Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 14091 

(§ 0.461(g)(1)(i) through (iii)) apply to 

the processing of the request. 

(3) All other requesters. (i) The 

Commission shall charge requesters 

who do not fit into any of the categories 

above fees which cover the full, 

reasonable direct cost of searching for 

and reproducing records that are 

responsive to the request, pursuant to 

§ 0.465 and § 0.467, except that the first 

100 pages of reproduction and the first 

two hours of search time shall be 

furnished without charge. 

(ii) All other requesters shall not be 

assessed search fees if the Commission 

fails to comply with the time limits 

under § 0.461(g)(1), if no unusual or 

exceptional circumstances 

(§ 0.461(g)(1)(i) through (iii)) apply to 

the processing of the request. 

(b)(1) The 100 page restriction on 

assessment of reproduction fees in 

paragraphs (a)(2) and (a)(3) of this 

section refers to 100 paper copies of a 

standard size, which will normally be 

‘‘81⁄2 x 11’’ or ‘‘11 x 14,’’ or microfiche 

containing the equivalent of 100 pages 

or 100 pages of computer printout. 

(2) When the agency reasonably 

believes that a requester or group of 

requesters is attempting to segregate a 

request into a series of separate 

individual requests for the purpose of 

evading the assessment of fees, the 

agency will aggregate any such requests 

and assess charges accordingly. 

(c) When a requester believes he or 

she is entitled to a reduced fee 

assessment pursuant to paragraphs (a)(2) 

and (a)(3) of this section, or a waiver 

pursuant to paragraph (e) of this section, 

the requester must include, in his or her 

original FOIA request, a statement 

explaining with specificity, the reasons 

demonstrating that he or she qualifies 

for a reduced fee or a fee waiver. 

Included in this statement should be a 

certification that the information will 

not be used to further the commercial 

interests of the requester. 

Note to paragraph (c): Anyone requesting 

a reduced fee or a fee waiver must submit the 

request directly to the Commission and not 

to the contractor who will provide 

documents only at the contract price. 

(d) If the Commission reasonably 

believes that a commercial interest 

exists, based on the information 

provided pursuant to paragraph (c) of 

this section, the requester shall be so 

notified and given an additional ten 

business days to provide further 

information to justify receiving a 

reduced fee. See § 0.467(e)(2). During 

this time period, the materials will be 

available for inspection to the extent 

that the time period exceeds the time 

period for responding to FOIA requests, 

as appropriate. 

(e)(1) Copying, search and review 

charges shall be waived or reduced by 

the General Counsel when ‘‘disclosure 

of the information is in the public 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government and is not primarily in the 

commercial interest of the requester.’’ 5 

U.S.C. 552(a)(4)(A)(iii). Simply 

repeating the fee waiver language of 

section 552(a)(4)(A)(iii) is not a 

sufficient basis to obtain a fee waiver. 

(2) The criteria used to determine 

whether disclosure is in the public 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government include: 

(i) Whether the subject of the 

requested records concerns the 

operations or activities of the 

government; 

(ii) Whether the disclosure is likely to 

contribute to an understanding of 

government operations or activities; and 

(iii) Whether disclosure of the 

requested information will contribute to 

public understanding as opposed to the 

individual understanding of the 

requester or a narrow segment of 

interested persons. 

(3) The criteria used to determine 

whether disclosure is primarily in the 

commercial interest of the requester 

include: 

(i) Whether the requester has a 

commercial interest that would be 

furthered by the requested disclosure; 

and, if so 

(ii) Whether the magnitude of the 

identified commercial interest of the 

requester is sufficiently large, in 

comparison with the public interest in 

disclosure, that disclosure is primarily 

in the commercial interest of the 

requester. 

(4) This request for fee reduction or 

waiver must accompany the initial 

request for records and will be decided 

under the same procedures used for 

record requests. 

(5) If no fees or de minimis fees would 

result from processing a FOIA request 

and a fee waiver or reduction has been 

sought, the General Counsel will not 

reach a determination on the waiver or 

reduction request. 

(f) Whenever the total fee calculated 

under this section is $15 or less, no fee 

will be charged. 

(g) Review of initial fee 

determinations under § 0.467 through 

§ 0.470 and initial fee reduction or 

waiver determinations under § 0.470(e) 

may be sought under § 0.461(j). 

[FR Doc. E9–7033 Filed 3–27–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 225 

Railroad Accidents/Incidents: Reports 

Classification, and Investigations 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation. 

ACTION: Notice of interpretation. 

