52496 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 225 

[Docket No. FRA–2006–26173] 

RIN 2130–AB82 

Miscellaneous Amendments to the 

Federal Railroad Administration’s 

Accident/Incident Reporting 

Requirements 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM) and request for comments. 

SUMMARY: FRA proposes to amend its 

existing regulations addressing 

accident/incident reporting in order to 

clarify ambiguous regulations and 

enhance the quality of information 

available for railroad casualty analysis. 

In addition to proposing revisions to its 

regulations, FRA is proposing revisions 

to its Guide for Preparing Accident/ 

Incident Reports (FRA Guide) and its 

Accident/Incident recording and 

reporting forms, and is requesting 

comments and suggestions on certain 

topics of interest. 

DATES: Written Comments: Written 

comments on the proposed rule must be 

received by November 10, 2008. 

Comments received after that date will 

be considered to the extent possible 

without incurring additional expense or 

delay. 

Public Hearing: If any person desires 

an opportunity for oral comment, he or 

she should notify FRA in writing and 

specify the basis for the request. FRA 

will schedule a public hearing in 

connection with this proceeding if the 

agency received a written request for 

hearing by October 9, 2008. 

ADDRESSES: Anyone wishing to file a 

comment or request a public hearing 

should refer to Docket Number FRA– 

2006–26173 in such comment or 

request. You may submit your 

comments and related material or 

request for a public hearing by any one 

of the following methods: 

• Fax: 1–202–493–2251; 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590; 

• Hand Delivery: U.S. Department of 

Transportation, Docket Operations, 

West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays; or 

• Electronically through the Federal 

eRulemaking Portal. Go to http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Instructions: All submissions must 

include the agency name, docket name 

and docket number or Regulatory 

Identification Number (RIN) for this 

rulemaking. Note that all comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Please see the Privacy Act heading 

under Regulatory Notices. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov at any time or to 

U.S. Department of Transportation, 

Docket Operations, M–30, West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Arnel B. Rivera, Staff Director, U.S. 

Department of Transportation, Federal 

Railroad Administration, Office of 

Safety Analysis, RRS–22, Mail Stop 25, 

West Building 3rd Floor, Room W33– 

306, 1200 New Jersey Avenue, SE., 

Washington, DC 20590 (telephone: 202– 

493–1331); or Gahan Christensen, Trial 

Attorney, U.S. Department of 

Transportation, Federal Railroad 

Administration, Office of Chief Counsel, 

RCC–10, Mail Stop 10, West Building 

3rd Floor, Room W31–204, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590 (telephone: 202–493–1381). 

SUPPLEMENTARY INFORMATION: Note that, 

for brevity, references to a section in 

part 225 will omit ‘‘49 CFR’’; e.g. 

§ 225.5. References to the FRA Guide for 

Preparing Accident/Incident Reports in 

part 225 will omit ‘‘for Preparing 

Accident/Incident Reports,’’ and refer 

only to the ‘‘FRA Guide.’’ In addition to 

revising its regulations in the Code of 

Federal Regulations, FRA is proposing 

to revise the FRA Guide. The proposed 

FRA Guide is posted on FRA’s Web site 

at http://safetydata.fra.dot.gov/ 

officeofsafety, and click on ‘‘Click Here 

for Changes in Railroad Accident/ 

Incident Recordkeeping and 

Recording.’’ 

FRA is also revising its instructions 

for electronically submitting monthly 

reports to FRA and will publish said 

instructions in a revised Companion 

Guide: Guidelines for Submitting 

Accident/Incident Reports by 

Alternative Methods (Companion 

Guide). Upon completion by FRA the 

Companion Guide will be posted on 

FRA’s Web site at http:// 

safetydata.fra.dot.gov/officeofsafety, 

and click on ‘‘Click Here for Changes in 

Railroad Accident/Incident 

Recordkeeping and Recording.’’ 

Background 

In 1910 Congress enacted the 

Accident Reports Act, Public Law No. 

165, recodified as amended at 49 U.S.C. 

20901–20903, ‘‘Accidents and 

Incidents.’’ Title 49 U.S.C. 20901 

requires in part, that railroad carriers 

file with the Secretary of Transportation 

reports on ‘‘all accidents and incidents 

resulting in injury or death to an 

individual or damage to equipment or a 

roadbed arising from the carrier’s 

operations during the month’’ (emphasis 

added). Title 49 U.S.C. 20902 authorizes 

the Secretary of Transportation to 

investigate accidents and incidents. The 

Secretary delegated the authority to 

carry out the Accident Reports Act to 

the Administrator of FRA. 49 U.S.C. 

103(c)(1); 49 CFR 1.49(c)(11). FRA’s 

accident/incident reporting 

requirements were originally issued 

pursuant to the Accident Reports Act of 

1910. 

Sixty years later, Congress enacted the 

Federal Railroad Safety Act of 1970 

(FRSA). Public Law No. 91–458, 

recodified primarily at 49 U.S.C. chapter 

201, with penalty provisions in 49 

U.S.C. chapter 213, as amended. Section 

20103(a) provides that ‘‘[t]he Secretary 

of Transportation, as necessary, shall 

prescribe regulations and issue orders 

for every area of railroad safety 

supplementing laws and regulations in 

effect on October 16, 1970.’’ The 

Secretary delegated this authority to the 

Administrator of FRA. 49 CFR 1.49(m). 

FRA reissued its accident reporting 

regulations, 39 FR 43222, December 11, 

1974, under the added authority of 

FRSA to cover additional railroads, 

preempt the States from prescribing 

their own accident reporting 

regulations, and require reporting of 

occupational illnesses. FRA’s accident/ 

incident reporting requirements, 49 CFR 

part 225, are currently issued under the 

dual statutory authority of the Accident 

Reports Act of 1910 and FRSA. 

