[Federal Register Volume 61, Number 118 (Tuesday, June 18, 1996)]
[Rules and Regulations]
[Pages 30940-30987]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14943]




[[Page 30939]]


_______________________________________________________________________

Part II





Department of Transportation





_______________________________________________________________________



Federal Railroad Administration



_______________________________________________________________________



49 CFR Part 225



Railroad Accident Reporting; Final Rule

Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules 
and Regulations

[[Page 30940]]



DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA Docket No. RAR-4, Notice No. 13]
RIN 2130-AA58


Railroad Accident Reporting

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FRA is amending the railroad accident reporting regulations in 
several ways. First, railroads are required to adopt internal control 
procedures to ensure accurate reporting of accidents, casualties, 
injuries, illnesses and highway-rail grade crossing accidents. Second, 
railroads are allowed the option to submit, update, and amend accident, 
casualty, and highway-rail accident reports through transfer of 
information on computer diskettes, magnetic tapes, or electronically 
over telephone lines. Third, the accident and injury reporting forms, 
including definitions, are amended to allow for the collection of 
additional safety information. Fourth, injury and illness, as well as 
derailment and collision, recordkeeping requirements are amended to 
require the recordation of reportable and accountable, i.e., 
nonreportable, illnesses and injuries as well as the recordation of 
reportable and accountable rail equipment accidents and incidents. 
Finally, the method for calculation of the accident reporting monetary 
threshold is amended to allow for use of publicly available data and 
statistics. The purpose of the rule is to enhance the quality of 
information FRA collects pertaining to rail equipment accidents and 
incidents, as well as illnesses, injuries and casualties to railroad 
employees, passengers and other persons on railroad property.

EFFECTIVE DATE: The rule is effective January 1, 1997.

ADDRESSES: Any petition for reconsideration should be submitted to the 
Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 
400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director, 
Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street, 
S.W., Washington, D.C. 20590 (telephone 202-501-4863 or 202-366-0543); 
or Marina C. Appleton, Trial Attorney, Office of Chief Counsel, FRA, 
400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-366-
0628).

SUPPLEMENTARY INFORMATION:

Background

A. Purpose and Structure of the Accident Reporting Regulations

    FRA's primary function is to promote safety within the railroad 
industry. To carry out its safety mission, FRA requires information 
about the conditions of the nation's railroads to set safety standards, 
to enforce those standards, and to develop railroad injury and accident 
prevention programs. The injury and accident reports submitted by the 
railroads form a principal basis for FRA's railroad safety program. FRA 
uses injury and accident data for, among other things, establishing its 
inspection strategy, determining comparative trends of railroad safety, 
and calculating the costs and benefits of proposed safety rules. FRA 
also uses railroad accident, injury and illness data to determine if 
new regulations are needed or if current regulations are in need of 
revision. Because FRA uses the data in all aspects of its operations, 
it is important that the data it receives be as accurate and consistent 
as possible.
    The railroad accident reporting regulations set forth in 49 CFR 
Part 225 require railroads to submit monthly reports to FRA summarizing 
collisions, derailments, and certain other accidents/incidents 
involving damages above a periodically revised dollar threshold, as 
well as certain injuries to passengers, employees, and other persons on 
railroad property.
    Section 225.19 of the regulations divides railroad accidents/
incidents into three categories: (1) highway-rail grade crossing 
accidents/incidents; (2) rail equipment accidents/incidents; and (3) 
death, injury, or occupational illness accidents/incidents. Every 
railroad accident/incident that meets the stated criteria for each 
category must be reported to FRA as required under 49 CFR 225.11. 
Because the reporting requirements and the information needed regarding 
each category of accident/incident are unique, a different reporting 
form is used for each category. If the circumstances of an accident/
incident are such that it falls within two or even all three 
categories, then a separate reporting form for each category must be 
completed by the railroad.

B. General Accounting Office Study on Accident Reporting to FRA

    During the late 1980s, Congress, increasingly concerned with 
railroad safety, asked the General Accounting Office (GAO) to determine 
whether FRA's safety programs were adequate to protect railroad 
employees and the general public from injuries associated with train 
accidents. GAO studied FRA's railroad injury and accident reporting 
data and issued a report in April 1989 (GAO/RCED-89-109) that raised 
important questions about the quality of railroad compliance with FRA's 
accident reporting regulations. GAO found that there were 
underreporting and inaccurate reporting of injury and accident data for 
1987 by the railroads it audited.
    GAO recommended that FRA (a) require railroads to establish injury 
and accident reporting internal control procedures; (b) include an 
analysis of railroads' internal control procedures for reporting in 
FRA's safety records inspections; (c) provide inspectors with the 
authority to take enforcement actions against railroads with deficient 
internal control procedures; (d) require railroads to update reports on 
workdays lost due to injuries; and (e) clarify FRA's requirement for 
railroads to update accident reports when significant changes occur.

C. Advance Notice of Proposed Rulemaking on Accident Reporting

    In response to the GAO audit, FRA published an advance notice of 
proposed rulemaking (ANPRM) on March 14, 1990 (55 FR 9469) soliciting 
comments and suggestions from the public regarding methods for 
improving FRA's injury and accident reporting system and its governing 
regulations. Interested parties were invited to participate in a public 
hearing held on May 17, 1990, and to file written comments prior to May 
25, 1990. The responses to that public notice provided additional 
information and identified further issues and subissues related to the 
matters in the ANPRM. In order to further explore matters related to 
the accident/incident reporting system, FRA held informal, open 
meetings on June 13, 1991, August 22, 1991, and August 18, 1992, in 
Washington, D.C., with members of the Association of American Railroads 
(AAR) Committee for Uniformity in Reporting. At the request of rail 
labor representatives, FRA also held an informal, open meeting on 
October 21, 1991, in Washington, D.C., to discuss the same issues with 
representatives of various rail unions.

D. Notice of Proposed Rulemaking on Accident Reporting

    FRA published a notice of proposed rulemaking (NPRM) on accident 
reporting on August 19, 1994 (59 FR

[[Page 30941]]

42880), and conducted a series of public hearings to obtain the 
industry's views and comments on specific issues addressed in the NPRM. 
Public hearings were held in Washington, D.C. on October 5-6, 1994; in 
Kansas City, Missouri on October 19, 1994; and in Portland, Oregon on 
November 3, 1994. FRA examined the issues and interests involved and 
made a preliminary inquiry among the hearing participants to determine 
whether additional hearings or regulatory meetings could be successful 
in narrowing areas of disagreement and exploring possible 
accommodations. Most participants expressed interest in continuing the 
rulemaking process by holding additional or supplementary regulatory 
meetings, roundtables or workshops. After further deliberation, FRA 
decided that an informal public regulatory conference would prove 
advantageous in the development of the accident reporting regulations.

E. Public Regulatory Conference

    In accordance with a notice published on December 27, 1994 (59 FR 
66501), FRA held an informal public regulatory conference on January 
30-February 2, 1995, in Washington, D.C. to further discuss issues 
related to its NPRM on railroad accident reporting. In accordance with 
the provisions of the Administrative Procedure Act (5 U.S.C. 551 et 
seq.), the public regulatory conference was a continuation of the 
accident reporting rulemaking proceeding. The format of the discussions 
was informal and employed a topical, interactive approach. Conference 
participants offered various alternative approaches in response to the 
specific proposals set forth in the NPRM. The AAR and The American 
Short Line Railroad Association (ASLRA) requested that they be allowed 
to address specific topics by the existing comment deadline of March 
10, 1995, and that such comments be incorporated into a second or 
supplemental NPRM. FRA believed that a decision as to whether or not to 
issue a supplemental NPRM was premature at this point in the rulemaking 
proceeding. FRA therefore requested, through publication in the Federal 
Register (60 FR 9001), that written comments addressing all issues in 
the NPRM be filed no later than March 10, 1995, as specified in FRA's 
December 27, 1994, notice. After thorough review and analysis of the 
submitted comments, FRA stated that it would decide whether a 
supplemental NPRM was warranted for this rulemaking and would issue a 
decision in the Federal Register. FRA also stated that the decision 
whether or not to issue a supplemental NPRM would be based primarily on 
the extent that written comments addressed constructive, creative 
solutions to the subjects and issues involved in the NPRM.

F. Supplemental Notice of Proposed Rulemaking

    FRA published a notice on July 3, 1995 (60 FR 34498), which stated 
that a second or supplemental NPRM would be issued for the rulemaking 
to revise the railroad accident reporting regulations. The decision to 
issue a supplemental NPRM was made pursuant to requests advanced by 
some participants at the public regulatory conference held on January 
30-February 2, 1995, in Washington, D.C., during which specific topics 
were discussed related to the accident reporting NPRM. It was 
anticipated that the supplemental NPRM would address whether or not a 
meaningful performance standard for accident reporting could be devised 
for use by the railroads. It was also anticipated that the supplemental 
NPRM would discuss revised documentation requirements for the proposed 
Internal Control Plan; calculation of damage costs for rail equipment 
accidents and incidents for the determination of whether the threshold 
is met for FRA reporting purposes; and the proposed definition for the 
classification ``Worker on Duty'' as it pertains to ``Contractors'' and 
``Volunteers'' performing safety-sensitive functions.
    FRA reviewed thoroughly the written comments received in response 
to the NPRM, the transcripts of the public hearings, as well as the 
transcripts of the public regulatory conference. This review revealed 
that a supplemental NPRM was not warranted. By notice published in the 
Federal Register on January 24, 1996 (61 FR 1892), FRA announced that 
it would not issue a supplemental NPRM in the rulemaking; instead, the 
final rule would deal fully with major alternative resolutions for the 
issues in the rulemaking, explaining clearly why they were endorsed or 
rejected in favor of the option selected.

Summary of Public Comments

    FRA received comments from the AAR, ASLRA, the Brotherhood of 
Railway Carmen (BRC), the Brotherhood of Maintenance of Way Employes 
(BMWE), the Brotherhood of Locomotive Engineers (BLE), the Brotherhood 
of Railroad Signalmen (BRS), individual members of some of these 
associations, the State of California's Public Utilities Commission, 
the Contra Costa County Health Services Department of the State of 
California, the American Trucking Associations (ATA), the Tourist 
Railroad Association, the Association of Railway Museums, Inc. (ARM), 
the Illinois Railway Museum, the American Public Transit Association 
(APTA), the National Railroad Construction and Maintenance Association, 
Inc. (NRC), and individual members of the public.

Section-by-Section Analysis

A. Section 225.33  Internal Control Plan

Proposed Rule
    FRA proposed that each railroad must prepare and maintain an 
Internal Control Plan (ICP) that required institution of proper 
internal control procedures for reporting. FRA believed that requiring 
an ICP would ensure the reconciliation and incorporation of accident/
incident and injury/illness data from the various departments within 
the railroad for submission to the railroad's reporting officer. The 
proposed rule required that the reporting office have access to all 
pertinent claims records, including medical records and payroll 
records, and be notified by claims and medical departments of each new 
case/claim opened by a railroad worker. The proposal also stated that 
identification of offices and responsible railroad officers would aid 
FRA in identification of procedural weaknesses in reporting. FRA 
proposed periodical review of the ICP by FRA in order to detect 
procedural deficiencies. If FRA should find the railroad to be in 
noncompliance, the proposed regulation allowed FRA to cite that 
railroad for violating procedural requirements of the ICP when 
inaccurate reporting was found and the cause could be attributed to 
internal control weakness.
Comments
    This proposal created significant controversy among the railroad 
representatives who participated in the proceeding. Most railroad 
commenters did not support mandated internal control procedures. 
Railroad representatives stated that they did not want to change or 
modify any internal control plan, if such a plan was already in place, 
to fit the ICP as proposed by FRA. Railroad members also believed that 
the plan was too detailed and, as such, would require constant updating 
in order to accommodate normal changes such as personnel changes and 
reorganizations. These members also perceived that the ICP would result 
in additional, unjust monetary penalties for steps missed in the ICP 
that led to

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inaccurate accident reporting. As proposed, if a reporting violation 
was found, then the railroad might be fined for both the reporting 
violation and any departure from the ICP which resulted in the 
reporting violation. Instead of an ICP mandated by FRA, AAR and its 
constituent members suggested that FRA adopt a performance standard for 
determining and measuring a railroad's compliance with reporting 
requirements.
    ASLRA and its members stated that the performance standard proposed 
by AAR should be adopted for Class I railroads, but that such a 
standard would be impracticable for the short line industry since each 
short line's sample size would be too small to make such an approach 
meaningful. ASLRA supported the concept of development and maintenance 
of an ICP by other than Class I railroads. However, ASLRA believed that 
elements of the ICP should be determined by each railroad to suit its 
unique needs and circumstances and that such elements should not be 
mandated by FRA.
    Rail labor associations and other commenters opposed adoption of 
the performance standard proposed by AAR in lieu of specific ICP's 
because they believed that such a standard could not ensure reliable, 
accurate and uniform reporting data on an industry-wide basis. These 
commenters proposed adoption of uniform, formalized ICP's with some 
minor modifications to FRA's proposed ICP to allow for more flexibility 
in its actual requirements.
    Most railroads did not support FRA's provision authorizing civil 
penalties for inaccurate reporting due to internal control weakness. 
Most other commenters favored an enforcement system in which monetary 
penalties might be issued against the railroad for inaccurate reporting 
resulting from noncompliance with procedures outlined in the ICP.
AAR's Proposed Performance Standard
    AAR proposed that FRA adopt a performance standard for determining 
whether a railroad complied with reporting requirements. The 
performance standard proposed by AAR was based on methods selected from 
a set of statistical procedures developed for use by the U.S. Military 
(MIL-STD-105E, 1989) as means of statistically controlling process 
quality in a stable environment. Specifically, AAR proposed that:
    (a) Each railroad would maintain a written ICP which would achieve 
a compliance rate of 99 percent for the accident and incident reports 
required under Sec. 225.11. This written ICP would be developed 
internally by each reporting railroad.
    (b) The compliance rate would be based on a reporting period 
covering a closed twelve-month calendar year.
    (c) The compliance rate would be determined by comparing accident 
and incident reports filed with FRA against the railroad-maintained 
data base which contains information about employee injuries, employee 
illnesses, as well as property damage, so that determinations about 
reportability may be reasonably made.
    (d) Audits conducted to determine the compliance rate would conform 
to the following procedures:
    (1) Each railroad would provide FRA a list of both reportable and 
nonreportable accidents/incidents and illnesses/injuries for a 
specified calendar year and would make accident/incident and injury/
illness reports available for inspection by FRA;
    (2) FRA would take a random sample from the list of these reports. 
Sampling procedures would conform to the military performance standard. 
Railroads would have to achieve a compliance rate of 99 percent; for 
example, one rejection out of a random sample of 100 cases. A rejection 
would be defined as a railroad's failure to report a reportable 
occurrence; and
    (3) Audits would be conducted by FRA personnel, and audit results 
would be provided in writing to the railroad.
    (e) If a railroad failed to achieve a compliance rate of 99 
percent, then the railroad would be subject to a monetary penalty and 
would have to submit an action plan within 30 days to FRA explaining 
what corrective action had been taken to achieve 99-percent compliance.
    (f) If a railroad failed to achieve a compliance rate of 99 percent 
in two consecutive audits, then the railroad would be subject to 
another monetary penalty; would be required to submit an action plan 
within 30 days to FRA explaining what corrective action had been taken 
to achieve 99-percent compliance; and would be subject to a follow-up 
audit after 30 days from submission of the action plan to FRA. Further, 
the railroad might be directed to file with FRA an ICP detailing 
internal reporting processes and procedures.
    FRA had an independent statistical firm examine and review the 
military performance standard to determine whether it was feasible to 
apply the standard to measure compliance with accident/incident 
reporting requirements. A summary of this report has been included as 
Attachment 1. This firm concluded that the military performance 
standard invoked by AAR (MIL-STD-105E, 1989) was based on sound 
statistical methods; however, several problems existed with the 
standard's application to accident reporting. A brief description of 
the deficiencies follows:
    (a) Reporting by a railroad is not a stable process. AAR's 
reporting process has not been fully defined or tested in the real 
world; and its stability has not been demonstrated. AAR assumed that 
reporting would be a stable process and applied procedures appropriate 
only for stable processes.
    (b) AAR's sample-inclusion criterion is flawed. The denominator for 
nonreportable accidents and incidents can be inflated to ensure that 
the 99-percent compliance rate is achieved. The AAR formula for 
determining a railroad's compliance rate is:
    compliance rate = 1.00 - (number of failures to report reportable 
cases/(total number of reportable cases + total number of nonreportable 
cases)).
    For determining sample size, AAR's sampling plan combines 
reportable and nonreportable accidents and incidents. For counting 
failures or rejections, AAR's sampling plan recognizes only the 
reporting errors in nonreportable accidents and incidents, but not the 
reporting errors related to reportable accidents and incidents. In this 
scenario, therefore, increasing the number of nonreportable cases would 
improve the compliance rate for that reporting railroad.
    (c) AAR overstated the compliance rate. Using any reasonable 
definition of ``compliance rate,'' the AAR sampling plan, at best, 
achieves only a 97-percent compliance rate. See Attachment 1 for 
further discussion.
    (d) AAR's performance standard lacks requirements for maintaining 
written ICPs. The Military Standard includes a general requirement for 
developing written procedures (such as an ICP), which FRA could require 
to be made available to its inspectors for review. AAR's performance 
standard does not permit FRA to direct a railroad to develop an ICP 
until after the railroad fails to demonstrate 99-percent compliance in 
two consecutive audits. Without written procedures, i.e., an ICP, it is 
not possible to guarantee full implementation of management decisions 
by line employees.
    (e) AAR's performance standard does not implement the full set of 
procedures prescribed in the Military Standard. Specifically, AAR's 
performance standard fails to implement ``switching procedures,'' which 
are needed when consecutive lots or batches are rejected. ``Switching 
procedures'' are a set of

[[Page 30943]]

rules that tell users when to adopt ``normal,'' ``tightened,'' or 
``reduced'' inspection. AAR's performance standard lacks switching 
procedures and rules, and AAR has not determined the compliance rate 
bias resulting from this lack.
    Even if the AAR's performance standard were revised to deal with 
some of these problems, it would still fail to meet the main objective 
of the ICP, which is to improve the accuracy of the submitted accident 
and injury reports. Hypothetically, a railroad could meet an improved 
version of the AAR's performance standard by reporting all of the 
reportable accidents and incidents, but the submitted reports could be 
riddled with inaccuracies that the ICP would have prevented. For 
example, in the case where an employee is injured, the submitted 
``Railroad Injury and Illness (Continuation Sheet)'' (Form FRA F 
6180.55a) may state that the employee missed five days from work 
because the employee's initial medical report indicated that he or she 
missed five work days. However, in actuality, the employee missed 20 
work days for his or her injury. In this example, the failure to 
provide the reporting officer with the correct payroll ``time and 
attendance'' information resulted in an inaccurate filed report, with 
no harm to the railroad's compliance rate under even a modified AAR 
performance standard.

Final Rule

Section 225.33  Internal Control Plan

    FRA believes that an Internal Control Plan (ICP) best provides the 
procedures necessary to ensure that complete, reliable, and accurate 
data is obtained, maintained, and disclosed by the railroads. FRA 
investigations have repeatedly found instances in which departments 
within the same railroad failed to provide to the railroad reporting 
officer information critical to determining reportability or 
information necessary for filing an accurate and complete report. Thus, 
the final rule adopts the proposed ICP with modifications recommended 
by various parties in this proceeding.
    The ICP is not a ``command and control'' system; it is a type of 
performance standard which ensures the accuracy of a process and, in 
this case, the process is accident/incident reporting. This ICP 
requirement does not tell the railroad how to develop the internal 
control procedures; how the lines of communication should be 
established; the type of correspondence to be used; the forms that 
should be used; which executives in the company are responsible for 
reportability decisions; nor the periods of time necessary for 
information exchange. The ICP is a performance standard that dictates 
the necessity for communication within each railroad to ensure that 
proper reporting will be accomplished. The changes to the proposed ICP 
allow each railroad, including the short lines, the flexibility to 
design an ICP suitable to the needs and circumstances of the particular 
railroad. The ICP, therefore, may vary in size from one that is a few 
pages for smaller railroads and short lines, to one of considerable 
size for the major carriers.
    In general, the ICP challenges the railroads to develop a Total 
Quality Management (TQM) system to ensure that there are no errors in 
reporting. ``No errors'' means that all reportable accidents and 
incidents are reported to the FRA and that each report is accurately 
completed prior to submission to FRA, in other words, a ``zero 
tolerance'' policy with respect to inaccurate reporting. TQM focuses on 
continuous and incremental improvements of process performance. In 
contrast, acceptance testing, as in AAR's proposed performance 
standard, judges acceptability of process output by applying predefined 
criteria. AAR's proposed performance standard suggests, therefore, that 
some defects in reporting are permissible.
    The ICP also addresses intimidation and harassment of any person 
calculated to prevent or discourage such person from either receiving 
proper medical treatment for an injury or illness or from reporting an 
accident, incident, illness or injury. FRA has become increasingly 
aware that many railroad 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 is also aware that in some instances supervisory 
personnel and mid-level managers are urged to engage in practices which 
may undermine or circumvent the reporting of injuries and illnesses. 
Railroads must remain proactive in accurate reporting of all reportable 
accidents, injuries and illnesses, and must not engage in practices 
that could manipulate reportability of these incidents. In some 
instances, railroads report an injury or illness to FRA only after FRA 
inspectors make management aware that a particular injury or illness 
was not reported. Many times FRA inspectors conduct an investigation 
pursuant to a complaint from an employee alleging that his or her 
injury/illness was not properly reported or was not reported at all. 
Again, the railroad usually reports this injury/illness to FRA only 
after FRA informs management of the situation.
    FRA remains committed to improving the accuracy of the accident 
reporting data base and can do so only with the full cooperation of 
both rail workers and management. In order to address this widespread 
problem, the ICP mandates that each railroad adopt a policy statement 
which affirms that intimidation or harassment by any officer, manager, 
supervisor, or employee of the railroad that aims to undermine or 
negatively influence the treatment of persons with an injury or illness 
or that adversely affects the reporting of such injuries and illnesses 
will not be tolerated nor permitted and that appropriate prescribed 
disciplinary action may be taken by the railroad against such person 
committing the harassment or intimidation. The policy statement 
addressing intimidation and harassment must be disseminated to all 
employees, supervisors and to all levels of railroad management. 
Further, the railroad must have procedures in place to process 
complaints when the railroad's intimidation and harassment policy has 
been violated, and such procedures must also be disseminated to all 
employees and management/supervisory personnel.
    Consequently, the final rule states in Sec. 225.33(a) that each 
railroad shall adopt and comply with a written Internal Control Plan 
that must be maintained at the office where the railroad's reporting 
officer conducts his or her official business or duties. The ICP must 
be amended, as necessary, to reflect any significant changes to the 
railroad's internal reporting procedures. The ICP is to include, at a 
minimum, each of the following ten components:
    (1) A policy statement indicating the railroad's commitment to 
complete and accurate reporting of all accidents, incidents, injuries, 
and occupational illnesses arising from the operation of the railroad. 
This statement should include, 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 
an accident, incident, injury or illness will not be permitted or 
tolerated and will result in some stated disciplinary action against 
such person committing the harassment or intimidation.
    (2) The dissemination of the policy statement; complaint 
procedures. Each railroad must provide to all employees,

[[Page 30944]]

supervisory personnel, and management the policy statement described in 
paragraph (a)(1). Each railroad must have procedures to process 
complaints from any person when the policy stated in paragraph (a)(1) 
is violated, and to impose the appropriate prescribed disciplinary 
actions on each person found to have violated the policy. These 
procedures must be disclosed to railroad employees, supervisors and 
management. The railroad must provide ``whistle blower'' protection to 
any person subject to this policy, and such policy must be disclosed to 
all railroad employees, supervisors and management.
    (3) Copies of internal forms and/or a description of the internal 
computer reporting system used for the collection and internal 
recording of accident and incident information.
    (4) A description of the internal procedures used by the railroad 
for the processing of forms and/or computerized data regarding accident 
and incident information.
    (5) A description of the internal review procedures applicable to 
accident and incident information collected, and reports prepared by, 
the railroad's safety, claims, medical and/or other departments engaged 
in collecting and reporting accident and incident information.
    (6) A description of the internal procedures used for collecting 
cost data and compiling costs with respect to accident and incident 
information.
    (7) A description of applicable internal procedures for ensuring 
adequate communication between the railroad department responsible for 
submitting accident and incident reports to FRA and any other 
department within the railroad responsible for collecting, receiving, 
processing and reporting accidents and incidents.
    (8) A statement of applicable procedures providing for the updating 
of accident and incident information prior to reporting to FRA and a 
statement of applicable procedures providing for the amendment of 
accident and incident information as specified in the FRA Guide for 
Preparing Accidents/Incidents Reports.
    (9) A statement that specifies the name and title of the railroad 
officer responsible for auditing the performance of the reporting 
function; a statement of the frequency (not less than once per calendar 
year) with which audits are conducted; and identification of the site 
where the most recent audit report may be found for inspection and 
photocopying.
    (10) A brief description of the railroad organization, including 
identification of (i) all components that regularly come into 
possession of information pertinent to the preparation of reports under 
this part (e.g., medical, claims, and legal departments; operating, 
mechanical, and track and structures departments; payroll, accounting, 
and personnel departments); (ii) the title of each railroad reporting 
officer; (iii) the title of each manager of such components, by 
component; and (iv) all officers to whom managers of such components 
are responsible, by component. A current organization chart would 
satisfy items (iii) and (iv).
    The penalty schedule is amended so that if the railroad fails to 
adopt the ICP, then that railroad is subject to the assessment of a 
civil monetary penalty in the amount of $2,500 or, if willful, $5,000. 
Also each railroad's reporting error arising from noncompliance with 
the ICP subjects that railroad to the assessment of a civil monetary 
penalty in the amount of $2,500 or, if willful, $5,000. Consequently, 
if a reporting violation is found, then the railroad may be fined for 
both the reporting violation and any departure from the ICP which 
resulted in the reporting violation. FRA may require the railroad to 
make modifications to its ICP to prevent such reporting errors in the 
future. However, if there is a reporting violation, but FRA determines 
that the ICP was followed by the railroad, then just one violation may 
be written. FRA believes that availability of a monetary civil penalty 
is necessary in order to compel the railroads to correct procedural 
deficiencies and weaknesses in their ICPs. However, in some instances 
FRA may employ use of a compliance order or other remedy in lieu of 
civil penalties where appropriate in order to promote future 
compliance.
    Additionally, FRA may assess a civil monetary penalty against any 
railroad employee, manager, or supervisor who willfully causes a 
violation or noncompliance with any requirement of Part 225, including 
Secs. 225.33(a) and (b), requiring adherence to the railroad's 
intimidation and harassment policy and noninterference with that 
policy. FRA may issue these civil penalties pursuant to 49 U.S.C. 
21301, 21302, and 21304. Also see Appendix A to Part 209 of the Code of 
Federal Regulations for other sanctions. Criminal penalties and/or 
imprisonment provided for in 49 U.S.C. 21311 may also be imposed on any 
individual who knowingly and willfully makes a false entry in a record 
or report required by the accident reporting regulations or other 
regulations issued under 49 U.S.C. chapter 201; destroys, mutilates, 
changes, or falsifies such a record or report; does not enter required 
specified facts in a such record or report; makes or preserves such a 
record or report in violation of such a regulation or order; or who 
files a false record or report with FRA. FRA wants to make it clear to 
all railroads that it will be diligent in its efforts to ensure that 
all parties adhere to and comply with the intimidation and harassment 
policy in the ICP. It should be noted that FRA will be aggressive in 
pursuing enforcement sanctions against any person found to be in 
violation of the railroad's harassment and intimidation policy.
    FRA's proposal in Sec. 225.33(b) which stated that railroads must 
make ``a reasonable and conscientious effort to adhere to the Plan'' is 
too vague and would undoubtedly create considerable variability in 
perceptions of compliance. Thus, FRA has eliminated this requirement. 
FRA believes that imposition of a monetary penalty and other 
enforcement sanctions on the reporting railroad and against individuals 
as discussed above provides an incentive for the reporting railroad and 
all parties to observe and follow its internal control procedures.