SUMMARY: FRA is issuing this notice of 

interpretation to inform 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. 

This notice of interpretation informs the 

regulated community as to when such 

behavior constitutes harassment or 

intimidation calculated to discourage or 

prevent the reporting of an accident, 

incident, injury or illness. This 

document is not intended to address or 

impact statutory provisions related to 

providing ‘‘prompt medical attention,’’ 

as enforcement of those provisions fall 

within the jurisdiction of the U.S. 

Department of Labor. 

FOR FURTHER INFORMATION CONTACT: 

Douglas H. Taylor, Staff Director, 

Operating Practices Division, Office of 

Safety Assurance and Compliance, FRA, 

1200 New Jersey Avenue, SE., RRS–11, 

Mail Stop 25, Washington, DC 20590 

(telephone 202–493–6255); or Zeb 

Schorr, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue 

SE., RCC–11, Mail Stop 10, Washington, 

DC 20590 (telephone 202–493–6072). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 225.33(a) of Title 49 of the 

Code of Federal Regulations requires 

each railroad to ‘‘adopt and comply 

with a written Internal Control Plan’’ 

addressing the railroad’s policies and 

procedures regarding accident/incident 

reporting. This section further requires 

that such Internal Control Plans include, 

at a minimum, a ‘‘policy statement 

declaring the railroad’s commitment 

* * * to the principle, in absolute 

terms, that harassment or intimidation 

of any person that is calculated to 

discourage or prevent such person from 

receiving proper medical treatment or 

from reporting such accident, incident, 

injury or illness will not be permitted or 

tolerated * * *.’’ The FRA Guide for 

Preparing Accident/Incident Reports 

also notes that ‘‘many railroad 


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14092 Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 

employees fail to disclose their injuries 

to the railroad or fail to accept 

reportable treatment from a physician 

because they wish to avoid potential 

harassment from management or 

possible discipline that is sometimes 

associated with the reporting of such 

injuries.’’ FRA Guide, Ch. 1, p.8. The 

FRA Guide goes on to state that 

supervisory personnel and mid-level 

managers in some instances ‘‘are urged 

to engage in practices which may 

undermine or circumvent the reporting 

of injuries and illnesses.’’ Id. 

FRA is aware of incidents in which a 

supervisor or other railroad official 

(hereinafter collectively referred to as 

the ‘‘supervisor’’) has accompanied an 

injured employee into an examination 

room, or other room in which the 

injured employee received medical 

treatment (hereinafter collectively 

referred to as the ‘‘examination room’’). 

While FRA is concerned that injured 

employees in such situations may not 

receive complete or prompt medical 

treatment, responsibility for ensuring 

that such treatment is afforded has been 

assigned by Congress to the Department 

of Labor. FRA is concerned that when 

accompanied by a supervisor an injured 

employee may be discouraged or 

otherwise prevented from reporting an 

accident, incident, injury or illness. 

Similarly, a supervisor may influence 

the type or extent of medical treatment 

afforded the employee in an effort to 

affect the reportability of that injury. 

Although concerns have been expressed 

as to the need for a railroad to determine 

the extent of an employee’s injuries, 

FRA does not believe that such concerns 

outweigh the potential pitfalls and 

problems associated with the practice of 

having supervisors accompany injured 

employees while they receive care from 

their physicians. Moreover, physicians 

are in the best position to evaluate the 

health of injured employees and the 

presence of a supervisor during such 

examinations would not, in most cases, 

add any value to the treatment of an 

employee and would, in general, be a 

distraction to both the employee and the 

physician. 

The purpose of this document is to 

articulate a general principle regarding 

what behavior constitutes harassment or 

intimidation in violation of 

§ 225.33(a)(1) in the particular context 

of supervisors accompanying injured 

employees in examination rooms. The 

interpretation contained in this notice 

reflects the longstanding position of 

FRA regarding this practice. This 

document is not intended to address or 

impact the meaning or application of 

the statutory provisions contained in 49 

U.S.C. 20109 related to providing 

‘‘prompt medical attention,’’ as 

enforcement and application of those 

provisions fall within the jurisdiction of 

the U.S. Department of Labor. 

II. Interpretation 

A. General Principle 

Harassment and intimidation occur in 

violation of § 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. 

Issued in Washington, DC, on March 24, 

2009. 

Jo Strang, 

Acting Deputy Administrator, Federal 

Railroad Administration. 

[FR Doc. E9–6953 Filed 3–27–09; 8:45 am] 

BILLING CODE 4910–06–P 


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