In 1970, Congress also enacted the 

Occupational Safety and Health Act 

(OSH Act). Public Law No. 91–596, 

codified as amended at 29 U.S.C. 651 et 

seq. While the OSH Act gives the 

Secretary of Labor a broad, general 

authority to regulate working conditions 

that affect the occupational safety and 

health of employees, it also recognized 

the existence of similar authority in 

other Federal agencies. Section 4(b)(1) 

of the OSH Act, codified at 29 U.S.C. 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52497 

653(b)(1), provides that the OSH Act 

shall not apply to working conditions as 

to which another Federal agency 

exercises statutory authority to prescribe 

or enforce standards or regulations 

affecting occupational safety or health. 

Because FRA exercises statutory 

authority to prescribe and enforce 

standards and regulations for all areas of 

railroad safety under the FRSA, OSHA’s 

jurisdiction may be preempted by FRA 

under section 4(b)(1) of the OSH Act 

with regards to certain matters related to 

railroad safety. See Policy Statement 

asserting FRA jurisdiction over matters 

involving the safety of railroad 

operations, 43 FR 10584, March 14, 

1978. 

With respect to employee injury and 

illness recordkeeping, however, the 

Occupational Safety and Health Review 

Commission ruled that the railroad 

industry must comply with OSHA 

requirements and must afford the 

Secretary of Labor’s representatives 

access to these records. Secretary of 

Labor v. Contrail (OSHRC Docket No. 

80–3495, 1982). In doing so the 

Commission indicated that employee 

injury and illness recordkeeping does 

not come within the purview of section 

4(b)(1) of the OSH Act and, therefore, 

OSHA’s jurisdiction has not been 

displaced by FRA’s employee injury and 

illness recordkeeping and reporting 

regulations. Nevertheless, the 

Commission did state, ‘‘[t]his does not 

mean that railroad industry employers 

must use the OSHA form, No. 200, 

mentioned in section [29 CFR] 

1904.2(a). Section 1904.2(a) allows an 

employer to maintain ‘an equivalent 

which is as readable and 

comprehensible [as the OSHA 200 form] 

to a person not familiar with it.’ ’’ Under 

OSHA’s current regulations, 49 CFR 

1904.3 states that ‘‘[i]f you create 

records to comply with another 

government agency’s injury and illness 

recordkeeping requirements, OSHA will 

consider those records as meeting 

OSHA’s Part 1904 recordkeeping 

requirements if OSHA accepts the other 

agency’s records under a memorandum 

of understanding with that agency, or if 

the other agency’s records contain the 

same information as this Part 1904 

requires you to record.’’ Accordingly, 

because FRA’s employee injury and 

illness recordkeeping and reporting 

requirements employ equivalent 

standards to those promulgated by 

OSHA, OSHA does not require railroad 

carriers to maintain OSHA records in 

addition to FRA records. Rather, 

railroad carriers are only required to 

report employee injuries and illnesses to 

FRA in accordance with FRA’s 

regulations. FRA makes all railroad 

employee injury and illness data 

available to OSHA for use in its 

complementary program of regulation, 

and provides this data to the Bureau of 

Labor Statistics (BLS) each year for 

inclusion in DOL’s national 

occupational injury and illness 

database. 

Part 225 contains a series of specific 

accident/incident recording and 

reporting requirements. The purpose of 

the FRA’s accident/incident 

recordkeeping and reporting regulations 

is ‘‘to provide the Federal Railroad 

Administration with accurate 

information concerning the hazards and 

risks that exist on the Nation’s railroads. 

FRA needs this information to 

effectively carry out its statutory 

responsibilities under 49 U.S.C. 

chapters 201–213. FRA also uses this 

information for determining 

comparative trends of railroad safety 

and to develop hazard elimination and 

risk reduction programs that focus on 

prevention railroad injuries and 

accidents.’’ 49 CFR 225.1. Part 225’s 

central provision requires that each 

railroad subject to part 225 submit to 

FRA monthly reports of all accidents 

and incidents that meet FRA’s reporting 

criteria. 49 CFR 225.11. Railroad 

accidents/incidents are divided into 

three groups, each of which correspond 

to the type of reporting form that a 

railroad must file with FRA: (1) 

Highway-rail grade crossing accidents/ 

incidents; (2) rail equipment accidents/ 

incidents; and (3) deaths, injuries and 

occupational illnesses. See 49 CFR 

225.19. 

In 1996, FRA published extensive 

amendments to its accident/incident 

reporting regulations. 61 FR 30940, June 

18, 1996, and 61 FR 67477, December 

23, 1996. This was the first major 

revision of the accident/incident 

reporting requirements since 1974. The 

primary purpose of the revision was to 

increase the accuracy, completeness, 

and utility of FRA’s accident database 

and to clarify certain definitions and 

regulatory requirements. Among other 

things, these amendments required 

railroads to adopt and comply with an 

internal control plan (ICP) to ensure 

accurate reporting of accidents and 

incidents. 

In 2003, FRA again published 

extensive amendments to its accident/ 

incident reporting regulations (FRA’s 

2003 Final Rule). 69 FR 10107–10140, 

March 3, 2003. The primary purpose of 

these revisions was to conform FRA’s 

accident/incident reporting 

requirements to OSHA’s newly revised 

occupational injury and illness 

recording and reporting requirements. 

66 FR 5916–6135, January 19, 2001 

(codified at 29 CFR parts 1904 and 

1952) (OSHA’s 2001 Final Rule). FRA’s 

2003 Final Rule also addressed other 

issues and provided for an alternative 

method of recording claimed 

occupational illnesses with the advent 

of Form FRA F 6180.107, ‘‘Alternative 

Record for Illness Claimed to be WorkRelated.’’

