' and its definition were added in FRA's 2003 Final Rule to
more narrowly tailor what types of accidents/incidents were considered
to ``arise from the operation of a railroad'' and were, therefore,
potentially reportable. 68 FR 10108, 10115-16, March 3, 2003.
FRA's 2003 Final Rule's definition consisted of three-tiers that
addressed the different classifications of persons on and off railroad
property. The first tier defined ``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.'' The final rule revises this first
tier of the definition by changing ``any person'' to ``a person who is
not an employee of the railroad.'' This amendment is consistent with
the intent of 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. The revision clarifies that the
definition was intended to apply only to persons who are not railroad
employees. The final rule also removes the phrase ``an activity of the
railroad'' such that tier one of the definition concerns an event or
exposure that is related to the performance of the railroad's rail
transportation business. The final rule also removes the reference to
``activity'' since the definition of ``event or exposure'' in the final
rule includes ``activity.'' The final rule also revises the language
proposed in the NPRM to clarify that the newly consolidated tier one
subpart (i) deals with a person who is not an employee and is on
railroad property, rather than an event or exposure occurring on
property. FRA believes this clarifying language is consistent with the
intent of FRA's 2003 Final Rule. As this change is consistent with
current industry reporting practices and the language in the FRA's 2003
Final Rule, the amendment to the final rule should have no impact on
reporting practices and, in fact, is more consistent with current
practices than the language proposed in the NPRM.
The second tier also defined ``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.'' The final rule clarifies this paragraph 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 removes the phrase ``an activity of the railroad,'' since the
definition of ``event or exposure'' in the final rule includes
``activity.'' The final rule also removes the phrase ``(whether on or
off property owned, leased, or maintained by the railroad)'' and the
phrase ``that is related to the performance of the railroad's rail
transportation business * * *'' because the term ``work-related''
encompasses both of those requirements.
The third tier defined ``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. The final
rule revises the language proposed in the NPRM to clarify that the new
consolidated tier one subpart (ii) deals with a person who is not an
employee and is not on railroad property, rather than an event or
exposure not occurring on property. FRA believes this clarifying
language is consistent with the intent of FRA's 2003 Final Rule. As
this change is consistent with current industry reporting practices and
the language in FRA's 2003 Final Rule, the amendment to this final rule
should have no impact on reporting practices and, in fact, is more
consistent with current industry practices than the language proposed
in the NPRM.
The final rule consolidates tier one, tier two, and tier three of
the definition into two tiers so that tier one is applicable to non-
employees and tier two is applicable to employees. The amendments and
restructuring are clarifying measures and do not change the meaning of
the definition. 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.
The final rule amends the language proposed in the NPRM in the
first tier by clarifying that a person who is not an employee is
considered to be on railroad property when they are on property that
the railroad operates over (e.g., operating rights), in addition to
property owned, leased, or maintained by the railroad. FRA does not
believe that this clarifying amendment increases the burden on
railroads because it is consistent with common industry practice as
well as FRA's long-standing policy. Any burden created by this
amendment would be nominal, as a majority of these incidents would have
been captured elsewhere under the prior definition.
The final rule also amends the language proposed in the NPRM in the
first tier (ii)(A) by removing ``highway-rail grade crossing accident
or incident'' from the list of accidents/incidents considered to be
``events or exposures arising from the operation of the railroad'' when
a non-employee is off railroad property. FRA is removing highway-rail
grade crossing accident or incident from the list of off property
accidents/incidents because it is repetitive, as those types of
accidents and incidents are already captured under train accident and
train incident. FRA also added the term ``non-train incident.'' Non-
train incident is defined as an ``event that results in a reportable
casualty, but does not involve the movement of on-track equipment nor
cause reportable damage above the threshold established for train
accidents.'' See Sec. 225.5, ``Definitions--Non train incident.'' FRA
included ``non-train incident'' to make the definition consistent with
FRA's 2003 Final Rule and the 2003 FRA Guide. In the 2003 FRA Guide,
non-train incidents were included in the list of accidents/incidents.
This amendment
[[Page 68872]]
simply clarifies that FRA wants to retain the non-train incidents
events captured under the prior rule and it was inadvertently removed
in the NPRM. FRA does not believe that this clarifying amendment
increases the burden on railroads because it is consistent with the
FRA's 2003 Final Rule, the 2003 FRA Guide, common industry practice, as
well as FRA's long-standing policy.
Amtrak's comments suggested that FRA's definition creates a
geographic presumption of work-relatedness. However, for an injury or
illness to be reportable, an event or exposure arising from the
operation of the railroad must be a discernable cause. As such, it is
not enough that the signs or symptoms of an injury or illness arose in
the work environment. See Section-by-Section Analysis for Sec. 225.5,
``Definition--Work related.''
The final rule makes 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.
The final rule also revises the definition of ``Highway-rail grade
crossing'' to mean a location where a public highway, road, street, or
a private roadway, including associated sidewalks, crosses one or more
railroad tracks at grade, or a location where a pathway explicitly
authorized by a public authority or railroad carrier that is dedicated
for the use of non-vehicular traffic, including pedestrians,
bicyclists, and others, that is not associated with a public highway,
road, or street, or a private roadway, crosses one or more railroad
tracks at grade. The definition further provides that the term
``sidewalk'' means that portion of a street between the curb line, or
the lateral line of a roadway, and the adjacent property line or, on
easements of private property, that portion of a street that is paved
or improved and intended for use by pedestrians.
Although this revision was not expressly addressed in the NPRM, it
is consistent with FRA's long-standing practice as well as the Railroad
Safety Improvement Act of 2008 (the ``RSIA''). Specifically, sections 2
and 204 of the RSIA define ``crossing'' to include such pathway
crossings. Furthermore, section 209 of the RSIA requires that FRA audit
railroads to ensure that all grade crossing collisions and fatalities
are properly reported. Thus, FRA's audits must review railroad records
to ensure that crossings, including such pathway crossing accidents/
incidents, are reported. The final rule's definition makes FRA's
regulations consistent with the RSIA's requirements and enables
accurate auditing and reporting. Moreover, FRA proposed revisions to
the definition of ``Accident/Incident'' with respect to impacts at
highway-rail grade crossings, and received comments on the proposal.
FRA's responses to those comments are discussed above.
The final rule defines ``Injury or illness'' to mean an ``abnormal
condition or disorder,'' (this is consistent with OSHA's definition at
29 CFR 1904.46). FRA is adding the definition to provide examples of
injuries and illnesses and to clarify 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. The final rule also amends the
definition to clarify that a musculoskeletal disorder (MSD) 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. The addition of the
definition is not a substantive change to FRA's current accident/
incident recording and reporting requirements. Rather, the final rule
added the definition in an effort to eliminate confusion as to what
constitutes an injury or illness. FRA also 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.
In response to the NPRM, FRA received comments that asserted that
the proposed definition was not consistent with OSHA because pain and
MSDs are not injuries or illnesses. However, in the OSHA Letter, OSHA
confirmed FRA's understanding that ``pain is an injury or illness * * *
when it is sufficiently severe to meet the general reporting criteria''
and that the MSDs are injuries and illnesses as they constitute
``abnormal conditions.'' OSHA Letter at 4.
Commenters also stated that the proposed definition is overly broad
and would require the railroads to report minor injuries and illnesses.
Because the injury or illness must still meet the general reporting
criteria, FRA will not be capturing minor injuries and illnesses.
Moreover, these amendments are clarifications and do not alter the
railroads' current responsibilities. FRA uses all of this information,
including information about MSDs and lower back pain, to identify
health and safety risks arising from railroad operations.
Other commenters suggested that the experience of pain in the work
environment should not be considered an injury as the person might
simply be experiencing pain as the result of an injury or illness that
was caused by an event or exposure not arising from the operation of
the railroad. UP argued, for example, that a person may experience pain
simply as a result of age or psychological reasons. The final rule does
not require railroads to report injuries or illnesses that are not
caused by an event or exposure in the work environment. Thus, signs or
symptoms of a prior injury or illness that simply manifest within the
work environment or on property owned, leased, operated over or
maintained by railroad, are not reportable. Pain is only reportable
when an event or exposure arising from the operation of the railroad is
a discernable cause of that pain or significantly aggravated that pain
and it meets the general reporting criteria.
Several commenters stated that the term ``abnormal condition'' is
not clear. This terminology is consistent with OSHA's requirements.
Moreover, FRA believes that the term is, in fact, clear and requires
railroads to report adverse medical conditions caused by events or
exposures arising from the operation of the railroad. This definition,
in addition to the examples, provides sufficient guidance for railroads
to properly identify reportable injuries and illnesses. UP stated that
the definition was vague and unclear, and, as a result, UP suggested a
definition based upon diagnostic criteria. An injury or illness that is
simply the result of events or exposures outside of the work
environment is not reportable. Thus, an injury that is simply the
result of the aging process is not reportable. Moreover, an injury or
illness must be caused by an event or exposure arising from the
operation of the railroad. Thus, if an event or exposure arising from
the operation of the railroad significantly aggravated a preexisting
condition or if the person is more susceptible to an injury or illness
discernably caused by an event or exposure arising from the operation
of the railroad due to age, then the injury or illness is reportable.
As the workforce ages, FRA is interested in learning more about the
impact on these demographics and work place safety. As such, FRA
believes that the definition contained in the final rule is
appropriate.
The final rule amends the definition of ``New case'' to apply to
all persons rather than only to employees. Correspondingly, the final
rule replaces the phrase ``in the work environment'' with ``arising
from the operation of a railroad,'' because the term ``work
environment'' applies only to
[[Page 68873]]
employees. This revision 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 believes that this amendment does not affect the reporting
requirements. The final rule also includes the descriptor
``discernably'' before the word ``caused'' in order to maintain
consistency within part 225.
Commenters to the NPRM stated that the amendments to the definition
of ``New case'' inappropriately expanded the definition to apply to all
persons and, in so doing, would create significant costs and reporting
burdens. While the amendments do expand ``New case'' to address persons
beyond employees, the changes are meant to make the definition
consistent with the statutory requirement that railroads report
casualties to all persons. 49 U.S.C. 20901. Moreover, expanding the
term ``New case'' to address casualties to non-employees should not
create significant additional burdens as the revision is meant to
provide guidance to the railroads about when a new record or report
must be created and when the railroads should only update a previously
created record or report for an ``existing case.'' As such, railroads
need only make a new record or report when it is a ``new case'' and may
simply update a record or report for an ``existing case.''
The final rule also amends the definition of ``Qualified health
care professional'' by removing the otolaryngologist example (which had
stated: ``[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.''). The final rule removes this example in order to
clarify that physicians are not limited by their specialty and may
diagnosis conditions while operating within the scope of their license,
registration, or certification. As such, as a licensed physician, an
otolaryngologist may diagnose conditions other than those related to
the ear, nose, and throat. A comment to the NPRM stated that the
example should not be removed, that doctors should not be able to
diagnosis conditions outside of their specialty, and that the example
should be amended from referencing ``repetitive motion injuries'' to
``work-related musculoskeletal disorders.'' As noted, the final rule
clarifies that physicians may diagnose conditions outside of their
specialty while operating within the scope of their license,
registration, or certification. This position is consistent with the
current rule; however, the otolaryngologist example created confusion
(which is why it was removed).
The final rule revises 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, the final rule defines ``railroad''
to mean ``a railroad carrier,'' and adds a definition to Sec. 225.5
for ``railroad carrier'' to mean a ``person providing railroad
transportation.'' Congress added the term ``Railroad carrier'' to 49
U.S.C. 20102 in 1994 (Pub. L. 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.
The final rule adds a definition for ``Significant aggravation of a
pre-existing injury or illness.'' This definition is consistent with
both OSHA's definition as set forth at 29 CFR 1904.5(b)(4) and the
current version (effective May 1, 2003) of the FRA Guide. FRA has added
this definition to Sec. 225.5 for clarification and ease of reference.
The final rule further clarifies that the provisions concerning
days away from work and restricted duty only relate to railroad
employees. This clarifying amendment was made in response to a comment
requesting additional clarification about whether these provisions
apply to ``any person.'' This amendment is consistent with the
reporting criteria found in Sec. 225.19 and will not create any
additional burden on the railroads.
Commenters stated that the definition for ``Significant aggravation
of a pre-existing injury or illness'' is not consistent with the OSHA
definition. Specifically, Amtrak argued that FRA's definition is
different than OSHA's because it contains the term ``discernable
cause.'' However, FRA included this language for clarity and the
definition is, in fact, consistent with OSHA's language. Pursuant to
the OSHA-NAM Agreement, 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]
preexisting condition.''
Amtrak further argued that FRA's removal of ``occupational''
preceding the phrase ``event or exposure'' is also inconsistent with
OSHA. This revision 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. While OSHA
only captures information relating to employees, FRA collects and uses
information for various classifications of persons. As such, FRA
requires railroads to submit information relating to non-employee
injuries and illnesses that arise from the operation of the railroad.
The final rule also adds a definition for ``Suicide data.''
Consistent with FRA's decision 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 to begin collecting suicide related data, FRA is
adding to Sec. 225.5 a definition for ``Suicide data.'' In the NPRM,
FRA proposed that ``Suicide data'' 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.
The final rule revises the definition of ``Suicide data'' to mean
``data regarding the death of an individual due to the individual's
commission of suicide as determined by a coroner, public police officer
or other public authority; or injury to an individual due to that
individual's attempted commission of suicide as determined by a public
police officer or other public authority.'' The FRA Guide explains that
a ``public authority'' is a Federal, State or local government entity,
such as a public health department, that has the legal authority to
declare a fatality a suicide or a casualty to a person as an attempted
suicide. Moreover, the FRA Guide provides for what documentation a
railroad is required to have to show that a person committed suicide or
attempted to commit suicide. See
[[Page 68874]]
Section-by-Section Analysis for Sec. 225.41, ``Suicide data.''
FRA emphasizes that only the information about the death of, or
injury to, the individual who committed the suicidal act is considered
to be suicide data. Thus, information about the death of, or injury to,
any other person caused by another person's commission of a suicidal
act is not 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 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, however, 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.'' FRA inspectors
and State agencies participating in investigative activities under part
212 will have access to the individual records and reports. See Sec.
225.31. States also can obtain individual reports directly from the
railroads pursuant to Sec. 225.1.
Commenters requested that FRA clarify what is considered a public
authority. As explained above, a ``public authority'' is a Federal,
State or local government entity, such as a public health department,
that has the legal authority to declare a fatality a suicide or a
casualty to a person an attempted suicide. MTA asked whether public
authority would include ``a railroad police department or other State
or local police department.'' FRA does not consider a railroad police
officer a public authority within the meaning of those terms. Another
commenter suggested using the phrase ``appropriately qualified public
authority'' to define public authority. FRA believes that the revised
definition provides sufficient clarity as to what is considered a
public authority.
Commenters also suggested that collecting this information (e.g., a
coroner's report) is time consuming and that FRA should consider this
fact when requiring that a railroad complete the relevant forms within
a specific period of time. FRA acknowledges that it may take additional
time to confirm cause of death. As explained, FRA needs this
information to prevent future casualties and to improve rail safety.
However, after acquiring knowledge that a reportable injury or illness
occurred, a railroad must create a Form FRA F 6180.55a for reportable
injury and illness within thirty days after the expiration of the month
during which the accidents/incidents occurred. As such, a railroad may
submit the report as a fatality if a final determination with regard to
cause of death has not yet been reached and, at a later time, update
and amend the record or report once the railroad is able to confirm
cause of death. If a railroad is unable to confirm whether an
individual committed suicide at the end of the investigative period,
the deceased should be listed as the applicable type person (e.g.,
trespasser, non-trespasser). FRA allows railroads to accept verbal
confirmation of an attempted suicide or suicide from a public
authority, so long as the railroad documents in writing the specifics
of the conversation and creates the required audit trail, as explained
in the FRA Guide, rather than requiring written confirmation from the
public police officer, coroner or other public authority. See Section-
by-Section Analysis for Sec. 225.41, ``Suicide data.''
The final rule revises the definition of ``Work environment'' to
explain that the work environment means the establishment and other
locations where one or more railroad employees are working or are
present as a condition of employment. This revision provides additional
clarity and better conforms FRA's definition with OSHA's definition at
29 CFR 1904.5(b)(1).
The final rule revises the definition of ``Work-related'' by
removing the words ``incident, activity, or the like'' and replacing
them with ``event or exposure'' because the definition of ``event or
exposure'' in this section encompasses those terms. The definition
explains 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. The causal event need not be
peculiarly occupational in nature so long as it occurs in the work
environment, and is a discernable cause (i.e., contributory factor).
Further, the final rule states 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. This 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). That
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 also sets
forth nine exceptions to its injury and illness reporting requirements.
The final rule sets forth 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 addition, 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 in
the work environment contributed to the employee's injury or illness.
FRA's requirement is consistent with the NAM-OSHA settlement agreement
and OSHA's regulations at 29 CFR 1904.5(b)(3), in which 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.''
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 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, sneezing) engaged in
[[Page 68875]]
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, operated over 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.
UP contests the work-relatedness presumption. However, the final
rule specifically adopts a presumption of work-relatedness that is
identical to OSHA's presumption to provide uniformity in reporting
requirements between OSHA and FRA and amongst railroads. Moreover, this
allows railroads to report to one agency, FRA. In addition, uniform
reporting requirements allow for comparing safety trends across
industries and among railroads.
UP also suggests that a method/evidence-based approach should be
employed. UP proposes that an injury or illness is considered work-
related if ``1. The medical findings of disease or injury are
compatible with the effects of a disease-producing agent or an injury
producing event to which the worker has been exposed; 2. Sufficient
exposure is present in the worker's occupational environment to have
caused the disease; and 3. The weight of the evidence supports the
disease as having occupational rather than non-occupational origin.''
Alternatively, BNSF suggested using the NIOSH approach when causation
is not obvious. As explained above, under part 225, the railroad must
decide whether, considering the circumstances, it is more likely than
not that an event or exposure arising from the operation of the
railroad is a discernable cause of an injury or illness. If an event or
exposure is a discernable cause, then the injury or illness is presumed
to be work-related. Under this approach, a railroad may consider the
various unique factors associated with each employee's potentially
work-related injury or illness, including, but not limited to, an
employee's medical and work history, in addition to an employee's
statements regarding his or her injury or illness.