B. Section 225.37  Computer Magnetic Media Transfer and Electronic 
Submission

Proposed Rule
    FRA proposed, in Sec. 225.37, to amend the current reporting 
requirements to provide railroads the option of using magnetic media 
(computer diskettes and magnetic tape) in lieu of the paper (``hard 
copy'') forms currently submitted to transmit both the initial and 
updated versions of the following reports: (a) the ``Rail Equipment 
Accident/ Incident Report'' (Form FRA F 6180.54); (b) the ``Railroad 
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 
6180.55a); and (c) the ``Highway-Rail Grade Crossing Accident/Incident 
Report'' (Form FRA F 6180.57). FRA proposed that reports submitted via 
magnetic media would be due within 30 days after expiration of the 
month in which the accident/incident occurred.
    In particular, the proposed rule allowed railroads, in 
Sec. 225.37(a), subject to various conditions, the option to submit 
magnetic media that would contain: (a) initial accident/incident 
reports, (b) updates or amendments to all reports previously submitted 
in hard copy, and (c) updates or amendments to reports initially 
transmitted on magnetic media.
    The proposed rule allowed railroads to continue to submit hard copy 
reports,

[[Page 30945]]

as the current regulations require, but to update the data contained on 
the hard copy by way of magnetic media. Alternatively, the proposal 
allowed railroads the option of utilizing magnetic media exclusively 
for all initial reports and all updates and amendments to those 
reports. FRA proposed that all transmissions of updated or amended 
reports by means of magnetic media would be added to a year-to-date 
file created exclusively for each reporting railroad. This year-to-date 
file would include all updates and amendments on reported accidents and 
incidents and would be maintained by FRA.
    FRA also proposed, in Sec. 225.37(b), to require that when a 
railroad utilizes the magnetic media option, whether to submit an 
initial report, or an updated or amended report, it was to submit along 
with the magnetic media: (a) a sworn report, as required by 49 U.S.C. 
20901 (formerly contained at Sec. 1 of the Accident Reports Act, 45 
U.S.C. 38), in the form of a notarized ``Railroad Injury and Illness 
Summary'' (Form FRA F 6180.55), and (b) a signed ``Batch Control Form'' 
for magnetic media. The requirement to submit a notarized Form FRA F 
6180.55 is necessary to ensure that railroad reporting officials attest 
to the validity of the information reported to FRA in the magnetic 
media. It also provides FRA with evidence necessary to hold those 
officials accountable for false reporting.
    Since the magnetic media option is a fairly new concept, FRA 
proposed, in Sec. 225.37(c), to require the railroads that utilize this 
medium to initially include the hard copy of the particular accident/
incident report with the magnetic media. During this assimilation 
period, FRA would compare the data on hard copy reports to the data 
contained in the magnetic media to determine if the information 
reported via magnetic media was consistent and reliable. This 
requirement would ensure quality control and would provide FRA a 
measure by which to gauge accurate reporting. After a three-month 
period of 100-percent accuracy verification, FRA would notify the 
railroad in writing that the hard copy was no longer necessary.
Comments
    Nearly all commenters expressed an interest in implementing some 
kind of electronic transmission and exchange of data from the railroads 
to FRA. Several commenters expressed the desire to have a standard, 
consistent format that would assure the credibility of the original 
report while others expressed the desire to submit data utilizing a 
variety of different reporting formats designed by the individual 
railroads. Some commenters recommended that FRA should design and make 
available to all railroads a software package of the formats required 
for transmission of all types of data in order to ensure uniformity in 
reporting. Several commenters suggested that FRA should examine another 
option for the transfer of data to FRA, i.e., electronic submission of 
data over telephone lines.

Final Rule

Section 225.37  Magnetic Media Transfer and Electronic Submission

    Section 225.37 of the final rule allows for the submission of 
accident reporting data to FRA by two alternate means: (1) magnetic 
media (computer diskette or magnetic tape), or (2) electronically, over 
telephonic lines. Submission of this data through either means remains 
optional for the reporting railroad.
    Section 225.37(a) states that railroads utilizing either option may 
submit the following reports, updates to reports, and amendments to 
reports to FRA:
    (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 ``Batch Control Form'' (Form FRA F 6180.99). Section 
225.37(d) states that each railroad that employs either option must 
submit its monthly reporting data to FRA in a year-to-date file format. 
For example, the railroad's April submission must contain the reporting 
data for the months of January through April, including any amendments 
or updates for the months of January through March.
    Section 225.37(b) states that each railroad utilizing the magnetic 
media option must submit the following:
    (1) the computer diskette or magnetic tape;
    (2) the ``Batch Control Form'' (Form FRA F 6180.99); and
    (3) the notarized hard copy of the ``Railroad Injury and Illness 
Summary'' (Form FRA F 6180.55), signed by the railroad's reporting 
officer.
    Also note that each railroad need submit only one ``Batch Control 
Form'' (Form FRA F 6180.99) with its monthly submission since the 
``Batch Control Form'' contains the sum totals for the four reports 
that appear on the form.
    As previously stated, the notarization of Form FRA F 6180.55 is 
required by 49 U.S.C. 20901 and this form must continue to be submitted 
to FRA in hard copy format. Also note that the proposal requiring the 
railroad reporting officer's signature on the Batch Control Form is not 
adopted in the final rule. The format for the Batch Control Form is set 
forth in Attachment 2 to this final rule.
    Legislation before Congress (the ``Department of Transportation 
Regulatory Reform Act of 1996'') would amend 49 U.S.C. 20901(a) to 
eliminate the requirement that railroads file notarized monthly reports 
with FRA regarding accidents and incidents on their properties. The 
amendment would allow the Secretary to specify the frequency with which 
reports must be filed; provide discretion to set different reporting 
requirements for different classes of railroads; and facilitate 
electronic filing and a corresponding reduction in paper filings. It is 
believed these amendments would reduce unnecessary expense and delay 
associated with filing monthly reports, particularly for small 
railroads and those railroads which may have no events to report for a 
particular month.
    Section 225.37(c) outlines the requirements for submission of data 
electronically, through telephonic means. The requirements for 
electronic submission parallel those for magnetic media submissions. 
The only difference is that a railroad utilizing the electronic 
submission option must transmit its year-to-date file reporting data to 
an FRA-designated computer. Note, however, that each railroad must 
continue to submit the notarized hard copy of the ``Railroad Injury and 
Illness Summary'' (Form FRA F 6180.55).
    Section 225.37(e) states that, initially, each railroad utilizing 
either the magnetic media or electronic submission option must submit 
the hard copy report(s) for each accident/incident it reports by such 
means. FRA will continually review the hard copy reports against the 
data submitted electronically or by means of magnetic media for that 
reporting railroad. Once the magnetic media or electronic submission is 
in total agreement with the submitted hard copies of the reports for 
three consecutive reporting months, FRA will notify the railroad, in 
writing, that submission of the hard copy reports is no longer 
required. However, note that each railroad must continue to submit the 
notarized hard copy of the ``Railroad Injury and Illness Summary'' 
(Form FRA F 6180.55) with its magnetic media or electronic submissions 
until such time that legislation is passed eliminating this 
requirement.
    The next revised FRA Guide will contain more detail concerning the 
submission of data via magnetic media

[[Page 30946]]

or, electronically, over telephone lines or other means.

C. Section 225.27  Retention of Records

Proposed Rule
    FRA proposed that railroads that chose to submit their data via 
magnetic media or electronically, over telephone lines, as discussed in 
the previous section, would remain responsible for having on file hard 
copies of the reports identified in the current regulations at 
Sec. 225.21. Therefore, FRA proposed, in Sec. 225.27(c), that each 
railroad must maintain on file, at one or more central locations 
designated by the railroad, a signed copy of both the ``Rail Equipment 
Accident/Incident Report'' (Form FRA F 6180.54) and the ``Highway-Rail 
Grade Crossing Accident/Incident Report'' (Form FRA F 6180.57), as well 
as a copy of all other reports pursuant to Part 225. This requirement 
was also meant to include a hard copy of any record submitted via 
magnetic media or, electronically, over telephone lines, so as to 
enable both federal and State inspectors, as well as other authorized 
representatives, a means by which to verify whether the railroad 
reported a specific accident/incident or injury/illness to FRA.
Comments
    Most railroads expressed concern that the requirement for records 
to be maintained at one or more central locations was far too stringent 
and impracticable. In contrast, rail labor representatives agreed with 
the FRA proposal that railroads should have a hard copy of all records 
on file at a central location designated by that railroad. With new 
moves by railroads to centralize functions of their operations, the 
State of California suggested that railroads should be required to 
provide a central location for retention of records within the 
boundaries of each State in which it operates.

Final Rule

Section 225.27  Retention of Records

    Section 225.27(a) states that each railroad must retain the 
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98) 
and the Monthly List of Injuries and Illnesses (both discussed in 
detail later in this preamble), as required by Sec. 225.25, for at 
least five years after the end of the calendar year to which they 
relate. The ``Initial Rail Equipment Accident/Incident Record'' (Form 
FRA F 6180.97), as required by Sec. 225.25, must be retained for at 
least two years after the end of the calendar year to which they 
relate. The ``Initial Rail Equipment Accident/Incident Record'' is 
discussed in detail later in this preamble.
    Please note that maintenance and access to any record and report 
required under this part are discussed in this preamble in the section 
entitled ``Access to Records and Reports'' (Sec. 225.35).

D. Reporting Definitions and Forms

1. Form FRA F 6180.45--``Annual Summary Report of Railroad Injury and 
Illness''
    Form FRA F 6180.45 has been used by the rail industry to report all 
deaths, injuries, and occupational illnesses of on-duty railroad 
employees that occurred during the calendar year.
Proposal
    FRA proposed to eliminate the requirement for submission of the 
``Annual Summary Report of Railroad Injury and Illness'' (Form FRA F 
6180.45). However, certain blocks of information on this form were 
deemed important for accurate injury and illness data analysis. 
Information regarding ``Terminations or Permanent Transfers'' found in 
column ``8'' on the annual summary report lists the number of cases in 
column ``3'' (Total Lost Workday Cases) and column ``7'' (Non-Fatal 
Cases without Lost Workdays) that resulted in either the termination or 
the permanent transfer of the employee for reasons related to the 
sustained injury or occupational illness. FRA proposed to move the 
block designated ``Terminations or Permanent Transfers'' to the 
``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form FRA 
F 6180.55a). Similarly, FRA proposed to move the blocks that solicit 
information on ``Establishments Included in this Report'' and ``Average 
Employment in Reporting Year'' on the annual summary report to the 
``Annual Railroad Report of Employee Hours and Casualties, by State'' 
(Form FRA F 6180.56).
Comments
    Commenters agreed with FRA's proposal to eliminate Form FRA F 
6180.45 and to transfer the information blocks pertaining to 
``Terminations or Permanent Transfers,'' ``Establishments Included in 
this Report, and ``Average Employment in Reporting Year'' to other 
existing reporting forms.
Final Rule and Decision
    The final rule eliminates the requirement for railroads to submit 
the ``Annual Summary Report of Railroad Injury and Illness'' (Form FRA 
F 6180.45). Blocks that solicit information on ``Establishments 
Included in this Report'' and ``Average Employment in Report Year'' are 
transferred to the ``Annual Railroad Report of Employee Hours and 
Casualties, by State'' (Form FRA F 6180.56) as blocks ``4'' and ``5,'' 
respectively. The block designated ``Termination or Permanent 
Transfer'' is transferred to the ``Railroad Injury and Illness Summary 
(Continuation Sheet)'' (Form FRA F 6180.55a) as block ``5r.''
2. Form FRA F 6180.54--``Rail Equipment Accident/Incident Report''
    Collisions, derailments, explosions, fires, acts of God, and other 
events involving the operation of standing or moving on-track equipment 
resulting in more than $6,300 of reportable damage (the current 
reporting threshold) must be reported using Form FRA F 6180.54. FRA 
proposed to make limited changes to the ``Rail Equipment Accident/
Incident Report.'' The format for the revised ``Rail Equipment 
Accident/Incident Report'' (Form FRA F 6180.54) is set forth in 
Attachment 3 to this final rule.

a. Special Study Blocks

Proposal
    FRA proposed establishment of three new blocks on Form FRA F 
6180.54, each designated as a ``Special Study Block'' (SSB), to collect 
information on specific accident issues over a specified time period in 
response to particular hazards or associated railroad risks that are of 
safety concern.
Comments
    AAR and its constituent members opposed the addition of the special 
study blocks to the ``Rail Equipment Accident/Incident Report'' (Form 
FRA F 6180.54). AAR stated that gathering information, as the need may 
arise, would be somewhat expensive due to the computer programming 
necessary to complete the SSB information. These same members stated 
that collection of SSB information would be time consuming for the rail 
industry since instructions would have to be issued to the field as to 
what type of information is actually needed.
    Several union representatives felt that the addition of the SSBs to 
Form FRA F 6180.54 was necessary to collect pertinent data but that FRA 
should be very specific in its information request.
    Other parties stated that if FRA decided not to add the SSBs as 
proposed, then the block allowing for a narrative description of the 
special event should be completed by the reporting railroad only when 
other blocks did not define the special circumstances surrounding the 
accident.

[[Page 30947]]

Final Decision
    The ``Rail Equipment Accident/Incident Report'' (Form FRA F 
6180.54) contains two SSBs in block ``49.'' As the need arises, FRA 
will notify the railroads in writing or, if appropriate, through 
publication in the Federal Register, of the purpose and the type of 
information that is to be collected. FRA will be as specific as 
possible in order to minimize both costs and the amount of time 
associated with the collection of this new information. Each SSB has 20 
characters in order to standardize the data structure for computer 
files. FRA believes the SSBs will prove extremely valuable in 
collecting information to help FRA identify and evaluate issues of 
safety concern as well as other nonsafety issues as the need arises.
    FRA anticipates that use of one or more SSBs will be occasional, 
rather than continuous. As appropriate, FRA will consult with the 
Railroad Safety Advisory Committee (RSAC) before formulating the 
respective information collections.

b. Reporting Definitions

Proposal
    First, FRA proposed to make it clear that when estimating damage 
costs, the labor costs to be reported are only the direct labor costs 
to the railroad, e.g., hourly wages, transportation costs, and hotel 
expenses. The cost of fringe benefits would be excluded when 
calculating direct labor costs. Second, for services performed by a 
contractor, FRA proposed that the railroad would estimate a direct 
hourly labor cost by multiplying the contractor's total labor hours 
charged to the railroad by the applicable direct hourly wage rate for a 
railroad worker in that particular craft. Third, FRA proposed to make 
it clear that overhead is to be excluded from damage costs due to the 
unacceptable non-uniform treatment of overhead under the current 
process. Lastly, FRA proposed that material costs would be calculated 
based upon the costs of acquiring new material, even if the railroad 
chose to use refurbished or used material in its actual repairs.
Comments
    Most commenters favored the proposal to include only direct labor 
costs when estimating damage costs for labor, and to exclude overhead 
costs from reporting. On the other hand, most railroads did not support 
the proposal that material/equipment costs should be calculated based 
upon the costs of newly acquired material, even if the railroad chose 
to use refurbished or used material in its actual repairs. Railroad 
representatives stated that if the railroad has available, or is able 
to obtain, used material to repair or replace ``in kind'' the damaged 
material, charging the material at an artificial cost would 
inaccurately assess the real economic impact of the incident. Further, 
these commenters stated that to charge material ``incorrectly'' would 
require railroads to set up expensive duplicate recordkeeping. Most 
railroad representatives also stated that it would be difficult to 
derive the equivalent direct labor hours and rates from contractual 
services involved in railroad accident and repair costs.
    Most rail labor associations stated that the costs of all materials 
utilized to effectuate repair (whether to new, used or refurbished 
equipment) should be based upon a uniform cost for new material and 
that such costs should be determined by FRA using a uniform scale. 
These commenters stated that such standardized costs based on a uniform 
scale would eliminate any advantage or disadvantage relative to the 
volume of materials purchased, the vendor or manufacturer used, or the 
age of equipment or materials involved in the incident. Further, rail 
labor representatives favored standardized person-hour costs to assure 
a uniform mechanism for accurate comparison of identical or similar 
accidents. Using this approach, these commenters stated that accident 
reporting would be reduced to a ``level playing field'' from one 
railroad to the next.
Final Decision
    When estimating damage costs, the labor costs to be reported are 
only the direct labor costs to the railroad, e.g., hourly wages, 
transportation costs, and hotel expenses. The cost of fringe benefits 
is excluded when calculating direct labor costs. Overhead is also 
excluded when calculating damage costs due to the unacceptable non- 
uniform treatment of overhead under the current process.
    For services performed by a contractor, a direct hourly labor cost 
is calculated by multiplying the contractor's total labor hours charged 
to the railroad by the applicable direct hourly wage rate for a 
railroad worker in that particular craft. However, if a railroad cannot 
match the equivalent craft to the labor hours spent by a contractor, 
then the railroad must use the loaded rate, i.e., the cost by hour for 
labor, fringe benefits, and other costs and fees for services charged 
by the contractor for the tasks associated with the repair of the 
track, equipment, and structures due to the train accident.
    Due to the controversy surrounding FRA's proposal to calculate 
material costs based upon the costs of acquiring new material, even if 
the railroad chose to use refurbished or used material in its actual 
repairs, FRA has decided to reexamine this issue in a subsequent 
rulemaking for the accident reporting regulations in consultation with 
the Railroad Safety Advisory Committee. Therefore, the current 
methodology used to calculate material costs, i.e., depreciated value 
estimates, will continue to be used by all railroads.

c. Filing of an Amended Form FRA F 6180.54

    As stated in the proposed rule, the FRA Guide was changed to 
specifically provide that amended reports are filed only if 
subsequently acquired information showed the damage to be at least a 
ten-percent variance from the amount originally reported to FRA (see 
page V-2 of the FRA Guide). This change became effective January 1, 
1993.
3. Form FRA F 6180.55a--``Railroad Injury and Illness Summary 
(Continuation Sheet)''
    The ``Railroad Injury and Illness Summary (Continuation Sheet)'' 
(Form FRA F 6180.55a) collects information about injuries, fatalities, 
and illnesses of railroad workers, trespassers, contractors, and 
passengers and about highway-rail grade crossing injuries and 
fatalities. FRA proposed numerous changes to this form in order to 
collect data that would aid in development of railroad injury and 
accident prevention programs. The format for the revised ``Railroad 
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 6180.55a) 
is set forth in Attachment 4 to this final rule.

a. Exposure to Hazardous Materials

Proposal
    FRA proposed to add an additional block to Form FRA F 6180.55a to 
collect data on the number of persons injured, as well as the type of 
injury (e.g., burn, inhalation, rash), due to release and exposure to 
hazardous materials.
Comments
    Some commenters supported the proposal to add this block of 
information while others stated that this type of information would be 
better collected by expanding the existing injury/illness codes 
currently used to complete Form FRA F 6180.55a. Several commenters 
expressed concern with this proposal since they believed it would be 
difficult to obtain this information, especially in the case

[[Page 30948]]

where the individual does not tell the railroad that he or she was 
exposed to hazardous materials.
Final Decision
    Form FRA F 6180.55a contains block ``5q'' entitled ``Exposure to 
Hazmat,'' which is used to collect data on the number of persons 
injured and the type of injury resulting from exposure to hazardous 
materials.
    The Research and Special Projects Administration (RSPA) collects 
injury and fatality data associated with the release of hazmat. RSPA 
Form DOT 5800.1 counts the number of fatalities, hospitalized injuries 
and non-hospitalized injuries associated with a hazmat release. 
However, RSPA's data cannot provide FRA with the type of person injured 
or the type of exposure. FRA believes that collection of this 
information is critical to its data base. The next revised FRA Guide 
will contain the codes used to complete this block.
    FRA does not agree with the comments that obtaining information on 
hazardous materials exposure would be very difficult for a railroad to 
obtain. For employees of the railroad, most would inform their employer 
of such exposure and, for those employees who did not inform their 
employer, the railroad would not have knowledge of the exposure and 
therefore would not be able to report it on the Form. Further, for 
members of the general public, the reporting railroad usually can 
gather information on their exposure to release of a hazardous material 
from the claims filed by such persons.

b. County/Day of Month/Time of Day

Proposal
    FRA proposed the addition of blocks to collect information on the 
county where the incident occurred, as well as the day of the month and 
the time of day when the incident occurred.
Comments
    Most commenters believed that information that would help pinpoint 
and identify an accident site was useful and would help identify 
problem areas and regional patterns. A few commenters stated that 
present requirements for location information provide sufficient 
information to identify accident sites.
Final Decision
    Form FRA F 6180.55a contains blocks ``5b'' (day of the month); 
``5c'' (time of day); and ``5d'' (county) in order for FRA safety 
inspectors to determine which sites or railroad shops have more 
injuries or illnesses and to assist FRA inspectors in records 
inspections.
    c. Gender/Ethnicity.
Proposal
    FRA proposed requiring the gender and ethnicity of the person 
injured or ill in an effort to help identify whether particular groups 
of individuals, particularly trespassers, are more susceptible than 
others to certain injuries and illnesses.
Comments
    Almost all commenters opposed the addition of blocks to gather 
information on the ethnicity and gender of the injured or ill person. 
These commenters stated that reporting of gender and ethnicity would 
lead to misunderstandings between employees and supervisors as to why 
this information was necessary and, that for trespassers, verification 
of ethnicity would be difficult, if not impossible.
Final Decision
    FRA agrees that collection of information, particularly with 
respect to ethnicity, would be difficult to collect and may be 
perceived as violating privacy rights of the employee, trespasser, 
passenger or any other individual injured in a train related accident/
incident. Therefore, the proposed blocks to collect gender and 
ethnicity information on the ``Railroad Injury and Illness Summary 
(Continuation Sheet)'' are not adopted in the final rule.

d. Circumstance Codes

Proposal
    FRA proposed to develop new codes, in addition to those currently 
used, to describe the cause and/or circumstance of injuries and 
illnesses not currently covered by the regulations. Specifically, these 
circumstance codes would be used to complete the following blocks of 
information on Form FRA F 6180.55a: ``Physical Act,'' ``Location,'' 
``Event,'' ``Result,'' and ``Cause.''
Comments
    Most commenters agreed that the existing occurrence codes were 
outdated and in need of revision; however, they stated that there was 
no need to add an entire set of new circumstance codes. These 
commenters stated that some of the circumstance codes, as proposed, 
were redundant and lacked objectivity and thus recommended revision of 
the existing occurrence codes through the AAR's Uniformity in Reporting 
Committee. Other commenters believed that the addition of the proposed 
codes was necessary and desirable because such data would help identify 
particular hazards.
    These commenters also suggested that FRA should expand the codes to 
include special non-employee cause codes.
Final Decision
    The occurrence codes used to best describe the event or activity 
that caused the casualty (found in Appendix F of the FRA Guide) will 
become obsolete as of December 31, 1996. A set of codes will be 
developed to complete the information in blocks ``5j--Physical Act,'' 
``5k--Location,'' ``5l--Event,'' ``5m--Result,'' and ``5n--Cause'' for 
Form FRA F 6180.55a. FRA will shortly issue a letter requesting one or 
more special meetings with an advisory committee or, with the AAR 
Committee for Uniformity in Reporting, members of ASLRA, rail labor 
associations, and other interested groups, to assist in the development 
of the new circumstance codes for reporting accidents/incidents.

e. Termination or Permanent Transfer

    Since FRA eliminated the requirement for submission of the ``Annual 
Summary Report of Railroad Injury and Illness'' (Form FRA F 6180.45), 
data on ``Termination or Permanent Transfer'' is now collected in block 
``5r'' on the ``Railroad Injury and Illness Summary (Continuation 
Sheet)'' (Form FRA F 6180.55a).
    f. Narrative on Unusual Circumstances.
Proposal
    FRA proposed the addition of a narrative block on Form FRA F 
6180.55a that would allow the reporting railroad the opportunity to 
provide details (up to 250 characters) on any unusual circumstance(s) 
surrounding the railroad worker's injury or illness.
Comments
    Many commenters expressed concern regarding the intended use of the 
narrative and questioned whether or not completion of the narrative 
would be optional for the reporting railroad.
Final Decision
    Form FRA F 6180.55a contains a narrative block ``5s'' that allows 
the railroad the opportunity to further explain unusual circumstances 
surrounding a worker's injury or illness using up to 250 characters. 
Completion of this narrative is mandatory for the reporting railroad 
unless the injury or illness can be adequately described using all 
other entries (information blocks) on the form.