In this document, FRA proposes to 

amend its accident/incident reporting 

regulations in order to: Clarify 

ambiguous definitions and regulations; 

add necessary definitions; require the 

reporting of additional types of injuries 

to all persons; require the reporting of 

suicide data; include a comprehensive 

list of accident/incident reporting 

exceptions; allow for consolidated 

accident/incident reporting by 

integrated railroad systems; require 

railroads to complete (by amending the 

definition for ‘‘Accountable Injury or 

Illness’’) a Form FRA F 6180.98, 

‘‘Railroad Employee Injury and/or 

Illness Record’’ of all injuries and 

illnesses when such abnormal condition 

or disorder manifests within the work 

environment regardless of whether the 

condition or disorder is discernably 

caused by an event or exposure in the 

work environment; set forth 

requirements for railroad electronic 

recordkeeping systems for purposes of 

part 225; update regulatory text, as 

applicable; enhance the quality of 

information available for railroad 

casualty analysis; clarify and limit 

which highway-rail grade crossing 

fatalities must be telephonically 

reported to the National Response 

Center (NRC); clarify and refine the 

requirements and criteria for using and 

retaining Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work Related,’’ and the 

alternative railroad-designed record; 

eliminate the oath and notarization 

requirements for Form FRA F 6180.55, 

‘‘Railroad Injury and Illness Summary’’; 

allow for the electronic submission via 

the Internet of Forms FRA F 6180.54, 

‘‘Rail Equipment Accident/Incident 

Report’’; 6180.55, ‘‘Railroad Injury and 

Illness Summary’’; 6180.55a, ‘‘Railroad 

Injury and Illness Summary 

(Continuation Sheet)’’; 6180.57, 

‘‘Highway-Rail Grade Crossing 

Accident/Incident Report’’; and 

6180.81, ‘‘Employee Human Factor 

Attachment’’; set forth record retention 

requirements for certain accident/ 

incident recording and reporting records 

not previously addressed; and update 

FRA’s address information. In addition 

to proposing revisions to its regulations, 

FRA is proposing revisions to the FRA 

Guide and to certain accident/incident 

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52498 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

recording and reporting forms. The 

proposed FRA Guide and forms are 

posted for public notice and comment 

on FRA’s Web site at http:// 

safetydata.fra.dot.gov/officeofsafety, 

and click on ‘‘Click Here for Changes in 

Railroad Accident/Incident 

Recordkeeping and Recording.’’

FRA also requests comments and 

suggestions on four issues of concern. 

First, FRA requests comments and 

suggestions for any additional 

information that might be gathered on 

Form FRA F 6180.57, ‘‘Highway-Rail 

Grade Crossing Accident/Incident 

Report,’’ that would be useful in 

determining how and why highway-rail 

grade crossing accidents/incidents 

occur. 

Second, FRA requests comments and 

suggestions on whether FRA should 

require railroads to complete longitude 

and latitude blocks on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet)’’ (blocks 

5s and 5t) for trespassers only, and Form 

FRA F 6180.54, ‘‘Rail Equipment 

Accident/Incident Report’’ (blocks 50 

and 51). Currently, completion of 

longitude and latitude data on both of 

these forms is optional. 

Traditionally, FRA and the railroad 

industry have relied on the railroad 

milepost system to reference location, 

and in many cases, location data 

derived from the milepost system is 

accurate for short-term issues. Over the 

long-term, however, railroads do change 

mileposts during mergers and 

reorganizations. Also, mileposts can be 

inaccurate when a railroad is able to 

build a shorter link, or when a railroad 

does not remove old mileposts when 

replacement mileposts, which have a 

different starting location, are installed. 

Accordingly, both FRA and the 

transportation industry are moving 

aggressively to collection of geospatial 

data (i.e., longitude and latitude 

coordinates) in order to better 

understand transportation needs, take 

counter measures when there are 

problems with a specific area or 

transportation link, and facilitate 

planning. 

FRA is exploring the collection of 

longitude and latitude data (for 

trespassers only) on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet),’’ as a 

means of improving railroad safety in 

the area of trespasser injuries and 

fatalities. While there are no Federal 

regulations dealing with unauthorized 

access to (i.e., trespassing on) railroad 

property, FRA has significantly 

contributed to Operation Lifesaver, Inc. 

(a nonprofit organization devoted to 

highway-rail crossing safety and 

trespasser prevention programs) in 

hopes of reducing the number of 

trespasser incursions. FRA believes that 

the collection of longitude and latitude 

coordinates when a trespasser is injured 

is the beginning of the process to define 

‘‘hot spots’’ of unauthorized access to 

railroad property. Identification of such 

hot spots may be used to target areas for 

increased law enforcement surveillance 

by public and railroad security forces, 

and to assist Operation Lifesaver in 

reaching out to schools and other 

organizations in the hot zones for 

increased educational awareness of 

safety concerns around railroad 

operations. 

FRA is exploring the collection of 

longitude and latitude data on Form 

FRA F 6180.54, ‘‘Rail Equipment 

Accident/Incident Report,’’ as a means 

of improving railroad safety in the area 

of train accidents. FRA needs a 

permanent means of determining the 

location of an accident. This is 

especially meaningful when a release of 

hazardous materials or leakage of diesel 

fuel has occurred. Having the 

geographic coordinates for all train 

accidents will allow FRA to develop 

better inspection planning, identify 

locations of hazardous materials 

contamination affecting the health and/ 

or environment, and provide to the 

Transportation Security Administration 

another tool for security planning. 

Third, FRA is considering changing 

the method by which telephonic reports 

of accidents/incidents, as required by 

§ 225.9, are made to FRA. Under FRA’s 

current regulations, railroads are 

required to telephonically report certain 

accidents/incidents to the NRC, which 

in turn, provides notification of the 

accident/incident to FRA. FRA is 

reviewing whether it would be 

preferable for railroads to report these 

accidents/incidents directly to FRA via 

electronic transmission, and invites 

comments and suggestions on this issue. 