Other commenters stated that the definition creates a geographic
presumption because experiencing pain in the work environment is
sufficient to make an injury or illness work-related and reportable.
Contrary to this assertion, the final rule does not create a
``geographic presumption,'' as the event or exposure arising from the
operation of the railroad must be a cause of the injury or illness;
and, therefore, the manifestation of a sign or symptom in the work
environment, by itself, does not make an injury work-related.
Similarly, comments stated that the definition is so broad that
everything is work-related. Again, an injury or illness is not work-
related unless an event or exposure arising from the work environment
is a discernable cause, and it meets one of the general reporting
criteria. Moreover, FRA's definition of work-relatedness is consistent
with OSHA's definition and enables OSHA and FRA to compare safety
trends across industries.
Commenters stated that FRA should collect information about only
injuries and illnesses caused by ``occupational'' events or exposures.
UP claimed that, when railroads are required to report injuries or
illnesses that result from non-occupational events, that data will not
improve railroad safety. Commenters also stated that FRA is not
collecting data about the hazards and risks actually associated with
the railroad industry. For employee injuries and illnesses, OSHA does
not require that the event or exposure be occupational in nature.
Again, adopting OSHA's approach allows the railroads to report to one
agency, FRA, and, so long as FRA maintains reporting requirements
consistent with those of OSHA, FRA's regulations also allow for
comparing safety trends between industries. Finally, FRA uses the
information regarding injuries and illnesses that are not solely
occupational in nature to improve safety and to more fully understand
injuries and illnesses in the work environment.
Sec. 225.6 Consolidated Reporting
The final rule adds Sec. 225.6, which provides an option for
consolidated railroad accident/incident reporting for certain
integrated railroad systems.
Section 20901 of title 49 of the United States Code requires that
each ``railroad carrier'' submit to FRA a monthly report of its
accidents/incidents. A ``railroad carrier'' is defined by 49 U.S.C.
20102 as a ``person providing railroad transportation, except that,
upon petition by a group of commonly controlled railroad carriers that
the Secretary determines is operating within the United States as a
single, integrated rail system, the Secretary may by order treat the
group of railroad carriers as a single railroad carrier for purposes of
one or more provisions of part A, subtitle V of this title and
implementing regulations and order, subject to any appropriate
conditions that the Secretary may impose.'' ``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.''
The final rule provides that 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 FRA grants such a 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 in the
subsidiaries making up such a railroad system will require immediate
notification to FRA and the execution of an amended agreement. In
addition, executed agreements will be published in the docket.
FRA's final rule is consistent with the Surface Transportation
Board's (STB) decision in 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.
Commenters to the NPRM suggested that this revision will dilute
reporting, and make it more difficult to compare trends and to identify
problems. However, FRA believes that this revision will, in fact,
enable the agency to gather more meaningful and accurate data. One
comment also sought additional clarification on who can use
consolidated reporting. Again, as discussed, a parent corporation may
request consolidated reporting where its commonly controlled railroad
carriers operate as a single, seamless, integrated
[[Page 68876]]
United States rail system. In addition, the STB decision, referenced
above, provides further clarification.
Sec. 225.9 Telephonic Reports of Certain Accidents/Incidents and Other
Events
The final rule amends the accident/incident telephonic reporting
requirements related to fatalities that occur at highway-rail grade
crossings as a result of train accidents or train incidents. FRA had
required railroads to report immediately to the National Response
Center (NRC), via telephone, ``a fatality at a highway-rail grade
crossing as a result of a train accident or train incident.'' 49 CFR
225.9(a)(2)(iii). FRA has found that confusion exists as to the
applicability of this requirement when death does not occur at the
scene of the accident/incident, but occurs several hours or days later,
after the fatally injured person is taken to the hospital for
treatment.
As a result, the final rule revises the telephonic reporting
requirement for highway-rail grade crossing fatalities to require
telephonic reporting only if death occurs within 24 hours of the
accident/incident. This revision is consistent with the Department of
Transportation, Office of Inspector General's November 28, 2005
recommendation (Report No. MH-2006-016), which recommended that FRA
amend Sec. 225.9 to clarify the reporting requirements and to include
criteria requiring railroads to report to NRC any death at a highway-
rail grade crossing, only if death occurs within 24 hours of the
accident/incident.
The final rule also makes 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 non-
railroad property.
In the NPRM, FRA requested comments and suggestions on four issues
of concern. One of these issues was Sec. 225.9 telephonic reporting.
Specifically, the NPRM noted that FRA was considering changing the
method by which telephonic reports of accidents/incidents, as required
by Sec. 225.9, are made. Under FRA's current regulations, railroads
are required to telephonically report certain accidents/incidents to
the NRC, who in turn provides notification of the accidents/incidents
to FRA. The NPRM indicated that FRA was reviewing whether it would be
preferable for railroads to report these accidents/incidents directly
to FRA via electronic transmission, and invited comments and
suggestions on the issue.
FRA received comments that were generally in favor of reporting
such accidents/incidents directly to FRA via electronic transmission.
One comment suggested that certain data should be collected, including
railroad contact information closely associated with the accident/
incident, train equipment identification, and hazardous materials
identification. Another comment suggested that railroads should
immediately report any type of railroad related fatality, including
trespasser fatalities and suicides. After reviewing the issue and the
comments, no changes are being made relating to direct reporting
because FRA does not currently have the infrastructure to adequately
address such reporting. However, FRA will take these comments into
consideration in any further evaluation concerning direct reporting.
A commenter suggested that the immediate notification of such
fatalities is not necessary because such data is captured in the
monthly report submitted to FRA. FRA believes, however, that immediate
reporting is necessary so that FRA has the opportunity to physically
investigate the accident/incident before the scene is cleared. Such
reporting ultimately results in the creation of more accurate data. A
comment to the NPRM also suggested that a railroad cannot easily
determine whether there has been a fatality if the individual does not
die at the scene of the accident/incident. FRA believes that railroads
must take reasonable steps to learn whether a fatality occurred within
24 hours of the highway-rail grade crossing accident/incident. Under
the current regulation at Sec. 225.9, there is no such time limit. As
such, the final rule lessens the burden on the railroads to follow-up
on such accidents/incidents under Sec. 225.9 by only requiring
railroads to report if a fatality occurs within 24 hours. As discussed,
this final rule is consistent with the Department of Transportation,
Office of Inspector General's November 28, 2005 recommendation (Report
No. MH-2006-016). A comment to the NPRM also suggested that such
reports be made electronically, rather than telephonically, to allow
for greater efficiency and accuracy. FRA does not currently have the
infrastructure to accommodate this suggestion. FRA does, however,
currently receive electronic updates after the initial report to the
NRC, which ensures that FRA has all of the relevant information.
Lastly, a comment to the NPRM suggested that ``horrible injuries''
should also be reported under Sec. 225.9. The final rule does not
adopt this suggestion because the phrase ``horrible injuries'' is
vague, would be difficult to enforce, and FRA Form F 6180.55a captures
information relating to the nature of the injury.
The final rule also revises the Telephonic Reporting Chart
contained in the FRA Guide, Appendix M in order to make it consistent
with the final rule text as the chart contained in the 2003 Final Rule
was not consistent with the regulatory text. These amendments are
clarifying in nature, and will impose no additional burden on
railroads. See FRA Guide for additional information.
Sec. 225.11 Reporting of Accidents/Incidents
In this section, the final rule lists 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 (e.g.,
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). This final rule provides FRA with better and more useful
data, while also providing quicker access to such data.
The final rule also updates this section to reflect the revised
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, Sec. 225.15 is revised 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 2003
FRA Guide). As discussed in the Section-by-Section Analysis of Sec.
225.5, ``Definitions'' with respect to the 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
[[Page 68877]]
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.'' 29 CFR
1904.5(a). FRA established certain reporting exceptions in Sec. 225.15
in FRA's 2003 Final Rule and also adopted OSHA's reporting exceptions
in the 2003 FRA Guide.
FRA's list of exceptions in this final rule includes both the FRA
created exceptions and the exceptions set forth by OSHA at 29 CFR
1904.5(b) as adopted by FRA. 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 final rule
text.
In making this revision, FRA leaves paragraph (a) substantively
unchanged.
In paragraph (b), FRA addresses reporting exceptions for Worker on
Duty--Employee (Class A) injuries and illnesses. Paragraph (b) retains
the current paragraph (b)(1) reporting exception relating to injuries
and illnesses occurring in living quarters. The final rule also adds
additional reporting exceptions applicable to Worker on Duty--Employee
(Class A) (paragraphs (b)(2) through (b)(3)). The final rule also
revises the NPRM language to clarify that these exceptions do not
affect a railroad's obligation to evaluate and report those injuries
and illnesses as another class of persons (i.e., Employee not on duty
(Class B); Passenger on Trains (Class C); Nontrespassers-On Railroad
Property (Class D); Trespassers (Class E)), rather than as only
Employee Not On Duty (Class B). For example, an employer who is present
in the work environment as a member of the general public and is
injured may qualify as a Class C or Class D person, rather than as a
Class B person. This is a clarifying amendment; therefore, it should
not alter railroads' reporting responsibilities and is consistent with
the exceptions contained in FRA's 2003 Final Rule and 2003 FRA Guide.
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). With respect to the reporting exception listed in
paragraph (c)(5), self-inflicted casualties do not need to be reported
except that, for FRA reporting purposes, a railroad will still be
responsible for reporting or recording self-inflicted casualties that
are determined to be suicides and attempted suicides that qualify as
accountable or reportable. FRA will not be providing suicide data to
DOL.
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, operated over 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, operated over, or maintained by the railroad. The
application of the exceptions as stated in paragraph (d) do not reflect
any change to FRA's provisions, but is included to clarify the
applicability of the reporting exceptions to contractors and
volunteers. Consistent with the changes made to the definition of
``event or exposure arising from the operation of the railroad,''
paragraph (d) was amended to include the term ``operated over.'' FRA
does not believe that this clarifying amendment increases the burden on
railroads because it is consistent with common industry practice as
well as FRA's long-standing policy.
Lastly, paragraph (e) addresses reporting exceptions for rail
equipment accidents/incidents which were included in the 2003 FRA
Guide.
The agency believes that the incorporation of these exceptions into
the rule will provide a better understanding of FRA's employee injury
and illness reporting requirements. Again, 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.
The final rule also eliminates from the reporting exceptions
suicides and attempted suicides. In doing so, FRA is requiring that
casualties due to suicides and attempted suicides, that arise from the
operation of the railroad and 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.'' In addition, casualties due to suicides and attempted suicides
that arise from the operation of the railroad and meet the general
reporting criteria listed in Sec. 225.19(d)(1) through (d)(6) should
be included on Form FRA F 6180.55, ``Railroad Injury and Illness
Summary,'' in Field 18, Reported Casualties. Under this system, a
reportable injury caused as a result of a suicidal act is 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). FRA will not report such suicide data cases to
DOL. FRA will also 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. Instead, FRA will
maintain such 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 about FOIA requests, see FRA's Web site at
http://www.fra.dot.gov/us/foia. Suicide data will be available to FRA's
inspectors and other authorized representatives, including State
agencies participating in investigative surveillance activities under
part 212. See Section-by-Section Analysis for Sec. 225.41, ``Suicide
data.'' States will also be able to obtain individual reports directly
from the railroads pursuant to Sec. 225.1. See Sec. 225.1, ``Suicide
data;'' see also Section-by-Section Analysis for Sec. 225.1, ``Suicide
data.''
In addition, casualties due to suicides and attempted suicides that
arise from the operation of the railroad and meet the general reporting
criteria listed in Sec. 225.19(d)(1) through (d)(6) shall also be
included in Field 18, Reported Casualties, on Forms FRA F 6180.55,
[[Page 68878]]
``Railroad Injury and Illness Summary.'' This will allow FRA to verify
the number of forms submitted with the count listed on the form. The
railroad should report the person by the ``type of person'' regardless
of the fact that it is suicide data. As such, if a trespasser commits
suicide on the railroad, the railroad should report it as a trespasser
fatality. See FRA Guide, Chapter 3.
Suicide data counts will also 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,'' so that the 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. In
addition, suicide data counts will also be included in casualty counts
on Form FRA F 6180.97, ``Initial Rail Equipment Accident/Incident
Record.'' See Sec. 225.41, ``Suicide data;'' see also Section-by-
Section Analysis for Sec. 225.5, ``Definitions,'' and the FRA Guide,
for additional information.
UP requested that highway-rail grade crossing accident/incidents
that result from suicides or attempted suicides not be included on the
Form FRA F 6180.57. As explained above, the final rule requires the
inclusion of this information on the Form FRA F 6180.57 so that the
number of casualties is consistent with the number of casualties on
Form FRA F 6180.55a and on the Form FRA F 6180.54 that might also be
required for the same incident. In addition, FRA only excludes the
individuals who committed or attempted suicide and, therefore,
casualties to others involved in the same incident as a result of the
suicidal act may be reportable. Moreover, a Form FRA F 6180.57 must be
created for any impact regardless of cause or intent. The Form FRA F
6180.57 does not require any Personal Identifying Information (PII)
and, as such, FRA is not as concerned about making the individual forms
available to the public. See FRA Guide.
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 CPUC 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 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 on railroad tracks, it is
appropriate to report and collect data about suicides in addition to
the other causes of death in the industry. By requiring that the
information be reported as suicide data, these fatalities will not be
included in the normally reported fatality data. This 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.
Comments suggested that the collection of suicide data would create
a duty on the part of the railroad to those individuals attempting to
commit suicide as the railroads would now be aware of potential suicide
hotspots. However, prior to this Final Rule, railroads were exempt from
reporting suicides and attempted suicides. In order to exclude suicides
and attempted suicides, railroads were required to prove cause of death
by obtaining relevant documents to prove that a casualty was an
attempted suicide or suicide. Consequently, railroads should already
have knowledge of where suicides and attempted suicides are taking
place. Therefore, the final rule does not create a new duty for the
railroads, rather it simply requires them to compile the data.
Ultimately, by collecting this information, FRA and other government
agencies will be able to decrease the number of suicides and attempted
suicides occurring on the railroad.
Amtrak stated in its comments that persons entering railroad
property to commit suicide are considered trespassers and the suicide
is considered a superseding event. As such, Amtrak claims that an event
or exposure arising from the operation of the railroad is not a cause.
Consistent with OSHA, FRA maintains a no fault reporting system. As
such, it does not matter whether the person caused their own injury so
long as the event or exposure arising from the operation of the
railroad is a discernable cause and it meets the general reporting
criteria. And, the collection of this data will help to decrease the
number of suicides and attempted suicides that occur each year.
Moreover, FRA will not be providing this information to DOL.
Commenters suggested that the collection of suicide data will not
improve safety. As stated above, FRA believes that there are many
benefits to collecting this information. Specifically, FRA will be able
to determine where and how many suicides are occurring on the railroad.
Suicides will be segregated from other fatalities, avoiding an over
count of fatalities associated with railroad operations, and data will
be gathered systematically so that others may use the data to design
interventions.
In order for FRA to capture suicide data, the final rule requires
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--The final rule requires that an ``X,''
representative of ``suicide or attempted suicide,'' be placed in
``Special Cause Code'' block 5r, when applicable. The final rule also
changes the title of block 5m from ``Result'' to ``Tools.'' This change
is a correction to the current form and is
[[Page 68879]]
necessary to maintain consistency with types of Circumstance Codes in
Appendix F of the FRA Guide.
(2) Form FRA F 6180.54--The final rule adds 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 are added to Appendix C, ``Train Accident
Cause Codes'' to refer to ``Suicide or Attempted Suicide'' for use in
``Primary Cause Code'' block 38. The final rule also requires railroads
to include suicides and attempted suicides in the casualty counts in
blocks 46, 47, and 48, as applicable.
(3) Form FRA F 6180.57--The final rule adds a code for ``Suicide or
Attempted Suicide'' to block 41 (the final rule also changes, among
other things, the title of block 41 from ``Driver'' to ``Highway
User.''). In addition, the final rule requires railroads to include
suicides and attempted suicides, when appropriate, in the casualty
counts in block numbers 46, 49, and 52. See FRA Guide for additional
information.
In addition, when appropriate, the final rule requires railroads to
indicate whether a suicide or an attempted suicide was a cause of an
injury or illness or an accident or incident in the applicable
narrative or description section on the following forms: FRA F 6180.98,
``Railroad Employee Injury and/or Illness Record'' and FRA F 6180.97,
``Initial Rail Equipment Accident/Incident Record.'' While employee
suicides or attempted suicides are rare, FRA is still interested in
capturing that information in order to learn more about suicides and
attempted suicides in the work environment.
Commenters inquired as to whether the NPRM's proposed cause codes
were sufficient to capture the facts surrounding suicides and attempted
suicides. FRA believes that the codes and instructions listed above are
sufficient at this time to identify key information. FRA welcomes the
inclusion of additional information regarding such accidents/incidents
in the applicable form's narrative section (e.g., that the person is
homeless).
FRA notes that it is also concerned that suicides are being
reported as trespasser fatalities, because some railroads have not
always made a 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 revises
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 verbal or written confirmation of a trespasser's cause of
death by contacting the coroner, public police officer or other public
authority by telephone and, if unsuccessful in obtaining the needed
information by telephone, must follow-up 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 confirmation. This
record and any documentation related to the case obtained by the
railroad must be available for review and copying by an FRA
representative under the same criteria as set forth in Sec. 225.35(b).
If a railroad cannot obtain confirmation of the cause of death by the
end of the six month period, the railroad shall report the fatality as
a trespasser fatality.
FRA also revises Chapter 6 of the FRA Guide to clarify what
documentation is required to prove that an individual committed suicide
or attempted to commit suicide. FRA understands that railroads often
have difficulty obtaining copies of death certificates and/or have to
wait until the death certificate becomes publicly available. As such,
as explained in the FRA Guide, railroads may accept verbal confirmation
of a suicide or attempted suicide from a coroner, public police
officer, or other public authority. When receiving verbal confirmation
of a suicide or attempted suicide, a railroad must create an audit
trail of that confirmation so that FRA can independently verify and
confirm the determination. As part of this audit trail, for example,
the railroad must document the date and time of verbal confirmation in
addition to the name, title, address, and telephone number of the
person who determined the cause of death or injury.