[[Page 30949]]

4. Form FRA F 6180.55--``Railroad Injury and Illness Summary''
    The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55) is 
used by the industry to summarize a railroad's accidents/incidents for 
a given month. This report must be filed with FRA even when no 
accidents/incidents occurred during the reporting month.
    The FRA Guide currently classifies persons as:
    (1) Employees on Duty (Class A),
    (2) Employees Not on Duty (Class B),
    (3) Passengers on Trains (Class C),
    (4) Other Nontrespassers (Class D),
    (5) Trespassers (All Classes)(Class E), and
    (6) Contractor Employees (Class F).
    These ``person'' classifications are used by the reporting railroad 
for completing the ``Railroad Injury and Illness Summary'' (Form FRA F 
6180.55) and the ``Railroad Injury and Illness Summary (Continuation 
Sheet)'' (Form FRA F 6180.55a).
    The format for the revised ``Railroad Injury and Illness Summary'' 
(Form FRA F 6180.55) is set forth in Attachment 5 to this final rule.

a. Classifications of Persons

Proposal
1. ``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On 
Railroad Property''
    FRA proposed to add a new classification of person entitled 
``Nontrespassers--Off Railroad Property'' to include those individuals 
(nontrespassers) who are injured while off railroad property and to 
distinguish them from nontrespassers injured while on railroad 
property.
Comments
    All commenters supported the proposal for the breakdown of the 
classification ``Nontrespassers'' into the classifications of 
``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On 
Railroad Property'' and believed that these distinctions would be 
useful in identifying particular safety problems with these person 
groups.
Final Decision
    The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55) 
contains the classifications of persons entitled ``Nontrespassers--On 
Railroad Property'' (Class D) and ``Nontrespassers--Off Railroad 
Property'' (Class J). An injury ``off railroad property,'' includes an 
injury resulting from an event, such as a derailment or collision, that 
begins on railroad property but ends on public or private non-railroad 
property, so long as the injury is incurred while the person is 
physically located off railroad property. Similarly, if a derailment 
results in a release of hazardous materials onto public or private non-
railroad property and the hazardous material injures a 
``Nontrespasser'' located on public or private non-railroad property, 
the injury is reported as an injury to ``Nontrespassers--Off Railroad 
Property'' (Class J). Conversely, injuries to nontrespassers occurring 
while on public or private railroad property are reported as injuries 
to ``Nontrespassers--On Railroad Property'' (Class D).
2. ``Worker on Duty'' and ``Worker Not on Duty''
    FRA proposed that a ``Worker on Duty'' be defined as an individual 
who receives direct monetary compensation from the railroad or who is 
engaged in either (i) the operation of on-track equipment or (ii) any 
other safety-sensitive function for the railroad. FRA proposed that the 
classifications ``Worker on Duty'' (Class A) and ``Worker Not on Duty'' 
(Class B) would replace the presently used classifications of persons 
``Employee on Duty'' (Class A) and ``Employee Not on Duty'' (Class B), 
respectively. Additionally, FRA proposed that the definition of a 
``Worker on Duty'' would be expanded to include individuals who do not 
necessarily receive direct compensation from the railroad (including 
certain contractor employees and volunteers) and who perform either (i) 
the operation of on-track equipment or (ii) any other safety-sensitive 
activity for the reporting railroad.
Comments
    Most commenters did not object to the proposal to change the terms 
``Employee on Duty'' and ``Employee not on Duty'' to ``Worker on Duty'' 
and ``Worker not on Duty,'' respectively. Commenters, however, did 
object to the proposed expansion of the definition of a ``Worker on 
Duty'' to include ``Contractors'' and ``Volunteers'' who perform either 
safety-sensitive functions for the railroad or who operate on-track 
equipment. Commenters did not want injuries and illnesses sustained by 
such contractors and volunteers to be counted under the ``Worker on 
Duty'' classification. Nor did commenters want the hours worked by such 
``Contractors'' and ``Volunteers'' to be reported as ``railroad worker 
hours.''
    Railroads strongly opposed the proposal to make carriers 
responsible for gathering and submitting information relative to hours 
worked by contractor employees. Railroad representatives claimed that 
they did not have data on contractor hours and had no process in place 
to accumulate and verify total hours worked by contractor employees. 
Railroads believed that if FRA deemed this information critical to its 
data base, then the contractor should be compelled to report its hours 
directly to FRA or other pertinent federal agencies, such as the 
Occupational Safety and Health Administration (OSHA).
Final Decision
    A ``Worker on Duty--Employee'' (Class A) is defined as an 
individual who receives direct monetary compensation from the railroad. 
All reportable injuries and illnesses are reported as those to a 
``Worker on Duty--Employee'' (Class A) in block ``5f'' on Form FRA F 
6180.55a together with the applicable job code series of the service 
performed.
    An ``Employee not on Duty'' (Class B) is defined as an individual 
(i) who receives direct monetary compensation from the railroad and 
(ii) who is on railroad property for purposes connected with his or her 
employment or with other railroad permission, but (iii) who is not ``on 
duty'' as currently defined in the FRA Guide.
3. (i) ``Volunteer'' and (ii) Volunteer or Contractor Employee Who Is 
Classified as a ``Worker on Duty''
    FRA proposed that ``Volunteer'' be added to the classes of persons, 
for purposes of completing Sections A and B on Form FRA F 6180.55, and 
that ``Volunteer'' be defined to include an individual who willingly 
performs a service for the reporting railroad; who does not receive 
direct monetary compensation from that railroad; and who is not engaged 
in either (i) the operation of on-track equipment or (ii) any other 
safety-sensitive function for the reporting railroad. As proposed, such 
injuries or illnesses sustained by this volunteer would be reported on 
the ``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form 
FRA F 6180.55a) as injuries to a ``Volunteer.'' Further, FRA proposed 
that the railroad report all hours for that tour of service as 
``volunteer hours'' on the ``Railroad Injury and Illness Summary'' 
(Form FRA F 6180.55).
    In contrast, FRA proposed that injuries or illnesses sustained by 
an individual, including a ``Volunteer'' or a ``Contractor'' who was 
engaged in either (i) the operation of on-track equipment or (ii) any 
other safety-sensitive function for the railroad, would be reported as

[[Page 30950]]

injuries/illnesses to a ``Worker on Duty'' (Class A) on the ``Railroad 
Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 
6180.55a). Further, FRA proposed that the railroad report all hours 
worked by such a ``Volunteer'' or ``Contractor'' for that tour of 
service as ``railroad worker hours'' on the ``Railroad Injury and 
Illness Summary'' (Form FRA F 6180.55).
    FRA further elaborated on this issue at the public regulatory 
conference held in Washington, D.C. where FRA proposed development of 
three new subclasses of ``Worker on Duty,'' which would include (i) 
``Worker on Duty--Employee,'' (ii) ``Worker on Duty--Contractor,'' and 
(iii) ``Worker on Duty--Volunteer.''
Comments
    Many commenters supported the development of the three 
classifications of a ``Worker on Duty'' as proposed and discussed at 
the public regulatory conference. These commenters stated that the 
three classifications would be beneficial for recordkeeping purposes 
and would aid in tracking the frequency rate of accidents and injuries 
for each person category. Commenters agreed that the three proposed 
classifications of ``Worker on Duty'' were qualitatively and 
quantitatively different in terms of training, tenure, supervisory 
oversight, motivational and disciplinary regimes, and experience and, 
that such a distinction should be captured in FRA's database to ensure 
the opportunity to analyze these differences. Many railroads supported 
the development of the three classifications of a ``Worker on Duty'' 
provided that the FRA reportable injury ratio would still reflect only 
the classification of ``Worker on Duty--Employee'' (Class A). As stated 
previously, most commenters were opposed to reporting injuries and 
illnesses sustained by ``Contractors'' and ``Volunteers'' who perform 
either ``safety-sensitive functions'' or who ``operate on-track 
equipment'' under the classification of ``Worker on Duty.'' These 
commenters believed that a distinction between railroad employees and 
such contractors and volunteer workers should be maintained for 
reporting purposes and, that such a distinction would allow FRA to 
compare the accident/injury rates of ``Railroad Workers on Duty'' to 
those of ``Contractors'' and/or ``Volunteers.''
    Railroads also opposed reporting hours worked by a ``Volunteer'' or 
``Contractor'' who was engaged in either (i) the operation of on-track 
equipment or (ii) any other safety-sensitive function for the railroad 
as ``railroad worker hours'' on Form FRA F 6180.55.
Final Decision
    A ``Worker on Duty--Volunteer'' (Class H) is a volunteer who does 
not receive direct monetary compensation from the railroad and who is 
engaged in either (i) the operation of on-track equipment or (ii) any 
other safety-sensitive function for the railroad as defined in 
Sec. 209.303.
    Section 209.303 of title 49 of the Code of Federal Regulations 
describes ``safety-sensitive functions'' as applying to the following 
individuals:
    (a) Railroad employees who are assigned to perform service subject 
to the Hours of Service Act (45 U.S.C. 61-64b) during a duty tour, 
whether or not the person has performed or is currently performing such 
service, and any person who performs such service;
    (b) Railroad employees or agents who:
    (1) Inspect, install, repair, or maintain track and roadbed;
    (2) Inspect, repair, or maintain, locomotives, passenger cars, and 
freight cars;
    (3) Conduct training and testing of employees when the training or 
testing is required by the FRA's safety regulations; or
    (c) Railroad managers, supervisors, or agents when they:
    (1) Perform the safety-sensitive functions listed in paragraphs (a) 
and (b) of this section;
    (2) Supervise and otherwise direct the performance of the safety-
sensitive functions listed in paragraphs (a) and (b) of this section; 
or
    (3) Are in a position to direct the commission of violations of any 
of the requirements of parts 213 through 236 of this title.
    Note that there have been amendments and additions to the set of 
railroad safety regulations found in the Code of Federal Regulations; 
thus, ``safety-sensitive functions'' in Sec. 209.303(c)(3) is 
interpreted to include railroad managers, supervisors, etc., when they 
are in a position to direct the commission of violations of any of the 
requirements of parts 213 through 240 of title 49 of the Code of 
Federal Regulations.
    Hours worked by a ``Worker on Duty--Volunteer'' (Class H) are not 
reported on any form because FRA recognizes from the comments received 
in response to this proposal that railroads may have difficulty in 
acquiring this information.
    A volunteer who does not receive direct monetary compensation from 
the railroad and who is not engaged in either (i) the operation of on-
track equipment or (ii) any other safety-sensitive function for the 
railroad as defined in Sec. 209.303 is classified as a ``Volunteer--
Other'' (Class I), and hours worked by this person also are not 
reported on any FRA form.
    Similarly, a ``Worker on Duty--Contractor'' (Class F) is an 
employee of a contractor for a railroad who does not receive direct 
monetary compensation from the railroad and who, while on railroad 
property, is engaged in either (i) the operation of on-track equipment 
or (ii) any other safety-sensitive function for the railroad as defined 
in Sec. 209.303. Hours worked by persons in Class F are not reported on 
any FRA form due to the difficulty railroad representatives expressed 
they would have in acquiring this data.
    A contractor employee for a railroad who does not receive direct 
monetary compensation from the railroad and who is not engaged in 
either (i) the operation of on-track equipment or (ii) any other 
safety-sensitive function for the railroad as defined in Sec. 209.303 
is classified as a ``Contractor--Other'' (Class G) and hours worked by 
this person are similarly not reported on any FRA form.
    Also note that the FRA reportable injury ratio will continue to 
reflect only injuries sustained by the persons in Class A, ``Worker on 
Duty--Employee.'' This will preserve the bench marking tool utilized by 
the railroad industry while ensuring that FRA has the information 
necessary to distinguish injuries between railroad workers, and 
contractors and volunteers engaged in any safety-sensitive function or 
in the operation of on-track equipment.
    To summarize, Form FRA F 6180.55 (Railroad Injury and Illness 
Summary) now contains the following classifications of persons:
    (1) Worker on Duty--Employee (Class A),
    (2) Employee not on Duty (Class B),
    (3) Passengers on Trains (Class C),
    (4) Nontrespassers--On Railroad Property (Class D),
    (5) Trespassers (Class E),
    (6) Worker on Duty--Contractor (Class F),
    (7) Contractor--Other (Class G),
    (8) Worker on Duty--Volunteer (Class H),
    (9) Volunteer--Other (Class I), and
    (10) Nontrespassers--Off Railroad Property (Class J).
    These classifications will not be defined in the rule text for the 
accident reporting regulations; rather, they will be defined in the 
next revised FRA Guide.
    The following are examples of situations involving reportable 
injuries suffered by a ``Worker on Duty--Volunteer,'' a ``Volunteer--
Other,'' a

[[Page 30951]]

``Worker on Duty-- Contractor,'' and a ``Contractor--Other'' in the 
course of different types of work performed:

    Example 1. A volunteer operates a locomotive for an excursion 
railroad. Operation of a locomotive clearly falls within the realm 
of ``operation of on-track equipment.'' If the volunteer sustains a 
reportable injury during operation of the locomotive, then the 
incident is reported on the ``Railroad Injury and Illness Summary 
(Continuation Sheet)'' (Form FRA F 6180.55a) as an injury to a 
``Worker on Duty-- Volunteer'' (Class H), with the applicable job 
code series.
    Example 2. A volunteer sells memorabilia at a historic railroad. 
Selling memorabilia does not fall within the scope of either ``the 
operation of on-track equipment'' or ``any other safety-sensitive 
function.'' When such a volunteer sustains a reportable injury, such 
injury, is reported on Form FRA F 6180.55a as an injury to a 
``Volunteer--Other'' (Class I).
    Example 3. A volunteer sells tickets for train rides on a 
tourist railroad and also clears vegetation adjacent to roadbed. 
Under 49 CFR 213.37, vegetation is to be cleared from the roadbed 
for safe rail operations; vegetation clearing is thus an aspect of 
maintaining roadbed under Sec. 209.303(b)(1) and, therefore, 
considered a ``safety-sensitive function.'' Any injury or illness 
sustained by the volunteer during the vegetation clearing is 
classified as one to a ``Worker on Duty--Volunteer'' (Class H) with 
the applicable reporting requirements for purposes of Form FRA F 
6180.55a. If any reportable injury is sustained by the volunteer 
during the process of selling tickets, then such injury is 
classified as one to a ``Volunteer--Other'' (Class I). If, however, 
the volunteer sells tickets and then clears vegetation during the 
same tour, then all injuries are considered as those attributable to 
a ``Worker on Duty--Volunteer'' (Class H). Therefore, when a 
volunteer is engaged in ``mixed service,'' the railroad must report 
all reportable injuries and illnesses for that volunteer as those to 
a ``Worker on Duty--Volunteer'' (Class H) on Form FRA F 6180.55a. 
Conversely, when a contractor employee is engaged in such ``mixed 
service'' on railroad property, the railroad must report all 
reportable injuries and illnesses for that volunteer as those to a 
``Worker on Duty-- Contractor'' (Class F) on Form FRA F 6180.55a, 
with the applicable job code series of the service performed.
    Example 4. The employee of a contractor performs payroll as well 
as time-and-attendance functions for the railroad on railroad 
property. Such functions are not considered ``safety-sensitive'' 
because they are not related to the continued safety of the railroad 
and do not fall under the definition of any ``safety-sensitive 
function'' as defined in Sec. 209.303. Thus, injuries sustained by 
this contractor performing those tasks are reported on Form FRA F 
6180.55a as those attributable to a ``Contractor--Other'' (Class G).
    Example 5. A contractor employee inspects and replaces roller 
bearings for the reporting railroad on the railroad's property. 
Injuries sustained by this contractor are reported as those to a 
``Worker on Duty--Contractor'' (Class F) on Form FRA F 6180.55a. 
Under 49 CFR 215.113, cars with defective roller bearings should not 
be in service, thus any illness or injury associated with 
replacement of roller bearings is a ``safety-sensitive function'' 
qualifying as an injury or illness attributable to a ``Worker on 
Duty-- Contractor'' (Class F). In contrast, if this same injury was 
sustained by a contractor employee at the contractor's facility off 
railroad property, then such injury would not be reported to FRA.
5. FRA Form F 6180.56--``Annual Railroad Report of Employee Hours and 
Casualties, by State''
    A summary of all hours worked by railroad employees during the 
report year is made on Form FRA F 6180.56. This form is submitted as 
part of the monthly ``Railroad Injury and Illness Summary'' (Form FRA F 
6180.55) for the month of December of each year. The format for the 
revised ``Annual Railroad Report of Employee Hours and Casualties, by 
State'' (Form FRA F 6180.56) is set forth in Attachment 6 to this final 
rule.
Final Decision
    Information on ``Establishments Included in this Report'' and 
``Average Employment in Report Year,'' which previously appeared on 
Form FRA F 6180.45, is now found on Form FRA F 6180.56 in blocks ``4'' 
and ``5'' respectively, because, as discussed previously in this 
preamble, FRA has eliminated the requirement to submit Form FRA F 
6180.45. A column reflecting a count for ``Casualties'' is also added 
to Form FRA F 6180.56.
6. FRA Form F 6180.57--``Highway-Rail Grade Crossing Accident/Incident 
Report''
    Form FRA F 6180.57 collects information on accidents and incidents 
occurring at highway-rail grade crossings. Any impact, regardless of 
severity, between a railroad on-track equipment consist and any user of 
a public or private crossing site, including sidewalks and pathways, 
must be reported on this form. The information collected on this report 
is vital to identifying and resolving problems at highway-rail grade 
crossings. The format for the revised ``Highway-Rail Grade Crossing 
Accident/Incident Report'' (Form FRA F 6180.57) is set forth in 
Attachment 7 to this final rule.

a. Occupants

Proposal
    Under the heading ``Highway Vehicle Property Damage/Casualties'' on 
the currently used form, FRA proposed to delete blocks ``43'' through 
``45,'' which requested information on the total number of occupants 
and the total number of occupants killed and injured, and to replace 
those blocks with several new ones to gather additional information on 
the number of highway-rail crossing users killed or injured; the total 
number of highway-rail grade crossing users involved in the incident; 
the number of railroad workers killed or injured; the total number of 
people on the train at the time of the incident; and the number of 
train passengers killed or injured.
Comments
    No negative comments were received in response to this proposal.
Final Decision
    Form FRA F 6180.57 requests the following information under the 
heading ``Highway Vehicle Property Damage/Casualties'':
    Block 46: the number of highway-rail crossing users (i.e., 
pedestrians and vehicle occupants) killed; and the number of highway-
rail crossing users injured;
    Block 48: the total number of highway-rail crossing users involved 
in the incident (including the driver);
    Block 49: the number of railroad employees killed; and the number 
of railroad employees injured;
    Block 50: the total number of people on the train at the time of 
the incident (including passengers and train crew); and
    Block 52: the number of train passengers killed; and the number of 
train passengers injured.

b. Amtrak/Autotrain Distinction

Proposal
    FRA proposed to eliminate the distinction between Amtrak and 
Autotrain in item ``1'' on the current Form, as such a distinction is 
now obsolete.
Comments
    No negative comments were received in response to this proposal.
Final Decision
    The distinction between Amtrak and Autotrain is deleted from Form 
FRA F 6180.57.

c. Signal Crossing Warning

Proposal
    FRA further proposed to clarify the question in block ``32,'' 
``[w]as the signaled crossing warning identified in item ``31'' 
operating?'' Item ``31'' listed several types of signal devices (active 
and passive). Confusion existed in

[[Page 30952]]

completing this information when the report identified a passive device 
and then the railroad reported it as not operating.
Comments
    Rail labor associations believed that this information would 
effectively capture the status of the warning device at the time of the 
accident and that such information was crucial to FRA's data bank to 
track the effectiveness of rail safety regulations pertaining to 
highway-rail grade crossings. Most other commenters agreed that this 
question was in need of further clarification by FRA.
Final Decision
    Block ``32'' is now block ``33'' on Form FRA F 6180.57, is entitled 
``Signaled Crossing Warning,'' and refers the reader to the reverse 
side of the form for instructions and codes in completing this block. 
The instructions for completing block ``33'' read as follows:

    Only if Types 1-6, Item 32, are indicated, mark in Block 33 the 
status of the warning devices at the crossing at the time of the 
accident using the following codes:
    1. Provided minimum 20-second warning.
    2. Alleged warning time greater than 60 seconds.
    3. Alleged warning time less than 20 seconds.
    4. Alleged no warning.
    5. Confirmed warning time greater than 60 seconds.
    6. Confirmed warning time less than 20 seconds.
    7. Confirmed no warning.
    If status code 5, 6, or 7 was entered, also enter a letter code 
explanation from the list below:
    A. Insulated rail vehicle.
    B. Storm/lightning damage.
    C. Vandalism.
    D. No power/batteries dead.
    E. Devices down for repair.
    F. Devices out of service.
    G. Warning time greater than 60 seconds attributed to accident-
involved train stopping short of the crossing, but within track 
circuit limits, while warning devices remain continuously active 
with no other in-motion train present.
    H. Warning time greater than 60 seconds attributed to track 
circuit failure (e.g., insulated rail joint or rail bonding failure, 
track or ballast fouled, etc.).
    J. Warning time greater than 60 seconds attributed to other 
train/equipment within track circuit limits.
    K. Warning time less than 20 seconds attributed to signals 
timing out before train's arrival at the crossing/island circuit.
    L. Warning time less than 20 seconds attributed to train 
operating counter to track circuit design direction.
    M. Warning time less than 20 seconds attributed to train speed 
in excess of track circuit's design speed.
    N. Warning time less than 20 seconds attributed to signal 
system's failure to detect train approach.
    P. Warning time less than 20 seconds attributed to violation of 
special train operating instructions.
    R. No warning attributed to signal system's failure to detect 
the train.
    S. Other cause(s). Explain in Narrative Description.

d. Narrative Block

Proposal
    A narrative block allowing for up to 250 characters was proposed 
for addition to Form FRA F 6180.57 in order to gather information on 
unusual causes/circumstances surrounding the highway-rail grade 
crossing accident/incident.
Comments
    Almost all commenters requested that completion of the narrative 
block remain optional on their part.
Final Decision
    Form FRA F 6180.57 contains block ``54'', entitled ``Narrative 
Description.'' Completion of this narrative is mandatory for the 
reporting railroad unless the accident/incident can be described 
adequately using all other informational blocks on the form.

e. Special Study Blocks

Proposal
    FRA also proposed at the public regulatory conference the addition 
of three Special Study Blocks (SSBs) to Form FRA F 6180.57 in order to 
gather essential data as the need arises.
Comments
    Some commenters believed that SSBs on this form would be useful for 
capturing specialized data which could be used, for instance, to 
analyze or predict trends in safety hazards or to initiate planning for 
correction of identified problems. The American Trucking Associations 
(ATA) requested that the use of the SSB should be publicly announced in 
the Federal Register so that affected highway users would be aware of 
any special study that may be undertaken, and that they be afforded an 
opportunity for appropriate input.
Final Decision
    The ``Highway-Rail Grade Crossing Accident/Incident Report'' (Form 
FRA F 6180.57) contains two special study blocks (SSBs) in block 
``53.'' As the need arises, FRA will notify the railroads in writing, 
or if appropriate, through publication in the Federal Register, of the 
purpose and the type of information that is to be collected. In 
conjunction with the Federal Highway Administration (FHWA), FRA will 
publish in the Federal Register any announcement affecting highway 
users, thus allowing motor carriers the opportunity to provide FRA 
pertinent special study information. FRA will be as specific as 
possible in order to minimize both costs and the amount of time 
associated with the collection of this new information. Each SSB has 20 
characters in order to standardize the data structure for computer 
files. FRA believes the SSBs will prove extremely valuable in 
collecting information to help FRA identify and evaluate issues of 
safety concern as well as other nonsafety issues as the need arises.

f. Whistle Bans and Signal System Failure

Proposal
    FRA also proposed to add two new questions to the ``Highway-Rail 
Grade Crossing Accident/Incident Report'' to gather information on 
whether whistle bans were in effect and observed at the time of the 
accident/incident, and whether there was signal system failure within 
the last seven calendar days up to and including the day of the 
accident. The codes for completing both items would be included in the 
next revised FRA Guide.
Comments
    Rail labor associations viewed these information blocks necessary 
as this information would effectively capture the status of the warning 
device prior to the time of the accident. Many railroads stated that 
the proposed question on whistle bans was necessary to collect 
information on this subject due to the increased focus by the media, as 
well as state and federal agencies, on accidents occurring at grade 
crossings. A few railroads opposed addition of these questions but 
failed to express their reasoning as to why such questions should not 
be added to the form. All participants at the public hearings and at 
the public regulatory conference acknowledged their concern in 
connection with whistle bans and further emphasized the need for 
federal regulations requiring the sounding of a locomotive horn upon 
approaching and entering public highway-rail grade crossings.
    ATA stated that current whistle bans were unacceptable and that 
highway users approaching a grade crossing are fully entitled to be 
warned of the approach of a train by every practicable means. They 
further commented that active warning devices frequently