Fourth, FRA is proposing in this 

NPRM to require railroads to report to 

FRA on Form FRA F 6180.55a suicides 

and attempted suicides, otherwise 

referred to as ‘‘suicide data,’’ and 

requests comments addressing State 

access to such reports. Section § 225.1 

states that, ‘‘[i]ssuance of these 

regulations under the Federal railroad 

safety laws and regulations preempts 

States from prescribing accident/ 

incident reporting requirements. Any 

State may, however, require railroads to 

submit to it copies of accident/incident 

and injury/illness reports filed with 

FRA under this part, for accidents/ 

incidents and injuries/illnesses that 

occur in that State.’’ FRA realizes that 

suicide data may provide valuable 

information to State research and 

suicide prevention programs, and wants 

States to have needed access to suicide 

data. At the same time, however, FRA 

is concerned about the use and public 

availability of suicide data. Accordingly, 

FRA is requesting comments on how to 

ensure that restrictions on the use and 

public availability of suicide data at the 

State level remain consistent with those 

FRA has prescribed in proposed 

§ 225.41. Specifically, that suicide data 

(as defined in § 225.5) will not be 

included in any summaries of data on 

the number of injuries and illnesses 

associated with railroad operations; that 

suicide data is not publicly accessible; 

and that suicide data will only be 

available to the public in aggregate. 

Section-by-Section Analysis 

Technical Amendment: Throughout 

the rule text FRA has updated the 

agency’s address to reflect FRA’s 

relocation to the new U.S. Department 

of Transportation headquarters building. 

This revision affects §§ 225.7(a), 

225.11(b), 225.12(g)(3), and the 

introductory paragraph of § 225.21. 

Section 225.3 Applicability 

In this section, FRA proposes a 

technical amendment to the 

introductory text of paragraph (b) with 

respect to that paragraph’s reference to 

FRA’s required ICP elements. Currently, 

paragraph (b) refers only to ICP 

elements 1 through 10. FRA proposes to 

revise the paragraph to include element 

number 11 (added in FRA’s 2003 Final 

Rule), which requires railroads to 

include in their internal control plans a 

statement that specifies the name, title, 

and address of the custodian of the 

railroad’s Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work-Related,’’ records 

and all supporting documentation, as 

well as where the documents are 

located. See 68 FR 10107, 10139, March 

3, 2003. 

Section 225.5 Definitions 

FRA proposes to amend paragraph (1) 

of the definition of ‘‘Accident/incident’’

to conform to the language of the FRA 

Guide and to clarify: That a highwayrail grade crossing accident/incident is 

not limited only to ‘‘impact between an 

automobile, bus, truck, motorcycle, 

bicycle, farm vehicle or pedestrian’’ as 

stated in the current definition; that 

sidewalks, pathways, shoulders and 

ditches associated with the crossing are 

considered to be part of the crossing 

site; and that the term ‘‘highway user’’

includes pedestrians, cyclists, and all 

other modes of surface transportation, 

motorized and unmotorized. 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52499 

FRA proposes to amend paragraph (3) 

of the definition of ‘‘Accident/incident’’

to conform to the revised language 

proposed for § 225.19(d); and to 

reference, rather than explicitly list, the 

general reporting criteria set forth in 

§ 225.19(d). See Section-by-Section 

Analysis for § 225.19(d), ‘‘Primary 

groups of accidents/incidents; Death, 

injury and occupational illness.’’

FRA proposes to amend the definition 

of ‘‘Accountable injury or illness’’ to 

conform to the definition of ‘‘injury or 

illness’’ as proposed in this notice; to 

remove the word ‘‘activity’’ from the 

phrase ‘‘by an event, exposure, or 

activity in the work environment’’ as 

redundant since the definition of ‘‘event 

or exposure’’ as proposed in this notice 

is inclusive of activities; and to delete 

the phrase ‘‘not otherwise reportable’’

due to its to ambiguity and replace 

referenced text with the specification 

that an accountable injury or illness 

‘‘does not meet the general reporting 

criteria listed § 225.19(d)(1) through 

(d)(6).’’ See Section-by-Section Analysis 

for § 225.19(d), ‘‘Primary groups of 

accidents/incidents; Death, injury and 

occupational illness.’’ These changes are 

clarifying in nature and do not pose any 

change to FRA’s accident/incident 

recording or reporting requirements. 

FRA is also proposing to amend the 

definition of ‘‘Accountable injury or 

illness’’ related to injuries and illness 

that occur within the work 

environment. Specifically, FRA is 

proposing that when an abnormal 

condition or disorder of a railroad 

employee manifests within the work 

environment and causes or requires the 

railroad employee to be examined or 

treated by a qualified health care 

professional, but does not meet the 

general reporting criteria listed in 

§ 225.19(d)(1) through (d)(6); such 

condition or disorder is an accountable 

injury or illness regardless of whether 

the condition or disorder is discernably 

caused by an event or exposure in the 

work environment. When such 

condition or disorder manifests outside 

the work environment it is an 

accountable injury or illness if the 

condition or disorder is discernably 

caused by an event or exposure in the 

work environment. 

FRA’s purpose in making this 

amendment is to ensure that each 

potentially reportable injury and illness 

is tracked and evaluated. In many cases 

injuries and illness, and/or the signs 

and symptoms thereof, of one kind or 

another can be manifest in the work 

environment without the reason(s) (i.e., 

causes of or contributors to) being 

apparent. In such cases railroads may 

prematurely attribute the cause of the 

injury or illness solely to a non-workrelated event or exposure that occurred 

outside the work environment. 

Consequently, the railroad does not 

consider the injury or illness to be 

‘‘accountable’’ and does not complete a 

Form FRA F 6180.98, ‘‘Railroad 

Employee Injury and/or Illness Record’’

for that injury or illness. In many of 

these cases however, an event or 

exposure in the work environment may 

in fact be a cause of, or contributor to, 

the injury or illness, but because the 

railroad made a premature 

determination that the injury or illness 

is not work-related, the railroad may not 

subsequently perform adequate inquiry 

(e.g., communication with the employee 

when the employee returns to the work 

environment after treatment, review of 

medical records, etc.) to make an 

accurate causal determination. 