Commenters stated that this information is too difficult to obtain,
and that public authorities will often not cooperate with the
railroads. Similarly, SEPTA suggested that the law prevents them from
obtaining the written confirmation necessary to prove that a person
committed suicide or attempted to commit suicide. However, railroads
have been able to obtain this information under the requirements in the
2003 Final Rule and, therefore, FRA expects that they will continue to
be able to do so. In addition, FRA hopes that allowing verbal
confirmation will ease the railroad's burden. Finally, when
investigating a trespasser fatality, if a railroad cannot obtain the
required information after making a documented, good faith effort for
six months, then the railroad may discontinue its investigation and
report the casualty as a trespasser fatality.
Commenters also stated that the follow-up requirements are too
burdensome. SEPTA suggested that railroads should only have to follow-
up for 3 months, rather than 6 months. Moreover, other comments
suggested that only one document request and one follow-up request
should be necessary. However, based on past comments, railroads have
asserted that public authorities require additional time to conclude
that a fatality is a suicide. Therefore, FRA believes that the extended
investigation period is necessary. Once a railroad obtains a
determination, they may terminate their investigation. The FRA Guide
indicates that a railroad must follow-up in writing only if a public
authority cannot be reached by telephone, and then must continue such
efforts for six months or until they have received confirmation. FRA
does not mandate how the continued efforts be conducted, in writing or
by telephone, so long as those efforts are documented. Consequently,
after attempting to reach the public authority once by phone and in
writing, a railroad may select the means by which they continue their
investigation. Again, if a railroad cannot obtain the required
information after making a documented, good faith effort for six
months, then the railroad may discontinue its investigation and report
the casualty as a trespasser fatality. Finally, FRA believes that these
efforts are necessary based on the past apparent over-reporting of
trespasser casualties that were in fact suicides.
Sec. 225.17 Doubtful Cases
In this section, the final rule amended part 225 by re-designating
the ``Alcohol or Drug Involvement'' provisions, currently contained in
Sec. 225.17(d), to a newly added Sec. 225.18. FRA has observed that
the inclusion of the two unrelated topics in one section has led to
confusion. This revision is intended to reduce possible confusion and
does not substantively change FRA's current accident/incident reporting
requirements.
Sec. 225.18 Alcohol or Drug Involvement
As stated above, the final rule adds a new section, Sec. 228.18,
re-designating the Alcohol and Drug provisions currently contained in
Sec. 225.17(d) to a new section, Sec. 225.18, for purposes of clarity
only. The final rule also makes the following technical amendments:
[[Page 68880]]
changing the word ``title'' to ``chapter,'' to reference the correct
term; inserting ``49 CFR'' in front of Sec. 219.209, for clarity; and
changing the word ``paragraph'' to ``section,'' to accommodate the
proposed re-designation of Sec. 225.17(d) to Sec. 225.18 (a)-(d).
Commenters suggested that contractors and subcontractors be
included in Sec. 225.18. The final rule does not adopt this suggestion
because it is outside of the scope of the proposed rulemaking.
Specifically, the NPRM did not propose any substantive changes, rather
the sections were simply divided into two sections for purposes of
clarity, and several technical amendments were made.
Sec. 225.19 Primary Groups of Accidents/Incidents
In this section, the final rule revises 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.
As discussed, FRA's accident/incident reporting regulations that
concern railroad occupational casualties are maintained, to the extent
practicable, in general conformity with OSHA's recordkeeping and
reporting regulations in order to enable data comparisons 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
only have to report occupational casualties to FRA, rather than to both
OSHA and FRA. See 29 CFR 1904.3.
With respect to employee injury and illness recording, OSHA's
regulations require 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,
the final rule better conforms its reporting requirements to that of
OSHA. The final rule also clarifies that only new cases are reportable
(the current regulation requires that the injury or illness must be a
new case or a significant aggravation of a pre-existing injury or
illness). The final rule, therefore, requires, 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 and symptoms had
disappeared) from the previous injury or illness and an event or
exposure in the work environment caused the signs or symptoms to
reappear).
The final rule also revises paragraph (d) by amending 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.
Amtrak expressed concern that extending the reporting criteria to
non-employees would impose a significant burden on the passenger
railroads. As an initial matter, significant injuries are limited to a
small number of injuries (e.g., fractured or cracked bone or punctured
eardrum), which must be diagnosed by a qualified physician, further
narrowing the number of probable cases. In addition, significant
injuries are generally serious, and are the type of injuries the
railroads should already be investigating, and will generally meet the
other general reporting criteria (i.e. someone with a broken bone will
most likely receive medical treatment). As such, these changes should
not substantially increase the investigative duties of the railroad or
the number of cases they are reporting. With respect to loss of
consciousness cases, railroads will not be required to report cases
where the passenger's loss of consciousness is not due to an event or
exposure arising from the operation of the railroad. For these reasons,
FRA does not believe that the additional reporting criteria for non-
employees will significantly increase the number of reportable cases.
In addition, the final rule amends paragraph (d)(6)(E) (previously
(d)(6)(v)) to remove the word ``independently'' for purposes of
clarity. As explained in the Section-by-Section Analysis, 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, the final rule amends 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.
Sec. 225.21 Forms
In this section, the final rule amends paragraph (j) in relation to
the use of Form FRA F 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related.'' Specifically, the final rule makes the
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 amends and redesignates the instructions for the
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 and a discussion of the relevant comments.
The final rule also amends this section by adding a paragraph (k)
to address the newly created Form FRA F 6180.150, ``Highway User Injury
Inquiry Form.'' See FRA Guide. Form FRA F 6180.150 shall be used by the
railroads in determining whether a highway user suffered a reportable
injury or illness in addition complying with part 225's accident/
incident requirements. A copy of the Form FRA F 6180.150 shall be sent
to each potentially injured highway user, or their representative,
involved in a highway-rail grade crossing accident/incident along with
a cover letter and a prepaid/preaddressed return envelope. See FRA
Guide, Chapter 10 for complete instructions. A railroad shall not send
a Form FRA F 6180.150 to a highway user, or a highway user's
representative, who has died as a result of the accident/incident. The
railroad shall complete Part I of Form FRA F 6180.150 and send the form
with the completed Part I to the highway user, or their representative.
See FRA Guide for complete instructions. Moreover, the cover letter
shall be drafted in accordance with the instructions contained in the
FRA Guide. See FRA Guide, Chapter 10.
Sec. 225.25 Recordkeeping
In this section, the final rule eliminates from paragraph (a) the
words ``that arise from the operation of the
[[Page 68881]]
railroad,'' in order to maintain conformity with the 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 reportablility, 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.
The final rule also revises 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.
Prior to FRA's most recent amendments to part 225 in 2003, FRA
required that 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:
Although 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 occupational 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; illnesses 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 later 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,'' describing 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
Illnesses Claimed to be Work-Related,'' to record only those illnesses
described above, FRA found that railroads were frequently 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. Furthermore, FRA found that railroads were allowing
these records to remain unevaluated for several months or more without
updating or reviewing them for work-relatedness. Moreover, FRA found
that railroads were not creating the Form FRA F 6180.107 record within
seven working days after receiving information or acquiring knowledge
that an employee asserted an occupational illness, as required by the
FRA Guide. Consequently, this system of accounting did not focus
responsibility for reporting decisions, did not provide an appropriate
audit trail, did not result in a body of information that can be used
in the future for research into the causes of prevalent illnesses, and
was not helpful in correcting the under-reporting of occupational
illnesses to FRA.
In order to correct this problem, the final rule refines the
circumstances and procedures related to the recording of claimed
occupational illnesses on Form FRA F 6180.107. Specifically, the final
rule allows the use of the form 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. The final
rule 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 fifteen calendar days of receipt, compared to the seven
days proposed in the NPRM, and re-evaluate the case in light of the new
information within forty-five calendar days of receipt of the
information, compared to the thirty days proposed in the NPRM; complete
a Form FRA F 6180.98 for any claimed occupational illness case
determined to be accountable or reportable within seven calendar days
of making such determination; retain the record in accordance with the
provisions set forth in Sec. 225.27 and report the illness in
accordance with the regular reporting requirements; and provide
complete narratives on Form FRA F 6180.107 for those cases the railroad
determines are not reportable. The final rule also specifically defines
[[Page 68882]]
what data elements an alternative railroad-designed Form FRA F 6180.107
must contain.
Commenters suggested that there is no evidence of underreporting of
occupational illnesses and, therefore, the narrowing of the use of the
Form FRA F 6180.107 would impose a significant burden on the railroads.
As explained above, FRA has found that the railroads have routinely
used the Form FRA F 6180.107 to record all occupational illnesses and
have failed to review additional evidence for lengthy periods of time,
and that use of the form has resulted in the under-reporting of
occupational illnesses. FRA believes that it is necessary to limit the
use of the form to situations where the cause has not yet been
determined, to avoid abuse of the form, to create an up-to-date audit
trail, to continue to provide additional time to investigate causation
based on the unique nature of occupational illnesses and to ensure that
additional evidence is considered within a reasonable period of time.
Many of the commenters critiqued the requirement that railroads
update the forms and review additional information within a certain
period of time. Several railroads also requested additional time to
review new evidence and to update the forms. During the hearing on the
NPRM, FRA requested that the railroads provide FRA with a timeframe
that they believe is appropriate to update the forms and review
additional evidence. AAR suggested that the current reporting timeline,
which requires the railroad to update the form by December 1 of the
following year, is appropriate. However, AAR also felt that 365
calendar days would be appropriate. In its comments, AAR failed to
explain why such a lengthy period of time would be necessary. As
explained above, railroads have used the Form FRA F 6180.107 to avoid
reporting occupational illness by failing to reconsider additional
information and to fully investigate the occupational illness. As such,
FRA does not believe railroads need 365 days to simply update a form
and to consider new evidence. Upon review, the final rule lengthens the
amount of time that the railroads have to review new evidence and to
update the Form FRA F 6180.107 from 30 days to 45 days. Moreover, the
Form FRA F 6180.107 is an optional form that the railroads may use for
occupational illnesses where they have not yet determined the cause of
the injury or illness.
AAR also submitted comments suggesting that the railroads should
not be required to seek out information on claimed occupational
illnesses. Specifically, AAR asserted that there is usually litigation
surrounding these types of injuries and, as such, it is difficult to
fully investigate the illnesses. Moreover, AAR claims that it will be
difficult for FRA to determine whether the railroads made a good faith
effort to determine causation. As an initial matter, the railroads'
concerns about litigation should not prevent them from making
reasonable inquires in addition to updating the Federally required
forms as they receive and review new information. However, FRA
specifically created the Form FRA F 6180.107 as an alternative form to
provide the railroads with additional time to investigate these
illnesses because of the unique nature of occupational illnesses and
the external delays caused by litigation. Railroads should document
their efforts, record new information, and evaluate that new
information as required so that FRA can determine whether they are
making a good faith effort. Again, the additional requirements are
necessary based upon the railroads' past use of the Form FRA F 6180.107
to document all occupational illnesses without making an initial causal
determination, even in cases when work-relatedness was obvious, and
then failing to update the form when they acquired new information
within a reasonable time period.
The final rule amends the requirement at 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,'' requires the input
of the ``Employee identification number'' only (eliminating for privacy
reasons the employee social security number option). The final rule
makes the same amendment to the alternative railroad-designed record
for Form FRA F 6180.107, ``Alternative Records for Illnesses Claimed to
be Work-Related.'' The final rule also makes corresponding changes for
Forms FRA F 6180.98 and 6180.107. See FRA Guide.
The final rule replaces 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 Form FRA F 6180.97, ``Initial Rail
Equipment Accident/Incident Record,'' respectively. This amendment is
technical, and is not intended to effect any substantive change.
The final rule also amends the requirements for alternative
railroad-designed records by amending Sec. 225.25(b)(28) and (e)(28),
and the newly created (j)(25), to reflect that the date required is the
initial date the form was signed/completed. FRA finds it necessary to
make this 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 will resolve any confusion regarding the
requirement. The final rule creates a similar requirement for the
alternative railroad-designed Form FRA F 6180.107, ``Alternative Record
for Illnesses Claimed to be Work-Related,'' and Forms FRA F 6180.98,
6180.97, and 6180.107. See Section-by-Section Analysis for Appendix H,
``Forms.''
Sec. 225.27 Retention of records
In this section, the final rule adds a five-year record retention
requirement for Form FRA F 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related'' and Form FRA F 6180.150, ``Highway User
Injury Inquiry Form.'' The 2003 Final Rule did not set forth a
retention period for the Form FRA F 6180.107 and the Form FRA F
6180.150 is a newly created form. Five years is the same retention
period as that of Form FRA F 6180.98, ``Railroad Employee Injury and/or
Illness Record,'' and is appropriate for accurate recordkeeping and
auditing purposes. In addition, the final rule makes a technical change
by restructuring the format of paragraph (a) in order to provide
additional clarity.
The final rule also adds 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 shall 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, the final rule requires the railroad to
also retain a hard copy print out 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. These
[[Page 68883]]
requirements are made in light of the new electronic submission options
in Sec. 225.37, ``Optical media transfer and electronic submission,''
of this final rule.
The final rule also adds system standards for the electronic
retention, by railroads, of accident/incident records. Historically,
railroads have retained these records in hard copy form. Railroads may
maintain these records electronically, so long as the integrity of the
records are maintained. In order to ensure such integrity, the final
rule adds minimum system requirements for the electronic retention of
accident/incident records. These system standards do not become
effective until after October 31, 2011. The final rule establishes this
delayed effective date, with respect to this requirement only, to
provide railroads with sufficient time to bring any electronic
retention systems into compliance.
A commenter stated that railroads do not receive receipts from FRA
acknowledging receipt of their electronic reports. FRA is reviewing
this issue to ensure that railroads receive such receipts when
electronic reports are properly submitted. A commenter also stated that
the electronic records retention requirements are redundant and
burdensome because railroads will have to retain every minor change,
and will also result in a high cost to the railroads to both report and
store such reports. However, FRA needs to track the development of
these forms for purposes of accurate auditing. In addition, the ability
to electronically submit forms should ease any possible burden.
Moreover, railroads are already required to store many of these
records. And, with respect to the Form FRA F 6180.55, the final rule
only seeks an extra 36 months of records (with one report per month,
for 36 months). This burden is further eased by the fact that the
electronic retention system standards do not go into effect until after
October 31, 2011. In addition, railroads are not required to retain
records electronically.
Sec. 225.33 Internal Control Plan
In this section, the final rule clarifies the current ambiguity of
element number 11 of the internal control plan 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.
In addition, FRA notes that it published a Notice of Interpretation
in the Federal Register on March 30, 2009, informing interested parties
of its application and enforcement of the harassment or intimidation
provisions contained in 49 CFR part 225, specifically relating to
situations in which a supervisor or other railroad official accompanies
an injured employee into an examination room. See 74 FR 14091. FRA
includes that Interpretation here for interested parties, as follows:
A. General Principle
Harassment and intimidation occur in violation of Sec.
225.33(a)(1) when a railroad supervisor accompanies an injured
employee into an examination room, unless one or more of the
exceptions listed in section II(B) of this notice exists.
B. Exceptions
FRA recognizes that there are limited circumstances in which it
is appropriate, and indeed preferable, for a supervisor to accompany
an injured employee into an examination room. Thus, FRA believes
that limited exceptions to the general principle articulated in
section II(A) of this notice are necessary. Consequently, FRA
recognizes the following limited exceptions:
(1) The injured employee issues a voluntary invitation to the
supervisor to accompany him or her in the examination room. The
injured employee must issue this invitation freely, without
coercion, duress, or intimidation. For example, an injured employee
may seek the attendance of a supervisor where the supervisor is a
friend. This exception does not encompass invitations issued by
third parties, including physicians, unless the invitations are made
pursuant to the request of the injured employee.
(2) The injured employee is unconscious or otherwise unable to
effectively communicate material information to the physician and
the supervisor's input is needed to provide such material
information to the physician. In these circumstances, the supervisor
is assisting the injured employee in providing information to the
physician so that the injured employee may receive appropriate and
responsive medical treatment.
A commenter requested that the final rule ``include safety'' in
this section. However, the intended meaning of this comment is unclear.
Regardless, safety is a critical component of Sec. 225.33, along with
all of FRA's regulations.
Sec. 225.37 Optical Media Transfer and Electronic Submission
The final rule updates the title of this section, to reflect
changes in technology, to read, ``Optical media transfer and electronic
submission.'' In 1994, at the request of many railroads, FRA designed a
method for railroads to submit their monthly accident/incident reports
to FRA using computer technologies. At the time, high speed Internet
access was not available in many locations. Most Internet users used
voice grade phone lines to access the Internet. Transferring high
volumes of data was difficult and often led to data transmission errors
(missing records or errors in characters received in transmission). The
other technology used for sending data was a nine-track magnetic tape
or 3\1/2\ inch ``floppy disk.'' Both the 9-track tape and floppy disk
use a magnetic surface to record data. Due to the probability of errors
in both data transmission and magnetic media, FRA required a Batch
Control Sheet (Form FRA F 6180.99) to verify a complete and accurate
receipt of all data.
The current state of computer technology has changed significantly.
High-speed Internet access is almost ubiquitous, via cable, DSL, and
satellite. Transmission using phone lines and wireless (using cell
phone technology) has also improved. Optical media (CD-ROM) is very
reliable and the data is ``burned'' into the disk. Optical media has
replaced magnetic media for most data transfer (USB flash drives are
not intended for this type of data exchange). In amending the current
regulation, FRA has taken into account the current computer
technologies by eliminating the requirement for a Batch Control Sheet,
and substituted ``magnetic media'' with ``optical media.'' Further, FRA
allows for document transmission using the .jpg and .pdf formats.