[[Page 30953]]

malfunction in a manner indicating the approach of a train when such is 
not the case. ATA stated that a specific warning of the approach of a 
train, through sounding of the whistle, is essential to safety and that 
active warning devices were not adequate substitutes for the 
requirement to have the engineer sound the whistle.
    The proposal to add the question regarding signal system failure to 
Form FRA F 6180.57 had a similar response in that some commenters 
opposed addition of this question while others stated that the 
information was critical to identifying problems at highway-rail grade 
crossings. ATA urged that, not only should the existence of a failure 
be noted, but that the nature of the failure should be included in the 
record. ATA stated that this information could be a significant factor 
particularly where active warning devices falsely indicate the approach 
of a train.
Final Decision
    It is imperative that FRA ascertain as many details concerning 
accidents connected with whistle bans. Thus, the ``Highway-Rail Grade 
Crossing Accident/Incident Form'' (Form FRA F 6180.57) contains 
question ``34'' to gather information on whether whistle bans were in 
effect and observed at the time of the accident/incident. The codes for 
completing this block will be included in the next revised FRA Guide.
    However, the proposal to gather information on whether there was 
signal system failure within the last seven calendar days up to and 
including the day of the accident is not adopted. FRA collected 
information about signal failures and false activations for a period of 
27 months over the past several years. The statistical results did not 
indicate a correlation between a signal failure and an accident within 
seven days of such failure. The burden to collect this information 
therefore cannot be justified based upon FRA's study. If new data 
should indicate that this information is needed, then FRA will gather 
such information using the Special Study Blocks (SSBs) on Form FRA F 
6180.57.

g. Motorist Age/Gender/Impairment

Proposal
    In order to collect more information on motorists involved in 
highway-rail grade crossing accidents, FRA proposed to amend Form FRA F 
6180.57 to require information under the heading ``Motorist,'' if 
known, on the motorist's age and gender, and whether the motorist was 
impaired by alcohol or drugs at the time of the accident/incident.
Comments
    As to the proposed block for ``Motorist Impairment,'' most 
commenters believed the information was useful but preferred that 
reporting of this data remain optional for the reporting railroad. 
Since all grade crossing accidents are routinely investigated by the 
local police, information on motorist impairment is normally provided 
to the railroad only after the police conclude their investigation, 
which may be several weeks or months after the actual accident. Most 
commenters agreed that motorist age and gender information was readily 
available and easier to collect than information on motorist 
impairment.
Final Decision
    Form FRA F 6180.57 does not contain a block on ``Motorist 
Impairment.'' If FRA deems this information necessary at some point in 
the future, the Special Study Blocks (SSBs) on Form FRA F 6180.57 may 
be utilized to collect data regarding impaired motorists.
    The ``Highway-Rail Grade Crossing Accident/Incident Report'' 
contains block ``38'' for the driver's age, and block ``39'' for the 
driver's gender (sex). This information is readily available to the 
reporting railroad, however, completion of driver's age in block ``38'' 
and driver's gender in block ``39'' remains optional for the reporting 
railroad. However, FRA encourages each railroad to be as diligent as 
possible in completing these and any other optional information blocks.

h. Trapped Motorist

Proposal
    At the public regulatory conference, FRA proposed the collection of 
information regarding situations where motorists are trapped by other 
motor vehicle traffic in order to help identify alternative grade 
crossing protection systems that may prevent this situation.
Comments
    Rail labor associations regarded this information useful for 
identifying alternate grade crossing protection systems that may help 
prevent this type of situation. A few commenters believed that this 
requirement was troublesome because in most cases railroads would have 
to make a judgment call. These commenters requested that completion of 
this information remain optional for the reporting railroad. ATA 
supported the inclusion of this data element so that FRA receive clear 
information as to what actually happens in such a situation.
Final Decision
    Form FRA F 6180.57 contains entry ``#4. Trapped'' in block ``16'' 
entitled ``Position'' to allow for the collection of information 
regarding situations where motorists are trapped by other motor vehicle 
traffic. FRA will include the codes for completion of this entry in the 
next revised FRA Guide. The narrative block (block ``54'') can also be 
used to explain and expand on the actual occurrence. FRA believes this 
information is critical to its data base in order to identify alternate 
grade crossing protection systems that may help prevent occurrence of 
this type of situation.
7. 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''
    If a railroad should cite an employee human factor as the primary 
or contributing cause of a rail equipment accident/incident, then 
current regulations require the reporting railroad to complete the 
``Railroad Employee Human Factor Attachment'' (Form FRA F 6180.81), and 
attach it to the ``Rail Equipment Accident/Incident Report'' (Form FRA 
F 6180.54). Additionally, for each employee listed on Form FRA F 
6180.81, the reporting railroad must complete part I, ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor,'' on Form FRA F 6180.78, and must 
provide a copy of this form to the employee within 45 days after the 
end of the month in which the accident/incident occurred. Upon receipt 
of Form FRA F 6180.78, the employee has the option of providing a 
statement in part II (entitled ``Employee Statement Supplementing 
Railroad Accident Report''). The format for the revised ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor; Employee Statement Supplementing 
Railroad Accident Report'' (Form FRA F 6180.78) is set forth in 
Attachment 8 to this final rule.
Proposal
    Recipients of the notice (Form FRA F 6180.78) are to include only 
those railroad employees who were the primary cause or a contributing 
cause of the rail equipment accident/incident. In order to minimize any 
confusion or misunderstanding for recipients of the

[[Page 30954]]

notice, FRA proposed refinement of the language in the block entitled 
``Notice to Recipient'' so that only those railroad employees who were 
determined by the railroad to be the primary cause or a contributing 
cause of the rail equipment accident/incident receive Form FRA F 
6180.78.
Comments
    The few comments received in response to this proposal were 
favorable.
Final Decision
    The block entitled ``Notice to Recipient'' on Form FRA F 6180.78 
reads as follows:

    Notice to Recipient. An accident occurred on the above date 
which the railroad alleges was at least partially caused by an 
action, lack of action, or the physical condition of a railroad 
employee. The railroad is sending you this notice because it 
believes that you had a role, but may not necessarily be the primary 
or only person responsible for the accident's occurrence. The 
railroad has reported to FRA that the primary and/or major 
contributing cause(s) of this accident are those listed above. Other 
causal factors related to this event may be described in the 
narrative portion of the railroad's report; a copy of which is 
attached.
    You may submit a statement to FRA with a copy to this railroad 
and comment on any aspect of the railroad's report. The decision 
whether to submit such a statement is entirely optional on your 
part. If you choose to do so, please see the additional notices and 
instructions on the reverse of this form.

D. Recordkeeping

1. Sections 225.25(a) and (b) and the ``Railroad Employee Injury and/or 
Illness Record'' (Form FRA F 6180.98)

Proposal
    Section 225.25(a) currently refers to the log of injuries and 
occupational illnesses at and for each railroad establishment. In order 
to accurately identify and review both reportable and nonreportable 
railroad injuries and illnesses, FRA proposed to amend Sec. 225.25(a) 
to require that railroads maintain a log or report of all reportable 
and ``nonreportable'' (i.e., ``recordable'') injuries and illnesses to 
railroad employees for each railroad establishment using a new form 
entitled ``Railroad Employee Injury and/or Illness Log'' (Form FRA F 
6180.98). Over the years, FRA inspectors have found it increasingly 
difficult to ascertain whether the railroad is reaching a correct 
decision on whether to report a given injury or illness. Thus, the 
requirement was proposed in order to alleviate the problem FRA 
inspectors encounter during routine inspections. The format for the 
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98) 
is set forth in Attachment 9 to this final rule.
Comments
    Many commenters expressed concern with the proposal to add 
nonreportable injuries (``recordable'' injuries) to the proposed 
``Railroad Employee Injury and/or Illness Log.'' Most railroad 
representatives stated that this proposal would create another class of 
reportable injuries, i.e., nonreportable recordables. These commenters 
saw no justification for what they believed was a burdensome exercise 
in recordkeeping. They also stated that this proposal would create 
another avenue for issuance of citations and that FRA was taking 
another step toward classifying every injury as reportable. Some 
commenters suggested that the proposed definition of ``recordable'' was 
too stringent in that every single injury or illness, however minor, 
would have to be logged by the reporting railroad.
    Some participants at the public regulatory conference requested 
that FRA use the term ``nonreportable'' instead of the proposed 
``recordable'' so that FRA's proposed ``recordables'' would not be 
confused with OSHA's ``recordables.''
    Many commenters urged FRA to allow each railroad use of a railroad-
designed log or form, instead of the specific log proposed in the NPRM, 
as long as the railroad captured the data required on the FRA log. 
Other commenters favored the proposal to log all ``recordable'' 
injuries and illnesses, and stated that such information should be 
maintained on either FRA's log or some other format.

Final Rule

Recordkeeping--Sections 225.25(a) and (b) and the ``Railroad Employee 
Injury and/or Illness Record'' (Form FRA F 6180.98)

    FRA concludes that in order to effectively enforce railroad injury 
reporting, all injuries and illnesses to railroad employees that arise 
from the operation of the railroad and that cause the employee to be 
examined or treated by a qualified health care professional must be 
recorded using the ``Railroad Employee Injury and/or Illness Record'' 
(Form FRA F 6180.98). Unless FRA has the opportunity to examine those 
injuries and illnesses deemed ``nonreportable'' as well as those deemed 
``reportable'' by the railroad, it is difficult for FRA to determine 
whether a railroad is properly making the ``reportable'' decision.
    FRA agrees that use of the terms ``recordable'' and ``nonreportable 
recordables'' to define those injuries and illnesses which are not 
reportable to FRA but are recordable on the log may be confusing for 
the railroad. The proposed term ``recordable'' or ``nonreportable 
recordables'' is replaced therefore with the term ``accountable'' so as 
to minimize any confusion.
    An ``accountable'' injury or illness is defined as encompassing any 
condition, not otherwise reportable, of a railroad worker that is 
associated with an event, exposure, or activity in the work environment 
that causes the worker to be examined or treated by a qualified health 
care professional. Such treatment would usually occur at a location 
other than the work environment; however, it may be provided at any 
location, including the work site.
    Any condition initially classified as accountable, i.e., 
``nonreportable'' or ``recordable,'' may subsequently become reportable 
if certain consequences occur. For example, a minor cut that is 
disinfected and covered with a bandage may later become infected and 
require medical treatment. It would be difficult, if not impossible, 
for the railroad to monitor self-treatment of such minor injuries. 
Thus, the type of injuries that are generally expected to be recorded 
on the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F 
6180.98) are those that create a ``documentation trail.'' This 
documentation could include records such as: incident reports; health 
care provider records; claim payouts; or any other records that may 
identify the fact that an employee has sustained physical harm while in 
the work environment that required treatment. This broad scope is 
necessary since all conditions, regardless of severity, must be 
evaluated to determine if the requirements necessary for reporting the 
injury/illness have been met.
    Section 225.25(a) states that each railroad must maintain either 
the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F 
6180.98), or an alternative railroad-designed record as described in 
Sec. 225.25(b), to record all reportable and accountable injuries and 
illnesses to railroad employees that arise from the operation of a 
railroad for each railroad establishment where such employees report to 
work. Section 225.25(b) outlines the information FRA requires on the 
alternative railroad-designed record used in lieu of the ``Railroad 
Employee Injury and/or Illness Record.'' All the information requested 
on ``Railroad Employee Injury and/or Illness Record'' must be present 
on the

[[Page 30955]]

alternative record. Although this information may be displayed in a 
different order from that on the Railroad Employee Injury and/or 
Illness Record, the order of the information shall be consistent from 
one such record to another such record. The order chosen by the 
railroad must be consistent for each of the railroad's reporting 
establishments. Also note that the reporting railroad may choose to 
have additional information on its record extending beyond the 
information required on Form FRA F 6180.98.
    Section 225.25(a) states that the ``Railroad Employee Injury and/or 
Illness Record,'' or its alternate, must be maintained for each 
operational railroad establishment, i.e., an establishment wherein 
workers report to work such as an operating division, general office, 
and major installations such as a locomotive or car repair or 
construction facility. FRA believes that this requirement will help 
alleviate the difficulty FRA inspectors encounter when attempting to 
locate injury and illness information at railroad establishments. 
Please refer to the discussion in Sec. 225.25(g) regarding maintenance 
of these records at railroad establishments.
    Section 225.25(c) states that each railroad must provide the 
employee a copy of either the completed ``Railroad Employee Injury and/
or Illness Record'' (Form FRA F 6180.98) or the alternative railroad-
designed record upon his or her request, as well as a copy of any other 
record or report filed with FRA or held by the railroad pertaining to 
the employee's injury or illness. This requirement is necessary in 
order to provide the injured or ill employee a means by which to review 
and verify the reporting status of his or her injury or illness.

2. Elimination of Supplementary Record--Former Sec. 225.25(b) Proposal

    FRA determined that much of the information requested in the 
supplementary record of injuries and illnesses pursuant to former 
Sec. 225.25(b) would be collected on the new ``Railroad Employee Injury 
and/or Illness Record'' (Form FRA F 6180.98). Thus, FRA proposed 
elimination of this supplementary record.
Comments
    All comments received in response to this proposal were favorable.
Final Rule
    The requirement that each railroad maintain a supplementary record, 
as required under former Sec. 225.25(b), is eliminated in the final 
rule.

3. Sections 225.25 (d) and (e) and the ``Initial Rail Equipment 
Accident/Incident Record'' (Form FRA F 6180.97)

    Railroads have been required to maintain a log of only reportable 
rail equipment accidents. Information on nonreportable events may be 
found in ``unusual occurrence'' reports and ``morning reports'' that 
are maintained at various locations by the railroad. However, there is 
no guarantee that all of those reports are either available or 
complete. As a result, during routine accident/incident records 
inspections it is often difficult, if not impossible, for FRA 
inspectors to identify the events that were determined by the railroad 
to be nonreportable. The format for the ``Initial Rail Equipment 
Accident/Incident Record'' (Form FRA F 6180.97) is set forth in 
Attachment 10 to this final rule.
Proposal
    In order to accurately identify and review both reportable and 
nonreportable rail equipment accident/incidents, FRA proposed that 
railroads must maintain a log to list all reportable and ``recordable'' 
rail equipment accidents using a new form entitled ``Rail Equipment 
Accident/Incident Log'' (Form FRA F 6180.97). FRA proposed that a 
recordable rail equipment accident/incident would encompass any event 
not otherwise reportable, involving the operation of on-track equipment 
that causes physical damage to either the on-track equipment or the 
track upon which such equipment was operated and that requires the 
removal or repair of rail equipment before any rail operations over the 
track can continue. A recordable rail equipment accident/incident, if 
not tended to, would thus disrupt railroad service. A scrape or 
indentation to rail equipment, however, would not make a rail 
equipment/accident recordable if routine rail operations over the track 
can continue without such equipment being repaired or removed from 
service.
Comments
    Rail labor representatives supported use of the proposed 
standardized FRA form for reporting certain rail equipment accidents/
incidents deemed nonreportable by the railroad. However, these 
commenters proposed that a ``recordable'' accident and incident be 
defined as:

    Any event not otherwise reportable, involving the operation of 
on-track equipment that causes personal injury requiring the worker 
to be examined or treated by a qualified health care professional or 
causes physical damage to either the on-track equipment or the 
track, roadbed, signals and/or structures which requires removal, 
replacement or repair of equipment, track, roadbed, signals and/or 
structures. Incidents arising from broken knuckles, failed journals, 
and dragging equipment that do not cause damage beyond that of the 
item of equipment that failed, are not required to be logged on Form 
FRA F 6180.97.

    Under the definition proposed by rail labor, recordable rail 
equipment accidents/incidents would not be limited to those occurring 
exclusively on the railroad right-of-way; thus rail equipment 
accidents/incidents involving ``shop crafts'' in the performance of 
worker duties would be encompassed within the definition.
    Many railroad representatives opposed a new log to record 
reportable and recordable rail equipment accidents. They stated that 
the log would create additional recordkeeping requirements with little 
or no real benefit to rail safety and, that the proposal would create 
another avenue for FRA to issue fines and penalties for what they 
considered to be minor paperwork entries. Railroad representatives also 
wanted further clarification on the definition of a ``recordable'' 
accident/incident especially with respect to what constituted a 
``disruption'' to rail service.
    Most commenters suggested that the term ``recordable'' should be 
replaced with the term ``nonreportable'' so as to limit confusion with 
the terminology.

Final Rule

Recordkeeping--Sections 225.25 (d) and (e) and the ``Initial Rail 
Equipment Accident/Incident Record'' (Form FRA F 6180.97)

    As stated previously, FRA agrees that use of the term 
``recordable'' or ``nonreportable recordables'' to define those rail 
equipment accidents and incidents which are not reportable to FRA but 
are required to be recorded on the log may be confusing for the 
railroad. The proposed term ``recordable'' or ``nonreportable 
recordable'' is replaced therefore with the term ``accountable'' so as 
to minimize any confusion.
    FRA concludes that both reportable and accountable rail equipment 
accidents and incidents must be recorded on the ``Initial Rail 
Equipment Accident/Incident Record'' (Form FRA F 6180.97). FRA 
inspectors must have a means by which they can determine whether the 
reporting railroad is accurately making its ``reportability'' decision 
pertaining to rail equipment accidents and incidents. In addition, 
accountable events may be of

[[Page 30956]]

considerable interest in determining the safety of railroad facilities 
and operations.
    Further, the definition of an ``accountable'' rail equipment 
accident/incident as proposed by rail labor is not adopted in the final 
rule. FRA believes that personal injuries resulting from the operation 
of on-track equipment do not need to be tied into the ``accountable'' 
rail equipment accident/incident definition since all reported injuries 
and illnesses will be recorded on the monthly injury/illness list. This 
list will be posted in a conspicuous location for and at each 
establishment as described and discussed in the preamble to this final 
rule under the section entitled ``Monthly List of Injuries and 
Illnesses'' (Sec. 225.25(h)).
    Consequently, an ``accountable'' rail equipment accident/incident 
is defined as encompassing any event not otherwise reportable, 
involving the operation of on-track equipment that causes physical 
damage to either the on-track equipment or the track upon which such 
equipment was operated and that requires the removal or repair of rail 
equipment from the track before any rail operations over the track can 
continue. An accountable rail equipment accident/incident, if not 
tended to, thus would disrupt railroad service. Examples of 
``disruption of service'' would include: loss of main track; one or 
more derailed wheels; any train failing to arrive or depart at its 
scheduled time; one or more cars or locomotives taken out of service; 
or rerouting trains due to a damaged car or locomotive.
    Section 225.25(d) states that each railroad must maintain either 
the ``Initial Rail Equipment Accident/Incident Record'' (Form FRA F 
6180.97), or an alternative railroad-designed record, to record all 
reportable and accountable rail equipment accidents and incidents for 
each railroad establishment. Thus, Sec. 225.25(e) allows railroads to 
design and use an alternative railroad-designed record in lieu of the 
``Initial Rail Equipment Accident/Incident Record.'' All the 
information requested on the ``Initial Rail Equipment Accident/Incident 
Record'' (Form FRA F 6180.97) must be present on the alternative record 
designed and used by the railroad. Although this information may be 
displayed in a different order from that on the Initial Rail Equipment 
Accident/Incident Record, the order of the information shall be 
consistent from one such record to another such record. The order 
chosen by the railroad must also be consistent for each of the 
railroad's reporting establishments. Also note that the reporting 
railroad may choose to have additional information on its record 
extending beyond the information required on Form FRA F 6180.97.
    Section 225.25(d) states that the ``Initial Rail Equipment 
Accident/Incident Record,'' or its alternate, must be maintained for 
each operational railroad establishment, i.e., an establishment wherein 
workers 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. FRA believes that this 
requirement will help alleviate the difficulty FRA inspectors encounter 
when attempting to locate rail equipment accident and incident 
information at railroad establishments. Please refer to Sec. 225.25(g) 
for a discussion of maintenance of these records at railroad 
establishments.

4. Property Damage Estimate Worksheet and Record (Proposed Form FRA F 
6180.xx(b))

Proposal
    FRA proposed use of a ``Property Damage Estimate Worksheet and 
Record'' (Form FRA F 6180.xx(b)) by the reporting railroad to determine 
costs associated with damage to (i) on-track equipment, (ii) signal 
equipment, (iii) track, (iv) track structures and roadbed, and (v) 
costs of equipment rental and operation. These five cost categories 
would be totaled to derive the total accident cost. As proposed, if the 
total accident cost met or exceeded the reporting threshold, then the 
total cost for ``damage to on-track equipment'' in ``Part A'' would be 
transferred to a block entitled ``Equipment Damage'' on the ``Initial 
Rail Equipment Accident/Incident Record'' (Form FRA F 6180.97). 
Likewise, FRA proposed that the total cost for ``damage to signal 
equipment,'' ``damage to track,'' and ``damage to track structures and 
roadbed'' in ``Parts B, C, and D'' respectively, would be totaled and 
that this amount would be transferred to a block entitled ``Track, 
Signal, Way & Structure Damage'' on the ``Initial Rail Equipment 
Accident/Incident Record.'' Finally, FRA proposed to print the 
``Property Damage Estimate Worksheet and Record'' on the reverse side 
of the ``Initial Rail Equipment Accident/Incident Record.''
Comments
    Most hearing participants opposed adoption of this proposal. These 
same participants expressed their concern with the proposed estimation 
of property damage at the public regulatory conference. Written 
comments received in response to this proposal further elucidated 
problems with the proposed methods of determining the cost of the 
damage.
Final Rule
    Due to the controversy surrounding FRA's proposal to calculate 
costs associated with damage to (i) on-track equipment, (ii) signal 
equipment, (iii) track, (iv) track structures and roadbed, and (v) 
costs of equipment rental and operation, FRA has decided to reexamine 
this issue in a subsequent rulemaking for the accident reporting 
regulations in consultation with FRA's Railroad Safety Advisory 
Committee. Therefore, the final rule does not adopt the ``Property 
Damage Estimate Worksheet and Record.''

5. Sections 225.25 (f) and (g)  Updating and Maintaining the ``Railroad 
Employee Injury and/or Illness Record'' (Form FRA F 6180.98) and the 
``Initial Rail Equipment Accident/Incident Record'' (Form FRA F 
6180.97)

Proposal
    Discrepancies in logs are the most recurring problems FRA 
inspectors encounter during an inspection. FRA has found that many 
railroads fail to update existing logs in a timely manner, particularly 
with respect to lost/restricted workdays. Therefore, in order to assure 
that each railroad continuously updates the ``Railroad Employee Injury 
and/or Illness Record'' (Form FRA F 6180.98) and the ``Initial Rail 
Equipment Accident/Incident Record'' (Form FRA F 6180.97), or the 
alternative railroad-designed records (each record hereinafter is 
referred to as ``Record''), FRA proposed that each reportable and 
recordable injury and illness, as well as each reportable and 
recordable rail equipment accident/incident, must be entered on the 
appropriate Record as early as practicable, but in any event no later 
than seven working days after receiving information or acquiring 
knowledge that an illness or injury has occurred or, that a rail 
equipment accident/incident has occurred.
    Additionally, FRA proposed that if either Record is maintained at a 
centralized location, but not through electronic means, then a paper 
copy of the record or report that is current within 35 days of the 
month to which it applies must be available at the appropriate 
establishment. When the Record for an establishment is maintained at a 
central location through electronic means, FRA proposed, the records 
for that establishment must be

[[Page 30957]]

available for review in a hard copy format (paper printout) within four 
business hours of the request.
Comments
    The few comments received in response to these proposals were 
favorable. However, some commenters objected to the requirement that 
records maintained through electronic means must be available for 
review in ``hard copy'' within four business hours of the request. 
These commenters were concerned with what action FRA would take if the 
request could not be fulfilled within this prescribed time limit due to 
problems outside the railroad's control.
    Most commenters believed that, in most cases, seven days should be 
sufficient to update the records. Some commenters were concerned that 
this proposal failed to recognize the varying factual circumstances 
that railroads may encounter before the initial information provided to 
the railroad by the employee is verified. These commenters stated that 
many times there are conflicting facts which must be sorted out before 
a determination can be made as to whether the accident/incident or the 
injury/illness is reportable or nonreportable.

Final Rule

Updating and Maintaining the Records--Sections 225.25 (f) and (g)

    Section 225.25(f) states that each railroad must enter each 
reportable and accountable injury and illness on the ``Railroad 
Employee Injury and/or Illness Record'' or the alternative railroad-
designed record, as early as practicable, but in any event, no later 
than seven working days after receiving information or acquiring 
knowledge that an illness or injury has occurred. Likewise, each 
railroad must enter each reportable and accountable rail equipment 
accident and incident on the ``Initial Rail Equipment Accident/Incident 
Record'' or the alternative railroad-designed record, as early as 
practicable, but in any event, no later than seven working days after 
receiving information or acquiring knowledge that a rail equipment 
accident or incident has occurred. FRA believes the seven-day 
requirement is an extremely reasonable and generous amount of time 
afforded railroads to enter information on the Record and to make a 
decision on whether the illness/injury and/or accident/incident is 
reportable or accountable.
    Section 225.25(g) states that if either Record is maintained at a 
centralized location, but not through electronic means, then a paper 
copy of the Record that is current within 35 days of the month to which 
it applies must be available at the appropriate establishment. When 
either Record is maintained at a central location through electronic 
means, the Record for that establishment must be available for review 
in a hard copy format within four business hours of the request. Of 
course, FRA anticipates that railroads would be able to provide the 
requested information as soon as practicable. FRA believes the four-
hour time limit is more than a reasonable amount of time for the 
railroad to provide information made pursuant to a request. FRA 
recognizes that this request may be impossible to fulfill if the 
establishment is experiencing problems with its computer or other 
instruments used in obtaining the information electronically. No 
punitive action would be taken by FRA for the railroad's failure to 
supply the requested documents when circumstances outside the control 
of the railroad preclude it from obtaining the information and the 
railroad has exercised reasonable effort to correct the problem.