Ultimately, this type of oversight will 

result in the under-reporting of 

employee injuries and illnesses to FRA, 

and because the railroad did not 

complete a Form FRA F 6180.98 to 

initially record the injury or illness, no 

audit trail is created. Thus, FRA is 

unable to later evaluate the reportability 

of the injury or illness. In order to 

rectify this problem, FRA is proposing 

that the definition of ‘‘Accountable 

Injury or Illness’’ be amended to require 

railroads complete Form FRA F 6180.98 

records for all employee injuries and 

illnesses that involve signs or symptoms 

that surface at work, regardless of 

whether the injury or illness is 

discernably caused or contributed to by 

an event or exposure in the work 

environment. Such revision is necessary 

in order for FRA to effectively enforce 

its railroad injury and illness reporting 

requirements. Unless FRA has the 

opportunity to examine those injuries 

and illness which manifest in the work 

environment but are deemed as being 

not work-related (thus ‘‘nonreportable’’), 

as well as those deemed ‘‘reportable’’ by 

the railroad, it is difficult for FRA to 

determine whether a railroad is making 

appropriate reporting decisions. 

FRA proposes to amend the definition 

of ‘‘Accountable rail equipment 

accident/incident’’ to mean ‘‘a collision, 

derailment, fire, explosion, act of God, 

or other event involving the operation of 

railroad on-track equipment (standing or 

moving) that does not result in 

reportable damages greater than the 

current reporting threshold to railroad 

on-track equipment, signals, track, track 

structures, and roadbed.’’

Under the current definition, an 

accountable rail equipment accident/ 

incident must be both not reportable, 

and (if not attended to) disrupt railroad 

service. This revision eliminates the 

disruption of service criteria. The 

agency believes this change simplifies 

recording requirements related to 

accountable rail equipment accidents/ 

incidents, and will result in railroads 

maintaining a more complete set of 

records of accountable rail equipment 

accidents/incidents. 

FRA proposes to add a definition for 

‘‘Discernable cause.’’ FRA’s accident/ 

incident reporting regulations that 

concern railroad occupational casualties 

should be maintained, to the extent 

practicable, in general conformity with 

OSHA’s recordkeeping and reporting 

regulations to permit comparability of 

data on occupational casualties between 

various industries, to allow integration 

of railroad industry data into national 

statistical databases, and to improve the 

quality of data available for analysis of 

casualties in railroad accidents/ 

incidents. Moreover, maintaining such 

compatibility allows railroads to report 

occupational casualties only to FRA, 

rather than to OSHA and to FRA. 

OSHA’s regulations provide that ‘‘[i]f 

you create records to comply with 

another government agency’s injury and 

illness recordkeeping requirements, 

OSHA will consider those records as 

meeting OSHA’s Part 1904 

recordkeeping requirements if OSHA 

accepts the other agency’s records under 

a memorandum of understanding with 

that agency, or if the other agency’s 

records contain the same information as 

this Part 1904 requires you to record.’’

See 29 CFR 1904.3. 

Note that under OSHA’s regulations, 

the term ‘‘recording’’’ is used. Under 

FRA’s regulations and Guide, the term 

‘‘reporting’’ is used. FRA has always 

used the term ‘‘reporting’’ in its 

regulations and the FRA Guide, and 

because the Accident Reports Act of 

1910, as amended, requires ‘‘a railroad 

carrier [to] file a report * * * on all 

accidents and incidents * * *’’ 49 

U.S.C. 20901. 

With respect to employee injury and 

illness recording, OSHA’s 2001 Final 

Rule, states that ‘‘each employer * * * 

must record each fatality, injury and 

illness that is work-related; and is a new 

case; and meets one or more of the 

general recording criteria * * * or the 

application to specific cases.’’ 66 FR 

5916, 5945, January 19, 2001, codified at 

29 CFR 1904.4(a). OSHA’s 2001 Final 

Rule goes on to state that ‘‘[employers] 

must consider an injury or illness to be 

work-related if an event or exposure in 

the work environment either caused or 

contributed to the resulting condition or 

significantly aggravated a pre-existing 

injury or illness,’’ and that ‘‘[w]orkrelatedness is presumed for injuries and 

illnesses resulting from events or 

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exposures occurring in the work 

environment, unless an exception in [29 

CFR] 1904.5(b)(2) specifically applies.’’

66 FR 5916, 5946, January 19, 2001, 

codified at 29 CFR 1904.5(a). 

After OSHA’s 2001 Final Rule was 

published, the National Association of 

Manufacturers (NAM) filed a legal 

challenge to the final rule, with respect 

to (among other things) the final rule’s 

presumption of work-relatedness, in the 

United States District Court for the 

District of Columbia. On November 16, 

2001, OSHA and NAM entered into a 

settlement agreement to resolve NAM’s 

legal challenge. The parties then entered 

into a revised settlement agreement on 

November 29, 2001. The revised 

settlement agreement was published in 

the Federal Register at 66 FR 66943, 

December 27, 2001. As part of the 

NAM–OSHA settlement, the parties 

agreed to the following: 

Section 1904.5(a) states that ‘‘[the 

employer] must consider an injury or illness 

to be work-related if an event or exposure in 

the work environment either caused or 

contributed to the resulting condition or 

significantly aggravated a pre-existing 

condition. Work relatedness is presumed for 

injuries and illnesses resulting from events or 

exposures occurring in the work environment 

***’’ Under this language [29 CFR 

1904.5(a)], a case is presumed work-related 

if, and only if, an event or exposure in the 

work environment is a discernable cause of 

the injury or illness or of a significant 

aggravation to [sic] pre-existing condition. 

The work event or exposure need only be one 

of the discernable causes; it need not be the 

sole or predominant cause. 

Section 1904.5(b)(2) states that a case is not 

recordable if it ‘‘involves signs or symptoms 

that surface at work but result solely from a 

non-work-related event or exposure that 

occurs outside the work environment.’’ This 

language is intended as a restatement of the 

principle expressed in 1904.5(a), described 

above. Regardless of where signs or 

symptoms surface, a case is recordable only 

if a work event or exposure is a discernable 

cause of the injury or illness or of a 

significant aggravation to a pre-existing 

condition. 