The final rule also makes 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. The final rule replaces the oath
and notarization requirement of 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. Section
20901 of Title 49 of the United States Code requires a railroad to 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 a railroad reporting officer to make a sworn statement, under
oath, before a notary public each month attesting to the accuracy of
that month's submission. The question has arisen as to whether an un-
sworn, un-notarized statement is adequate to fulfill the
[[Page 68884]]
section 20901 oath requirement. In 1976, Congress addressed the use of
``unsworn declarations under penalty of perjury,'' in lieu of a sworn
affidavit. Section 1746 of Title 28 of the United States Code, entitled
``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 section 20901 can be met via an unsworn, un-notarized
statement, so long as the statement meets the requirements set forth in
28 U.S.C. 1746.
The final rule also updates the regulatory text to include
provisions allowing railroads to make their monthly reporting
submissions (Form FRA F 6180.54, ``Rail Equipment Accident/Incident
Report''; Form FRA F 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet)''; and Form FRA F 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 be submitted
as an image of the completed and signed hard copy and must be in a .pdf
or .jpg file format only, and the Form FRA F 6180.81 must also be in a
.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 Sec. 225.27(c) of this
final rule. FRA will provide to the railroad an electronic notice
acknowledging the agency's receipt of Form FRA F 6180.55 reports which
are filed electronically via the Internet. Railroads must also maintain
a hard copy of this acknowledgment notice for at least five years after
the calendar year to which the report acknowledged relates, in
accordance with Sec. 225.27(c) of this final rule. The final rule also
removes the language in paragraph (e), and replaces it with a statement
requiring that railroads choosing to use the optical media transfer
option, or the electronic submission via Internet option, must use one
of the approved formats specified in the FRA 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. The previous requirements
of paragraph (e) are no longer necessary because they addressed issues
relating to magnetic media.
Sec. 225.41 Suicide Data
In this section, the final rule adds 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.\6\
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\6\ The discussion in this section with regard to States access
to reports and reports relates only to those records and reports
containing suicide data.
---------------------------------------------------------------------------
In the NPRM, FRA requested comments and suggestions regarding
States' access to records containing ``suicide data.'' FRA is concerned
about the public use and dissemination of this data due to its
sensitive nature, but also wants States to have access to such
information for safety and enforcement purposes. Under the 2003 Final
Rule, States could obtain reports directly from railroads pursuant to
Sec. 225.1. In addition, State agencies participating in investigative
activities under part 212 could obtain records and reports from the
railroads and FRA.
The final rule does not amend Sec. 225.1 as it relates to State
access; as such, States may still obtain reports directly from a
railroad. All of the reports that the States may access contain no
Personal Identifying Information (PII) and, therefore, FRA is not
concerned about their availability and use. In addition, the final rule
does not amend State access pursuant to part 212, as that access is
subject to an FRA agreement, see Sec. 212.105, and allows States to
assist FRA with its safety mission. State agencies participating in
investigative activities under part 212 will have access to relevant
claims and medical records in addition to Federal records and reports
pursuant to Sec. 225.35(b), which do contain PII. State access to
these documents is limited to their role in investigative activities
and is for the purpose of improving safety; therefore, the final rule
does not limit State access pursuant to part 212. Once a State obtains
copies of documents pursuant to part 212 or Sec. 225.1, their
disclosure and use are governed by the State's privacy laws. Again, FRA
wants to limit the distribution and use of the individual records and
reports due to the sensitive nature of the information, and has limited
the general public's access to the extent reasonably practicable by
limiting its availability online through FRA.
Commenters stated that States wanted access to these reports to
ensure the accuracy of their own databases and for other safety
purposes. FRA believes that the States should have access to the
``Suicide data'' in addition to the individual reports, pursuant to
part 212 and Sec. 225.1, so that they may take steps to understand and
prevent suicides occurring on the railroad. As stated above, pursuant
to Sec. 225.1, States only have access to certain reports (e.g., Forms
FRA F 6180.54, FRA F 6180.57 and FRA F 6180.55a) and do not have access
to any records (e.g., Forms FRA F 6180.98 and FRA F 6180.97). Forms FRA
F 6180.54, FRA F 6180.57, and FRA F 6180.55a do not contain PII and the
FRA Guide contains instructions requiring railroads to not include any
PII in the narrative section. As such, FRA is not concerned about
allowing the railroads to provide those records to the States pursuant
to Sec. 225.1.
As discussed above, State agencies participating in investigative
activities under part 212 can obtain records and reports from the
railroads and FRA. In this case, State agencies will have access to
documents containing PII. Once the State agencies' obtain these
documents, their disclosure will be subject to State privacy laws
rather than FOIA requests. While FRA wants to limit the general
public's access to these documents and their dissemination due to their
sensitive nature, FRA believes that States will be able to use this
information to improve safety and that FRA has limited the availability
of this information to the extent reasonably practicable.
ICC suggested that FRA create a secure Web site so that more
information may be made available. At this time, FRA does not plan on
creating such a Web site. Instead, FRA is making
[[Page 68885]]
all of the relevant information available in the aggregate for the
general public.
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. The final rule revises the schedule
of civil penalties to reflect revisions 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).
Although the schedules are statements of agency policy, the NPRM
provided interested parties with an opportunity to comment. However, no
such comments were submitted.
FRA Guide
Generally, FRA makes the following revisions to the FRA Guide: An
improved table of contents; clarifying instructions on Forms FRA F
6180.57, 6180.54, and 6180.150 that have fields requesting an U.S. DOT
Grade Crossing Identification Number includes and is referencing the
U.S. DOT Grade Crossing Inventory Number; an updated e-mail and U.S.
postal mail address for the monthly accident/incident reporting
submissions; the addition of a subject index; the reorganization of the
chapter contents for ease of use; the inclusion of necessary updates;
the inclusion of new and revised ``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; the
inclusion of the prior and the current reporting threshold to reflect
changes made in part 225; the inclusion of Web addresses for access to
the most up-to-date contact information and data contained in the
appendices; and the elimination of redundant language by replacing
verbatim reiterations of part 225 rule text where appropriate (for ease
of reference the FRA Guide includes the full regulatory text of part
225 in a newly created Appendix K).
FRA also makes a technical amendment throughout the FRA Guide by
changing the term ``Gap'' to ``Passenger Station Platform Gap'' because
it best captures the intended meaning. See FRA Guide.
More specific changes include:
Chapter 1, ``Overview of Accident/Incident Reporting and Recordkeeping
Requirements.''
FRA revises the paragraph titled, ``Telephonic Reports of Certain
Accidents/Incidents,'' in accordance with the amendments set forth in
Sec. 225.9, and includes 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 FRA Guide, FRA hopes to better disseminate its
telephonic reporting requirements, and to improve railroad compliance
by providing a single reference location for determining when accident/
incident telephonic notification is required.
FRA also revises 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.
Previously, the FRA Guide (Chapter 1--Page 12 through 13) specified
three cutoff dates for filing late and amended accident/incident
reports following the completion of the reporting year:
(1) April 15 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 found the 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 removes 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 the FRA 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, these revisions do not 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, revise the reporting requirements with respect
to certain specified accidents/incidents. Previously, the FRA Guide
stated 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.
These revisions make such amended reporting mandatory. Accordingly,
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; and
(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.
These revisions further provide 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:
[[Page 68886]]
(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.
In light of these changes, FRA is revising the timeframe imposed
for using the M505 code on the Form FRA F 6180.54. See FRA Guide,
Chapter 7.
Chapter 2, ``Definitions.''
In the NPRM, FRA added an example to the definition of Worker on
Duty-Employee (Class A) characterizing an employee on his lunch break
as on duty. In response to the example, AAR submitted comments stating
that an employee on an unpaid break should not be considered a Worker
on Duty-Employee (Class A) because they are not performing work at that
time. AAR stated that there was no justification for this change at
this time. FRA removes this example in the final rule to avoid any
confusion. In general, an employee on a break, whether paid or unpaid,
is considered an Employee Not On Duty (Class B). However, if an
employee is performing work-related activities (i.e., lining a switch)
during his or her break then the employee is a Worker on Duty-Employee
(Class A). Thus, an employer should consider an employee's actual
activities during his or her break to determine whether the employee is
on or off duty.
FRA adds certain definitions for clarification and ease of
reference, and removes definitions that reiterate definitions set forth
in Sec. 225.5. FRA adds a definition for ``Temporary Barricaded
Crossing'' to mean ``a highway-rail grade crossing that is temporarily
closed to highway users by using temporary methods to block highway
traffic such as barrels. A temporary barricaded crossing does not
constitute a `closed' crossing.'' FRA also adds a definition for
``Closed Crossing'' to mean a location where a crossing has been
physically removed or where rail operations, pathway 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 of ``closed crossings'' are locations where the
crossing has been permanently barricaded and 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 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 be
consistent with the definition used in the Grade Crossing Inventory
System (GCIS). The GCIS is a mandatory system used by States,
railroads, and the Federal government to profile crossings and
determine which crossings need improved warning systems for highway
users. 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 ``temporary
barricaded crossing,'' and making the GCIS and FRA definitions
consistent, will reduce confusion and aid in grade crossing accident/
incident reporting accuracy.
FRA clarifies in the definition of Highway-Rail Grade Crossing
Accident/Incident that all crossing locations within industry and rail
yards, ports, and dock areas are considered highway-rail crossings
within the meaning of highway-rail grade crossing. This clarifying
amendment does not expand the railroads' reporting requirements or
create an additional burden as the amendment is consistent with the
2003 FRA Guide, FRA's longstanding policy, and industry practices. The
purpose of the amendment is to place the entire definition in one
location for ease of reference.
FRA adds a definition for ``Passenger Station Platform 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 a minor
variation, was recommended by the RSAC General Passenger Safety Task
Force 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. The NPRM proposed adding a
definition for ``Gap,'' as opposed to ``Passenger Station Platform
Gap.'' A comment to the NPRM suggested that FRA use the phrase
``Platform Gap,'' rather than ``Gap.'' The final rule uses the term
``Passenger Station Platform Gap'' because it best captures the
intended meaning. A comment to the NPRM also suggested that the
definition itself is too narrow, and not consistent with the common
definition of the term. However, as discussed, the definition in the
final rule is consistent with the RSAC recommendations, and the
definition facilitates the tracking of accidents/incidents that occur
on high level platforms.
FRA also adds a definition for ``Passenger Station Platform 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 Passenger Station Platform
Gap Incident:
--While boarding or alighting a passenger train at a high level
passenger boarding platform, a person misjudges the passenger station
platform gap, resulting in the person's leg entering the passenger
station platform 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 passenger station platform
gap.
The following are not examples of a Passenger Station Platform 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 ``Passenger Station Platform Gap
Incident'' were recommended by the RSAC General Passenger Safety Task
Force 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. The final rule
[[Page 68887]]
adopts these recommendations with slight variation.
FRA also revises 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. However, there is
no definition for EMU and DMU cars, which created confusion because
these cars provide power to the consist and can, therefore, also be
classified as locomotives.
FRA adds a definition for ``Vehicle'' to include automobiles,
buses, trucks, motorcycles, bicycles, farm vehicles, and all other
modes of surface transportation, motorized and nonmotorized.
Chapter 3, Form FRA F 6180.55, ``Railroad Injury and Illness Summary.''
FRA revises the instructions for the use of this form consistent
with the changes in this final rule. See Section-by-Section Analysis
for Sec. 225.27, ``Retention of records,'' Sec. 225.37, ``Magnetic
media transfer and submission,'' Sec. 225.15, ``Accidents/incidents
not to be reported,'' Sec. 225.41, ``Suicide data,'' and the FRA
Guide, Appendix H, ``Forms'' for additional information.
The final rule also revises the Form FRA F 6180.55 to clarify that
by signing the form the reporting officer is attesting that all of the
information on the form is true and correct. See FRA Guide, Appendix H,
``Forms'' for additional information.
In addition, FRA is clarifying that casualties due to suicides and
attempted suicides, for which an event or exposure arising from the
operation of the railroad is a discernable cause and meets the general
reporting criteria, shall also be included in Field 18, Reported
Casualties, on Forms FRA F 6180.55, ``Railroad Injury and Illness
Summary.'' This will allow FRA to verify against the number of forms
submitted with the actual count. The railroad should report the person
by the ``type of person.'' As such, if a trespasser commits suicide,
the railroad shall report it as a trespasser fatality. See FRA Guide,
Chapter 3.
Chapter 4, Form FRA F 6180.98, ``Railroad Employee Injury and/or
Illness Record.''
FRA revises the instructions for the use of this form consistent
with the changes in this final rule. See Section-by-Section Analysis
for Sec. 225.5, ``Definitions'' definition for Accountable Injury or
Illness; Sec. 225.25, ``Recordkeeping,'' Sec. 225.15, ``Accidents/
incidents not to be reported;'' Sec. 225.41, ``Suicide data;'' and the
FRA Guide, Appendix H, ``Forms'' for additional information.
FRA is clarifying that railroads must create a Form FRA F 6180.98
for employee casualties due to suicides and attempted suicides, that
are accountable or reportable. Moreover, FRA instructs the railroad to
indicate in the narrative section that the casualty resulted from the
person's suicidal act.
Chapter 5, Form FRA F 6180.97, ``Initial Rail Equipment Accident/
Incident Record.''
FRA revises the instructions for the use of this form consistent
with the changes in this final rule. See Section-by-Section Analysis
for Sec. 225.5, ``Definitions;'' Sec. 225.25, ``Recordkeeping;''
Sec. 225.15, ``Accidents/incidents not to be reported;'' Sec. 225.41,
``Suicide data;'' and the FRA Guide, Appendix H, ``Forms'' for
additional information.
FRA revised the Questions and Answers in Chapter 4 of the FRA Guide
to reflect the changes to the definition of accountable rail equipment
accident/incident. FRA removed the Q2/A2 from the FRA Guide as it dealt
with the disruption of service criteria from the 2003 Final Rule.
In addition, FRA is clarifying that casualties due to suicides and
attempted suicides, for which an event or exposure arising from the
operation of the railroad is a discernable cause and that meet the
general reporting criteria shall also be included in the Field 30,
Casualties, on Forms FRA F 6180.97. Also, FRA is also including
instructions that when an accountable or reportable rail equipment
accident/incident is caused by a suicide or attempted suicide, the
railroad shall indicate that fact in Field 31, Narrative Description.
Chapter 6, Form FRA F 6180.55a, ``Railroad Injury and Illness Summary
(Continuation Sheet).''
FRA revises the instructions for the use of this form consistent
with the changes in this final rule. FRA also adds instructions that,
if an injury is due to a passenger station platform 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 Passenger Station Platform Gap--regardless of whether
other codes may also be applicable. See Section-by-Section Analysis for
Sec. 225.5, ``Definitions;'' Sec. 225.15, ``Accidents/Incident not to
be reported;'' Sec. 225.19 ``Primary Groups of Accidents/Incidents''
and the FRA Guide, Appendix H, ``Forms'' for additional information.
FRA also revised Chapter 6 to make it consistent with the Notice of
Interpretation it published in the Federal Register on March 30, 2009,
informing interested parties of its application and enforcement of the
harassment or intimidation provisions contained in 49 CFR part 225,
specifically relating to situations in which a supervisor or other
railroad official accompanies an injured employee into an examination
room. See 74 FR 14091; see also Section-by-Section Analysis for Sec.
225.33, ``Internal Control Plan.''
FRA also revises 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 has found that railroads are under-reporting
highway-rail grade crossing accidents/incidents related to injures 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. In general, FRA has found that some
railroads often do not make such reasonable inquiry into potentially
reportable injuries of non-employees. Accordingly, the NPRM required a
railroad to fulfill its reasonable inquiry responsibilities in
determining the nature and severity of highway-rail grade crossing
injuries and to accurately report such injuries, by contacting the
injured individual or their representative by phone and, if
unsuccessful in obtaining the needed
[[Page 68888]]
information, in writing. Moreover, the NPRM required that a railroad
keep a record of its efforts to make such contact and that this record
and documentation of any information obtained be available for review
and copying by an FRA representative under the same criteria as set
forth in Sec. 225.35(b).
In light of comments received regarding the burden and
effectiveness of contacting potentially injured highway users, the
final rule revises the language in the NPRM and requires that the
railroad fulfill its inquiry responsibilities by contacting any highway
user potentially injured in a highway-rail grade crossing accident/
incident, or the highway user's representative(s), in writing and, if
unsuccessful in obtaining the needed information, by telephone. If a
highway user died as a result of the highway-rail grade crossing
accident/incident, a railroad shall not send this form to any person.
Moreover, the final rule specifies that the written correspondence
should contain the newly created Form FRA F 6180.150, ``Highway User
Injury Inquiry Form,'' a cover letter drafted in accordance with the
instructions contained in the FRA Guide, and a return envelope that is
prepaid and preaddressed. A railroad shall keep a record of its efforts
to contact a highway user, and this record and documentation of any
information obtained shall be available for review and copying by an
FRA representative under the same criteria as set forth in Sec.
225.35(b).
Form FRA F 6180.150 shall be completed in accordance with the
instructions contained in the FRA Guide in Chapter 10, dealing with
highway-rail grade crossing accidents/incidents. FRA has found that,
when railroads do actually conduct an investigation into injuries to
highway users, they will solicit medical records and other documents
containing PII. This approach has resulted in a lack of response from
individuals who do not want to divulge personal information and are
unsure about the purpose of the request. This has resulted in the
underreporting or inaccurate reporting of highway-rail grade crossing
injuries. While a railroad may request this information, in order to
make a reporting decision, a railroad is not required to obtain that
type of documentation, although it can provide additional insight into
the nature and severity of an injury or illness. As such, Form FRA F
6180.150 is meant to be minimally invasive and requires only that
information which a railroad needs in order to determine whether the
person suffered a reportable injury. This requirement does not prevent
a railroad from conducting additional investigation, but is meant to
ensure that the railroad performs an investigation into the nature and
severity of highway-rail grade crossing injuries, in a less invasive
manner. However, a railroad shall not require a highway user to present
medical documentation or other supportive information in order to
report the casualty.
A railroad shall complete Part I of Form FRA F 6180.150 with
information regarding the highway-rail grade crossing accident/
incident, in accordance with the instructions provided in FRA Guide.
The railroad shall hand deliver or send by first class mail the letter
within a reasonable time period following the date of the highway-rail
grade crossing accident/incident. The letter shall also contain a
prepaid, pre-addressed return envelope, and a copy of the Form FRA F
6180.150 with Part I completed, along with the required cover letter.