6. Section 225.25(h)  Monthly List of Injuries and Illnesses

Proposal
    FRA proposed that each railroad must maintain a list of all 
reported injuries and illnesses for the previous month and that such 
list be posted in a conspicuous location at each railroad establishment 
within 30 days after expiration of the month during which the injuries 
and illnesses occurred. For example, the monthly list of injuries and 
illnesses for the month of May would have to be completed and posted by 
the railroad no later than June 30th. Moreover, FRA proposed that the 
monthly injury and illness list would be displayed for a minimum of 60 
consecutive days so as to allow all workers at that establishment the 
opportunity to view the list. Given the example above, the list, if 
posted on June 30th, would remain posted for a minimum of 60 days, or 
until August 30th. Further, if no reported injuries or illnesses were 
associated with an establishment, FRA proposed that the posting shall 
make reference to that fact.
Comments
    Most commenters supported this proposal with some modifications. 
Namely, commenters stated that the proposal requiring that the list be 
posted within 30 days after expiration of the month during which the 
injuries and illnesses occurred, coupled with the proposal that the 
list be displayed for a minimum of 60 consecutive days was confusing. 
Several railroad representatives suggested that railroads should be 
allowed to post a ``year to date'' list of reportable and nonreportable 
illnesses and injuries quarterly. These commenters stated that this 
would provide more accurate information than a monthly listing and that 
it would also produce less burdensome paperwork.
    Some railroad representatives expressed concern that posting this 
information (date, type and location of injury) in a public place may 
lead to identification of the injured or ill person and, that the 
identified person may perceive that his or her privacy rights have been 
violated.
    Rail labor associations supported the posting of the monthly 
listing of injuries and illnesses and stated that ``each railroad 
establishment'' should be consistently interpreted to require posting 
at each establishment or assembly point where railroad workers report 
to work.

Final Rule

Monthly List of Injuries and Illnesses--Section 225.25(h)

    Section 225.25(h) states that a listing of all reported injuries 
and occupational illnesses for the previous month shall be posted in a 
conspicuous location for and at each railroad establishment within 30 
days after expiration of the month during which the injuries and 
illnesses occurred. For purposes of fulfilling this requirement, this 
posting will be necessary only for those establishments that are in 
continual operation for a minimum of 90 calendar days or more. For 
those establishments that do not meet this level of operation or time 
requirement, the posting of reported injuries and illnesses must be 
made at the next higher organizational level, i.e., the establishment 
that controls or directs the activities that take place at the 
temporary work site. Further, this listing must be posted in a 
conspicuous location so that it may be observed by workers at that 
establishment and shall remain continuously displayed for the next 12 
months. This requirement therefore allows the employee the opportunity 
to get a one-year ``snapshot'' of reportable injuries and illnesses 
associated with that establishment. Thus, for example, April's list of 
reportable injuries and illnesses must be posted by June 1, and must 
remain posted until May 31 of the following year. This requirement 
allows railroad workers the opportunity to easily and readily review 
reportable illnesses and injuries for that

[[Page 30958]]

establishment in a cumulative fashion. FRA also believes that posting 
of this monthly list of injuries and illnesses will improve the general 
quality of illness and injury data.
    Section 225.25(h) further states that incidents reported for 
employees on the listing must be displayed in date sequence. The 
listing must contain, at a minimum, the following information:
    <bullet> Name and address of the establishment;
    <bullet> Calendar year of the cases being displayed;
    <bullet> Incident number used to report case;
    <bullet> Date of the injury or illness;
    <bullet> Location of incident;
    <bullet> Regular job title of employee injured or ill;
    <bullet> Description of the injury or condition;
    <bullet> Number of days employee was absent from work at time of 
posting; and the number of days of work restriction at time of posting;
    <bullet> Date of death, if the employee died;
    <bullet> Annual average number of railroad employees reporting to 
this establishment;
    <bullet> Name, title, telephone number with area code, and 
signature of preparer; and
    <bullet> Date the report was completed.
    <bullet> When there are no reportable injuries or occupational 
illnesses associated with an establishment for that month, the listing 
must make reference to this fact.

E. Employer Notification (Proposed Sec. 225.39(a)) and Copy of 
``Railroad Employee Injury and/or Illness Record'' to Employee 
(Proposed Sec. 225.39(b))

Proposal
    Rail labor organizations have repeatedly expressed concern that 
many injured employees fail to inform their employers of injuries. By 
placing part of the burden for reporting on the individual railroad 
employee, FRA believed it could improve the general quality of the 
injury/illness reporting data. Consequently, FRA proposed in 
Sec. 225.39(a) that railroad employees must notify their employer, in 
writing, that they have sustained an injury and/or illness (whether 
reportable or nonreportable) within seven calendar days of incurring 
either the injury or illness or obtaining knowledge that they incurred 
the injury or illness. FRA also recommended a civil monetary penalty 
against the railroad employee for failure to notify his or her employer 
of the injury or illness within the prescribed time period.
    FRA also was concerned with the fact that injured workers did not 
have the opportunity to review and verify the information on the 
accident/illness report prior to submission of that report to FRA. FRA 
thus proposed, in Sec. 225.39(b), that the reporting railroad must 
provide the railroad employee with a copy of the completed ``Railroad 
Employee Injury and/or Illness Record'' (Form FRA F 6180.98). FRA 
believed that the general quality of injury and illness data would 
improve by allowing the employee to participate in the reporting 
process as set forth above. Similarly, FRA recommended a civil monetary 
penalty against the railroad for its failure to issue this log to the 
railroad employee within the prescribed time limit.
Comments
    Railroad representatives strongly opposed this proposal and instead 
recommended that all known injuries should be reported by the employee 
to railroad officials immediately, but in any event, no later than the 
end of the employee's shift. They also recommended that after obtaining 
knowledge of incurring the injury or illness, notification to the 
proper railroad official(s) should be mandatory within 24 hours of 
obtaining such knowledge. These commenters also stated that if the 
railroad had more stringent notification rules, then the railroad's 
rules should govern the matter. Many railroad representatives commented 
that they already require immediate notification of an injury and that 
they cannot adequately investigate the circumstances and potential 
causes of the injury or illness without immediate notice by the 
employee. Further, these same commenters stated that a monetary penalty 
issued to the employee was not appropriate and, that such sanctions 
(i.e., disciplinary measures) were better left between the railroad and 
the railroad employee.
    In contrast, rail labor associations fully supported FRA's seven-
day notification proposal. However, these commenters did not support 
the proposal to assess monetary penalties against an employee for his 
or her failure to report an accident or injury within the seven-day 
time frame. Instead, these commenters stated that railroads should be 
held accountable for the actions of their supervisory personnel who 
knowingly fail to report accidents or injuries that occur to railroad 
employees. Rail labor representatives acknowledged that railroad policy 
can, and often does, require more immediate notice than that proposed 
by FRA, but they also stated that FRA's proposal did not in any way 
hinder the right of railroads to establish their own policy regarding 
the timeliness of injury or illness reporting. Rail labor also stated 
that the proposed regulations should contain language that would 
suspend the employee's seven-day notification in writing requirement in 
the event of a severe injury which may prevent the employee from 
complying with this provision.
    In response to the proposal to require railroads to provide 
employees with a copy of the completed injury and illness log (proposed 
Sec. 225.39(b)), rail labor representatives stated that an employee 
should be notified that his or her case has been reported to FRA by 
either U.S. mail or by hand delivery in a sealed envelope on the 
property at a time when the employee would regularly receive other 
company correspondence. Rail labor supported the proposal to exempt the 
railroad from the seven-day notification requirement when compliance 
would not be possible due to a severe injury.

Final Rule

    FRA does not adopt the proposed seven-day employer notification 
requirement. Similarly, FRA does not adopt the proposal that would 
require railroads to provide employees a copy of the completed 
``Railroad Employee Injury and/or Illness Record'' within the 
prescribed time limit of seven days. However, as discussed previously 
in this preamble, Sec. 225.25(c) does require each railroad to provide 
the employee, upon his or her request, a copy of either the completed 
``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98) 
or the alternative railroad-designed record, as well as a copy of any 
other form, record, or report filed with FRA or held by the railroad 
pertaining to the employee's injury or illness. Section 225.25(c) thus 
eliminates the seven-day time limit in which to accomplish this 
requirement. By providing this requested information, the employee will 
have the opportunity to assess why, or why not, a particular event was, 
or was not, reported to FRA.
    FRA believes that requiring a paper trail to prove that employees 
were in fact notified of how the railroad reported their injury, with a 
receipt, places an unnecessary burden on railroads. Problems also exist 
with the seven-day requirement in the case where the injured employee 
may not be at his or her residence during this time period.
    FRA believes that the amended recordkeeping requirements in 
Sec. 225.25 will provide injured and ill railroad employees a means by 
which to review

[[Page 30959]]

and verify the reporting status of their injury or illness.

F. Reporting Threshold

    FRA has periodically adjusted the reporting threshold based on the 
prices of a market basket of railroad labor and materials. The purpose 
of these adjustments has been to maintain comparability between 
different years of data by having the threshold keep pace with 
equipment and labor costs so that each year the same groups of 
accidents are included in the reportable accident counts.
    Congress has given FRA some direction for modifying the procedure 
for calculating the threshold in 49 U.S.C. 20901(b) (formerly contained 
at section 15(a) of the Rail Safety Enforcement and Review Act (Pub. L. 
102-365)): ``[i]n establishing or changing a monetary threshold for the 
reporting of a railroad accident or incident, * * * damage cost 
calculations'' shall be based ``only on publicly available information 
obtained from (A) the Bureau of Labor Statistics; or (B) another 
department, agency or instrumentality of the United States Government 
if the information has been collected through objective, statistically 
sound survey methods or has been previously subject to a public notice 
and comment process in a proceeding of a Government department, agency, 
or instrumentality.'' Congress allows an exception to this general rule 
only if the necessary data is not available from the sources described, 
and only after public notice and comment.
Proposal
    FRA proposed to obtain in October, of the year that it would 
publish a final rule on accident reporting, the latest Producer Price 
Index (``PPI'') and National Employment Hours and Earnings figures from 
the Department of Labor's Bureau of Labor Statistics (``BLS''). At that 
time, the latest final figures, as opposed to preliminary figures, 
would be available to cover the period through June of that year. In 
October of each subsequent year, FRA would obtain the latest 12 months 
of final BLS figures and calculate the threshold for the upcoming year, 
publishing the new figure in the Federal Register prior to its 
implementation.
Proposed Equation
    Specifically, FRA proposed to use data from the U.S. Department of 
Labor, LABSTAT Series Reports for calculating the threshold. The 
equation used to adjust the reporting threshold would be based on the 
average hourly earnings reported for Class I railroads and an overall 
railroad equipment cost index determined by the BLS. The two factors 
would be weighted equally.
    For the wage component, FRA proposed to use LABSTAT Series Report, 
Standard Industrial Classification (SIC) code 4011 for Class I Railroad 
Average Hourly Earnings. For the equipment component, FRA proposed to 
use LABSTAT Series Report, Producer Price Index (PPI) Series WPU 144 
for Railroad Equipment. In the month of October of each year, FRA would 
obtain from the BLS, finalized cost data covering the twelve-month 
period ending with the month of June. The monthly figures would then be 
totaled and divided by twelve to produce annual averages. The wage data 
would be reported in terms of dollars earned per hour, while the 
equipment cost data would be indexed to a base year of 1982.
    As proposed in the NPRM, the procedure for adjusting the reporting 
threshold is shown in the formula below. The wage component appears as 
a fractional change relative to the prior year, while the equipment 
component is a difference of two percentages which must be divided by 
100 to present it in a consistent fractional form. After performing the 
calculation, the result would be rounded to the nearest $100.
Formula
[GRAPHIC] [TIFF OMITTED] TR18JN96.000

Where:

Wn = New average hourly wage rate ($)
Wp = Prior average hourly wage rate ($)
En = New equipment average PPI value
Ep = Prior equipment average PPI value

    The current weightings represent the general assumption that damage 
repair costs, at levels at or near the threshold, are split 
approximately evenly between labor and materials.
Comments
    The few comments received in response to the proposal to amend the 
calculation of the monetary accident reporting threshold using publicly 
available data were favorable.

Final Rule

    The formula to calculate the monetary accident reporting threshold 
is adopted as proposed. FRA will gather the necessary data in October 
1996 and will issue a notice in the Federal Register announcing the 
revised threshold dollar value. The threshold will then become 
effective beginning January 1, 1997.

G. Miscellaneous Amendments

    This segment of the final rule outlines a number of amendments to 
various sections of the rule text.

1. Section 225.3  Applicability

    Section 225.3 defines the applicability of the accident reporting 
regulations. FRA's delegated regulatory authority under 49 U.S.C. 20101 
et seq. (formerly contained in the Federal Railroad Safety Act of 1970 
(the ``FRSA'') (45 U.S.C. 431 et seq.)) permits FRA to amend the 
current applicability sections of its various regulations so as to 
contract the populations of railroads covered by a particular set of 
regulations or to expand them to the full extent of that authority.
    FRA, as the Secretary's delegate, has had jurisdiction over all 
``railroads'' since the FRSA was enacted. In 1988, Congress amended the 
older railroad safety laws, including the Accident Reports Act, to 
conform their reach to that of the FRSA (while also extending FRA's 
safety jurisdiction to certain other fixed guideway systems). There is 
a very wide range of operations that could be considered tourist 
railroads under the broadest reading of the term ``railroad.'' 
Beginning in 1992, FRA announced that the Agency intended to exercise 
jurisdiction over ``non-insular'' railroads that are not part of the 
general railroad system and that Part 225, among certain laws and 
regulations, applies to those entities in the same manner as railroads 
that are part of the general system. Tourist railroads have written 
several letters to members of Congress questioning the basis for FRA's 
assertion of jurisdiction. Additionally, in 1992, FRA received a 
petition from a scenic railway requesting that regulations be tailored 
specifically to the tourist rail industry.
Proposal
    In an effort to clarify the proper extent of the exercise of FRA's 
jurisdiction,

[[Page 30960]]

FRA announced several principles that would be used as guidelines. FRA 
stated that it would exercise jurisdiction over all tourist operations, 
whether or not they operate over the general railroad system, except 
those that are (1) less than 24 inches in gage and/or (2) insular.
    To determine insularity, FRA described criteria that would measure 
the likelihood that a railroad's operations might affect a member of 
the public. FRA stated that a tourist operation is insular if its 
operations were limited to a separate enclave in such a way that there 
is no reasonable expectation that the safety of any member of the 
public (except a business guest, a licensee of the tourist operation or 
an affiliated entity, or a trespasser) would be affected by the 
operation. An operation would not be considered insular if one or more 
of the following exists on its line: (a) A public highway-rail crossing 
that is in use; (b) an at-grade rail crossing that is in use; (c) a 
bridge over a public road or waters used for commercial navigation; or 
(d) a common corridor with a railroad, i.e., its operations are within 
30 feet of those of any railroad. Thus, the mere fact that a tourist 
operation was not connected to the general system did not make it 
insular under these criteria. While these criteria tend to sort out the 
insular theme parks and museums, a need to do case-by- case analysis in 
certain close situations still existed.
    As a matter of clarification, FRA proposed to conform Part 225 to 
its policy on exercise of jurisdiction so that Part 225 would apply to 
non-general system, non-insular tourist operations confined to an 
installation that is not part of the general system (i.e., it is a 
stand-alone with no freight traffic but has one or more features that 
preclude its being considered insular).
Comments
    The Association of Railway Museums, Inc. (ARM), the Tourist 
Railroad Association, and the Illinois Railway Museum, strongly opposed 
this proposal. In general, these commenters made the following 
assertions:
    (a) Any requirements imposed on railway museum operations should 
also be imposed on amusement park railroads.
    (b) The non-accident information requirements would be extremely 
costly and burdensome, and the imposition of the proposed requirements 
would be contrary to the Regulatory Flexibility Act and the Swift Rail 
Development Act.
    (c) The insular/non-insular railroad criteria proposed by FRA to 
determine which non-general system passenger railroads would be subject 
to regulations is irrational and arbitrary. Regulatory burdens are 
focused on an insignificant sector of non-general system passenger 
railroads since large amusement park rail operations that haul millions 
of passengers a year would be excluded from the regulations.
    (d) FRA's practice of subjecting museum and tourist railroads to 
multiple rulemaking proceedings is extremely burdensome. These 
commenters urged FRA to deal with museum and tourist railroad issues in 
a separate, single proceeding.

Final Rule

Section 225.3  Applicability

    Tourist railroad commenters had no objections to the proposed 
accident reporting requirements, but did oppose the non-accident 
information requirements due to the costs and burdens of collecting 
what they believed to be information of little value and use to FRA. 
These commenters further stated that any requirements imposed on the 
tourist/museum railroads should likewise be imposed on amusement park 
railroads. These commenters, in essence, are stating that since FRA 
does not require the amusement park railroads to be subject to Part 
225, nor should FRA require the tourist, excursion, scenic, and museum 
railroads to be subject to the requirements of Part 225. FRA does not 
believe that exclusion of part of one industry (insular amusement park 
railroads) compels the exclusion of other parts of an industry (non-
insular tourist and museum railroads). The accident reporting 
regulations set forth in Part 225 have always applied to non-general 
system, non-insular railroad operations, e.g., a tourist railroad that 
confines its operations to an installation that is not part of the 
general system. Exclusion of insular amusement park railroads is not 
irrational given state and local regulation of these entities as 
amusements.
    Consequently, Sec. 225.3 states that Part 225 will apply to all 
railroads except (a) A railroad that operates freight trains only on 
track inside an installation which is not part of the general railroad 
system of transportation or that owns no track except for track that is 
inside an installation that is not part of the general railroad system 
of transportation; (b) rail mass transit operations in an urban area 
that are not connected with the general railroad system of 
transportation; and (c) a railroad that exclusively hauls passengers 
inside an installation that is insular or that owns no track except for 
track used exclusively for the hauling of passengers inside an 
installation that is insular.
    An operation will not be considered insular if one or more of the 
following exists on its line: (1) A public highway-rail grade crossing 
that is in use; (2) an at-grade rail crossing that is in use; (3) a 
bridge over a public road or waters used for commercial navigation; or 
(4) a common corridor with a railroad, i.e., its operations are within 
30 feet of those of any railroad.
    FRA appreciates the concerns of small tourist operations that 
reviewing applicability of individual parts of the Code of Federal 
Regulations (CFR) in individual proceedings involves some burden on 
commenters. In order to foster broader and better coordinated dialogue 
with small rail passenger operations, FRA has established, within the 
Railroad Safety Advisory Committee (RSAC), a Tourist and Historic 
Railroads Working Group. This Working Group will review applicability 
of current and future regulations to these entities.
    As discussed previously, legislation before Congress (the 
``Department of Transportation Regulatory Reform Act of 1996'') would 
amend 49 U.S.C. 20901(a) to eliminate the requirement that railroads 
file notarized monthly accident/incident reports with FRA. The 
amendment would allow the Secretary to specify the frequency with which 
reports must be filed; provide discretion to set different reporting 
requirements for different classes of railroads; and facilitate 
electronic filing and a corresponding reduction in paper filings. This 
amendment would particularly benefit the tourist, excursion, scenic and 
museum rail industries which may have no events to report for a 
particular month.

2. Section 225.5  Definitions

    Section 225.5 lists definitions applicable to part 225. FRA 
proposed that Sec. 225.5 be reorganized so that definitions would 
appear in alphabetical order and without paragraph designations. 
Definitions proposed for revision included: ``accident/incident,'' 
``employee human factor,'' ``medical treatment,'' ``occupational 
illness,'' and ``railroad.'' New terms proposed for addition to the 
list of definitions included: ``day away from work,'' ``day of 
restricted work activity,'' ``establishment,'' ``first aid treatment,'' 
``FRA representative,'' ``nonreportable injury or illness,'' 
``nonreportable rail equipment accident/incident,'' ``non-train 
incident,'' ``person,'' ``qualified health care professional,'' ``train 
accident,'' ``train

[[Page 30961]]

incident,'' ``volunteer,'' ``work environment,'' ``worker on duty,'' 
and ``work related.'' Finally, FRA proposed deletion of the definitions 
of ``lost workdays'' and ``restriction of work or motion.''
    As discussed previously in this preamble, the proposed term 
``recordable'' is replaced with the term ``accountable'' for purposes 
of defining those injuries/illnesses and rail equipment accidents/
incidents which are not reportable to FRA but which are required to be 
recorded on the appropriate injury/illness and rail equipment accident/
incident record.
    Also note that ``railroad'' has been redefined to mean a person 
providing railroad transportation. The old definition for ``railroad'' 
has been reassigned to the term ``railroad transportation.'' Further, 
the definition of ``accident/incident'' is redefined in the final rule 
to conform to the amendment of Sec. 225.19(d).

Train Accident

Proposed Rule
    A ``train accident'' was defined as any collision, derailment, 
fire, explosion, act of God, or other event involving operation of 
railroad on-track equipment (standing or moving) that results in 
reportable damages greater than the current reporting threshold to 
railroad on-track equipment, signals, track, track structures, and 
roadbed.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Train Incident

Proposed Rule
    A ``train incident'' was defined as an event involving the movement 
of on-track equipment that results in a reportable casualty but does 
not cause reportable damage above the threshold established for train 
accidents.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Employee Human Factor

Proposed Rule
    In the definition of ``employee human factor,'' the proposed rule 
removed reference to ``cause code 506'' because it was obsolete and 
replaced it with the term ``train accident cause codes pertaining to 
non-railroad employees.''
Comments
    No comments received.
Final Rule
    The definition of ``railroad employee human factor'' removes 
reference to ``cause code 506'' and is amended so as to capture the 
classifications for a ``Worker on Duty-- Employee,'' ``Employee not on 
Duty,'' ``Worker on Duty-- Contractor,'' and ``Worker on Duty--
Volunteer.''

Medical Treatment

Proposed Rule
    ``Medical treatment'' was defined to include any medical care or 
treatment beyond ``first aid'' regardless of who provided such 
treatment. The definition would not include diagnostic procedures, such 
as X-rays or drawing blood samples.
Comments
    Several commenters believed the proposed change to the definition 
of ``medical treatment'' would create confusion. Commenters questioned 
whether employees who sought their own treatment, such as purchasing a 
sling for a strained arm, would qualify as ``medical treatment.'' They 
also questioned whether the definition would include the scenario where 
an employee chooses to take leftover prescribed medication to treat his 
or her injury or illness. Railroad representatives stated that the 
determination of appropriate treatment and the administration of 
reportable medical attention should be performed solely by licensed 
physicians and medical professionals working under the direction of 
physicians. These commenters urged FRA to retain the current definition 
of ``medical treatment'' to reduce the probability of confusion and 
possible abuse by employees who may jeopardize their treatment.
Final Rule
    The definition of ``medical treatment'' is adopted as proposed with 
minor modification. FRA's definition of ``medical treatment'' is 
intended to remove the association between the type of treatment 
rendered and the person who provided the treatment. If a physician 
treats an injury using first aid measures, the treatment is 
nonreportable even though a highly skilled medical person administered 
the care. Conversely, someone with medical skills less than those of a 
physician (M.D.) may provide medical treatment for a condition. 
Generally, injuries that are self-treated would not satisfy the 
reporting requirements since the employee would not normally have the 
credentials of a ``qualified health care professional.'' However, an 
employee engaged in self-treatment may later have complications making 
the treatment ``reportable.'' For example, an employee may drill or 
puncture a finger nail at the work site so as to remove pressure from 
the blood that has pooled beneath the nail (a nonreportable injury at 
this point). If the nail should later become infected requiring 
treatment by a ``qualified health care professional,'' then the 
railroad must report the injury.
    Medical treatment does not include preventive emotional trauma 
counseling provided by the railroad's employee counseling and 
assistance officer unless the participating worker has been diagnosed 
as having a mental disorder that was significantly caused or aggravated 
by an accident/incident and this condition requires a regimen of 
treatment to correct. Further, the railroad's employee counseling and 
assistance officer rendering counseling to an employee diagnosed with 
such a mental disorder meets the definition of a ``qualified health 
care professional'' as discussed later in this preamble.

Occupational Illness

Proposed Rule
    In the definition of ``occupational illness,'' FRA proposed that 
the reference to ``his or her railroad employment'' be replaced with 
the phrase ``worker's railroad employment.''
Comments
    No comments received.
Final Rule
    The definition of ''occupational illness'' is amended so as to 
include and capture occupational illnesses of the classifications of 
``Worker on Duty--Employee,'' ``Worker on Duty--Contractor,'' and 
``Worker on Duty--Volunteer.''

Railroad and Railroad Transportation

Proposed Rule
    ``Railroad'' was defined as it is in 49 U.S.C. 20102(1) (formerly 
contained in the Federal Railroad Safety Act of 1970 (45 U.S.C. 
431(e)).
Comments
    No comments received.
Final Rule
    The proposed definition for ``railroad'' is correctly reassigned to 
the term ``railroad transportation.'' Note that ``railroad'' is 
redefined to mean a person providing railroad transportation, which

[[Page 30962]]

is the definition of ``railroad carrier'' in 49 U.S.C. 20102(2).

Day Away From Work

Proposed Rule
    ``Day away from work'' was defined as any day subsequent to the day 
of the injury or diagnosis of occupational illness that a railroad 
worker does not report to work for reasons associated with his or her 
condition.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Day of Restricted Work Activity

Proposed Rule
    A ``day of restricted work activity'' was defined as any day that a 
worker is restricted in his or her job following the day of the injury 
or diagnosis of occupational illness.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Establishment

Proposed Rule
    ``Establishment'' was defined as a physical location where workers 
report to work, where business is conducted or where services or 
operations are performed.
Comments
    Some commenters proposed that ``establishment'' should be defined 
as one single, central location. Others suggested that ``each railroad 
establishment'' should be consistently interpreted to require posting 
of reports at ``designated assembly points where employees report for 
work.'' These commenters stated that such posting would not place an 
undue administrative burden on the railroad as railroads are already 
required under most collective bargaining agreements to regularly post 
and/or distribute job bulletins, awards and certain notices. They 
further stated each railroad should be required to identify 
``establishments'' where pertinent records are maintained.
    Some commenters stated that each railroad should be authorized to 
designate the ``establishments'' for which it would tabulate injury and 
illness data and at which ``establishments'' records would be 
maintained. They further commented that the railroad would provide FRA 
with a list of establishments it has designated and would inform FRA of 
periodic changes to its list.
Final Rule
    The definition of ``establishment'' is adopted as proposed. In 
order to provide compatible counts for the railroad industry that 
duplicate those being reported by all other industries to the 
Department of Labor, FRA needs a total count of the number of railroad 
``establishments'' that exist in the country. Thus, the block 
soliciting information on ``Establishments Included in this Report'' 
appears on the ``Annual Railroad Report of Employee Hours and 
Casualties, by State'' (Form FRA F 6180.56) as block ``4.'' In the 
NPRM, FRA proposed that railroads must maintain certain records ``at 
and for'' each establishment. The final rule, in Secs. 225.25 and 
225.27, states that records must be maintained for each establishment, 
but that centralization of recordkeeping may be performed at any 
location(s), as long as prescribed accessibility requirements are met. 
Refer to Sec. 225.35 for a discussion of ``access to records and 
reports.''