Section 1904.5(b)(3) states that if it is not 

obvious whether the precipitating event or 

exposure occurred in the work environment 

or elsewhere, the employer ‘‘must evaluate 

the employee’s work duties and environment 

to decide whether or not one or more events 

or exposures in the work environment caused 

or contributed to the resulting condition or 

significantly aggravated a pre-existing 

condition.’’ This means that the employer 

must make a determination whether it is 

more likely than not that work events or 

exposures were a cause of the injury or 

illness, or a significant aggravation to a preexisting condition. If the employer decides 

the case is not work-related, and OSHA 

subsequently issues a citation for failure to 

record, the Government would have the 

burden of proving that the injury or illness 

was work-related.’’

In 2003, FRA revised its accident/ 

incident reporting regulations to 

conform, to the extent practicable, to 

OSHA’s revised requirements. 68 FR 

10108–10140, March 3, 2003. In doing 

so FRA took into account the NAM–

OSHA settlement agreement, in 

particular the agreement’s reference to 

the term ‘‘discernable’’’ to qualify or 

describe cause. FRA included the 

phrase ‘‘discernable cause’’ in its 

definitions of ‘‘Accident/incident,’’

‘‘Accountable injury or illness,’’ and 

‘‘Occupational illness’’ in § 225.5, and 

added the phrase to its reporting 

requirement for ‘‘Deaths, injuries and 

occupational illnesses’’ at § 225.19(d). 

While FRA did discuss the meaning of 

‘‘discernable cause’’ in the preamble of 

FRA’s 2003 Final Rule, see 68 FR 10108, 

10127, March 3, 2003, the agency did 

not explicitly define the term 

‘‘Discernable cause’’ in the rule text. In 

order to clarify the meaning of this term, 

FRA therefore proposes to include in 

§ 225.5 a definition for ‘‘Discernable 

cause’’ to mean, ‘‘a causal factor capable 

of being recognized by the senses or the 

understanding.’’ See Webster’s Third 

New International Dictionary, (1961). 

See also, Webster’s Third New 

International Dictionary, Unabridged, 

(1971). And to explain in the text of the 

definition that ‘‘[a]n event or exposure 

arising from the operation of a railroad 

is a discernable cause of (i.e., 

discernably caused) an injury or illness 

if, considering the circumstances, it is 

more likely than not that the event or 

exposure is a cause of the injury or 

illness. The event or exposure arising 

from the operation of a railroad need not 

be a sole, predominant or significant 

cause of the injury or illness, so long as 

it is a cause (i.e., a contributing factor).’’

For clarification purposes, FRA 

proposes to add a definition for ‘‘Event 

or exposure’’ to include an ‘‘incident, 

activity, or occurrence’’ to clarify that 

event or exposure is a term that is to be 

broadly interpreted and to eliminate 

redundant language in the rule text. 

FRA proposes to amend the definition 

of ‘‘Event or exposure arising from the 

operation of a railroad’’ in order to 

clarify its meaning. The term ‘‘event or 

exposure arising from the operation of a 

railroad’’ and its definition were added 

to § 225.5 in FRA’s 2003 Final Rule to 

replace ‘‘arising from the operation of a 

railroad’’ and its definition. The agency 

made this amendment to tailor more 

narrowly what types of accidents/ 

incidents were considered to ‘‘arise 

from the operation of a railroad’’ and 

therefore be potentially reportable. 68 

FR 10108, 10115–16, March 3, 2003. 

FRA’s current definition of ‘‘Event or 

exposure arising from the operation of a 

railroad’’ has a three-tier definition: 

The first tier defines ‘‘event or 

exposure arising from the operation of a 

railroad’’ broadly ‘‘with respect to any 

person on property owned, leased, or 

maintained by the railroad, an activity 

of the railroad that is related to its rail 

transportation business or an exposure 

related to the activity.’’ FRA proposes to 

revise this first tier of the definition by 

changing ‘‘any person’’ to ‘‘a person 

who is not an employee of the railroad.’’

Such change is consistent with the 

intent of the paragraph as stated in the 

preamble to FRA’s 2003 Final Rule: 

FRA developed a compromise position, 

proposing that railroads not be required to 

report deaths or injuries to persons who are 

not railroad employees that occur while off 

railroad property unless they result from a 

train accident, a train incident, a highwayrail grade crossing accident/incident, or a 

release of a hazardous material or other 

dangerous commodity related to the 

railroad’s rail transportation business. 

68 FR 10108, 10109, March 3, 2003. 

This lends to the accuracy of the 

definition, since tier one was intended 

to apply only to persons who are not 

railroad employees. FRA also proposes 

to amend this paragraph for purposes of 

clarification by removing the phrase 

‘‘any activity of the railroad’’ such that 

tier one of the definition, as proposed, 

would indicate that with respect to a 

person who is not an employee of the 

railroad, an event or exposure that 

occurs on property owned, leased, or 

maintained by the railroad and is 

related to the performance of the 

railroad’s rail transportation business. 

FRA is proposing to delete the reference 

to ‘‘activity’’ since the proposed 

definition of ‘‘event or exposure’’

includes ‘‘activity.’’

The second tier also defines ‘‘event or 

exposure arising from the operation of a 

railroad’’ broadly, but ‘‘with respect to 

an employee of the railroad (whether on 

or off property owned, leased or 

maintained by the railroad), an activity 

of the railroad that is related to the 

performance of its rail transportation 

business or an exposure related to that 

activity.’’ FRA proposes to amend this 

paragraph for purposes of clarification 

by revising the definition to state ‘‘with 

respect to a person who is an employee 

of a railroad, an event or exposure that 

is work-related.’’ This amendment thus 

removes the phrase ‘‘any activity of the 

railroad,’’ since the proposed definition 

of ‘‘event or exposure’’ includes 

‘‘activity.’’ It also removes the phrase 

‘‘(whether on or off property owned, 

leased, or maintained by the railroad)’’

and ‘‘that is related to the performance 

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of the railroad’s rail transportation 

business * * *’’ since ‘‘work-related’’

encompasses both of those 

requirements. 