Highway users are not required to complete Form FRA F 6180.150.
Consequently, FRA acknowledges that there will be situations in which a
highway user cannot be reached even though a railroad contacts the
person in writing and by telephone. Other times, a highway user will
refuse to provide any information even though a railroad clearly
explains the Federal reporting requirements and the reason for
soliciting information. In those cases, a railroad is still responsible
for deciding whether, considering all of the circumstances, the highway
user suffered a reportable injury (or, whether the presumption
discussed above, applies). The railroad must reconsider that
determination if new or additional information is later acquired.
Moreover, if a highway user completes Part II, or provides additional
information during a telephone call, the railroad will be responsible
for determining whether, based on the circumstances, the person
suffered a reportable injury or illness and for using that information
in complying with FRA reporting and recording requirements.
The final rule adds a draft of Form FRA F 6180.150, ``Highway User
Injury Inquiry Form,'' to Appendix H and a sample cover letter in
Appendix N. See FRA Guide. The instructions added to the final rule for
completing Form FRA F 6180.150 require the railroad to complete Part I
of the form. See FRA Guide, Chapter 10. Form FRA F 6180.150 was
submitted to OMB for approval with the final rule and is still pending
OMB approval; therefore, the railroads cannot use the form until it has
been approved. FRA expects that, prior to the delayed six month
effective date, the form with be approved. Following approval, the
final form will be available at http://safetydata.fra.dot.gov/officeofsafety.
The cover letter that accompanies Form FRA F 6180.150 shall be
drafted in accordance with the instructions contained in the FRA Guide,
Chapter 10. FRA has included a sample cover letter in the FRA Guide for
use by the railroads. See FRA Guide, Appendix N. Specifically, the
cover letter shall clearly explain the Federal reporting requirements
imposed on the railroads, address only Federal reporting requirements
and not the railroad's claims process, explain that the form is
voluntary, and provide clear instructions on how to complete the form.
The cover letter may ask the highway user to provide additional
information, but the cover letter shall not mandate that the individual
provide certain information in order for a railroad to comply with
Federal reporting requirements. See FRA Guide, Chapter 10 for a
complete list of instructions.
With regard to the cover letter, the instructions contained in the
final rule require that the letter contain the following:
An explanation of why the railroad is contacting the
highway user;
An explanation of part 225's accident/incident reporting
requirements;
An explanation of how the form and any response will be
used for part 225's accident/incident reporting requirements;
An explanation that the highway user is not required to
respond and that a response is voluntary;
An opportunity to correct incorrect information in Part I;
Identify and provide contact information for a person at
the railroad who can answer questions with regard to the form;
Provide instructions on how to complete Part II; and,
An explanation of how any medical records, if requested,
personal identifying information or information will be handled.
The cover letter and Form FRA F 6180.150 are meant to be tools that
allow the railroad to gather information and comply with part 225's
accident/incident reporting and recording requirements. As such, a
railroad shall not require the highway user to provide any medical or
personal information in order to report a casualty. Moreover, the cover
letter and any communication for the purposes of part 225 shall remain
[[Page 68889]]
separate from and not reference the railroad's claims process in order
to avoid confusion.
As an initial matter, FRA received comments regarding the language
proposed in the NPRM; however, as the language in the final rule simply
elaborates on and provides additional directions on how to conduct an
inquiry into a potentially reportable injury, a majority of the
comments are still relevant.
Commenters suggested that the requirements proposed in the NPRM
were overly burdensome and would not be effective as individuals
generally do not want to share personal information. As the
requirements contained in the final rule are consistent with those
proposed in the NPRM, the comments are still applicable. FRA is
concerned that these injuries and fatalities are not being reported or
investigated; as such, the changes are meant to ensure that both of
these things occur. Moreover, the presumption of reportablity created
in the final rule is meant to simplify the process. Also, a railroad is
allowed to terminate its investigation after calling and mailing the
individual as required by this final rule. The inquiry requirement does
not impose a timeframe on the follow-up the railroad is required to
perform, except that the railroad must initiate its investigation
within a reasonable time after the date of the highway-rail grade
crossing accident. FRA created the Form FRA F 6180.150 and the sample
cover letter in an effort to open the communication process with
potentially injured highway users to ensure that railroads and FRA are
gathering accurate information. Finally, the final rule requires the
railroads to contact the highway user by mail prior to contacting the
person by phone because FRA believes that this will be a less
intimidating approach.
In addition, UP stated in its comments that the additional
requirements would force them to intrude on the private lives of the
general public and could increase issues with pending litigation. As an
initial matter, private litigation matters should not prevent the
railroads from reporting information about casualties and investigating
the potential causes of accidents/incidents arising out of the
operation of the railroad. Also, the railroads should already be
investigating these casualties. FRA's creation of the presumption is
meant to alleviate some burden upon the railroad where they follow-up
but cannot eventually obtain the necessary information. While the new
requirement does mandate that a railroad follow-up with injured
persons, a railroad is simply required to send a letter to and possibly
call the highway user in an effort to obtain information in order to
complete a Federal form. As explained above, the Form FRA F 6180.150
and the cover letter, explaining the purpose of the railroad's inquiry,
is meant to encourage the sharing of information and to be less
intimidating.
Commenters also suggested that this requirement would not improve
safety. FRA uses information about reportable injuries to understand
the severity of accidents and incidents occurring due to the operation
of the railroad. When the railroads fail to report injuries and
illnesses, this prevents FRA from fully understanding the impact and
severity of such accidents and incidents.
Amtrak submitted comments stating that, due to their large number
of passengers, the burden of these additional requirements will be
extreme. As an initial matter, the duty to investigate highway-rail
grade crossing incidents and trespasser fatalities, which are discussed
below, do not generally apply to passengers (or individuals legally on
railroad property). While railroads are required to conduct a
reasonable inquiry into any potentially reportable injury or illness,
FRA is particularly concerned with, and the additional requirements
apply to, only highway users potentially injured in a highway-rail
grade crossing accident/incident and trespasser fatalities. See FRA
Guide.
Next, FRA is also concerned that 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 revised Chapter 6 to
clarify that, in order to fulfill its responsibilities in determining
the nature of a trespasser fatality and to accurately report such a
fatality, a railroad must try to obtain documentation indicating the
cause of death by contacting the coroner, public police officer, or
other public authority by telephone and, if unsuccessful, 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).
Commenters further suggested that there are already sufficient
steps in place requiring the railroads to fully investigate fatalities
and to obtain relevant information. As stated above, FRA has found that
the railroads often report fatalities as trespasser fatalities when
they are in fact suicides. To understand and prevent deaths arising
from the operation of the railroad and suicides occurring on the
railroad, FRA needs to have accurate and complete information. As such,
FRA believes that the additional requirements are necessary. See
Section-by-Section Analysis for Sec. 225.41, ``Suicide data'' for
additional discussion of the comments and requirements.
Other comments suggested that the six-month follow-up requirement
is too burdensome. FRA has found that it often takes time for public
authorities to complete their investigations and declare a cause of
death. Therefore, FRA believes that the six-month requirement will
provide the railroads with sufficient time to obtain this information.
One railroad suggested that the railroads should only have to follow-up
with one document request within an initial three-month period from the
date of the incident. Again, FRA has found that it often takes more
time to obtain this information and that follow-up by different means
is more effective. In addition, once a railroad has obtained
confirmation of the cause of death, they may terminate their
investigation.
Several commenters suggested that the railroads do not have the
legal authority to obtain the required documentation. As stated above,
the railroads have historically been able to obtain this information.
If a railroad cannot obtain this information and properly documents its
efforts, then the railroad has fulfilled its obligations under part
225. However, if a railroad cannot confirm cause of death, the railroad
will still be responsible for reporting the casualty as a trespasser
fatality. Finally, FRA believes that allowing the railroads to accept
verbal confirmation of the cause of death, which they must document,
will ease any potential burden. See the Section-by-Section Analysis for
Sec. 225.15, ``Accidents/incidents not to be reported.''
In addition, FRA revises the FRA Guide to clarify who can declare a
casualty as an attempted suicide or suicide. As discussed above, the
final rule revises the definition of ``Suicide data'' to mean ``data
regarding the death of an individual due to the individual's commission
of suicide as determined by a coroner, public police officer or other
public authority; or injury to an individual due to that individual's
[[Page 68890]]
attempted commission of suicide as determined by a public police
officer or public authority.'' The FRA Guide explains that a ``public
authority'' is a Federal, State or local government entity, such as a
public health department, that has the legal authority to declare a
fatality a suicide or an injury to a person an attempted suicide.
Lastly, FRA revises Chapter 6 to instruct railroads that they must
complete the longitude and latitude fields in blocks 5s and 5t on the
Form FRA F 6180.55a for any reportable casualty to a trespasser. This
requirement may be satisfied by either using global positioning system
(GPS) equipment to determine the actual longitude and latitude, or by
using a free online technology to determine an estimated longitude and
latitude. See FRA Guide for additional information.
Chapter 7, Form FRA F 6180.54, ``Rail Equipment Accident/Incident
Report.''
FRA revises the instructions for the use of this form consistent
with the changes in this final rule. FRA also adds instructions to
Chapter 7 requiring that, if an accident is caused by a bond wire
attachment issue (see 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, 225.15, 225.19 and Revisions to the FRA Guide,
Appendix H.
FRA also revises Chapter 7 to instruct railroads that they must
complete the longitude and latitude in blocks 50 and 51. This
requirement may be satisfied by either using GPS equipment to determine
the actual longitude and latitude or by using a free online technology
to determine an estimated longitude and latitude. See FRA Guide for
additional information.
The ICC's comments suggested adding additional fields on the Form
FRA F 6180.54. FRA did not adopt these recommendations at this time, as
the information is captured elsewhere or can be easily obtained at a
later time. ICC suggested a field requesting whether the train was
equipped with a digital or other recording device and whether the
information was retrieved. FRA believes that this field is unnecessary
as the train number provides sufficient information, and this
information can be obtained at a later time. In addition, ICC
recommended requesting whether the grade crossing had a recording
device and whether the information was retrieved. FRA believes that
sufficient information is already being captured on Forms FRA F 6180.54
and FRA F 6180.57, in addition to the U.S. DOT Grade Crossing
Inventory. ICC also suggested including a field asking whether the
train movement was recorded and whether that information was retrieved.
Again, this additional field is not necessary as PTC becomes mandatory.
In addition, ICC wanted a field asking whether the train movement was
recorded by GPS and was the information reported by a wireless device.
Again, FRA believes that this information can easily be obtained at a
later time and does not believe an additional field is necessary. In
addition, this change may be done at a later time.
The final rule revises the requirements for the Primary Cause Code
with regard to cause code M505 and the railroads' responsibility to
update this code. The final rule eliminates the April 15 deadline as it
no longer serves a purpose with the updated technology and to be
consistent with the changes made in FRA Guide at Chapter 1. See FRA
Guide, Chapter 1. Consequently, the railroad will be required to submit
an amended report pursuant to Sec. 225.13 once it has closed its
investigation and determined the cause of the accident/incident. This
duty is consistent as the railroad's responsibility under the 2003 FRA
Guide, as railroads were previously required to submit an amended
report once it determined the cause of accident/incident.
The final rule also adds clarifying instructions on Form FRA F
6180.54, which provide that fields requesting a U.S. DOT Grade Crossing
Identification Number are referring to the U.S. DOT Grade Crossing
Inventory Number.
Chapter 10--Form FRA F 6180.57--``Highway-Rail Grade Crossing Accident/
Incident Report.''
As an initial matter, the final rule revises the title of Chapter
10 to Forms FRA F 6180.57--Highway-Rail Grade Crossing Accident/
Incident Report & FRA F 6180.150--Highway User Injury Inquiry Form.
This change was made in light of the newly created Form FRA F 6180.150
and the instructions which are contained in FRA Guide at Chapter 10.
The final rule revises the instructions for the use of this form
consistent with the changes in this final rule. See Section-by-Section
Analysis for Sec. 225.15, ``Accidents/Incident not to be reported''
and the FRA Guide, Appendix H, ``Forms'' for additional information.
The final rule revises Chapter 10 to instruct railroads that they
shall 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 this presumption, the railroad must
report the injury to FRA on Form FRA F 6180.55a, ``Railroad Injury and
Illness Summary (Continuation Sheet)'' and must include the casualty on
Form FRA F 6180.57. This presumption does relieve the railroad of its
responsibility to an inquiry into the nature and severity of the
highway user's injuries.
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 potentially injured
highway users involved in a highway-rail grade crossing accident/
incident, or their representatives, in writing and, if unsuccessful,
obtain the needed information, by telephone. There is no requirement to
contact a representative of a highway user who has died as a result of
the accident. The written communication must include a Form FRA F
6180.150, cover letter and prepaid/preaddressed return envelope. Form
FRA F 6180.150 and the cover letter must be completed, drafted and sent
in compliance with the instructions contained in Sec. 225.21 and FRA
Guide at Chapter 10. A highway user is not required to respond to a
railroad's written or verbal requests for additional information with
regard to potential injuries. However, railroads are required to use
any response in complying with part 225's accident/incident reporting
and recording requirements. See FRA Guide, Chapter 6 of this Final Rule
for a complete discussion of the requirements and relevant comments.
Form FRA F 6180.150 was submitted to OMB for approval with the
final rule and is still pending OMB approval; therefore, the railroads
cannot use the form until it has been approved. FRA expects that prior
to the delayed six-month effective date, the form will be approved.
Following approval, the final form will be available at http://safetydata.fra.dot.gov/officeofsafety.
The railroad must keep a record of its efforts to make such contact
including, but not limited to, retaining a copy of the dated Form FRA F
6180.150 that was sent to the highway user and the accompanying cover
letter, documenting the date, time and content of the follow-up call,
and retaining any response from the highway user. This record and
documentation of any information obtained must be available
[[Page 68891]]
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 and the FRA Guide,
Subsection F, Form FRA F 6180.55a.
A comment to the NPRM suggested that block 41 on Form FRA F 6180.57
be expanded from ``Driver'' to ``Highway User.'' As discussed below,
the final rule does make this change. Another comment to the NPRM
suggests that block 44 on Form FRA F 6180.57 be changed from ``Driver''
to ``Highway User'' so as to include non-motorist accidents. The final
rule does not adopt this suggestion because this information is
captured in block 46. In addition, additional instruction is included
in the FRA Guide to clarify that block 44 only concerns motor vehicle
operators.
The final rule adds instructions pertaining to the narrative
section on Form FRA F 6180.57 stating ``Do not record personal
identifiers, e.g., names, Social Security Numbers, payroll
identification.'' This change is consistent with the instructions for
Forms FRA F 6180.55a and FRA F 6180.54.
The final rule also adds clarifying instructions on Form FRA F
6180.57 the field requesting an U.S. DOT Grade Crossing Identification
Number means and is referencing to the U.S. DOT Grade Crossing
Inventory Number.
Chapter 13, pertaining to Form FRA F 6180.107, ``Alternative Record for
Illness Claimed to be Work-Related.''
FRA revised the instructions for the use of the form consistent
with the changes adopted in the final rule. 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 the FRA Guide, Appendix H, ``Forms'' for additional
information.
The final rule revises Q1 in the Question and Answer box as the
form no longer has a data element for an employee's social security
number. Rather, employee social security number has been replaced with
a field requesting the employee's identification number. This
clarifying amendment is meant to make the Q1 accurate and consistent
with the changes to the form.
Appendix A, ``Railroad Codes.''
The FRA Guide updates the railroad codes. In addition, the final
rule adds a web address where there is an up-to-date list of railroad
codes.
Appendix B, ``State Codes.''
The FRA Guide updates the State codes by adding the abbreviation
for Hawaii. This is a correction of an inadvertent admission and is
consistent with the change to Form FRA F 6180.56.
Appendix C, ``Train Accident Cause Codes.''
The FRA Guide revises the following Train Accident Cause Codes:
T224 ``Rail defect originating from bond wire
attachment.'' FRA added Train Accident Cause Code T224 in 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 amends Train Accident Cause Code S104 by adding ``(equipment
failure)'' to the code's description. The description of Cause Code
S104 as amended reads, ``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 amends Train Accident Cause Code H707 by adding ``(human error)''
to the code's description. The 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 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 the FRA Guide, Appendix H, ``Forms'' for
additional information.
Appendix F, ``Circumstance Codes.''
FRA adds 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
[[Page 68892]]
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.
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
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 invited
comments on the addition of these SOFA codes but did not receive any
comments on this change.
FRA is also adding 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 passenger station platform gap. FRA believes that the
collection of this information will allow the agency to assess the
magnitude of these types of injuries, identify locations where
passenger station platform gap related injuries frequently occur, and
ultimately aid FRA in efforts to reduce such injuries.
The RSAC General Passenger Safety Task Force reported to the full
RSAC on October 25, 2007, its Cause Code Recommendations for passenger
station platform gap related injuries as follows:
(1) To the ``Physical Act Circumstance Codes'' add codes for:
Passenger Train-Boarding; and
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 Passenger Station
Platform Gap;
Area Between Coupled Cars and Platform;
Area Along Car body, other than Threshold Plate and
Platform Edge;
Car in Vestibule; and
On Platform--Other.
Also change Location Circumstance Code C2--``On Platform'' to ``On
Platform Station.''
(3) To the ``Event Circumstance Codes'' add a code for:
Slipped, fell, stumbled due to Passenger Station Platform
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; and
Door, Trap.
The full RSAC agreed to these recommendations on October 25, 2007.
Subsequently, FRA's Safety Knowledge Management Division's 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 passenger station platform gap
incidents from the casualty database. Based on this review, FRA is
adding 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; and
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 Passenger Station
Platform Gap.
(4) To the ``Tools, Machinery, Appliances, Structures, Surfaces,
(etc.) Circumstance Codes'' FRA proposes to add codes:
1G--Door, End or Side--Passenger Train; and
2G--Door, Trap--Passenger Train.
The instructions for coding passenger station platform gap incidents
are included in the FRA Guide.
Appendix G, ``FRA Regional Offices and Headquarters.''
The FRA Guide updates these entries and includes the web address
where the most current contact information can be obtained.