First Aid Treatment

Proposed Rule
    ``First aid treatment'' was defined as being limited to simple 
procedures used to treat minor conditions, such as abrasions, cuts, 
bruises, or splinters. First aid treatment is typically confined to a 
single treatment and does not require special skills or procedures.
Comments
    Commenters requested that FRA clarify the definition of ``first aid 
treatment'' in order to reduce or eliminate confusion as to what 
actually constituted such treatment.
Final Rule
    The definition of ``first aid treatment'' is adopted as proposed. 
FRA believes this definition is adequate and the examples of first aid 
treatments found in the FRA Guide are sufficient to assist the 
reporting officer in identifying which treatments are reportable and 
which are nonreportable. FRA intends to review the examples in the FRA 
Guide to determine if any additional examples and/or guidance 
pertaining to ``first aid treatment'' and ``medical treatment'' would 
be beneficial to the railroad reporting officer.

FRA Representative

Proposed Rule
    ``FRA representative'' was defined to include the Associate 
Administrator for Safety, FRA; the Associate Administrator's delegate 
(including a qualified State inspector acting under part 212 of this 
chapter); the Chief Counsel, FRA; or the Chief Counsel's delegate.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Non-Train Incident

Proposed Rule
    A ``non-train incident'' was 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.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Person

Proposed Rule
    ``Person'' was defined to add independent contractors and their 
employees and workers, as well as volunteers.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Qualified Health Care Professional

Proposed Rule
    A ``qualified health care professional'' was defined to include a 
professional operating within the scope of his or her license, 
registration, or certification. For 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 silicosis. FRA also asked for comments regarding whether the 
railroad's employee assistance officer (EAO) should be considered a 
``qualified health care professional'' when he or she provides 
counseling to an employee who has experienced traumatic stress from 
involvement in a serious or fatal accident.
Comments
    Some rail labor representatives commented that the proposed 
definition was reasonable and that there was no need to restrict the 
definition of a ``qualified health care professional'' to an ``M.D.'' 
as long as the treating or

[[Page 30963]]

attending individual was qualified and operated within the scope of his 
or her license, registration, or certification. However, some of these 
commenters stated that the railroad's employee assistance officer (EAO) 
should not be considered a ``qualified health care professional'' when 
he or she counsels employees on a preventive basis.
    Several railroad representatives stated that the definition should 
remain as broad as possible and that the railroad's EAO should be 
considered a ``qualified health care professional.'' Some of these 
commenters further emphasized that FRA should make it clear that when 
prescribed medical treatment is refused by an employee, the injury 
should continue to be considered reportable, provided such medical 
treatment meets reportability criteria.
    Other railroad representatives opposed the definition because they 
believed that the latitude resulting from the proposed definition would 
allow treatment by nearly anyone who claimed to be a health care 
professional. One example offered by a major carrier involved the 
situation where a registered massage therapist, qualified to diagnose 
muscle strain due to work stress, could provide ``treatments'' which 
would cause the injury to be reportable. These commenters emphasized 
that the definition of a ``qualified health care professional'' should 
be restricted to physicians who are universally recognized as capable 
of diagnosing and treating individuals for illnesses and injuries.
Final Rule
    The definition of ``qualified health care professional'' is adopted 
as proposed. However, the railroad's employee assistance officer (EAO) 
is considered a ``qualified health care professional'' when he or she 
provides counseling to an employee who has been diagnosed as having a 
mental disorder that was significantly caused or aggravated by an 
accident/incident, and this condition requires a regimen of treatment 
to correct.
    As discussed previously in this preamble under the definition of 
``first aid'' treatment, many reportable injuries can be treated by a 
``qualified health care professional'' who is not a physician, i.e., 
who does not hold an M.D. Likewise, a physician (M.D.) may perform 
first aid treatment. In many instances, emergency medical treatment is 
performed in the absence of physicians. With all the variables, FRA 
believes that limiting the definition of ``qualified health care 
professional'' to encompass only physicians, would result in the 
underreporting of many injuries that require more than first aid 
treatment, thus rendering the injury reportable.

Volunteer

Proposed Rule
    ``Volunteer'' was defined to include individuals who willingly 
perform a service for the reporting railroad, who do not receive direct 
monetary compensation from that railroad and who are not involved in 
either (i) the operation of on-track equipment or (ii) any other 
safety-sensitive function for the reporting railroad as described in 
Sec. 209.303.
Comments
    Please refer to the detailed discussion of the definition of 
``Volunteer'' in the preamble to this rule in the section entitled 
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
    The following definitions will not appear in Sec. 225.5. They will 
however, be defined in the next revised FRA Guide.
    Worker on Duty--Volunteer (Class H) is a volunteer who does not 
receive direct monetary compensation from the railroad and who is 
engaged in either (i) the operation of on-track equipment or (ii) any 
other safety-sensitive function for the railroad as defined in 
Sec. 209.303.
    Volunteer--Other (Class I) is a volunteer who does not receive 
direct monetary compensation from the railroad and who is not engaged 
in either (i) the operation of on-track equipment or (ii) any other 
safety-sensitive function for the railroad as defined in Sec. 209.303.
    Worker on Duty--Contractor (Class F) is an employee of a contractor 
who does not receive direct monetary compensation from the railroad and 
who, while on railroad property, is engaged in either (i) the operation 
of on-track equipment or (ii) any other safety-sensitive function for 
the railroad as defined in Sec. 209.303.
    Contractor--Other (Class G) is an employee of a contractor who does 
not receive direct monetary compensation from the railroad and who is 
not engaged in either (i) the operation of on-track equipment or (ii) 
any other safety-sensitive function for the railroad as defined in 
Sec. 209.303.

Work Environment

Proposal
    ``Work environment'' was defined as the physical location, 
equipment, materials processed or used, and activities of a worker 
associated with his or her work, whether on or off the railroad's 
property.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Work Related

Proposed Rule
    ``Work related'' was defined as relating to any incident, activity, 
exposure, etc. occurring within the work environment.
Comments
    No comments received.
Final Rule
    Adopted as proposed.

Worker on Duty

Proposal
    A ``worker on duty'' was defined as an individual who receives 
direct monetary compensation from the railroad or who is engaged in 
either (i) the operation of on-track equipment or (ii) with any other 
safety-sensitive function as described in Sec. 209.303.
Comments
    Please refer to the detailed discussion of the definition of 
``Worker on Duty'' in the preamble to this rule in the section entitled 
``Form FRA F 6180.55--Railroad Injury and Illness Summary.''
Final Rule
    Worker on Duty--Employee (Class A) is defined as an individual who 
receives direct monetary compensation from the railroad. Please note 
that this definition will not appear in Sec. 225.5, but will appear in 
the next revised FRA Guide.

Lost Workdays and Restriction of Work or Motion

Proposal
    FRA proposed deletion of the definitions for ``Lost Workdays'' and 
``Restriction of Work or Motion.''
Comments
    No comments received.
Final Rule
    Adopted as proposed.

3. Section 225.7  Public Examination and Use of Reports Proposal

    In Sec. 225.7(a), FRA proposed that the reference to ``Executive 
Director'' would be removed as obsolete, and would be replaced with 
``Office of Safety.'' Thus, written requests for a copy of any report 
would be addressed to the Office of Safety at FRA.

[[Page 30964]]

    In Sec. 225.7(b), FRA proposed that ``Accident Reports Act'' would 
replace the erroneous reference to ``Accidents Reports Act.''
Comments
    No comments received.
Final Rule

Section 225.7  Public Examination and Use of Reports

    Section 225.7(a) removes reference to ``Executive Director'' and 
replaces it with ``Freedom of Information Officer, Office of Chief 
Counsel.'' Thus, written requests for a copy of any report would be 
addressed to the Freedom of Information Officer, Office of Chief 
Counsel, at FRA.
    The statutory reference also is revised to reflect the 1994 repeal 
of the Accident Reports Act and the simultaneous revision and 
reenactment without substantive change of its provisions in title 49 of 
the United States Code.

4. Section 225.11  Reporting of Accidents/Incidents Proposal

    As proposed, Sec. 225.11 would be revised to reflect that reports 
identified in Sec. 225.19 submitted via magnetic media or 
electronically, over telephone lines, would be due within 30 days after 
the end of the month in which the accident/incident occurred.
Comments
    No comments received.
Final Rule

Section 225.11  Reporting of Accidents/Incidents

    Adopted as proposed. Additionally, this section is amended to 
identify the office, i.e., RRS-22, within the Office of Safety, where 
one may obtain a copy of the ``FRA Guide for Preparing Accidents/
Incidents Reports.''

5. Section 225.12  Rail Equipment Accident/Incident Reports Alleging 
Employee Human Factor as Cause; Employee Human Factor Attachment; 
Notice to Employee; Employee Supplement

Final Rule
    Since employee human factor is redefined to include the 
classifications of Worker on Duty--Employee, Employee not on Duty, 
Worker on Duty--Contractor, and Worker on Duty--Volunteer, 
Sec. 225.12(a) is amended to clarify that, for purposes of this 
section, ``employee'' is defined to include Worker on Duty--Employee, 
Employee not on Duty, Worker on Duty--Contractor, or Worker on Duty--
Volunteer.

6. Section 225.19  Primary Groups of Accidents/Incidents Proposal

    Proposed revisions to Secs. 225.19 (a) and (b) would remove 
reference to the current threshold of ``$6,300'' and would replace it 
with the phrase ``current reporting threshold.''
    Section 225.19(d) identifies the third group of accidents (``death, 
injury or occupational illness'') that are to be reported on Form FRA F 
6180.55a. FRA proposed that the language be simplified to read as 
follows: ``Each event arising from the operation of a railroad, must be 
reported on Form FRA F 6180.55a, if it results in (1) death to any 
person; (2) injury to any person that requires medical treatment; (3) 
injury to a railroad worker that results in (i) a day away from work; 
(ii) restricted work activity or job transfer; or (iii) loss of 
consciousness; or (4) occupational illness of a railroad worker.
Comments
    No comments received.
Final Rule

Section 225.19  Primary Groups of Accidents/Incidents

    Adopted as proposed. Additionally, Sec. 225.19(e) is added to 
clarify that the current accident/incident reporting threshold of 
$6,300 is effective until FRA amends that amount and provides notice in 
the Federal Register.

7. Section 225.21  Forms

Proposal
    In addition to the revisions to the titles of the forms listed in 
Sec. 225.21, FRA proposed that the reference to ``Class I and II line-
haul and terminal and switching railroads'' in Sec. 225.21(b), would be 
removed as obsolete, and replaced with ``All railroads subject to this 
part.''
    Because FRA proposed deletion of the annual summary report (as 
discussed previously in this preamble), reference to Form FRA F 6180.45 
(entitled ``Annual Summary Report of Railroad Injury and Illness'') in 
Sec. 225.25(f) would be removed.
    The Records discussed in new Secs. 225.25 (a) and (b) and in 
Secs. 225.25 (d) and (e) and the alternative, railroad-designed records 
would be added to the list of forms as Sec. 225.21(h) (Form FRA F 
6180.98--Railroad Employee Injury and/or Illness Record) and as 
Sec. 225.21(i) (Form FRA F 6180.97--Initial Rail Equipment Accident/
Incident Record).
Comments
    No comments received.
Final Rule

Section 225.21  Forms

    Adopted as proposed.

8. Section 225.29  Penalties

Proposal
    Section 225.29 identifies the penalties FRA may impose upon any 
person that violates any requirement of this part. FRA proposed 
amendment to the language of this section to reflect the 1992 
amendments to the Federal Railroad Safety Act of 1970 which increased 
the minimum penalty and settlement per violation to $500.
Comments
    No comments received.
Final Rule

Section 225.29  Penalties

    Adopted as proposed.

9. Section 225.35  Access to Records and Reports

Proposal
    FRA inspectors frequently encounter reluctance from the railroads 
when examining and photocopying claims department records, particularly 
railroad employee medical records. FRA proposed that FRA 
representatives, or any representative of a State participating in 
investigative and surveillance activities under the Federal railroad 
safety laws and regulations, must have access to all records, reports, 
logs, and supplementary records related to (a) rail equipment 
accidents/incidents, including collisions and derailments; (b) highway-
rail grade crossing accidents/incidents; (c) death, injuries, and 
illnesses, including claims and medical records; as well as all records 
and reports identified in Sec. 225.25, for examination and photocopying 
(at no expense to the representative) in a reasonable manner during 
normal business hours. Further, a penalty was proposed for each 
instance the railroad denies a representative access to any record, 
report, log, and supplementary record identified above.
Comments
    Most railroads representatives stated that the requirement for 
records to be maintained at one or more central locations was far too 
stringent and impracticable. In contrast, rail labor representatives 
agreed with the FRA proposal that railroads should have a hard copy of 
all records on file at a

[[Page 30965]]

central location designated by that railroad and that such records 
should be easily and readily accessible upon request.
Final Rule

Section 225.35  Access to Records and Reports

    Section 225.35 requires that each railroad must have at least one 
location, and must identify the location(s), where both federal and 
State inspectors, and authorized representatives, have centralized 
access to a copy of all records and reports provided for in this Part. 
Each railroad must identify at least one location where a copy of any 
record or report is accessible for inspection by maintaining a list of 
such establishments in the office where the railroad's reporting 
officer conducts his or her business. Further, inspectors and 
representatives must be able to access within a reasonable time, but in 
any event no later than four business hours after the request, a hard 
copy of the signed ``Rail Equipment Accident/Incident Report'' (Form 
FRA F 6180.54) and the ``Highway-Rail Grade Crossing Accident/Incident 
Report'' (Form FRA F 6180.57), as well as a hard copy of all other 
records and reports pursuant to Part 225. This requirement also 
includes access to a hard copy of any report submitted to FRA via 
magnetic media or, electronically, over telephonic lines, and also 
includes copies of the records and reports identified in Sec. 225.25.
    Note that the requirement under Sec. 225.35 does not state that 
original records and reports must be kept at a centralized location by 
the railroad. Rather, it states that each railroad must have a list (in 
the office where the railroad's reporting officer conducts his or her 
official duties/business) which identifies at least one location where 
a copy of all records and reports pursuant to Part 225 may be accessed 
by the inspector or other authorized representative. The four business 
hours time period affords railroads sufficient time to fulfill any 
record request.

10. Appendix A  Schedule of Penalties

Proposal
    FRA proposed that Appendix B to Part 225 would be redesignated as 
Appendix A and would be revised to add penalties for the following 
sections: Sec. 225.33, ``Failure to Adhere to the Internal Control 
Plan''; Sec. 225.39, ``Failure to Inform Employer of Injury and/or 
Illness'' and ``Failure to Provide Employee with a Copy of Form FRA F 
6180.98''; and Sec. 225.35, ``Access to Records and Reports.'' 
Additionally, the rule proposed that the dual entries under each of 
paragraphs (a), (b), and (d) of Sec. 225.12 would be coded ``(1)'' and 
``(2),'' respectively, to allow the proper entry of data into FRA's 
enforcement database. Further, the penalties for violations of 
Sec. 225.12(a) code (2) would be increased, in light of the 1992 
amendments to the Federal Railroad Safety Act of 1970 which increased 
the minimum penalty and settlement to $500.
Comments
    Railroad representatives opposed the addition of any penalty. Rail 
labor representatives opposed the addition of a penalty against the 
employee for his or her ``failure to notify the railroad within seven 
calendar days of incurring an injury or illness'' but favored the 
addition of a penalty for both Sec. 225.33, the railroad's failure to 
adhere to its Internal Control Plan, and Sec. 225.39, the railroad's 
failure to provide the employee with a copy of Form FRA F 6180.98 (the 
``Railroad Employee Injury and/or Illness Record'').
Final Rule

Appendix A  Schedule of Penalties

    The Schedule of Civil Penalties, Appendix A, contains additional 
penalties for violations of Sec. 225.33(1), ``Failure to Adopt the 
Internal Control Plan''; Sec. 225.33(2), ``Inaccurate Reporting due to 
Failure to Comply with the Internal Control Plan''; Sec. 225.33(3), 
``Failure to Comply with the Intimidation/Harassment Policy in the 
Internal Control Plan''; and Sec. 225.35, ``Access to Records and 
Reports.'' The dual entries under each of paragraphs (a), (b), and (d) 
of Sec. 225.12 are coded ``(1)'' and ``(2),'' respectively, to allow 
the proper entry of data into FRA's enforcement database. The penalties 
for violations of Sec. 225.12(a) code (2) are increased, in light of 
the 1992 amendments to the Federal Railroad Safety Act of 1970 which 
increased the minimum penalty and settlement to $500.

11. Revision of Title 49, United States Code

    On July 5, 1994, all the general and permanent Federal railroad 
safety laws were simultaneously repealed, reenacted without substantive 
change, and recodified as positive law in Title 49 of the United States 
Code by Public Law 103-272. Due to this change, Part 225 is amended 
throughout to reference the newly codified provisions.

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    This final rule has been evaluated in accordance with existing 
regulatory policies and procedures and is considered to be a 
nonsignificant regulatory action under DOT policies and procedures (44 
FR 11034; February 26, 1979). This final rule also has been reviewed 
under Executive Order 12866 and is considered ``nonsignificant'' under 
that Order.
    AAR stated in its written comments that FRA is required by law to 
explain its noncompliance with Executive Order 12866. AAR and member 
railroads claimed that GAO's 1989 audit on accident/incident reporting 
was outdated and that GAO's findings should not be considered for this 
rulemaking. GAO's audit concluded that only one railroad, out of the 
five it studied, had a written ICP and, only that railroad did not have 
serious errors in accident/incident reporting. GAO found that the other 
railroads underreported the actual number of reportable accidents and 
incidents, and that many of the reports submitted to FRA contained 
inaccurate or incomplete information. During the several days of public 
hearings and in the written comments provided in response to this 
rulemaking, there was no statement from any party that an independent 
audit was conducted by any railroad to determine whether that railroad 
was properly reporting accidents and incidents; nor did any railroad 
state that even an internal audit was performed to determine whether 
the GAO audit was in fact outdated. Based on the lack of empirical 
evidence, FRA rejects AAR's claim that it is in noncompliance with 
Executive Order 12866.
    Although the rulemaking is ``nonsignificant,'' FRA nonetheless has 
prepared a regulatory impact analysis addressing the economic impact of 
the final rule. The regulatory evaluation estimates the economic costs 
and consequences of this final rule as well as its anticipated benefits 
of the impact. This regulatory impact analysis has been placed in the 
docket and is available for public inspection and copying during normal 
business hours in Room 8201, Office of Chief Counsel, FRA, 400 Seventh 
Street, SW., Washington, DC 20590. Copies may also be obtained by 
submitting a written request to the FRA Docket Clerk at the above 
address. FRA has assessed quantitative measurements of the costs and 
benefits expected from the implementation of this rule. The Net Present 
Value (NPV) of the net costs is

[[Page 30966]]

$2.34 million or, $117,000 per year. Over a 20-year period, the NPV of 
the estimated quantifiable societal benefits is $2.62 million, and the 
NPV of the estimated quantifiable societal costs is $4.96 million. 
Assuming the improved data generated by this rule led to regulatory 
decisions that provided the margin of safety necessary to prevent even 
one rail-related death over 20 years, this rule would produce 
quantified benefits equaling the quantified costs. Thus, it is FRA's 
position that the qualitative benefits as a result of this final rule, 
i.e., the collection of consistent and uniform data and the value of 
well focused regulatory decisions and properly targeted compliance 
activities, will far exceed the costs.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities, 
unless the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    Some small entities (e.g., tourist, scenic, museum and excursion 
railroads) expressed a concern for FRA's accident reporting NPRM due to 
the proposal to include ``Volunteers'' who perform safety-sensitive 
functions or who operate on-track equipment in the ``Worker on Duty'' 
classification. This concern was based on the fact that tourist 
railroads would have to collect and report to FRA the number of safety-
sensitive hours its volunteers worked each month. Tourist and museum 
railroads viewed this proposal as being excessively burdensome. This 
final rule revises this proposal so that there are new categories for 
the classification of ``Volunteer'' on Form FRA F 6180.55. Further, the 
final rule eliminates the proposal that would have required railroads 
to collect and report any of the hours worked by volunteers.
    The final rule requires railroads to implement an Internal Control 
Plan (ICP) for their railroad accident reporting process. This 
requirement is a process standard that will promote the accuracy of the 
reporting process. The requirement does not tell the railroads how to 
develop and implement an ICP or how the lines of communication should 
be established. Nor does the ICP dictate who is responsible for which 
functions or information exchange. The final rule adopts an ICP which 
allows railroads greater flexibility in design and implementation. 
Therefore, the needs, resources, and suitability of an ICP for each 
railroad can be reflected in its implementation. Most small railroads 
will be burdened proportionately less by this requirement than large or 
medium sized railroads.
    Small railroads also expressed some concern for the proposal to 
calculate costs associated with damage to (i) On-track equipment, (ii) 
signal equipment, (iii) track, (iv) track structures and roadbed, and 
(v) costs of equipment rental and operation. The proposed damage 
worksheet required the damages to be estimated using the costs 
associated with acquiring new parts. This differed greatly from the 
current methods that railroads use to estimate accident damages. This 
potentially created problems and additional burdens for small railroads 
because they generally perform repairs with used or refurbished parts. 
This final rule does not adopt this method of calculating accident 
damages and does not adopt use of the property damage worksheet by 
railroads. The burden on small railroads therefore has been reduced 
with elimination of this proposal.
    FRA appreciates the concerns small railroads and tourist operations 
expressed concerning the impact the accident reporting and other 
regulations have on these entities. As stated previously, there is 
legislation before Congress (the ``Department of Transportation 
Regulatory Reform Act of 1996'') which, if passed, would amend 49 
U.S.C. 20901(a) to eliminate the requirement that railroads file 
notarized monthly reports with FRA regarding accidents and incidents on 
their properties. The amendment also would allow the Secretary to 
specify the frequency with which reports must be filed; provide 
discretion to set different reporting requirements for different 
classes of railroads; and facilitate electronic filing and a 
corresponding reduction in paper filings. It is believed these 
amendments would reduce unnecessary expense and delay associated with 
filing monthly reports, particularly for small railroads and tourist 
operations which may have no events to report for a particular month.
    In reviewing the economic impact of the rule, FRA has concluded 
that it will have a small economic impact on small entities. Therefore, 
it is certified that this rule will not have a significant economic 
impact on a substantial number of small entities under the provisions 
of the Regulatory Flexibility Act.
    FRA has prepared a regulatory flexibility assessment addressing the 
impact of the final rule on small entities. This regulatory flexibility 
assessment has been placed in the docket and is available for public 
inspection and copying during normal business hours in Room 8201, 
Office of Chief Counsel, FRA, 400 Seventh Street, SW., Washington, DC 
20590. Copies may also be obtained by submitting a written request to 
the FRA Docket Clerk at the above address.

Paperwork Reduction Act

    The information collections contained in the accident reporting 
NPRM were approved by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (Pub. L. 104-13) under control 
number 2130-0500. This approval will expire on June 30, 1997. This 
final rule contains amendments to the approved information collections, 
and these revisions are subject to review by OMB under the Paperwork 
Reduction Act of 1995. The sections that contain the new and/or revised 
information collection requirements and the estimated time to fulfill 
each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
         Proposed section                       Brief description                    Estimated average time     
----------------------------------------------------------------------------------------------------------------
225.19(b), 225.21(e)..............  Form FRA F 6180.57--Highway-Rail Grade     4 hours.                         
                                     Crossing Accident/Incident Report.                                         
225.19(c), 225.21(a)..............  Form FRA F 6180.54--Rail Equipment         2 hours.                         
                                     Accident/Incident Report.                                                  
225.19(d), 225.21(c)..............  Form FRA F 6180.55a--Railroad Injury and   10 minutes.                      
                                     Illness Summary (Continuation Sheet).                                      
225.21(b).........................  Form FRA F 6180.55--Railroad Injury and    45 minutes.                      
                                     Illness Summary.                                                           
225.21(d).........................  Form FRA F 6180.56--Annual Railroad        3 hours.                         
                                     Report of Manhours and Casualties by                                       
                                     State.                                                                     
225.21(g).........................  Form FRA F 6180.78--Notice to Railroad     15 min./2 hours.                 
                                     Employee Involved in Rail Equipment                                        
                                     Accident/Incident Attributed to Employee                                   
                                     Human Factor; Employee Statement                                           
                                     Supplementing Railroad Accident Report.                                    
225.21(h), 225.25(a)..............  Form FRA F 6180.98--Railroad Employee      30 minutes.                      
                                     Injury and/or Illness Record.                                              
225.21(i), 225.25(b)..............  Form FRA F 6180.97--Initial Rail           30 minutes.                      
                                     Equipment Accident/Incident Record.                                        

[[Page 30967]]

                                                                                                                
225.25(h).........................  Monthly List of Injuries and Illnesses...  5 hours                          
                                                                               (Class I RR).                    
                                                                               45 minutes (RR with 400,000      
                                                                                manhours or more, excluding     
                                                                                Class I RR).                    
                                                                               10 minutes (RR with less than    
                                                                                400,000 manhours)               
225.33(a).........................  Internal Control Plans...................  32 hours                         
                                                                               (Class I RR).                    
                                                                               20 hours (RR with 400,000        
                                                                                manhours or more, excluding     
                                                                                Class I RR))                    
                                                                               1.75 hours (RR with less than    
                                                                                400,000 manhours).              
225.37(b)(2), 225.37(c)(1)........  FRA F Form 6180.99--Batch Control Form...  10 minutes.                      
225.25(c).........................  Copy of Railroad Employee Injury and/or    2 minutes.                       
                                     Illness Record to Employee.                                                
----------------------------------------------------------------------------------------------------------------


    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning whether these 
information collection requirements are necessary for the proper 
performance of the function of FRA, including whether the information 
shall have practical utility; on the accuracy of FRA''s estimates of 
the burden of the information collection requirements; on the quality, 
utility, and clarity of the information to be collected; and whether 
the burden of collection of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology, may be minimized. For information or a 
copy of the paperwork package submitted to OMB, contact Ms. Gloria 
Swanson at (202) 501-4982.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Attention: Desk Officer for the Federal 
Railroad Administration, Office of Information and Regulatory Affairs, 
Washington, D.C. 20503, and should also send a copy of their comments 
to Ms. Gloria Swanson, Federal Railroad Administration, Room 8301, RRS-
211, 400 Seventh Street, S.W., Washington, D.C. 20590.
    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 when they do not display a current OMB control 
number, if required. FRA intends to obtain current OMB control numbers 
for any new or revised 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.