The third tier defines ‘‘Event or 

exposure arising from the operation of a 

railroad narrowly with respect to a 

person who is neither on the railroad’s 

property nor an employee of the 

railroad, to include only certain 

enumerated events or exposures, i.e., a 

train accident, a train incident, or a 

highway-rail crossing accident/incident 

involving the railroad; or a release of 

hazardous material from a railcar in the 

railroad’s possession or a release of 

another dangerous commodity if the 

release is related to the railroad’s rail 

transportation business.’’ 68 FR 10108, 

10116, March 3, 2003. FRA proposes no 

substantive change to this tier of the 

definition, but is incorporating the tier 

three definition into the tier one 

(paragraph (1) of the definition of ‘‘event 

or exposure arising from the operation 

of a railroad’’) since both tier one and 

tier three apply to persons who are not 

railroad employees. 

The amendments to tier one, tier two 

and tier three of the definition of ‘‘Event 

or exposure arising from the operation 

of a railroad’’ will then be organized 

such that paragraph (1) will be 

applicable to non-employees and 

paragraph (2) will be applicable to 

employees. These amendments are 

clarifying measures and do not change 

the meaning of the term. The definition 

continues to mean, consistent with 

FRA’s 2003 Final Rule, ‘‘that a railroad 

would not have to report to FRA the 

death of or injury to an employee of a 

contractor to the railroad who is off 

railroad property (or deaths or injuries 

to any person who is not a railroad 

employee) unless the death or injury 

results from a train accident, train 

incident, or highway-rail grade crossing 

accident involving the railroad; or from 

a release of a hazardous material or 

some other dangerous commodity in the 

course of the railroad’s rail 

transportation business. In addition, 

FRA would require railroads to report 

work-related illnesses only of railroad 

employees and under no circumstances 

the illness of employees of a railroad 

contractor.’’ 68 FR 10108, 10116, March 

3, 2003. 

FRA proposes a technical amendment 

to the definition of ‘‘General reporting 

criteria’’ to include criteria number 

[225.19(d)] (6), ‘‘Illness or injury that 

meets the application of any of the 

[enumerated] specific case criteria,’’

which was inadvertently omitted in 

FRA’s 2003 Final Rule. 

FRA proposes to add a definition of 

‘‘Injury or illness’’ to mean ‘‘an 

abnormal condition or disorder,’’ (this is 

consistent with OSHA’s definition at 29 

CFR 1904.46), and to provide examples 

of injuries and illnesses. In doing so, 

FRA clarifies that pain is an injury or 

illness when it is sufficiently severe to 

meet the general reporting criteria listed 

in § 225.19(d)(1) through (d)(6). See 

OSHA’s Final Rule, 66 FR 5916, 6080, 

January 19, 2001. FRA also clarifies that 

a Musculoskeletal Disorder is an injury 

or illness. See OSHA’s Final Rule, 66 FR 

5916, 6017, January 19, 2001 and 68 FR 

38601, 38602, June 30, 2003. 

Incorporation of such definition does 

not represent any change to FRA’s 

current accident/incident recording and 

reporting requirements. The definition 

has been included in an effort to 

eliminate confusion as to what 

constitutes an injury or illness. FRA 

wishes to emphasize that injuries and 

illnesses are reportable only if they are 

new cases discernably caused or 

significantly aggravated by an event or 

exposure arising from the operation of a 

railroad, that meet one or more of the 

general reporting criteria. 

FRA proposes to amend the definition 

of ‘‘New case’’ to apply to all persons 

rather than only to employees. 

Correspondingly, FRA is replacing the 

phrase ‘‘in the work environment’’ to 

‘‘arising from the operation of a 

railroad’’ since the term ‘‘ work 

environment’’ also applies only to 

employees. Such change is consistent 

with the statutory requirement that 

railroads report to FRA ‘‘all accidents 

and incidents resulting in injury or 

death to an individual * * * arising 

from the carrier’s operations during the 

month,’’ not just accidents and 

incidents resulting in injury or death to 

railroad employees. See 49 U.S.C. 

20901. FRA considers this amendment a 

correction to the current definition that 

does not affect reporting requirements. 

FRA also proposes to include the 

descriptor ‘‘discernably’’ before 

‘‘caused’’ in the definition of ‘‘New 

case’’ to be consistent with the rest of 

the part 225 regulatory language. 

FRA proposes to amend the definition 

of ‘‘Qualified health care professional’’

to remove the example regarding an 

otolaryngologist. The definition 

currently states, ‘‘[f]or example, an 

otolaryngologist is qualified to diagnose 

a case of noise induced hearing loss and 

identify potential causal factors, but 

may not be qualified to diagnose a case 

of repetitive motion injuries’’ since, as 

a licensed physician, an 

otolaryngologist can diagnose 

conditions other than those related to 

the ears, nose, throat, and related 

structures of the head and neck. 

FRA proposes to amend the definition 

of ‘‘Railroad.’’ Currently, part 225 

defines ‘‘railroad’’ as ‘‘a person 

providing railroad transportation.’’ In 

order to attain better consistency with 

Congress’ 1994 revisions to 49 U.S.C. 

20102, FRA proposes to define 

‘‘railroad’’ as meaning ‘‘a railroad 

carrier,’’ and add a definition to § 225.5 

for ‘‘railroad carrier’’ as meaning a 

‘‘person providing railroad 

transportation.’’