Appendix H, ``Forms.''
FRA is revising its forms, as follows:
[[Page 68893]]
(1) Form FRA F 6180.97 and Form FRA F 6180.98. FRA is revising
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 is renaming block 12, ``Division'' to
``Subdivision'' and requiring 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 is not applicable, the railroad must enter terminal/yard name.
This change also applies to alternative railroad-designed Form FRA
6180.97. This change is consistent with the ``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 is also clarifying 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 does 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 is replacing the ``Social Security
Number'' requirement in block 6 with a requirement for ``Employee
Identification Number.'' FRA is making this change in response to
privacy concerns. This chapter will include instructions addressing
FRA's 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'' for 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 regardless of whether or not it meets the general
reporting criteria listed in Sec. 225.19(d)(1) through (6), and that
the railroad employee claims that, or the railroad otherwise has
knowledge that, an event or exposure arising from the operation of the
railroad is a discernable cause of the abnormal condition or disorder.
(4) Form FRA F 6180.55. FRA has eliminated the notary requirement
on Form FRA F 6180.55 block 10, and replaced it with a requirement that
the report be signed under penalty of perjury. The NPRM proposed that
the signature read, 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).''
To make clear the signee is attesting to the accuracy of all of the
information on the form, the final rule revised the language, 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 information on this form 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 information on this
form 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 Sec. 225.37, ``Magnetic media
transfer and electronic submission,'' for additional information.
(5) Form FRA F 6180.55a. FRA requires railroads to place an ``X''
representative of ``suicide'' or ``attempted suicide'' in block 5r when
reporting a suicide or attempted suicide. FRA also adds instructions
that, if an injury is due to a passenger station platform 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 Passenger Station Platform 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 changes the title of block 5m from
``Result'' to ``Tools'' to remain consistent with the wording in
Appendix F.
In addition, in the NPRM, FRA requested comments and suggestions on
whether FRA should require railroads to complete the longitude and
latitude blocks on Form FRA F 6180.55a, ``Railroad Injury and Illness
Summary (Continuation Sheet)'' (blocks 5s and 5t) for reportable
trespasser casualties, and on 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.
Because railroads do not report longitude and latitude to FRA, FRA
cannot currently geo-locate reportable trespasser casualties. In
addition, although FRA can geo-locate reportable accidents/incidents
based on the information available in the Form FRA F 6180.54, it is
time consuming. The final rule provides FRA with the ability to
determine the precise location of accidents and trespasser injuries.
For example, FRA will be able to determine the exact location of
releases of hazardous materials or leakages of diesel fuel. 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,
such location data is accurate for short-term issues. However, the
railroad milepost system is not reliable. Over the long-term, railroads
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,
[[Page 68894]]
which have a different starting location, are installed.
Several commenters generally supported the collection of this type
of information. One commenter, while not opposed to the collection of
such data, was concerned about the resulting costs and indicated that
the requirement should be phased-in so railroads had time to acquire
the technology to comply with the regulation. This commenter also
indicated that FRA should consider providing funding for GPS equipment,
and that longitude and latitude should only be required for certain
types of incidents. Commenters who were opposed to the mandatory
inclusion of longitude and latitude generally argued that the cost to
obtain GPS technology was too costly, that the technology was
unreliable, that the industry was not ready for such a change, and that
the regulation would not improve data collection or railroad safety.
After considering the comments received, this final rule requires
the mandatory completion of the longitude and latitude blocks on Form
FRA F 6180.55a (blocks 5s and 5t) for any reportable casualty to a
trespasser, and on Form FRA F 6180.54 (blocks 50 and 51). In order to
defray potential costs, the longitude and latitude coordinates may be
either actual or estimated. Obtaining actual coordinates requires GPS
technology in the field, but obtaining estimated coordinates only
requires internet access. For example, this requirement may be
satisfied by providing either: The actual longitude and latitude, as
determined at the time of the accident/incident, or injury using GPS
technology; or an estimated longitude and latitude, as determined by
using a Web site, such as Google maps or the FRA's free Web site
(http://fragis.frasafety.net/GISFRASafety/default.aspx). Moreover, as
discussed previously, the final rule is effective Wednesday, June 1,
2011. As such, railroads do have a significant period of time to come
into compliance. Regardless, the latitude/longitude requirement has
been an optional field on both forms, and while it will be mandatory on
the Form FRA F 6180.54 for all reportable rail equipment accidents/
incidents, with respect to the FRA Form F 6180.55a, it will only be a
requirement for reportable casualties to trespassers.
FRA believes that the majority of railroads already have the
capability to determine actual longitude and latitude for such events
on-site. Moreover, within the next six years, about one half of the
general rail system will be equipped with Positive Train Control
(``PTC'').\7\ While such PTC systems will vary widely in complexity and
sophistication, such systems will provide railroads with longitude and
latitude coordinates for specific track locations. For those railroads
that do not currently have the equipment necessary to obtain longitude
and latitude coordinates, the final rule permits the use of estimated
coordinates which can be freely obtained on the internet. For example,
railroads may estimate longitude and latitude via publicly accessible
Web sites at no charge (e.g., http://www.gorissen.info/Pierre/maps/googleMapLocation.php or http://itouchmap.com/latlong.html).
---------------------------------------------------------------------------
\7\ PTC refers to technology that is capable of preventing
certain train collisions, derailments, and unauthorized train
movements.
---------------------------------------------------------------------------
A comment to the NPRM stated that this revision may create a duty
for railroads towards trespassers that somehow impacts States' rights.
This revision does not create any such duty, and railroads are already
required to collect information on trespassers--this revision simply
adds a level of detail to increase the value of the information. See
Section-by-Section Analysis Sec. 225.41, ``Suicide data,'' for
additional information. A comment suggested that longitude/latitude
should be collected and stored in decimal degrees. The final rule does
not adopt this suggestion because the FRA Guide provides recording
instructions that are sufficient for FRA's needs. A comment suggested
that additional fields be added for the city name, station name,
railroad division, and milepost to help determine where the incident
occurred. The final rule does not adopt this suggestion because such
information is not necessary as the longitude/latitude will be
captured. A comment suggested that additional fields be added for
weather, visibility, gender, and railroad yard name. The final rule
does not adopt these suggestions because they are outside of the scope
of this rulemaking, and weather and visibility information are
currently captured by the Form FRA F 6180.54. Comments stated that some
GPS equipment would not get reception in all areas, and that GPS is
unreliable because satellite networks can fail. However, FRA believes
that, in general, GPS does get reception in most areas and that
satellites generally do not have failures. Regardless, railroads may
use free online technology to provide estimated longitude/latitude in
the event that there is no GPS reception. A comment stated that GPS
will not provide any additional information that is not otherwise
available, and thus would not improve safety. As stated, FRA does not
currently obtain sufficient information to geo-locate trespassers. In
addition, although FRA can geo-locate reportable accidents/incidents
based on information available in the Form FRA F 6180.54, it is time
consuming, and thus the requirement of longitude/latitude on that form
streamlines the data collection process. Furthermore, longitude/
latitude information enables FRA to obtain specific location
information in order to pinpoint areas of concern.
(6) Form FRA F 6180.54. FRA is revising 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 Appendix J. The coding 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 is making this change because in the past few years, with the
advancement of 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 or the record size. See FRA Guide, Appendix J,
``Type of Territory Codes'' for additional information.
FRA is renaming block 12, ``Division'' to ``Subdivision'' and
requiring railroads to provide train accident location by subdivision
data (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 also revises this form to require latitude and longitude. This
revision is
[[Page 68895]]
discussed in detail in FRA Guide, Chapter 6, Form FRA F 6180.55a.
FRA is adding to block 49, ``Special Study Block'' descriptive
references ``a.'' to line one and ``b.'' to line two for ease of
reference. FRA requires 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 adds 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 requires 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, for all highway-rail grade crossing fatalities, requires
railroads to include a description in narrative block 52 of the
circumstances of the accident.
FRA also requires 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. The final rule revises
the ``Type of Equipment'' block--block 25 on Form FRA F 6180.54 and
block 24 on Form FRA F 6180.57--as follows:
Code ``2'' was changed from ``Passenger Train'' to
``Passenger Train--Pulling;''
Code ``3'' was changed from ``Commuter Train'' to
``Commuter Train--Pulling;''
New code ``B'' reads ``Passenger Train--Pushing;''
New code ``C'' reads ``Commuter Train--Pushing;''
New Code ``D'' reads ``EMU Train;'' and
New Code ``E'' reads ``DMU Train.''
These amendments 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 information comes in
light of the 2005 passenger train accident, in which an impact with a
deliberately placed obstruction caused a derailment with two consequent
secondary collisions in Glendale, California, in which a number of
individuals were killed or injured. Subsequent to that event, FRA was
asked to conduct analysis regarding the relative safety of trains with
passenger-occupied cars in the lead. Under its prior reporting
criteria, FRA 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). In addition,
because EMU and DMU trains neither push nor pull as all of the cars
provide power to the train, FRA needed a code to accurately describe
that circumstance as well.
(8) FRA Form FRA F 6180.57. The final rule revises block 16,
``Position,'' to read as follows: (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''); and (5) Blocked on crossing by gates. In doing so, FRA
clarifies the difference between choices (1) and (4). FRA has found
that under the prior options railroads did not necessarily understand
that prior option (4) ``Trapped'' means trapped by traffic. The final
rule also adds a fifth option, (5) ``Blocked on crossing by gates,'' to
capture those situations where a highway user is prevented from leaving
the crossing because the highway user is blocked-in by the crossing
gates.
The final rule also revises block 34 by changing the title from
``Whistle Ban'' to ``Roadway Conditions'' and by including the
following options: (A) Dry; (B) Wet; (C) Snow/Slush; (D) Ice; (E) Sand,
Mud, Dirt, Oil, Gravel; and (F) Water (Standing, Moving). Block 34
captures the roadway conditions at the time of the highway-rail grade
crossing accident/incident. This information is needed because data
provided to FRA regarding ``Weather Conditions'' in block 23 does not
necessarily speak to 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
revision provides FRA with vital information useful in assessing the
risks and causes of highway-rail grade crossing accident/incidents. In
addition, FRA no longer needs to capture Whistle Ban/Quiet Zone
information in Form FRA F 6180.57, as this information is provided to
FRA in Quiet Zone Notices of Establishment. See FRA 49 CFR part 222.
The final rule revises the title of block numbers 38, ``Drivers
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. In addition, the
final rule revises block numbers 40 (in block title) and 41 (in block's
response options) by replacing the term ``drove'' with ``went.'' Such
changes clarify that railroads should provide the information for all
highway users involved in a highway-rail grade crossing accident/
incident, rather than just for drivers.
The final rule revises block 41 by adding the following descriptive
options: ``Went around/thru temporary barricade'' and ``Suicide/
Attempted suicide.'' The final rule also revises the ``Drove around or
thru the gate'' descriptor to two separate descriptive choices: ``Went
around the gate''; and ``Went thru the gate.'' If ``Went around/thru
temporary barricade'' is selected in block 41 due to the temporary
closure of the crossing, the circumstance of the closure (e.g., the
roadway was closed for repair of crossing surface; maintenance/testing
of automated warning devises; etc.) should be explained in narrative in
block 54. Additionally, such a narrative should explain how the closure
was accomplished (e.g., roadway closed to traffic with jersey barriers
(concrete traffic 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/Attempted suicide''
must be indicated in block 41, regardless of whether other choices may
also be applicable. The final rule requires the inclusion of the
suicide or attempted suicide in the casualty counts in block numbers
46, 49, and 52, as applicable, to maintain consistent casualty counts
between the different reporting forms.
The final rule revises 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
[[Page 68896]]
FRA to cross-check ``Casualties to:'' block 46 with the number of
vehicle occupants in block 48. FRA has found that this information is
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.
The final rule requires, in ``Special Study Block'' 53a, that
railroads 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 includes
instructions in the FRA Guide and places two sets of ``yes or no''
options in block 53a; one for ``video taken'' and one for ``video
used.'' This information provides FRA with knowledge of the
availability of video footage for particular accidents/incidents; 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
accident/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 of the railroad's accident/incident
report. For additional information on requirements related to
locomotive event recorders, see 49 CFR 229.135, ``Event Recorders.''
The final rule includes 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
numerous completed Form FRA F 6180.57 forms are submitted to the agency
with ``unknown,'' marked in block numbers 36 and/or 37. Railroads have
an obligation to submit accurate reports to FRA and may not simply mark
``unknown'' without investigating the matter. As such, block 36
requires that 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. These limitations
will increase the quality 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.
In the NPRM, FRA requested comments and suggestions for any
additional information that might be gathered on Form FRA F 6180.57,
that would be useful in determining how and why highway-rail grade
crossing accidents/incidents occur. This final rule makes several
revisions to the FRA Guide specifically regarding Form FRA F 6180.57
based on the comments received, in addition to other changes proposed
in the NPRM.
Specifically, the final rule revises the FRA Guide to clarify that
block 41's ``other'' designation should be selected for drivers who
were shoved onto the track and who were then in a collision, so that
the accident/incident may be described in the narrative section. The
final rule also revises the FRA Guide regarding block 14 in order to
clarify that the inclusion of a vehicle speed of 0 mph when the form
elsewhere indicates that the vehicle was moving over the crossing or
around the gate is prohibited. The final rule also revises the FRA
Guide by designating block 39 (``Highway user's Gender'') as a
mandatory field, unless the gender is unknown as a result of the
accident/incident being a hit and run. The final rule also revises the
FRA Guide by designating block 38 (Highway user's Age) as a mandatory
field, unless the highway user's age is unknown as a result of the
accident/incident being a hit and run. In addition, the final rule
revises the FRA Guide by clarifying that block 6 seeks the time of the
accident/incident in the local time of the location where the accident/
incident occurred (the time in the headquarters should not be used).
One commenter asserted that some of the publicly-submitted comments
regarding Form FRA F 6180.57 were improper because they were new and
should be pursued in a separate rulemaking. However, interested parties
had opportunities to address such comments during the hearing and in
the second comment period. In addition, the interested parties were on
notice that FRA was interested in receiving suggested changes to Form
FRA F 6180.57. The revisions to the FRA Guide regarding Form FRA F
6180.57 are a logical outgrowth of this notice. A commenter also
requested that no additional fields be added to the form because any
such additions would be unduly burdensome. However, the final rule does
not add additional fields, and only clarifies the available selections
for existing fields.
FRA received the following other comments regarding proposed Form
FRA F 6180.57 revisions that are not adopted in this final rule:
A commenter requested that FRA revise block 32 by adding a
field to indicate whether there was a stop/yield sign at the highway-
rail grade crossing, to determine whether such signs are effective.
This final rule does not adopt this suggestion because this data can be
captured in the U.S. DOT National Highway-Rail Crossing Inventory.
A commenter requested that FRA eliminate the ``Watchman''
code in block 32 because it is rarely used. The final rule does not
adopt this suggestion because the ``Watchman'' code provides valuable
safety data.
A commenter requested that FRA revise block 32 by adding a
field to show whether the crossing warning was a pedestrian or
vehicular warning device. The final rule does not adopt this suggestion
because block 32 sufficiently captures data relating to the type of
crossing warning.
A commenter requested that Form FRA F 6180.57 be revised
to collect ``near miss'' information. The final rule does not adopt
this suggestion because it would be very difficult to obtain such
information and it is overly burdensome.
A commenter requested that Form FRA F 6180.57 require
railroad carriers to submit up-to-date crossing information because the
inventory is out of date. The final rule does not adopt this suggestion
because Sec. 204 of the Railroad Safety Improvement Act of 2008, once
implemented, imposes a mandatory inventory updating scheme for both
States and railroads.
A commenter requested that Form FRA F 6180.57 capture
whether trains involved in highway-rail grade crossing accidents/
incidents had retroreflective sheeting. The final rule does not adopt
this suggestion because, in general, all trains will be required to
have such retroreflective sheeting, capturing the data is overly
burdensome, and it would be difficult to enforce.
A commenter requested that Form FRA F 6180.57 be
reconciled with the U.S. DOT Crossing Inventory Form, so that
discrepancies between the forms would be flagged. The final rule does
not adopt this suggestion because it is not germane to the substance of
Form FRA F 6180.57, and FRA can check for mismatches in certain data
fields between the Form FRA F 6180.57 and the U.S. DOT Crossing
Inventory Form.
[[Page 68897]]
A commenter requested that Form FRA F 6180.57 capture the
relevant police report number for reported accidents/incidents as well
as the police department information. The final rule does not adopt
this suggestion because it does not contribute material safety
information to the Form, is overly burdensome, and is not supported by
the November 28, 2005, report by the Department of Transportation's
Office of Inspector General, entitled, ``Audit of Oversight of Highway-
Rail Grade Crossing Accident Reporting, Investigations, and Safety
Regulations,'' Report No. MH-2006-016.
A commenter requested that Form FRA F 6180.57 require a
narrative when ``other'' is checked in a data field and when there is a
collision resulting in a fatality. The final rule does not make any
revisions to Form FRA F 6180.57 in response to this suggestion because
the narrative is already mandatory in such cases.
A commenter requested that Form FRA F 6180.57 capture the
total tonnage of trains involved in collisions. The final rule does not
adopt this suggestion because such data does not contribute additional
material safety information as the U.S. DOT Crossing Inventory Form
captures the number of trains that use the track.
A commenter requested that Form FRA F 6180.57 capture
whether the train or the automatic warning device at the crossing had
an event recorder. The final rule does not adopt this suggestion
because such data does not contribute material safety information to
the Form.
A commenter requested that Form FRA F 6180.57 capture
annual track density and total train tonnage. The final rule does not
adopt these suggestions because such data does not contribute material
safety information to the Form.
A commenter requested that Form FRA F 6180.57 capture the
relevant posted speed limit. The final rule does not adopt this
suggestion because such data can be captured in the U.S. DOT National
Highway-Rail Crossing Inventory.
A commenter requested that Form FRA F 6180.57 capture,
with respect to collisions that occur at a private crossing, whether
the crossing was located within the limits of a railroad yard and
whether the collision involved an on-duty railroad employee or
contractor. The final rule does not adopt this suggestion because such
data does not contribute material safety information to the Form, there
are few such accidents, and such information may be captured by the
Form FRA F 6180.55a if the accident resulted in an injury or a
fatality.