Environmental Impact

    FRA has evaluated these regulations in accordance with its 
procedures for ensuring full consideration of the environmental impact 
of FRA actions, as required by the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.), other environmental statutes, Executive 
Orders, and DOT Order 5610.1c. It has been determined that this rule 
will not have any effect on the quality of the environment.

Federalism Implications

    This rule will not have a substantial effect on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Thus, in accordance with Executive Order 12612, preparation 
of a Federalism Assessment is not warranted.

List of Subjects in 49 CFR Part 225

    Railroad accident reporting rules, Railroad safety.

The Final Rule

    In consideration of the foregoing, FRA amends part 225, Title 49, 
Code of Federal Regulations as follows:

PART 225--[AMENDED]

    1. The authority citation for part 225 is revised to read as 
follows:

    Authority: 49 U.S.C. 20901, 20102, 322(a), 21302, 21304, 
formerly codified at 45 U.S.C. 38, 42, 43, and 43a; 49 U.S.C. 20102-
20103, 20107, 20108, 20110, 20131-20143, 21301-21302, 21304, 21311, 
24902, formerly codified at 45 U.S.C. 39, 431, 437, and 438; 49 
U.S.C. 103, 49 U.S.C. 20901-20902, 21302, formerly codified at 49 
App. U.S.C. 1655(e)(1)(K); 49 CFR 1.49 (c), (g), and (m).

    2. By revising Sec. 225.1 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. Issuance of these regulations under the federal railroad 
safety laws and regulations preempts States from prescribing accident/
incident reporting requirements. Any State may, however, require 
railroads to submit to it copies of accident/incident and injury/
illness reports filed with FRA under this part, for accidents/incidents 
and injuries/illnesses which occur in that State.
    3. By revising Sec. 225.3 to read as follows:


Sec. 225.3  Applicability.

    This part applies to all railroads except--
    (a) A railroad that operates freight trains only on track inside an 
installation which is not part of the general railroad system of 
transportation

[[Page 30968]]

or that owns no track except for track that is inside an installation 
that is not part of the general railroad system of transportation and 
used for freight operations.
    (b) Rail mass transit operations in an urban area that are not 
connected with the general railroad system of transportation.
    (c) A railroad that exclusively hauls passengers inside an 
installation that is insular or that owns no track except for track 
used exclusively for the hauling of passengers inside an installation 
that is insular. An operation is not considered insular if one or more 
of the following exists on its line:
    (1) A public highway-rail grade crossing that is in use;
    (2) An at-grade rail crossing that is in use;
    (3) A bridge over a public road or waters used for commercial 
navigation; or
    (4) A common corridor with a railroad, i.e., its operations are 
within 30 feet of those of any railroad.
    4. By revising Sec. 225.5 to read as follows:


Sec. 225.5  Definitions

    As used in this part--
    Accident/incident means:
    (1) Any impact between railroad on-track equipment and an 
automobile, bus, truck, motorcycle, bicycle, farm vehicle or pedestrian 
at a highway-rail grade crossing;
    (2) Any collision, derailment, fire, explosion, act of God, or 
other event involving operation of railroad on-track equipment 
(standing or moving) that results in reportable damages greater than 
the current reporting threshold to railroad on-track equipment, 
signals, track, track structures, and roadbed;
    (3) Any event arising from the operation of a railroad which 
results in:
    (i) Death to any person;
    (ii) Injury to any person that requires medical treatment;
    (iii) Injury to a railroad employee that results in:
    (A) A day away from work;
    (B) Restricted work activity or job transfer; or
    (C) Loss of consciousness; or
    (4) Occupational illness of a railroad employee. Accountable injury 
or illness means any condition, not otherwise reportable, of a railroad 
worker that is associated with an event, exposure, or activity in the 
work environment that causes or requires the worker to be examined or 
treated by a qualified health care professional. Such treatment would 
usually occur at a location other than the work environment; however, 
it may be provided at any location, including the work site.
    Accountable rail equipment accident/incident means any event not 
otherwise reportable, involving the operation of on-track equipment 
that causes physical damage to either the on-track equipment or the 
track upon which such equipment was operated and that requires the 
removal or repair of rail equipment from the track before any rail 
operations over the track can continue. An accountable rail equipment 
accident/incident, if not tended to, thus would disrupt railroad 
service. Examples of ``disruption of service'' would include: loss of 
main track; one or more derailed wheels; any train failing to arrive or 
depart at its scheduled time; one or more cars or locomotives taken out 
of service; or rerouting trains due to a damaged car or locomotive.
    Arising from the operation of a railroad includes all activities of 
a railroad that are related to the performance of its rail 
transportation business.
    Day away from work is any day subsequent to the day of the injury 
or diagnosis of occupational illness that a railroad employee does not 
report to work for reasons associated with his or her condition.
    Day of restricted work activity is any day that a employee is 
restricted (as defined below) in his or her job following the day of 
the injury or diagnosis of occupational illness.
    Employee human factor includes any of the accident causes signified 
by the train accident cause codes listed under ``Train Operation--Human 
Factors'' in the current ``FRA Guide for Preparing Accidents/Incidents 
Reports,'' except for those train accident cause codes pertaining to 
non-railroad workers. For purposes of this definition ``employee'' 
includes the classifications of Worker on Duty--Employee, Employee not 
on Duty, Worker on Duty--Contractor, and Worker on Duty--Volunteer.
    Establishment means a single physical location where workers report 
to work, where business is conducted or where services or operations 
are performed, for example, an operating division, general office, and 
major installation, such as a locomotive or car repair or construction 
facility.
    First aid treatment means treatment limited to simple procedures 
used to treat minor conditions, such as abrasions, cuts, bruises, and 
splinters. First aid treatment is typically confined to a single 
treatment and does not require special skills or procedures.
    FRA representative means the Associate Administrator for Safety, 
FRA; the Associate Administrator's delegate (including a qualified 
State inspector acting under part 212 of this chapter); the Chief 
Counsel, FRA; or the Chief Counsel's delegate.
    Highway-rail grade crossing means a location where a public 
highway, road, street, or private roadway, including associated 
sidewalks and pathways, crosses one or more railroad tracks at grade.
    Joint operations means rail operations conducted on a track used 
jointly or in common by two or more railroads subject to this part or 
operation of a train, locomotive, car, or other on-track equipment by 
one railroad over the track of another railroad.
    Medical treatment includes any medical care or treatment beyond 
``first aid'' regardless of who provides such treatment. Medical 
treatment does not include diagnostic procedures, such as X-rays and 
drawing blood samples. Medical treatment also does not include 
preventive emotional trauma counseling provided by the railroad's 
employee counseling and assistance officer unless the participating 
worker has been diagnosed as having a mental disorder that was 
significantly caused or aggravated by an accident/incident and this 
condition requires a regimen of treatment to correct.
    Non-train incident means 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.
    Occupational illness means any abnormal condition or disorder, of 
any person who falls under the definition for the classifications of 
Worker on Duty--Employee, Worker on Duty--Contractor, or Worker on 
Duty--Volunteer, other than one resulting from injury, caused by 
environmental factors associated with the person's railroad employment, 
including, but not limited to, acute or chronic illnesses or diseases 
that may be caused by inhalation, absorption, ingestion, or direct 
contact.
    Person includes all categories of entities covered under 1 U.S.C. 
1, including, but not limited to, a railroad; any manager, supervisor, 
official, or other employee or agent of a railroad; any owner, 
manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any passenger; any trespasser or nontrespasser; any 
independent contractor providing goods or services to a railroad; any 
volunteer providing goods or services to a railroad; and any employee 
of such owner, manufacturer, lessor, lessee, or independent contractor.
    Qualified health care professional is a health care professional 
operating within the scope of his or her license,

[[Page 30969]]

registration, or certification. For 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.
    Railroad means a person providing railroad transportation.
    Railroad transportation means any form of non-highway ground 
transportation that run on rails or electro-magnetic guideways, 
including commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area, as well as any commuter railroad service 
that was operated by the Consolidated Rail Corporation as of January 1, 
1979, and high speed ground transportation systems that connect 
metropolitan areas, without regard to whether they use new technologies 
not associated with traditional railroads. Such term does not include 
rapid transit operations within an urban area that are not connected to 
the general railroad system of transportation.
    Train accident means any collision, derailment, fire, explosion, 
act of God, or other event involving operation of railroad on-track 
equipment (standing or moving) that results in damages greater than the 
current reporting threshold to railroad on-track equipment, signals, 
track, track structures, and roadbed.
    Train incident means any event involving the movement of on-track 
equipment that results in a reportable casualty but does not cause 
reportable damage above the current threshold established for train 
accidents.
    Work environment is the physical location, equipment, materials 
processed or used, 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 any incident, activity, exposure, or 
the like occurring within the work environment.


Sec. 225.7  [Amended]

    5. By removing ``Executive Director'' in the third sentence in 
Sec. 225.7(a) and adding in lieu thereof ``Freedom of Information 
Officer, Office of Chief Counsel'' and by removing ``Section 4 of the 
Accidents Reports Act (36 Stat. 351, 45 U.S.C. 41)'' in the first 
sentence in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C. 
20903'' and by removing ''Accident Reports Act'' in the second sentence 
in Sec. 225.7(b) and adding in lieu thereof ``49 U.S.C. 20901'' and by 
removing ``45 U.S.C. 41'' at the end of paragraph (b) and adding in 
lieu thereof ``49 U.S.C. 20903.''
    6. By revising Sec. 225.11 to read as follows:


Sec. 225.11  Reporting of accidents/incidents.

    Each railroad subject to this part shall submit to FRA a monthly 
report of all railroad accidents/incidents described in Sec. 225.19. 
The report shall be made on the forms prescribed in Sec. 225.21 in hard 
copy or, alternatively, by means of magnetic media or electronic 
submission, 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 for Preparing Accidents/Incidents Reports.'' A copy 
of this guide may be obtained from the Office of Safety, RRS-22, 
Federal Railroad Administration, 400 Seventh Street, S.W., Washington, 
D.C. 20590.
    7. By adding a sentence to Sec. 225.12(a), by revising the second 
sentence in Sec. 225.12(g)(3), and by revising Secs. 225.12(h) (1) and 
(2) 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.

    (a) * * * For purposes of this section, ``employee'' is defined as 
a Worker on Duty--Employee, Employee not on Duty, Worker on Duty--
Contractor, or Worker on Duty--Volunteer.
* * * * *
    (g) * * *
    (1) * * *
    (2) * * *
    (3) * * * 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), but rather provide such confidential information 
by other means, such as a letter to the employee's collective 
bargaining representative, or to the Federal Railroad Administration, 
Office of Safety Assurance and Compliance, RRS-11, 400 Seventh Street, 
S.W., Washington, D.C. 20590. * * *
    (h) * * *
    (1) Under 49 U.S.C. 21301, 21302, and 21304, any person who 
willfully files a false Supplement with FRA is subject to a civil 
penalty. See Appendix A to this part.
    (2) Any person who knowingly and willfully files a false Supplement 
is subject to a $5,000 fine, or up to two years'' imprisonment, or 
both, under 49 U.S.C. 21311.
    8. By revising the second sentence in Sec. 225.19(b), by revising 
the first, third, and fifth sentences of Sec. 225.19(c), by revising 
Sec. 225.19(d), and by adding Sec. 225.19(e) to read as follows:


Sec. 225.19  Primary groups of accidents/incidents.

* * * * *
    (b) * * * In addition, whenever a highway-rail grade crossing 
accident/incident results in damages greater than the current reporting 
threshold to railroad on-track equipment, signals, track, track 
structures, or roadbed, that accident/incident shall be reported to the 
FRA on Form FRA F 6180.54. * * *
    (c) * * * Rail equipment accidents/incidents are collisions, 
derailments, fires, explosions, acts of God, or other events involving 
the operation of railroad on-track equipment, signals, track, track 
equipment (standing or moving) that result in damages greater than the 
current reporting threshold to railroad on-track equipment, signals, 
tracks, track structures, or roadbed, including labor costs and the 
costs for acquiring new equipment and material. * * * If the property 
of more than one railroad is involved in an accident/incident, the 
reporting threshold is calculated by including the damages suffered by 
all of the railroads involved. * * * The reporting threshold will be 
reviewed periodically and will be adjusted every year.
    (d) Group III--Death, injury, or occupational illness. Each event 
arising from the operation of a railroad shall be reported on Form FRA 
F 6180.55a if it results in:
    (1) Death to any person;
    (2) Injury to any person that requires medical treatment;
    (3) Injury to a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer; or
    (iii) Loss of consciousness; or
    (4) Occupational illness of a railroad employee.
    (e) The accident/incident reporting threshold for calendar years 
1991 through 1996 is $6,300. This threshold dollar amount will remain 
in effect until FRA amends that amount and provides notice in the 
Federal Register. The procedure for determining the reporting threshold 
will appear as Appendix B to Part 225.
    9. By revising the fourth sentence in Sec. 225.21(b), by removing 
Sec. 225.21(f) and redesignating Secs. 225.21(g) and 225.21(h) as 
Secs. 225.21(f) and 225.21(g), respectively, and by adding new 
Secs. 225.21 (h) and (i) to read as follows:


Sec. 225.21  Forms.

* * * * *
    (b) * * * All railroads subject to this part, shall show on this 
form the total number of freight train miles, passenger train miles, 
yard switching train miles,

[[Page 30970]]

and other train miles run during the month.
* * * * *
    (h) Form FRA F 6180.98--Railroad Employee Injury and/or Illness 
Record. Form FRA F 6180.98 or an alternative railroad-designed record 
shall be used by the railroads to record all reportable and accountable 
injuries and illnesses to railroad employees for each establishment. 
This record shall be completed and maintained in accordance with the 
requirements set forth in Sec. 225.25.
    (i) Form FRA F 6180.97--Initial Rail Equipment Accident/Incident 
Record. Form FRA F 6180.97 or an alternative railroad-designed record 
shall be used by the railroads to record all reportable and accountable 
rail equipment accidents/incidents for each establishment. This record 
shall be completed and maintained in accordance with the requirements 
set forth in Sec. 225.25.
    10. By revising Sec. 225.25 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 that arise from the operation of the railroad 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) The alternative railroad-designed record may be used in lieu of 
the Railroad Employee Injury and/or Illness Record (Form FRA F 6180.98) 
described in paragraph (a) of this section. Any such alternative record 
shall contain all of the information required on the Railroad Employee 
Injury and/or Illness Record. Although this information may be 
displayed in a different order from that on the Railroad Employee 
Injury and/or Illness Record, 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 each of the railroad''s 
reporting establishments. Railroads may list additional information on 
the alternative record beyond the information required on the Railroad 
Employee Injury and/or Illness Record. The alternative record shall 
contain, at a minimum, the following information:
    (1) Name of railroad;
    (2) Case/incident number;
    (3) Full name of railroad employee;
    (4) Date of birth of railroad employee;
    (5) Gender of railroad employee;
    (6) Social security number of railroad employee;
    (7) Date the railroad employee was hired;
    (8) Home address of railroad employee; include the street address, 
city, State, ZIP code, and home telephone number with area code;
    (9) Name of facility where railroad employee normally reports to 
work;
    (10) Address of facility where railroad employee normally reports 
to work; include the street address, city, State, and ZIP code;
    (11) Job title of railroad employee;
    (12) Department assigned;
    (13) Specific site where accident/incident/exposure occurred; 
include the city, county, State, and ZIP code;
    (14) Date and time of occurrence; military time or AM/PM;
    (15) Time employee's shift began; military time or AM/PM;
    (16) Whether employee was on premises when injury occurred;
    (17) Whether employee was on or off duty;
    (18) Date and time when employee notified company personnel of 
condition; military time or AM/PM;
    (19) Name and title of railroad official notified;
    (20) Description of the general activity this employee was engaged 
in prior to the injury/illness/condition;
    (21) Description of all factors associated with the case that are 
pertinent to an understanding of how it occurred. Include a discussion 
of the sequence of events leading up to it; and the tools, machinery, 
processes, material, environmental conditions, etc., involved;
    (22) Description, in detail, of the injury/illness/condition that 
the employee sustained, including the body parts affected. If a 
recurrence, list the date of the last occurrence;
    (23) Identification of all persons and organizations used to 
evaluate or treat the condition, or both. Include the facility, 
provider and complete address;
    (24) Description of all procedures, medications, therapy, etc., 
used or recommended for the treatment of the condition.
    (25) Extent and outcome of injury or illness to show the following 
as applicable:
    (i) Fatality--enter date of death;
    (ii) Restricted work; number of days; beginning date;
    (iii) Occupational illness; date of initial diagnosis;
    (iv) Instructions to obtain prescription medication, or receipt of 
prescription medication;
    (v) If missed one or more days of work or next shift, provide 
number of work days; and beginning date;
    (vi) Medical treatment beyond ``first aid'';
    (vii) Hospitalization for treatment as an inpatient;
    (viii) Multiple treatments or therapy sessions;
    (ix) Loss of consciousness;
    (x) Transfer to another job or termination of employment;
    (26) Each railroad shall indicate if the Railroad Injury and 
Illness Summary (Continuation Sheet) (FRA Form F 6180.55a) has been 
filed with FRA for the injury or illness. If FRA Form F 6180.55a was 
not filed with FRA, then the railroad shall provide an explanation of 
the basis for its decision.
    (27) The reporting railroad shall indicate if the injured or ill 
railroad employee was provided an opportunity to review his or her 
file; and
    (28) The reporting railroad shall identify the preparer's name; 
title; telephone number with area code; and the date the log entry was 
completed.
    (c) Each railroad shall provide the employee, upon request, a copy 
of either the completed Railroad Employee Injury and/or Illness Record 
(Form FRA F 6180.98) or the alternative railroad-designed record as 
described in paragraphs (a) and (b) of this section as well as a copy 
of any other form, record or report filed with FRA or held by the 
railroad pertaining to the employee's injury or illness.
    (d) Each railroad shall maintain the Initial Rail Equipment 
Accident/Incident Record (Form FRA F 6180.97) or an alternative 
railroad-designed record as described in paragraph (e) of this section 
of reportable and accountable collisions, derailments, fires, 
explosions, acts of God, or other events involving the operation of 
railroad on-track equipment, signals, track, or track equipment 
(standing or moving) that result in damages to railroad on-track 
equipment, signals, tracks, track structures, or roadbed, including 
labor costs and all other costs for repairs or replacement in kind for 
each railroad establishment where workers 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.
    (e) The alternative railroad-designed record may be used in lieu of 
the Initial Rail Equipment Accident/Incident Record (Form FRA F 
6180.97). Any such alternative record shall contain all of the 
information required on the Initial Rail Equipment Accident/Incident 
Record. Although this information may be

[[Page 30971]]

displayed in a different order from that on the Initial Rail Equipment 
Accident/Incident Record, 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 each of the railroad's 
reporting establishments. Railroads may list additional information in 
the alternative record beyond the information required on the Initial 
Rail Equipment Accident/Incident Record. The alternative record shall 
contain, at a minimum, the following information:
    (1) Date and time of accident;
    (2) Reporting railroad, and accident/incident number;
    (3) Other railroad, if applicable, and other railroad's accident/
incident number;
    (4) Railroad responsible for track maintenance, and that railroad's 
incident number;
    (5) Type of accident/incident (derailment, collision, etc.);
    (6) Number of cars carrying hazardous materials that derailed or 
were damaged; and number of cars carrying hazardous materials that 
released product;
    (7) Division;
    (8) Nearest city or town;
    (9) State;
    (10) Milepost (to the nearest tenth);
    (11) Specific site;
    (12) Speed (indicate if actual or estimate);
    (13) Train number or job number;
    (14) Type of equipment (freight, passenger, yard switching, etc.);
    (15) Type of track (main, yard, siding, industry);
    (16) Total number of locomotives in train;
    (17) Total number of locomotives that derailed;
    (18) Total number of cars in train;
    (19) Total number of cars that derailed;
    (20) Total amount of damage in dollars to equipment based on 
computations as described in the ``FRA Guide for Preparing Accidents/
Incidents Reports'';
    (21) Total amount of damage in dollars to track, signal, way and 
structures based on computations as described in the ``FRA Guide for 
Preparing Accidents/Incidents Reports'';
    (22) Primary cause;
    (23) Contributing cause;
    (24) Persons injured and persons killed, broken down into the 
following classifications: worker on duty--employee; employee not on 
duty; passenger on train; nontrespasser--on railroad property; 
trespasser; worker on duty--contractor; contractor--other; worker on 
duty--volunteer; volunteer--other; and nontrespasser--off railroad 
property;
    (25) Narrative description of the accident;
    (26) Whether the accident/incident was reported to FRA;
    (27) Preparer's name, title, telephone number with area code, and 
signature; and
    (28) Date the report was completed.
    (f) Each railroad shall enter each reportable and accountable 
injury and illness and each reportable and accountable rail equipment 
accident/incident on the appropriate record, as required by paragraphs 
(a) through (e) of this section, as early as practicable but no later 
than seven working days after receiving information or acquiring 
knowledge that an injury or illness or rail equipment accident/incident 
has occurred.
    (g) The records required under paragraphs (a) through (e) of this 
section may be maintained at the local establishment or, alternatively, 
at a centralized location. If the records are maintained at a 
centralized location, but not through electronic means, then a paper 
copy of the records that is current within 35 days of the month to 
which it applies shall be available for that establishment. If the 
records are maintained at a centralized location through electronic 
means, then the records for that establishment shall be available for 
review in a hard copy format within four business hours of FRA's 
request. FRA recognizes that circumstances outside the railroad's 
control may preclude it from fulfilling the four-business-hour time 
limit. In these circumstances, FRA will not assess a monetary penalty 
against the railroad for its failure to provide the requested 
documentation provided the railroad made a reasonable effort to correct 
the problem.
    (h) A listing of all reported injuries and occupational illnesses 
for the previous month shall be posted in a conspicuous location at and 
for each railroad establishment within 30 days after expiration of the 
month during which the injuries and illnesses occurred. For purposes of 
this paragraph, this list is required to be posted only at those 
establishments that are in continual operation for a minimum of 90 
calendar days; otherwise the list shall be posted at the next higher 
organizational level establishment. This listing shall be posted and 
shall remain continuously displayed for the next twelve consecutive 
months. Incidents reported for employees at that establishment shall be 
displayed in date sequence. The listing shall contain, at a minimum, 
the following information:
    (1) Name and address of the establishment;
    (2) Calendar year of the cases being displayed;
    (3) Incident number used to report case;
    (4) Date of the injury or illness;
    (5) Location of incident;
    (6) Regular job title of employee injured or ill;
    (7) Description of the injury or condition;
    (8) Number of days employee absent from work at time of posting;
    (9) Number of days of work restriction for employee at time of 
posting;
    (10) If fatality--enter date of death;
    (11) Annual average number of railroad employees reporting to this 
establishment;
    (12) Preparer's name, title, telephone number with area code, and 
signature; and
    (13) Date the report was completed.
    (14) When there are no reportable injuries or occupational 
illnesses associated with an establishment for that month, the listing 
shall make reference to this fact.
    11. By revising the first sentence in Sec. 225.27(a) and by adding 
a new sentence after the revised first sentence to read as follows:


Sec. 225.27   Retention of records.

    (a) Each railroad shall retain the Railroad Employee Injury and/or 
Illness Record and the Monthly List of Injuries and Illnesses required 
by Sec. 225.25 for at least five years after the end of the calendar 
year to which they relate. Each railroad shall retain the Initial Rail 
Equipment Accident/Incident Record required by Sec. 225.25 for at least 
two years after the end of the calendar year to which they relate. * * 
*
* * * * *
    12. By removing ``$250'' in the first sentence in Sec. 225.29 and 
adding in lieu thereof ``$500'' and by revising the third and fourth 
sentences in Sec. 225.29 to read as follows:


Sec. 225.29   Penalties.

    * * * See Appendix A to this part for a statement of agency civil 
penalty policy. A person may also be subject to the criminal penalties 
provided for in 49 U.S.C. 21311.
    13. By revising 225.31(f) to read as follows:


Sec. 225.31   Investigations.

* * * * *
    (f) Section 20903 of title 49 of the United States Code provides 
that no part of a report of an accident investigation

[[Page 30972]]

under section 20902 of title 49 of the United States Code may be 
admitted as evidence or used for any purpose in any suit or action for 
damages growing out of any matter mentioned in the accident 
investigation report.
    14. By adding new Sec. 225.33 as follows:


Sec. 225.33   Internal Control Plans.

