30940 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 safetysensitive 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
30942 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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

§ 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,
30944 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 §§ 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 § 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 § 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 § 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,
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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-todate file would include all updates and

amendments on reported accidents and

incidents and would be maintained by

FRA.

FRA also proposed, in § 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 § 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

§ 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
30946 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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

§ 225.21. Therefore, FRA proposed, in

§ 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 § 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 § 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’’ (§ 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’’ (NonFatal 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.
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 nonuniform 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
30948 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 nonhospitalized 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.
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 nonrailroad property and the hazardous

material injures a ‘‘Nontrespasser’’

located on public or private nonrailroad 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 safetysensitive 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 safetysensitive 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
30950 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 safetysensitive function for the railroad as

defined in § 209.303.

Section 209.303 of title 49 of the Code

of Federal Regulations describes ‘‘safetysensitive 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

§ 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 safetysensitive function for the railroad as

defined in § 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 § 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 § 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 § 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-andattendance 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 § 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 highwayrail 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
30952 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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
30954 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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

§ 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 railroaddesigned 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 § 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 § 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 § 225.25(b) Proposal

FRA determined that much of the

information requested in the

supplementary record of injuries and

illnesses pursuant to former § 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 § 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 ontrack 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
30956 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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’’

(§ 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 ontrack 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, § 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

§ 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 sevenday 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
30958 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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:

• Name and address of the

establishment;

• Calendar year of the cases being

displayed;

• Incident number used to report

case;

• Date of the injury or illness;

• Location of incident;

• Regular job title of employee

injured or ill;

• Description of the injury or

condition;

• Number of days employee was

absent from work at time of posting; and

the number of days of work restriction

at time of posting;

• Date of death, if the employee died;

• Annual average number of railroad

employees reporting to this

establishment;

• Name, title, telephone number with

area code, and signature of preparer;

and

• Date the report was completed.

• 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

§ 225.39(a)) and Copy of ‘‘Railroad

Employee Injury and/or Illness Record’’

to Employee (Proposed § 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

§ 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

§ 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 sevenday 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 § 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, § 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 § 225.25

will provide injured and ill railroad

employees a means by which to review
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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

New

Threshold

ior

Threshold

Wn Wp

Wp

En Ep = × + − +

 − 

















Pr 1 0 5 0 5 . . 100

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,
30960 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 highwayrail crossing that is in use; (b) an atgrade 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 nongeneral 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, § 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 highwayrail 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 § 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 § 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 ontrack 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
30962 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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

§ 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 § 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 § 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 safetysensitive function for the railroad as

defined in § 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 ontrack equipment or (ii) any other safetysensitive function for the railroad as

defined in § 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 ontrack equipment or (ii) any other safetysensitive function for the railroad as

defined in § 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 § 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 § 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 § 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.
30964 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

In § 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, § 225.11 would be

revised to reflect that reports identified

in § 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, § 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 §§ 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,

§ 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 § 225.21,

FRA proposed that the reference to

‘‘Class I and II line-haul and terminal

and switching railroads’’ in § 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 § 225.25(f) would

be removed.

The Records discussed in new

§§ 225.25 (a) and (b) and in §§ 225.25 (d)

and (e) and the alternative, railroaddesigned records would be added to the

list of forms as § 225.21(h) (Form FRA

F 6180.98—Railroad Employee Injury

and/or Illness Record) and as § 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

§ 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 § 225.25.

Note that the requirement under

§ 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:

§ 225.33, ‘‘Failure to Adhere to the

Internal Control Plan’’; § 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 § 225.35, ‘‘Access to

Records and Reports.’’ Additionally, the

rule proposed that the dual entries

under each of paragraphs (a), (b), and (d)

of § 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 § 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 § 225.33,

the railroad’s failure to adhere to its

Internal Control Plan, and § 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 § 225.33(1),

‘‘Failure to Adopt the Internal Control

Plan’’; § 225.33(2), ‘‘Inaccurate

Reporting due to Failure to Comply with

the Internal Control Plan’’; § 225.33(3),

‘‘Failure to Comply with the

Intimidation/Harassment Policy in the

Internal Control Plan’’; and § 225.35,

‘‘Access to Records and Reports.’’ The

dual entries under each of paragraphs

(a), (b), and (d) of § 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 § 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
30966 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

$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 safetysensitive 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) Ontrack 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 Crossing Accident/Incident Report ......... 4 hours.