A commenter requested that Form FRA F 6180.57 capture data
regarding the quality and ``rideability'' of the surface of the
highway-rail grade crossing at the time of the collision. The final
rule does not adopt this suggestion because it is subjective, difficult
data to capture, and overly burdensome.
A commenter requested that Form FRA F 6180.57 capture data
regarding whether a sidewalk was available for non-motorized vehicles,
the type of sidewalk, and whether the person used the sidewalk. The
final rule does not adopt this suggestion because it is overly
burdensome.
Lastly, a commenter requested that Form FRA F 6180.57
capture whether a traffic violation was issued. The final rule does not
adopt this suggestion because such data does not contribute material
safety information to the Form.
FRA received another comment taking the position that some comments
regarding Form FRA F 6180.57 are not proper because they are new and
should be pursued in a separate rulemaking. The final rule does adopt
some of the comments, as discussed above. Interested parties had an
opportunity to respond during the hearing and in the second comment
period. In addition, the interested parties were on notice that FRA was
interested in receiving suggested changes to Form FRA F 6180.57.
Revisions to Form FRA F 6180.57 and the FRA Guide are a logical
outgrowth of this notice.
FRA notes that the final rule makes 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, entitled, ``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 revises block 6 on Form FRA F
6180.107, ``Employee Number or Social Security Number'' to ``Employee
Identification Number'' to address privacy concerns.
FRA revises block 23 on Form FRA F 6180.107 ``Date the Log Entry
was Completed (mm/dd/yy)'' to state ``Date initially signed/
completed.'' FRA made 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 claimed
occupational illness on the appropriate record no later than seven
calendar days after receiving information or acquiring knowledge that
an injury or illness or rail equipment accident/incident has occurred,
as required 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.
The final rule revises Questions and Answers section at the bottom
of the form as the form no longer has a data element for an employee's
social security number. Rather, employee social security number has
been replaced with field requesting the employee's identification
number. This is a clarifying amendment is meant to make the Questions
and Answers section accurate and consistent with the changes to the
form.
(10) Form FRA F 6180.150. In the final rule, FRA included a draft
of this form dealing with following up with potentially injured highway
user involved in a highway-rail grade crossing accident/incident. See
FRA Guide, Chapters 10 and 6 of this final rule for further discussion.
Form FRA F 6180.150 was submitted to OMB for approval with the final
rule and is still pending OMB approval; therefore, the railroads cannot
use the form until it has been approved. FRA expects that prior to the
delayed six month effective date, the form will be approved.
(11) Form FRA F 6180.56. The final rule amends Block 6, State, by
adding Hawaii to the list of States. Hawaii was mistakenly omitted.
This is a technical amendment and should not create additional
reporting requirements for the railroads.
Appendix I, ``Model Internal Control Plans, Including Model Statement
of Policy against Harassment and Intimidation and Model Complaint
Procedures.''
The FRA Guide reorders 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.
Appendix J, ``Type of Territory Codes.''
FRA adds an Appendix J to the FRA Guide, which provides Type of
Territory Codes and instructions for the use of those codes when
completing block 30, ``Type of Territory,'' on Form FRA F 6180.54,
``Rail Equipment Accident/Incident Report.'' The codes 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 FRA Guide, Appendix H,
[[Page 68898]]
``Forms'' in this final rule for additional information.
Appendix K, ``Electronic Submission of Reports to FRA.''
The FRA Guide adds Appendix K to specifically provide electronic
submission instructions and guidance.
Appendix L, ``49 CFR part 225.''
The FRA Guide includes in Appendix L the full regulatory text of
part 225.
Appendix M, ``Telephonic Reporting Chart.''
The FRA Guide revises the Telephonic Reporting Chart to correct an
error. This clarification is intended to bring the chart into
compliance with the rule text. Specifically, this change simply
instructs the user to look at other reasons why telephone notification
may be required regardless of whether the answer to the question--``Was
the fatality to Railroad Employee, Contractor on Railroad Property,
Passenger, Highway User due to collision with railroad rolling
stock?''--is ``No.''
Appendix N, ``Form FRA F 6180.150, ``Highway User Injury Inquiry
Form,'' Sample Cover Letter.''
The final rule included a sample cover letter that the railroads
could use to comply with the requirement that they send a Form FRA F
6180.150 and a cover letter to each potentially injured highway user
involved in a highway-rail grade crossing accident/incident. The cover
letter must be drafted and comply with the requirements outlined in
Sec. 225.21 and the FRA Guide at Chapter 10.
With regard to the cover letter, the instructions contained in the
final rule require that the letter contain the following:
An explanation of why the railroad is contacting the
highway user;
An explanation of part 225 accident/incident reporting
requirements;
An explanation of how the form and any response will be
used for part 225 reporting requirements;
An explanation that the highway user is not required to
respond;
An opportunity to correct incorrect information in Part I;
Identify and provide contact information for a person at
the railroad who can answer questions with regard to the form;
Provide instructions on how to complete Part II; and,
An explanation of how any medical records or information
will be handled.
The cover letter and Form FRA F 6180.150 are meant to be tools that
allow the railroad to gather information and comply with part 225
accident/incident reporting and recording requirements. As such, the
railroad the cover letter should not require the highway user to
provide any medical or personal information in order to report a
casualty. Moreover, the cover letter and any communication for the
purposes of part 225 should not reference claims process.
V. Regulatory Impact and Notices
A. 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 evaluation addressing the economic impact of this final
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.
The changes in this final rule 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.
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, their
employees, and other interested parties in recognizing and correcting
dangerous conditions and practices in order to maintain a safe and
healthy environment for railroad workers and the public. Moreover, FRA
anticipates that requirements related to the collection of longitude
and latitude data for trespasser accidents/incidents on Form FRA
F6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet)''
will reduce trespasser casualties. In addition to the final revisions
to its regulations contained in this notice, FRA is revising the FRA
Guide for Preparing Accident/Incident Reports, certain accident/
incident recording and reporting forms, and the FRA Companion Guide:
Guidelines for Submitting Accident/Incident Reports by Alternative
Methods.
When quantifiable, FRA estimated costs and benefits for the twenty-
year period immediately following implementation of this final rule.
FRA estimated total, present discounted costs to equal approximately
$5.5 million using a 3 percent discount rate and $3.9 million using a 7
percent discount rate. Total, present discounted benefits are estimated
to equal approximately $51 million at a 3 percent discount rate and
$32.2 million at a 7 percent discount rate.
The net present discounted benefits of the impacts quantified in
this analysis equal approximately $45.5 million at a discount rate of 3
percent and $28.3 million at a discount rate of 7 percent.
FRA expects that the benefits flowing from this final rulemaking
will surpass any additional costs imposed by the regulation. Most
significant are benefits arising from the final rule's requirement that
longitude and latitude blocks on Form FRA F6180.55a be completed for
trespassers. This requirement will ultimately result in fewer
trespasser injuries and fatalities. Additional benefits will arise from
consolidated reporting provisions, the easing of telephonic reporting
requirements, and accident/incident reporting simplification. Lastly,
FRA anticipates substantial but presently unquantifiable 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 FRA in setting priorities among
inspection and safety improvement efforts. Accordingly, FRA is
confident that such benefits, combined with those that were quantified,
will more than justify
[[Page 68899]]
incurring the costs associated with implementation of the final rule.
B. 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. The Regulatory Flexibility Act requires an agency to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant impact on a
substantial number of small entities. Pursuant to the Regulatory
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities. Although a
substantial number of small railroads will be affected by the rule,
none of these entities will be significantly impacted. At the NPRM
stage, FRA certified that the proposal would not result in a
significant economic impact on a substantial number of small entities
and requested comment on such certification as well all other aspects
of the NPRM. Although many comments were received in response to the
NPRM, no comments directly addressed the certification. In developing
the final rule, FRA considered all comments received in response to the
NPRM.
``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.
Additionally, section 601(5) defines as ``small entities'' governments
of cities, counties, towns, townships, villages, school districts, or
special districts with populations less than 50,000. 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. FRA is using this definition for this rulemaking. This final
rule applies to railroads.\8\ There are approximately 665 small
railroads that would be affected by this final rule. FRA anticipates
that most of the recording and reporting burdens imposed by this
regulation will be borne 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 from 2005 through 2007, small railroads reported
approximately 875 or nine percent of all reportable casualties, and
only 294 or 10 percent of all reportable accidents/incidents.
---------------------------------------------------------------------------
\8\ Note that FRA has not, unless specifically noted, updated
the data used in this analysis from the Certification Statement for
the NPRM. Adjustments were not made for this final certification
because they would not significantly affect numerical estimates,
would result in very few additional costs and would not change the
outcome or results of the analysis.
---------------------------------------------------------------------------
FRA also anticipates that the computer-related burdens will be
borne by the larger railroads because the large railroads have chosen
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 complete 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.
The factual basis for the certification that this final rule will
not have a significant economic impact on a substantial number of small
entities, is that the total cost incurred is far less than one percent
of the annual average revenue for small railroads (approximately
$47,000 each in 2006 (not discounted)). Total costs to small railroads
due to this final regulation will be approximately $159 (not
discounted) per railroad during the first year of the analysis. This
burden is solely due to the time (3 hours each) for reporting officers
to become acquainted with the revised FRA Guide. On an individual
basis, FRA estimates that $159 is one percent or more of the annual
operating revenues for less than one percent of all small railroads.
FRA estimates the total cost for years 2 through 20 will be less than
$100 for small railroads impacted (not discounted) per year, and that
the small railroads will experience a positive net benefit for those
years. Accordingly, FRA does not consider this impact to be
significant. Nor does FRA anticipate that this regulation would result
in long-term or short-term insolvency for any small railroad.
C. Paperwork Statement--Accident/Incident Reporting and Recordkeeping
The information collection requirements in this final 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 that contain the new and current information collection
requirements and the estimated time to fulfill each requirement are as
follows:
----------------------------------------------------------------------------------------------------------------
Total
Total annual Average time per annual
CFR Section--49 CFR Respondent universe responses response burden
hours
----------------------------------------------------------------------------------------------------------------
225.6--Consolidated Reporting-- 718 railroads....... 4 requests.......... 40 hours............ 160
New Requirements--Written
Request by RR.
--Written agreements on 718 railroads....... 4 agreements........ 2 hours............. 8
subsidiaries.
[[Page 68900]]
--Notifications on changes to 718 railroads....... 1 notification + 1 1 hr. + 1 hr........ 2
subsidiaries and amended written agreement.
agreement.
225.9--Telephone Reports--Certain 718 railroads....... 3,300 reports....... 15 minutes.......... 825
Accidents/Incidents and Other
Events.
225.11--Reporting of Rail 718 railroads....... 3,600 forms......... 2 hours............. 7,200
Equipment Accidents/Incidents
(Form FRA F 6180.54).
225.12(a)--Form FRA F 6180.81-- 718 railroads....... 1,600 forms......... 15 minutes.......... 400
Rail Equipment Accident/Incident
Reports--Human Factor.
225.12(b)--Form FRA F 6180.78-- 718 railroads....... 1,000 notices + 10 minutes + 3 367
Part I Rail Equipment Accident/ 4,000 copies + 10 minutes.
Incident Reports (Human Factor). copies.
225.12(c)--Rail Equipment 718 railroads....... 100 requests........ 20 minutes.......... 33
Accident/Incident Reports--Human
Factor--Joint Operations.
225.12(d)--Rail Equipment 718 railroads....... 20 attachments + 20 15 minutes.......... 10
Accident/Incident Reports--Human notices.
Factor--Late Identification.
225.12(g)--Rail Equipment 718 railroads....... 75 statements....... 1.5 hours........... 113
Accident/Incident Reports--Human
Factor--Employee Supplement--
Part II Form FRA F 6180.78.
225.12(g)(3)--Rail Equipment RR Employees........ 10 letters.......... 2 hours............. 20
Accident/Incident Reports--Human
Factor--Employee Confidential
Letter.
225.13--Late Reports............. 718 railroads....... 25 reports.......... 1 hour.............. 25
--Amended Rail Equipment Accident/ 718 railroads....... 50 amended rpts/40 1 hour + 3 minutes.. 52
Incident Reports. copies.
225.18--Alcohol or Drug 718 railroads....... 80 reports.......... 30 minutes.......... 40
Involvement.
--Appended Reports............... 718 railroads....... 5 reports........... 30 minutes.......... 3
225.19--Highway-Rail Grade 718 railroads....... 2,880 forms......... 2 hours............. 5,760
Crossing Accident/Incident
Reports--Form FRA F 6180.57.
--Death, Injury, or Occupational 718 railroads....... 11,544 forms........ 20 minutes.......... 3,848
Illness--(Form FRA F 6180.55a).
--Trespasser Fatalities (FRA F 718 railroads....... 486 forms........... 50 minutes.......... 405
6180.55a).
--New Requirement--Suicide/ 718 railroads....... 608 forms........... 65 minutes.......... 659
Attempted Suicide Data (FRA F
6180.55a).
225.21 Forms
--Form FRA F 6180.55--Railroad 718 railroads....... 8,616 forms......... 10 minutes.......... 1,436
Injury/Illness Summary.
--Form FRA F 6180.56--Railroad 718 railroads....... 718 forms........... 15 minutes.......... 180
Annual Report of Man Hours by
State.
--Form FRA F 6180.98--Railroad 718 railroads....... 18,900 forms........ 1 hour.............. 18,900
Employee--Injury and/or Illness
Record.
--Form FRA F 6180.98--Copies..... 718 railroads....... 567 copies.......... 2 minutes........... 19
--Form FRA F 6180.97--Initial 718 railroads....... 18,200 forms........ 30 minutes.......... 9,100
Rail Equipment Accident/Incident
Record.
--New Requirement--Suicide/ 718 railroads....... 1 form.............. 30 minutes.......... 1
Attempted Suicide Narrative--
Form FRA F 6180.97.
--Form FRA F 6180.107--Alternate 718 railroads....... 300 forms........... 75 minutes.......... 375
Record for Illnesses Claimed To
Be Work Related.
--Form FRA F 6180.39i--RR 654 Class I & II RR/ 1,000 forms......... 90 minutes.......... 1,500
Accident Notification & Initial 55 Federal/State
Investigation Report. agencies/562
inspectors.
--New Requirement--Form FRA F 718 railroads....... 950 forms........... 50 minutes.......... 792
6180.150--Highway User
Statement--Sent Out by RRs to
Potentially Injured Individuals.
--New Requirement--Form FRA 950 possibly injured 665 forms........... 45 minutes.......... 499
F6180.150--Highway User individuals.
Statement Return Responses by
Persons.
225.25--Posting of Monthly 718 railroads....... 8,616 lists......... 16 minutes.......... 2,298
Summary.
225.27--Retention of Records--FRA 718 railroads....... 18,900 records...... 2 minutes........... 630
F 6180.98 (New Requirement).
--Form FRA F 6180.107............ 718 railroads....... 300 records......... 2 minutes........... 10
--Monthly List of Employee 718 railroads....... 8,616 records....... 2 minutes........... 288
Injuries.
--Form FRA F 6180.97 records..... 718 railroads....... 18,200 records...... 2 minutes........... 607
--Records required under section 718 railroads....... 2,675 records....... 2 minutes........... 89
225.12.
--New Requirement--Electronic 718 railroads....... 18 systems.......... 120 hours........... 2,160
Recordkeeping System
Requirements and RR System
Modifications.
225.33--Internal Control Plans-- 718 railroads....... 25 amendments....... 14 hours............ 350
Amended.
225.35--Access to Records and 15 railroads........ 400 lists........... 20 minutes.......... 133
Reports--Lists.
--Subsequent Years............... 4 railroads......... 16 lists............ 20 minutes.......... 5
225.37--Optical Media Transfers.. 8 railroads......... 200 transfers....... 3 minutes........... 10
--Electronic Submissions--Form 718 railroads....... 2,400 forms......... 3 minutes........... 120
FRA F 6180.55.
225.6--Consolidated Reporting-- 718 railroads....... 4 requests.......... 40 hours............ 160
New Requirements--Written
Request by RR.
--Written agreements on 718 railroads....... 4 agreements........ 2 hours............. 8
subsidiaries.
[[Page 68901]]
--Notifications on changes to 718 railroads....... 1 notification + 1 1 hr. + 1 hr........ 2
subsidiaries and amended written agreement.
agreement.
225.9--Telephone Reports--Certain 718 railroads....... 3,300 reports....... 15 minutes.......... 825
Accidents/Incidents and Other
Events.
225.11--Reporting of Rail 718 railroads....... 3,600 forms......... 2 hours............. 7,200
Equipment Accidents/Incidents
(Form FRA F 6180.54).
225.12(a)--Form FRA F 6180.81-- 718 railroads....... 1,600 forms......... 15 minutes.......... 400
Rail Equipment Accident/Incident
Reports--Human Factor.
225.12(b)--Form FRA F 6180.78-- 718 railroads....... 1,000 notices + 10 minutes + 3 367
Part I Rail Equipment Accident/ 4,000 copies + 10 minutes.
Incident Reports--(Human Factor). copies.
225.12(c)--Rail Equipment 718 railroads....... 100 requests........ 20 minutes.......... 33
Accident/Incident Reports--Human
Factor--Joint Operations.
225.12(d)--Rail Equipment 718 railroads....... 20 attachments + 20 15 minutes.......... 10
Accident/Incident Reports--Human notices.
Factor--Late Identification.
225.12(g)--Rail Equipment 718 railroads....... 75 statements....... 1.5 hours........... 113
Accident/Incident Reports--Human
Factor--Employee Supplement--
Part II Form FRA F 6180.78.
225.12(g)(3)--Rail Equipment RR Employees........ 10 letters.......... 2 hours............. 20
Accident/Incident Reports--Human
Factor--Employee Confidential
Letter.
225.13--Late Reports............. 718 railroads....... 25 reports.......... 1 hour.............. 25
--Amended Rail Equipment Accident/ 718 railroads....... 50 amended rpts/40 1 hour + 3 minutes.. 52
Incident Reports. copies.