    (a) Each railroad shall adopt and comply with a written Internal 
Control Plan that shall be maintained at the office where the 
railroad's reporting officer conducts his or her official business. 
Each railroad shall amend its Internal Control Plan, as necessary, to 
reflect any significant changes to the railroad's internal reporting 
procedures. The Internal Control Plan shall be designed to maintain 
absolute accuracy and shall include, at a minimum, each of the 
following ten components:
    (1) A policy statement declaring the railroad's commitment to 
complete and accurate reporting of all accidents, incidents, injuries, 
and occupational illnesses arising from the operation of the railroad, 
to full compliance with the letter and spirit of FRA's accident 
reporting regulations, and 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 and will result in some stated 
disciplinary action against any employee, supervisor, manager, or 
officer of the railroad committing such harassment or intimidation.
    (2) The dissemination of the policy statement; complaint 
procedures. Each railroad shall provide to all employees, supervisory 
personnel, and management the policy statement described in paragraph 
(a)(1). Each railroad shall have procedures to process complaints from 
any person about the policy stated in paragraph (a)(1) being violated, 
and to impose the appropriate prescribed disciplinary actions on each 
employee, supervisor, manager, or officer of the railroad found to have 
violated the policy. These procedures shall be disclosed to railroad 
employees, supervisors, managers, and officers. The railroad shall 
provide ``whistle blower'' protection to any person subject to this 
policy, and such policy shall be disclosed to all railroad employees, 
supervisors and management.
    (3) Copies of internal forms and/or a description of the internal 
computer reporting system used for the collection and internal 
recording of accident and incident information.
    (4) A description of the internal procedures used by the railroad 
for the processing of forms and/or computerized data regarding accident 
and incident information.
    (5) A description of the internal review procedures applicable to 
accident and incident information collected, and reports prepared by, 
the railroad's safety, claims, medical and/or other departments engaged 
in collecting and reporting accident and incident information.
    (6) A description of the internal procedures used for collecting 
cost data and compiling costs with respect to accident and incident 
information.
    (7) A description of applicable internal procedures for ensuring 
adequate communication between the railroad department responsible for 
submitting accident and incident reports to FRA and any other 
department within the railroad responsible for collecting, receiving, 
processing and reporting accidents and incidents.
    (8) A statement of applicable procedures providing for the updating 
of accident and incident information prior to reporting to FRA and a 
statement of applicable procedures providing for the amendment of 
accident and incident information as specified in the ``FRA Guide for 
Preparing Accidents/Incidents Reports.''
    (9) A statement that specifies the name and title of the railroad 
officer responsible for auditing the performance of the reporting 
function; a statement of the frequency (not less than once per calendar 
year) with which audits are conducted; and identification of the site 
where the most recent audit report may be found for inspection and 
photocopying.
    (10)(i) A brief description of the railroad organization, including 
identification of:
    (A) All components that regularly come into possession of 
information pertinent to the preparation of reports under this part 
(e.g., medical, claims, and legal departments; operating, mechanical, 
and track and structures departments; payroll, accounting, and 
personnel departments);
    (B) The title of each railroad reporting officer;
    (C) The title of each manager of such components, by component; and
    (D) All officers to whom managers of such components are 
responsible, by component.
    (ii) A current organization chart satisfies paragraphs 
(a)(10)(i)(C)(D) (iii) and (iv) of this section.
    (b) [Reserved]
    15. By adding new Sec. 225.35 to read as follows:


Sec. 225.35  Access to records and reports.

    Each railroad subject to this part shall have at least one 
location, and shall identify each location, where any representative of 
the Federal Railroad Administration or of a State agency participating 
in investigative and surveillance activities under Part 212 of this 
chapter or any other authorized representative, has centralized access 
to a copy of any record and report (including relevant claims and 
medical records) required under this part, for examination and 
photocopying in a reasonable manner during normal business hours. Such 
representatives shall display proper credentials when requested. Each 
railroad shall identify the locations where a copy of any record and 
report required under this part is accessible for inspection and 
photocopying by maintaining a list of such establishment locations at 
the office where the railroad's reporting officer conducts his or her 
official business. A copy of any record and report required under this 
part shall be accessible within four business hours after the request. 
FRA will not assess a monetary penalty against the railroad for its 
failure to provide the requested documentation when circumstances 
outside the railroad's control preclude it from fulfilling the four-
business-hour time limit and the railroad has made a reasonable effort 
to correct the problem.
    16. By adding new Sec. 225.37 to read as follows:


Sec. 225.37  Magnetic media transfer and electronic submission.

    (a) A railroad has the option of submitting the following reports, 
updates, and amendments by way of magnetic media (computer diskette or 
magnetic tape), or by means of electronic submission over telephone 
lines or other means:
    (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 Batch Control Form (Form FRA F 6180.99).
    (b) Each railroad utilizing the magnetic media option shall submit 
to FRA the following:
    (1) the computer diskette or magnetic tape;
    (2) the Batch Control Form (Form FRA F 6180.99); and

[[Page 30973]]

    (3) a notarized hard copy of the Railroad Injury and Illness 
Summary (Form FRA F 6180.55), signed by the railroad's reporting 
officer.
    (c) Each railroad utilizing the electronic submission option shall 
submit to FRA the following:
    (1) the Batch Control Form (Form FRA F 6180.99) which is submitted 
to an FRA-designated computer; and
    (2) a notarized hard copy of the Railroad Injury and Illness 
Summary (Form FRA F 6180.55), signed by the railroad's reporting 
officer.
    (d) Each railroad employing either the magnetic media or electronic 
submission 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 for Preparing Accidents/
Incidents Reports.''
    (e) In addition to fulfilling the requirements stated in paragraph 
(b) through (d) of this section, each railroad initially utilizing 
either the magnetic media or electronic submission option, shall submit 
the hard copy report(s) for each accident/incident it reports by such 
means. FRA will continually review the railroad``s submitted hard copy 
reports against the data it has submitted electronically, or by means 
of magnetic media. Once the magnetic media or electronic submission is 
in total agreement with the submitted hard copies of the reports for 
three consecutive reporting months, FRA will notify the railroad, in 
writing, that submission of the hard copy reports, except for the 
notarized Railroad Injury and Illness Summary, is no longer required.

Appendix A--[Removed]

    17. By removing Appendix A.
    18. By redesignating Appendix B as Appendix A and by revising newly 
redesignated Appendix A to read as follows:

         Appendix A to Part 225--Schedule of Civil Penalties \1\        
------------------------------------------------------------------------
     Section (including computer code, if                      Willful  
                  applicable)                    Violation    violation 
------------------------------------------------------------------------
225.9  Telephonic reports of certain accidents/                         
 incidents....................................       $1,000       $2,000
225.11  Reports of accidents/ incidents.......        2,500        5,000
225.12(a):                                                              
    Failure to file Railroad Employee Human                             
     Factor Attachment properly...............                          
        (1) Employee identified...............        2,500        5,000
        (2) No employee identified............        1,000        2,000
225.12(b):                                                              
    (1) Failure to notify employee properly...        2,500        5,000
    (2) Notification of employee not involved                           
     in accident..............................        2,500        5,000
225.12(c):                                                              
    Failure of employing railroad to provide                            
     requested information properly...........        1,000        2,000
225.12(d):                                                              
    (1) Failure to revise report when identity                          
     becomes known............................        2,500        5,000
    (2) Failure to notify after late                                    
     identification...........................        2,500        5,000
225.12(f)(1):                                                           
    Submission of notice if employee dies as                            
     result of the reported accident..........        2,500        5,000
225.12(g):                                                              
    Willfully false accident statement by                               
     employee.................................  ...........        5,000
    225.13  Late reports......................        2,500        5,000
    225.17(d)  Alcohol or drug involvement....        2,500        5,000
    225.23  Joint operations..................        (\1\)        (\1\)
    225.25  Recordkeeping.....................        2,500        5,000
    225.27  Retention of records..............        1,000        2,000
    225.33:                                                             
        (1) Failure to adopt the Internal                               
         Control Plan.........................        2,500        5,000
        (2) Inaccurate reporting due to                                 
         failure to comply with the Internal                            
         Control Plan.........................        2,500        5,000
        (3) Failure to comply with the                                  
         intimidation/harassment policy in the                          
         Internal Control Plan................        2,500        5,000
    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 $20,000 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 Secs.  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.       

Secs. 225.12, 225.13, 225.15, 225.19, 225.21  [Amended]

    19. In addition to the amendments set forth above, in 49 CFR part 
225 remove the word ``rail-highway'' and add, in its place, the word 
``highway-rail'' in the following places:
    (a) Sec. 225.12(b)(2)(iii);
    (b) Sec. 225.13;
    (c) Sec. 225.15(a);
    (d) Secs. 225.19(a) and (b); and
    (e) Sec. 225.21(e).

    Issued in Washington, DC, on May 30, 1996.
Donald M. Itzkoff,
Deputy Federal Railroad Administrator.

Attachments

    Note: These attachments will not appear in the Code of Federal 
Regulations.

Attachments 1--Review of AAR's Proposed Performance Standards

I. Introduction

    The NPRM for amending the Accident/Incident Report Regulations 
(49 CFR 225) included a section on Internal Control Procedures 
(ICP). The Association of American Railroads (AAR) and its members 
objected to the ICP and, instead proposed that a Performance 
Standard be used to measure compliance with the reporting 
requirements.
    Westat, Inc. reviewed the statistical implications of the 
Performance Standards for Railroad Accident/Incident Reporting as 
proposed by AAR. Our comments on AAR's proposal, are presented 
below.
    AAR's recommended approach relies on auditing a sample of 
records, rather than all records, to assure a specified rate of 
compliance with reporting requirements. A

[[Page 30974]]

statistical audit can be designed to reduce the labor requirements 
of the monitoring process without compromising reliable reporting of 
reportable occurrences. It has become common in recent years to view 
statistical audits as an important part of Total Quality Management 
(TQM), rather than as just a tool of the more traditional approach 
to quality assurance based on acceptance testing. The key difference 
between the two approaches is that TQM focuses on continuous and 
incremental improvements of process performance, whereas acceptance 
testing, as in AAR's Performance Standards, simply judges 
acceptability of process output by applying pre-defined criteria 
(Gitlow, et. al., Tools and Methods for the Improvement of Quality, 
1989, IRWIN, Homewood, IL, Boston, MA).

II. AAR'S Recommendations for Auditing a Sample of Records

    AAR's Performance Standards are based on methods selected from a 
set of statistical procedures that were developed for the U.S. 
military (MIL-STD-105E, 1989) as means of statistically controlling 
process quality in a stable environment. The military standard 
(Standard, for short) invoked by AAR is based on sound statistical 
methods. However, AAR's application of the Standard suffers from at 
least the five major deficiencies discussed below. A detailed 
summary of AAR's recommendations for applying the Standard is given 
in Appendix 1. Westat's critique of the proposed Performance 
Standards is presented here.

1. Reporting Process May Not Be Stable

    AAR's reporting process has not been fully defined, it has not 
been tested in the real world, and its stability in the sense the 
Standard uses this term has not been demonstrated, yet AAR assumed 
that reporting will be a stable process, and applied procedures 
appropriate only for stable processes. The documentation of the 
Standard clearly states that the procedures described therein are 
directly applicable only to stable processes.

2. AAR's Sample Inclusion Criterion Is Flawed

    The Standard established batch sampling plans and procedures for 
inspection by attributes. To apply the procedures, batches would be 
sampled at random, and sampled items classified by inspection either 
as ``acceptable'' or as ``defective.'' It is assumed that all items 
can be classified, and leaving items unclassified is not permitted. 
The Standard offers rules for choosing sample sizes and acceptance 
criteria. The Standard formulates acceptance criteria in terms of 
the number, or the percentage, of defectives in the sample. 
Acceptance criteria logic is to accept the batch if a random sample 
of a specified size contained fewer than a pre-determined number of 
defectives, otherwise, reject the batch.
    In Westat's understanding of AAR's scheme for applying the 
Standard, a batch is ``* * * a list of all reportable and non-
reportable accidents/incidents occurrences for a specified calendar 
year,'' ``* * * a rejection is defined as railroad's failure to 
report an occurrence required to be reported * * * [that is] not 
reported * * * '', and ``random sample[s] [would] be taken from the 
list of occurrences.''
    AAR's lists can include two types of records, R-type, and NR-
type (See Table 1):
    * R-type records are records of occurrences classified by the 
railroad as reportable, and
    * NR-type records are records of occurrences classified by the 
railroad as non-reportable.
    AAR uses reportability as the inspection attribute. AAR's method 
counts rejections only among NR-type records, and equates the number 
of rejections to the number of reportable occurrences that were 
mistakenly reported as NR-type records. These records are identified 
in the second row of Table 1. Note that records in the third row of 
Table 1 are also in error, but they are not rejections according to 
the rules proposed by AAR.
    AAR plans to sample lists containing records classified as R-
type and NR-type, and reject a list whenever a random sample from it 
includes too many reportable NR-type records. For statistical 
reasons, this is expected to happen if the number of reportable 
occurrences that were classified as NR-type (i.e., N<INF>2 in Table 
1) was large relative to the total number of records, N, in the 
list. It is clear that AAR's sampling plan treats R-type records and 
NR-type records differently. For determining sample size, AAR's 
sampling plan combines R-type and NR-type records. For counting 
rejections, it recognizes only the reporting errors in NR-type 
records (row 2 in Table 1) but not the reporting errors in R-type 
records (row 3 in Table 1). Whether in error, or not in error, R-
type records are not rejected according to AAR's criteria. This 
implies that increasing the proportion of R-type records reduces the 
expected number of rejections in fixed-sized random samples. 
Metaphorically speaking, increasing the size of the lake (R-type 
records) without increasing the stock of fish in it (NR-type 
records) makes it harder to catch the large fish (rejected records).
    We have showed that AAR's audit scheme makes audit results 
depend on the number of out-of-scope (non-reportable) records on the 
audited list. Surely, making audit results depend on data outside 
the audit's scope is not acceptable: valid acceptance criteria must 
be based only on data relevant to rejection rate, e.g., the total 
number reportable occurrences, and the number of reportable 
occurrences in error.

3. AAR Overstated Compliance Rate

    Using any reasonable definition of compliance rate, AAR's audit 
does not actually deliver the claimed compliance rate of 99-percent 
for accident/incident reports. In fact, we show in the Appendix 2 
that AAR's sampling plan, at best, achieves 97-percent compliance 
rate. But even this weaker claim requires an unreasonable, and 
inappropriate, stretch of what one means by ``compliance rate.''
    Specifically, if one were willing to assume the reporting 
process to be stable, with no evidence for this assumption, and if 
AAR was willing to adopt the full set of procedures specified in the 
Standard for monitoring stable processes, then such a strengthened 
plan would actually ensure roughly even odds for rejecting a 
composite list of 5,000 records of reportable occurrences that 
included about three-percent of miss-classified reportable 
occurrences (cf. Appendix 2).
    However, as we showed earlier, even a plan strengthened in this 
way could say absolutely NOTHING about the actual under-reporting 
rate of reportable occurrences without determining the split between 
the true frequencies of reportable and non-reportable occurrences.

4. AAR's Performance Standards Lack Requirements for Maintaining 
Written Internal Control Procedures (ICP)

    Westat believes that high quality accident/incident reporting 
cannot be achieved without maintaining a written ICP. The Military 
Standard includes a general requirement for developing written 
procedure (cf. General Requirements, 4.1) which would be made 
available to the Government representative's review upon request. 
This requirement is fully in line with standard business practice of 
making explicit all major parts of complex systems. Without written 
directives governing company policy and operational procedures, it 
is not possible to guarantee full implementation of management 
decisions by line employees.
    In contrast, AAR's proposal for a Performance Standard does not 
permit FRA to direct a railroad to develop and maintain a written 
ICP until after the railroad failed to demonstrate compliance in two 
consecutive audits.

5. Non-compliance With the Standard

    AAR's Performance Standards do not implement the full set of 
procedures prescribed in Military Standard. Most importantly, AAR's 
Performance Standards fail to implement the ``switching 
procedures.'' These are explained below. The Military Standard 
defines three levels of inspection (normal, tightened, and reduced) 
and specifies conditions for their applicability. For example, users 
are directed to institute tightened inspection ``when 2 out of 2, 3, 
4, or 5 consecutive lots or batches have been rejected by the 
original inspection.'' Switching procedures, in general, refer to a 
set of rules that tell users when to adopt normal, tightened, or 
reduced inspection. The Standard clearly states that the sampling 
plan performance characteristics it published are valid only when 
the full set of procedures, including the switching procedures, are 
adopted. AAR's Performance Standard lacks switching rules, and AAR 
has not determined the compliance rate bias resulting from this 
lack.

Appendix 1--Review of AAR'S Performance Standard Proposal

1. Summary of AAR's Proposal

    Key features of the proposals by AAR's Performance Standard for 
Part 225 Reporting by Class I Railroads and Amtrak are as follow:
    (a) Class I Railroads shall maintain Internal Control Procedures 
(ICP) designed to assure 99-percent compliance for accident/incident 
reporting under Sec. 225.11.
    (b) Accident/incident compliance rate will be estimated for 
reporting periods of 12

[[Page 30975]]

months or more from comparisons between reports filed with FRA and 
the railroad's own data base containing records for employee 
injuries, illnesses, and property damage.
    (c) Key features of audits to be conducted to monitor compliance 
rates are as follow:
    (1) Each railroad will provide to FRA a list of reportable 
occurrences for a specified calendar year containing all relevant 
information and record locations, and make records available for 
inspection upon FRA request, subject to special rules.
    (2) FRA will draw a random sample of entries from each list in 
accordance with the General Inspection Level II procedures contained 
in Military Standard (MIL-STD-105E), and assess the sample for 
compliance based on procedures specified in that Standard.
    (3) A rejection is defined as failure to report a reportable 
occurrence under Sec. 225.19, subject to applicable procedures for 
resolving reporting requirements.
    (4) Audits will be conducted by qualified FRA personnel. Results 
will be reported to railroads in writing.
    (d) Failure to achieve a 99-percent compliance rate is subject 
to civil penalties. Railroads must propose corrective action within 
30 days. FRA may reschedule new audits within a reasonable period.
    (e) Failure to achieve 99-percent compliance rate for a second 
time is treated as in paragraph (d), except that FRA may also direct 
the railroad to file a written ICP with FRA.
    (f) Each railroad directed to file a written ICP in accordance 
with this paragraph, shall maintain a written ICP, covering internal 
processes/procedures within the railroad's control, for the 
preparation of accident/incident reports under Sec. 225.11.
    (g) Railroads may petition for relief from paragraph (f) after 
achieving 99-percent compliance rate twice in a row.

2. Overview of Audit Using MIL-STD-105E

    The procedure identified by AAR in paragraph (c)(2) involves the 
following operational steps:
    Step 1. Determine the sample size (N) of reported occurrences 
for checking by reference to the family of single sampling plans for 
normal inspection that are contained in Master Table II-A. The 
applicable sample size is in the 2nd column of Table II-A in the row 
identified by the sample size code letter for the number of reported 
occurrences on the list. The code letter is to be found in the 
column headed ``General inspection level II'' using reported number 
of occurrences as ``Lot or batch size'' to select the row in Table 
I.
    Step 2. Draw a random sample of N occurrences from the list of 
all reportable and non-reportable accidents/incident occurrences 
submitted to FRA by the railroad company.
    Step 3. Examine relevant data items for all occurrences in the 
sample, classify the reporting requirements for each element, and 
determine the total number of rejects, i.e., reportable occurrences 
that were reported as non-reportable (n).
    Step 4. Reject the sample if the total number of rejects equaled 
or exceeded the acceptance number (Ac) for the sampling plan. In 
general, sample size and acceptance number jointly determine the 
stringency of reporting requirements. For the plans advocated by 
AAR, Ac is located at the intersection of the row for the sample 
size code letter, and the column for which Acceptable Quality Level 
(normal inspection) in Table II-A equals 1.0.

3. Interpreting AAR's Inspection Plan and Some Comments

    The sampling plans and procedures contained in Military Standard 
(MIL-STD-105E, 1989) were designed for use in planning and 
conducting inspection by attributes. As the foreword to the 
documentation states, ``the sampling concept is based on the 
probabilistic recurrence of events when a series of lots or batches 
are produced in a stable environment.''
    When applying the Standard (MIL-STD-105E), AAR views a 
railroad's list of all reportable and non-reportable accidents/
incidence occurrences for a 12 month period as ``a lot or a batch.''
    The Standard defines ``inspection by attributes'' as 
``inspection whereby either a unit of product is classified simply 
as defective or non-defective, or the number of defects in the unit 
is counted, with respect to a given requirement or set of 
requirements.'' AAR has provided only an implicit definition for the 
attribute it proposes to use by defining rejection ``* * *as a 
railroad's failure to report an occurrence required to be reported 
under section 225.19 and not reported, * * *'' With this definition 
of inspection attribute, only reportable accidents that were not 
reported can give rise to a rejection under any circumstance.
     Reportable accidents that were reported, and non-reportable 
accidents are always correctly classified.
    Note that list size depends on the number of non-reportable 
occurrences. AAR has not identified the class of non-reportable 
occurrences that railroads expect to include on lists.
    The documentation for the Standard contains three types of 
sampling plans: single, double, and multiple. AAR recommended the 
use of single sampling plans. With a single sampling plan, a single 
random sample is drawn from each list. The documentation recognizes 
that samples may need to be stratified based on ``some rational 
criterion,'' or may need to be collected over time. AAR has not 
recommended the use of stratification.
    Once sampling plan type has been chosen, inspection level 
determines the relationship between the number of occurrences 
included in the list (the lot or batch size) and sample size. The 
documentation recognizes three general inspection levels (I, II, and 
III), and four special inspection levels. Inspection level II is 
regarded as normal. Relative to the use of a level II plan, the use 
of a level I plan would reduce discrimination level, and the use of 
a level II plan would increase it. AAR recommends the use of level 
II plans.
    Once sampling plan and inspection levels have been selected, the 
remaining choice is Acceptable Quality Level (AQL). According to the 
documentation, ``when a continuous series of lots is considered, the 
AQL is the quality level which, for the purpose of sampling 
inspection, is the limit of a satisfactory process average.'' For a 
given sampling plan, inspection level, and AQL, the documentation 
provides tables for determining sample size, acceptance numbers, and 
rejection numbers.
    The Standard instructs users to choose AQL in a manner that is 
appropriate for the level of acceptable risk. This choice involves 
balancing the consequences of accepting lots with too many or too 
few defectives. The documentation of the Standard emphasizes that, 
by itself, AQL does not determine the chances of accepting or 
rejecting individual lots or batches. AQL relates directly only to 
what might be expected from a series of lots of batches provided 
appropriate ``switching procedures'' (see discussion below) and 
other related steps contained in the Standard, are also implemented. 
AAR recommended the use of 0.01 as the AQL value for audits.
    In the terminology of the Standard, ``switching procedures'' 
describe how the inspection procedures need to be modified under 
special circumstances. Normal procedures would be in effect until 2 
out of 2-5 consecutive lots have been rejected. When that happens, 
inspection procedures would need to be tightened. There are other 
rules for switching from tightened to normal, and from normal to 
reduced, procedures.
    As stated earlier, by itself, AQL does not characterize the 
performance of a sampling plan. AQL is the designated value of 
percent defectives for which lots will be accepted most of the time 
by the sampling procedure. Understanding the full implications of a 
sampling plan requires looking at its operating characteristic curve 
(OCC). In general, OCCs indicate the percentage of lots and batches 
which may be expected to be accepted under various sampling plans 
for a given process quality. Table X in the documentation of the 
Standard provides the OCCs for normal inspection of a range of 
sample sizes and sampling plans.

Appendix 2--Nominal Compliance Rate Under AAR's Performance Standard

    AAR's scheme monitors the rate of reporting errors of reportable 
accidents/incidents relative to all records (R-type and NR-type 
combined), which is not interesting, rather than relative to all 
reportable occurrences (R-type records plus reportable occurrences 
reported as NR-type records), which is interesting. As proposed, 
AAR's Performance Standards would deliver 97-percent compliance 
based on the former compliance rate which is of no interest. The 
proposed Performance Standards are completely uninformative 
regarding the latter compliance rate, which does matter.
    We apply AAR's scheme (cf paragraph (c)(2) in the Appendix to 
AAR's Comments) to AAR's example of 5,000 occurrences and an 
acceptable quality level of one-percent, AQL = 0.01. In this case, 
Tables I and II-A require drawing a random sample of size 200, and 
set the acceptance number to five, and the rejection number to six. 
The list is accepted whenever the random sample of

[[Page 30976]]

200 records contains five or fewer rejects. It is rejected whenever 
it contains six or more rejects.
    Under this sampling plan, railroads that underreport up to one-
percent of all reportable occurrences will pass the audit most of 
the time.
    The OCC for this sampling plan is shown in Table X-L. According 
to Table X-L, the acceptance rate at AQL = 0.01 is 89-percent. In 
other words, if the list of 5,000 occurrences contained exactly 50 
defectives (1%), there would be a 89-percent chance of accepting it 
based on auditing a random sample of size N = 200, and using five as 
the maximum acceptable number of rejects.
    The tables show that if the list contains 142 defectives for an 
underreporting rate of 2.84-percent, expected rejection rate rises 
to 50-percent; if it contains 232 defectives for an underreporting 
rate of 4.64-percent, expected rejection rate rises to 90-percent. 
Thus, rejection and acceptance are more or less in balance when 
underreporting is close to three-percent and they reach extreme 
values above and below it. Specifically, the chances of acceptance 
and rejection are about the same when the underreporting rate is 
about 2.8-percent. Rejection rate increases to 90-percent when 
underreporting is about 4.6-percent, and it decreases to about ten-
percent when underreporting is about one-percent.
    Noting that three-percent underreporting could be considered the 
same as 97-percent compliance, one may reasonably characterize a 
sampling plan with the above characteristics as a plan that achieves 
97-percent of compliance. It is hard to justify the claim that it 
achieves 99-percent compliance.

     Table 1.--Correct and Reported Event/Occurrence Classifications    
------------------------------------------------------------------------
            Event/occurrence:                            Report         
------------------------------------------              rejected        
                                            Report in      by           
           Correct              Reported      error     sampling        
                                                          plan          
------------------------------------------------------------------------
Reportable...................  R-type....  No........  No........  N<INF>1   
Reportable...................  NR-type...  Yes.......  Yes.......  N<INF>2   
Non-reportable...............  R-type....  Yes.......  No........  N<INF>3   
Non-reportable...............  NR-type...  No........  No........  N<INF>4   
All..........................  All.......  All.......  All.......  N    
------------------------------------------------------------------------


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