225.19(c), 225.21(a) ........... Form FRA F 6180.54—Rail Equipment Accident/Incident Report ................................ 2 hours.

225.19(d), 225.21(c) ........... Form FRA F 6180.55a—Railroad Injury and Illness Summary (Continuation Sheet) 10 minutes.

225.21(b) ............................ Form FRA F 6180.55—Railroad Injury and Illness Summary ...................................... 45 minutes.

225.21(d) ............................ Form FRA F 6180.56—Annual Railroad Report of Manhours and Casualties by

State.

3 hours.

225.21(g) ............................ 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.

15 min./2 hours.

225.21(h), 225.25(a) ........... Form FRA F 6180.98—Railroad Employee Injury and/or Illness Record ..................... 30 minutes.

225.21(i), 225.25(b) ............ Form FRA F 6180.97—Initial Rail Equipment Accident/Incident Record ..................... 30 minutes.
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 30967

Proposed section Brief description Estimated average time

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 Illness Record to Employee ........................ 2 minutes.

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 § 225.1 to read as

follows:

§ 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 § 225.3 to read as

follows:

§ 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
30968 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 § 225.5 to read as

follows:

§ 225.5 Definitions

As used in this part—

Accident/incident means:

(1) Any impact between railroad ontrack 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 ontrack 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,
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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.

§ 225.7 [Amended]

5. By removing ‘‘Executive Director’’

in the third sentence in § 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

§ 225.7(b) and adding in lieu thereof ‘‘49

U.S.C. 20903’’ and by removing

’’Accident Reports Act’’ in the second

sentence in § 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 § 225.11 to read as

follows:

§ 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 § 225.19. The report shall be made on

the forms prescribed in § 225.21 in hard

copy or, alternatively, by means of

magnetic media or electronic

submission, as prescribed in § 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 § 225.12(a),

by revising the second sentence in

§ 225.12(g)(3), and by revising

§§ 225.12(h) (1) and (2) to read as

follows:

§ 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

§ 225.19(b), by revising the first, third,

and fifth sentences of § 225.19(c), by

revising § 225.19(d), and by adding

§ 225.19(e) to read as follows:

§ 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

§ 225.21(b), by removing § 225.21(f) and

redesignating §§ 225.21(g) and 225.21(h)

as §§ 225.21(f) and 225.21(g),

respectively, and by adding new

§§ 225.21 (h) and (i) to read as follows:

§ 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,
30970 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 § 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 § 225.25.

10. By revising § 225.25 to read as

follows:

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

§ 225.27(a) and by adding a new

sentence after the revised first sentence

to read as follows:

§ 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 § 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 § 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 § 225.29 and adding in lieu

thereof ‘‘$500’’ and by revising the third

and fourth sentences in § 225.29 to read

as follows:

§ 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:

§ 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
30972 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 § 225.33 as

follows:

§ 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 § 225.35 to read as

follows:

§ 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 § 225.37 to read as

follows:

§ 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations 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 applicable) Violation Willful

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

1A 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 § 225.23 constitutes a violation of § 225.11. For purposes of §§ 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.

§§ 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) § 225.12(b)(2)(iii);

(b) § 225.13;

(c) § 225.15(a);

(d) §§ 225.19(a) and (b); and

(e) § 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
30974 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Rules and Regulations

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 predetermined 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 nonreportable 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 nonreportable.

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., N2 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 Rtype 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 Rtype 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 missclassified reportable occurrences (cf.

Appendix 2).

However, as we showed earlier, even a

plan strengthened in this way could say

absolutely NOTHING about the actual underreporting rate of reportable occurrences

without determining the split between the

true frequencies of reportable and nonreportable 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 § 225.11.

(b) Accident/incident compliance rate will

be estimated for reporting periods of 12
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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

§ 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 § 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
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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

in error

Report

rejected

by sampling

plan

Correct Reported

Reportable.R-type No ....... No ....... N1

Reportable.NR-type Yes ...... Yes ...... N2

Non-reportable.R-type Yes ...... No ....... N3

Non-reportable.NR-type No ....... No ....... N4

All ....... All ........ All ........ All ........ N

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[FR Doc. 96–14943 Filed 6–17–96; 8:45 am]

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