225.18--Alcohol or Drug 718 railroads....... 80 reports.......... 30 minutes.......... 40
Involvement.
--Appended Reports............... 718 railroads....... 5 reports........... 30 minutes.......... 3
225.19--Highway-Rail Grade 718 railroads....... 2,880 forms......... 2 hours............. 5,760
Crossing Accident/Incident
Reports--Form FRA F 6180.57.
--Death, Injury, or Occupational 718 railroads....... 11,544 forms........ 20 minutes.......... 3,848
Illness--(Form FRA F 6180.55a).
--Trespasser Fatalities (FRA F 718 railroads....... 486 forms........... 50 minutes.......... 405
6180.55a).
--New Requirement--Suicide/ 718 railroads....... 608 forms........... 65 minutes.......... 659
Attempted Suicide Data(FRA F
6180.55a).
225.21 Forms
--Form FRA F 6180.55--Railroad 718 railroads....... 8,616 forms......... 10 minutes.......... 1,436
Injury/Illness Summary.
--Form FRA F 6180.56--Railroad 718 railroads....... 718 forms........... 15 minutes.......... 180
Annual Report of Man Hours by
State.
--Form FRA F 6180.98--Railroad 718 railroads....... 18,900 forms........ 1 hour.............. 18,900
Employee--Injury and/or Illness
Record.
--Form FRA F 6180.98--Copies..... 718 railroads....... 567 copies.......... 2 minutes........... 19
--Form FRA F 6180.97--Initial 718 railroads....... 18,200 forms........ 30 minutes.......... 9,100
Rail Equipment Accident/Incident
Record.
--New Requirement--Suicide/ 718 railroads....... 1 form.............. 30 minutes.......... 1
Attempted Suicide Narrative--
Form FRA F 6180.97.
--Form FRA F 6180.107--Alternate 718 railroads....... 300 forms........... 75 minutes.......... 375
Record for Illnesses Claimed To
Be Work Related.
--Form FRA F 6180.39i--RR 654 Class I & II RR/ 1,000 forms......... 90 minutes.......... 1,500
Accident Notification & Initial 55 Federal/State
Investigation Report. agencies/562
inspectors.
--New Requirement--Form FRA F 718 railroads....... 950 forms........... 50 minutes.......... 792
6180.150--Highway User Statement-
Sent Out by RRs to Potentially
Injured Individuals.
--New Requirement--Form FRA 950 possibly injured 665 forms........... 45 minutes.......... 499
F6180.150--Highway User Individuals.
Statement Return Responses by
Persons.
225.25--Posting of Monthly 718 railroads....... 8,616 lists......... 16 minutes.......... 2,298
Summary.
225.27--Retention of Records--FRA 718 railroads....... 18,900 records...... 2 minutes........... 630
F 6180.98 (New Requirement).
--Form FRA F 6180.107............ 718 railroads....... 300 records......... 2 minutes........... 10
--Monthly List of Employee 718 railroads....... 8,616 records....... 2 minutes........... 288
Injuries.
--Form FRA F 6180.97 records..... 718 railroads....... 18,200 records...... 2 minutes........... 607
--Records required under section 718 railroads....... 2,675 records....... 2 minutes........... 89
225.12.
--New Requirement--Electronic 718 railroads....... 18 systems.......... 120 hours........... 2,160
Recordkeeping System
Requirements and RR System
Modifications.
225.33--Internal Control Plans-- 718 railroads....... 25 amendments....... 14 hours............ 350
Amended.
225.35--Access to Records and 15 railroads........ 400 lists........... 20 minutes.......... 133
Reports--Lists.
--Subsequent Years............... 4 railroads......... 16 lists............ 20 minutes.......... 5
225.37--Optical Media Transfers.. 8 railroads......... 200 transfers....... 3 minutes........... 10
--Electronic Submissions--Form 718 railroads....... 2,400 forms......... 3 minutes........... 120
FRA F 6180.55.
----------------------------------------------------------------------------------------------------------------
[[Page 68902]]
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the
following addresses: [email protected]; [email protected].
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, Office of Information and Regulatory Affairs,
725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer.
Comments may also be sent via e-mail to the Office of Management and
Budget at the following address: [email protected].
OMB is required to make a decision concerning the collection of
information requirements contained in this final 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.
FRA cannot 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 effective date of this final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register.
D. Federalism Implications
This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132, ``Federalism'' (64 FR
43255, Aug. 10, 1999), which 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.
FRA has determined that this final rule will not have substantial
direct effects on the States, on the relationship between the national
government and the States, nor on the distribution of power and
responsibilities among various levels of government. In addition, FRA
has determined that this final rule will not impose substantial direct
compliance costs on State and local governments. Therefore, the
consultation and funding requirements of Executive Order 13132 do not
apply. AAJ commented that FRA should delete any language in the
preamble regarding the preemption of State common law claims. AAJ
stated that, contrary to the agency's assertions, the Federal Railroad
Safety Act of 1970 (FRSA) does not authorize the preemption of State
common law claims. AAJ claimed that FRA regulations have never lawfully
preempted State law claims. The petition also stated that Congress
reiterated its intent to preserve State tort claims against negligent
railroads. Finally, AAJ argued that agency rules must clearly follow
the FRSA's limited preemption language, and that State common law
should govern railroad safety issues.
Although this final rule removes the preemption language previously
contained in part 225, FRA notes that this part could have preemptive
effect by the operation of law under the FRSA. See 49 U.S.C. 20106.
Section 20106 provides that States may not adopt or continue in effect
any law, regulation, or order related to railroad safety or security
that covers the subject matter of a regulation prescribed or issued by
the Secretary of Transportation (with respect to railroad safety
matters) or the Secretary of Homeland Security (with respect to
railroad security matters), except when the State law, regulation, or
order qualifies under the ``essentially local safety or security
hazard'' exception to Sec. 20106.
In sum, FRA has analyzed this final rule in accordance with the
principles and criteria contained in Executive Order 13132, and has
determined that preparation of a federalism summary impact statement
for this final rule is not required.
E. 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.
F. 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 final 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:
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: *
* * 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 final
rule is not a major Federal action significantly affecting the quality
of the human environment.
[[Page 68903]]
G. Unfunded Mandates Reform Act of 1995
Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 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 million or more (adjusted
annually for inflation) [$140.8 million in 2010] 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. This final rule would not result in
the expenditure, in the aggregate, of $140.8 million or more in any one
year, and thus preparation of such a statement is not required.
H. 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.
I. Privacy Act
Interested parties should be aware 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
Investigations, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
The Final Rule
For the reasons discussed in the preamble, FRA amends part 225 of
chapter II, subtitle B of Title 49, Code of Federal Regulations, as
follows:
PART 225--[AMENDED]
0
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.
0
2. Section 225.1 is revised to read as follows:
Sec. 225.1 Purpose.
The purpose of this part 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 regulatory 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 preventing railroad injuries
and accidents. Any State may 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 which occur
in that State.
0
3. 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--
* * * * *
0
4. Section 225.5 is amended as follows:
0
a. 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'';
0
b. By revising paragraphs (1) and (3) in the definition of ``accident/
incident''; and
0
c. By revising 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,'' ``highway-rail grade crossing,'' ``new case,'' ``qualified
health care professional,'' ``railroad,'' ``work environment,'' and
``work-related.''
The additions and revisions read as follows:
Sec. 225.5 Definitions.
As used in this part--
Accident/incident means:
(1) Any impact between railroad on-track equipment and a highway
user at a highway-rail grade crossing. The term ``highway user''
includes automobiles, buses, trucks, motorcycles, bicycles, farm
vehicles, pedestrians, and all other modes of surface transportation
motorized and un-motorized;
* * * * *
(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, regardless of whether or not it meets the general
reporting criteria listed in Sec. 225.19(d)(1) through (d)(6), and the
railroad employee claims that, or the railroad otherwise has knowledge
that, an event or exposure arising from the operation of the railroad
is a discernable cause of the abnormal condition or disorder.
[[Page 68904]]
Accountable rail equipment accident/incident means
(1) Any derailment regardless of whether or not it causes any
damage or
(2) Any collision, highway-rail grade crossing accident/incident,
obstruction accident, other impact, fire or violent rupture, explosion-
detonation, act of God, or other accident/incident involving the
operation of railroad on-track equipment (standing or moving) that
results in damage to the railroad on-track equipment (standing or
moving), signals, track, track structures or roadbed and that damage
impairs the functioning or safety of the railroad on-track equipment
(standing or moving), signals, track, track structures or 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 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 means--
(1) With respect to a person who is not an employee of the
railroad:
(i) A person who is on property owned, leased, maintained or
operated by the railroad, an event or exposure that is related to the
performance of the railroad's rail transportation business; or
(ii) A person who is not on property owned, leased, maintained or
operated over by the railroad, an event or exposure directly resulting
from one or more of the following railroad operations:
(A) A train accident, a train incident, or a non-train 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) through (6).
Highway-rail grade crossing means:
(1) A location where a public highway, road, or street, or a
private roadway, including associated sidewalks, crosses one or more
railroad tracks at grade; or
(2) A location where a pathway explicitly authorized by a public
authority or a railroad carrier that is dedicated for the use of non-
vehicular traffic, including pedestrians, bicyclists, and others, that
is not associated with a public highway, road, or street, or a private
roadway, crosses one or more railroad tracks at grade. The term
``sidewalk'' means that portion of a street between the curb line, or
the lateral line of a roadway, and the adjacent property line or, on
easements of private property, that portion of a street that is paved
or improved and intended for use by pedestrians.
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 (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 and/or symptoms disappeared) from the previous
injury or illness, and an event or exposure arising from the operation
of a railroad discernably caused the signs and/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 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
the individual's commission of suicide as determined by a coroner,
public police officer or other public authority or injury to an
individual due to that individual's attempted commission of suicide as
determined by a public police office or other public authority. Only
the death of, or injury to, the individual who committed the suicidal
act is suicide data. Therefore, casualties to a person caused by the
suicidal act of another person are not considered 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
[[Page 68905]]
event or exposure may be outside the employer's control, such as a
lightning 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. Such activities, along with other normal
body movements, are considered events. 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 of the injury or
illness.
0
5. 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, 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.
0
6. 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.
* * * * *
0
7. 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
* * * * *
0
8. 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.''
0
9. 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
[[Page 68906]]
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 W 33-306,
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.
* * * * *
0
10. 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 Worker on Duty--Employee (Class A), if any of the conditions in this
paragraph (b) are met. (These exceptions apply only to Worker on Duty--
Employee (Class A) and do not affect a railroad's obligation to report
these injuries and illnesses as other types of persons (Employee Not On
Duty (Class B); Passenger on Trains (Class C); Nontrespassers-On
Railroad Property (Class D); Trespassers (Class E)), 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 and
an event or exposure not arising from the operation of a railroad was
the cause;
(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, Worker on Duty--Employee (Class A) or Employee Not on Duty
(Class B), if any of the following conditions in this paragraph (c) 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 Worker on Duty--Employee (Class A) or Employee Not
on Duty (Class B) depending on the employees 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 (except that for FRA reporting purposes a
railroad shall not exclude an accountable or reportable injury or
illness that is the result of a suicide or attempted suicide);
(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, operated over or maintained by the railroad.
(e) With respect to rail equipment accidents/incidents. A railroad
is not to report rail equipment accidents/incidents if the conditions
in this paragraph are met. (This exception does not affect a railroad's
obligation to maintain records of accidents/incidents as required by
Sec. 225.25 (Form FRA F 6180.97, ``Initial Rail Equipment Accident/
Incident Record'')).
(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.
Sec. 225.17 [Amended]
0
11. Section 225.17 is amended by removing paragraph (d).
0
12. 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.
[[Page 68907]]
(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.
0
13. 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 (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, medical
treatment or loss of consciousness of any person; or
(iii) Loss of consciousness;
(3) Injury to a railroad employee that results in:
(i) A day away from work;
(ii) Restricted work activity or job transfer; or
(iii) Significant injury diagnosed by a physician or other licensed
health care professional even if it does not result in death, medical
treatment, loss of consciousness, a day away from work, restricted work
activity or job transfer of a railroad employee;
(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 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.
* * * * *
0
14. Section 225.21 is amended by revising the introductory text and
paragraph (j) and adding paragraph (k) 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 F 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.
(k) Form FRA F 6180.150--Highway User Injury Inquiry Form.--Form
FRA F 6180.150 shall be sent to every potentially injured highway user,
or their representative, involved in a highway-rail grade crossing
accident/incident. If a highway user died as a result of the highway-
rail grade crossing accident/incident, a railroad must not send this
form to any person. The railroad shall hand deliver or send by first
class mail the letter within a reasonable time period following the
date of the highway-rail grade crossing accident/incident. The form
shall be sent along with a cover letter and a prepaid preaddressed
return envelope. The form and cover letter shall be completed in
accordance with instructions contained in the current ``FRA Guide for
Preparing Accident/Incident Reports.'' Any response from a highway user
is voluntary and not mandatory. A railroad shall use any response from
a highway user to comply with part 225's accident/incident reporting
and recording requirements.
0
15. Section 225.25 is amended by revising paragraphs (a), (b)(6) and
(b)(28), (e)(28), and (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.
[[Page 68908]]
(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 15 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 45 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;
(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).
0
16. 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)(1) Five-year retention period. Each railroad shall retain the
following forms for at least five years after the end of the calendar
year to which they relate:
(i) Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness
Record;''
(ii) Form FRA F 6180.107, ``Alternative Record for Illnesses
Claimed to be Work-Related;''
(iii) Monthly List of Injuries and Illnesses required by Sec.
225.25; and
(iv) Form FRA F 6180.150, ``Highway User Injury Inquiry Form.''
(2) Two-year retention period. Each railroad shall retain the
following forms for at least two years after the end of the calendar
year to which they relate:
(i) Form FRA F 6180.97, ``Initial Rail Equipment Accident/Incident
Record,'' required by Sec. 225.25;
(ii) The Employee Human Factor Attachments (Form FRA F 6180.81,
``Employee Human Factor Attachment'') required by Sec. 225.12, that
have been received by the railroad;
(iii) 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''),
that have been received by the railroad; and
(iv) 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.
* * * * *
(c) Each railroad shall 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. After October 31, 2011,
[[Page 68909]]
accident/incident records, retained by railroads as required by
paragraphs (a) and (b) of this section, in hard copy format or
electronic format are 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.).
0
17. 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.
* * * * *
0
18. 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
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) 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.
0
19. 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.
0
20. Appendix A to part 225 is revised to read as follows:
Appendix A to Part 225--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation Violation
------------------------------------------------------------------------
225.6: Failure to comply with consolidated $2,500 $5,000
reporting requirements.......................
225.9:
(1) Failure to report..................... 2,500 5,000
(2) Failure to immediately report......... 1,000 2,000
(3) Failure to accurately report.......... 1,000 2,000
[[Page 68910]]
225.11:
(1) Failure to report accident/incident... 2,500 5,000
(a) Highway-rail grade crossing.......
(b) Rail Equipment....................
(c) Death, Injury, or occupational
illness..............................
(2) Report is incomplete.................. 1,000 2,000
225.12: Failure to file Railroad Employee 2,500 5,000
Human Factor form............................
(a) Failure to file Railroad Employee
Human Factor Attachment correctly:
(1) Employee identified............... 2,500 5,000
(2) No employee identified............ 1,000 2,000
(b)
(1) Failure to notify employee 2,500 5,000
properly.............................
(2) Notification of employee not 2,500 5,000
involved in accident.................
(c) Failure of employing railroad to 1,000 2,000
provide requested information properly...
(d)
(1) Failure to revise report.......... 2,500 5,000
(2) Failure to notify after late 2,500 5,000
identification.......................
(f) Submission of notice if employee dies 2,500 5,000
as result of the reported accident.......
(g) Willfully false accident statement by ........... 5,000
employee.................................
225.13:
(1) Failure to Late reports............... 2,500 5,000
(2) Failure to Review Employee Statement.. 2,500 5,000
(3) Failure to Amend Report............... 1,000 2,000
225.18: Alcohol or drug involvement........... 2,500 5,000
225.23: Joint operations...................... (\1\) (\1\)
225.25:
(1) Recordkeeping......................... 2,500 5,000
(2) Failure to post list.................. 1,000 2,000
(3) Posting Prohibited Information........ 1,000 2,000
(4) Missing fields........................ 1,000 2,000
225.27:
(1) Failure to retain records............. 1,000 2,000
(2) Failure to retain electronic receipt.. 1,000 2,000
(3) Failure to comply with electronic 1,000 2,000
recordkeeping requirements...............
(4) Failure to provide access to records.. 1,000 2,000
225.33:
(1) Failure to adopt Internal Control Plan 2,500 5,000
or more than two missing/outdated/
incorrect components.....................
(2) Internal Control Plan with less than 1,000 2,000
three missing/outdated/incorrect
components...............................
(3) Failure to comply with Internal 2,500 5,000
Control Plan.............................
(4) Failure to comply with the 2,500 5,000
intimidation/harassment policy in
Internal Control Plan....................
(5) Failure to comply with requirements 2,500 5,000
associated with Form FRA F 6180.150......
225.35: Access to records and reports......... 2,500 5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $100,000 for any violation where circumstances warrant. See 49
CFR part 209, appendix A. A failure to comply with Sec. 225.23
constitutes a violation of Sec. 225.11. For purposes of Sec. Sec.
225.25 and 225.27 of this part, each of the following constitutes a
single act of noncompliance: (1) A missing or incomplete log entry for
a particular employee's injury or illness; or (2) a missing or
incomplete log record for a particular rail equipment accident or
incident. Each day a violation continues is a separate offense.
\2\ The penalty schedule uses section numbers from 49 CFR part 225. If
more than one item is listed as a type of violation of a given
section, each item is also designated by a ``penalty code,'' which is
used to facilitate assessment of civil penalties, and which may or may
not correspond to any subsection designation(s). For convenience,
penalty citations will cite the CFR section and the penalty code, if
any. FRA reserves the right, should litigation become necessary, to
substitute in its complaint the CFR citation in place of the combined
CFR and penalty code citation, should they differ.
Issued in Washington, DC, on October 6, 2010.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2010-27641 Filed 11-8-10; 8:45 am]
BILLING CODE 4910-06-P