Congress added the term ‘‘Railroad 

carrier’’ to 49 U.S.C. 20102 in 1994 

(Pub. L. No. 103–272, 108 Stat 745), as 

part of a larger effort ‘‘[t]o restate the 

laws related to transportation in one 

comprehensive title’’ and ‘‘attain 

uniformity [of language] within the 

title.’’ See House Report No. 103–180 at 

3, reprinted in 1994 U.S.C.C.A.N. 818, 

820. Specifically, Congress defined 

‘‘railroad carrier’’ at 49 U.S.C. 20102(2) 

as a ‘‘person providing railroad 

transportation,’’ in order to ‘‘distinguish 

between railroad transportation and the 

entity providing railroad 

transportation.’’ See House Report No. 

103–180 at 79, reprinted in 1994 

U.S.C.C.A.N. 818, 898. FRA’s definition 

of ‘‘railroad transportation’’ remains 

unchanged. 

FRA proposes to add a definition for 

‘‘Significant aggravation of a preexisting injury or illness.’’ This 

definition is consistent with that of 

OSHA as set forth at 29 CFR 

1904.5(b)(4) and the current version 

(effective May 1, 2003) of the FRA 

Guide. FRA proposes to add the 

definition to § 225.5 for clarification and 

ease of reference. 

FRA proposes to add a definition for 

‘‘Suicide data.’’ Consistent with FRA’s 

proposal to remove suicide and 

attempted suicide from its current 

§ 225.15 reporting exceptions (see 

Section-by-Section Analysis for 225.15, 

‘‘Accidents/Incident not to be 

reported’’), and begin collecting suicide 

related data, FRA proposes to add to 

§ 225.5 a definition for ‘‘Suicide data,’’

to mean data regarding the death of an 

individual due to that individual’s 

commission of suicide as determined by 

a coroner or other public authority; or 

injury to an individual due to that 

individual’s attempted commission of 

suicide as determined by a public 

authority. FRA emphasizes that only the 

death of or injury to the individual who 

committed the suicidal act is considered 

to be suicide data. FRA will not report 

suicide data to OSHA. FRA will not 

include suicide data (as defined in 

§ 225.5) in its periodic summaries of 

data on the number of injuries and 

illnesses associated with railroad 

operations. FRA will maintain suicide 

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data in a database that is not publicly 

accessible. Accordingly, suicide data 

will not be available on FRA’s Web site 

for individual reports or downloads. 

Suicide data will be available to the 

public in aggregate format on FRA’s 

Web site and via requests under the 

Freedom of Information Act. See 

§ 225.41, ‘‘Suicide data’’ as proposed in 

this NRPM. 

FRA proposes to amend the definition 

of ‘‘Work environment’’ to explain that 

the work environment means the 

establishment and other locations where 

on or more railroad employees are 

working or present as a condition of 

employment. Such addition brings 

additional clarity and better conforms 

FRA’s definition to OSHA’s definition at 

29 CFR 1904.5(b)(1). 

FRA proposes to revise the definition 

of ‘‘Work-related’’ by removing the 

words ‘‘incident, activity, * * * or the 

like’’ and replacing them with ‘‘event or 

exposure’’ since the definition of ‘‘event 

or exposure’’ as proposed in this section 

encompasses those terms. FRA also 

explains in the definition that an injury 

or illness is presumed work-related if an 

event or exposure in the work 

environment is a discernable cause of 

the resulting condition or a discernable 

cause of a significant aggravation to a 

pre-existing injury or illness; that the 

causal event need not be peculiarly 

occupational in nature so long as it 

occurs at work; that the causal event 

need only be a cause (i.e., contributory 

factor); and that if an injury or illness is 

within the presumption, the employer 

can rebut the work-relatedness only by 

showing that the case falls within an 

exception listed in 49 CFR 225.15. Such 

presumption is consistent with the 

NAM–OSHA settlement agreement, 66 

FR 66943, December 27, 2001, and with 

OSHA’s regulations which require that 

‘‘[employers] must consider an injury or 

illness to be work-related if an event or 

exposure in the work environment 

either caused or contributed to the 

resulting condition or significantly 

aggravated a pre-existing condition.’’ 29 

CFR 1904.5(a). OSHA’s regulation goes 

on to explain that ‘‘[w]ork-relatedness is 

presumed for injuries and illnesses 

resulting from events or exposures 

occurring in the work environment, 

unless an exception in [29 CFR] 

1904.5(b) specifically applies.’’ Id. At 29 

CFR 1904.5(b)(2), OSHA sets forth nine 

exceptions to its injury and illness 

reporting requirements. FRA’s reporting 

exceptions are currently set forth at 

§ 225.15 and in the FRA Guide. FRA is 

proposing in this Notice to include all 

FRA accident/incident reporting 

exceptions in § 225.15. See Section-bySection Analysis for § 225.15, 

‘‘Accidents/Incident not to be reported.’’

In cases where it is not obvious 

whether a precipitating event or 

exposure occurred in the work 

environment, the employer must 

evaluate the employee’s work duties 

and environment to decide whether it is 

more likely than not that an event or 

exposure at work contributed to the 

employee’s injury or illness. FRA’s 

requirement is consistent with that of 

OSHA at 29 CFR 1904.5(b)(3) where 

OSHA addresses how an employer 

should handle a case if it is not obvious 

whether the precipitating event or 

exposure occurred in the work 

environment, stating ‘‘in these 

situations, [the employer] must evaluate 

the employee’s work duties and 

environment to decide whether or not 

one or more events or exposures in the 

work environment either caused or 

contributed to the resulting condition or 

significantly aggravated a pre-existing 

condition’’ and with the NAM–OSHA 

settlement agreement, 66 FR 66943, 

December 27, 2001. 

FRA also wishes to clarify that an 

event or exposure that occurs in the 

work environment need not have a clear 

connection to a specific work activity, 

condition, or substance that is peculiar 

to the railroad transportation business 

in order to be an ‘‘event or exposure 

arising from the operation of a railroad.’’

Examples of events or exposures arising 

from the operation of a railroad include 

an employee tripping for no apparent 

reason while walking across a level 

floor; an employee being sexually 

assaulted by a co-worker; or an 

employee being injured by an act of 

violence perpetrated by one co-worker 

against a third party. See OSHA’s 2001 

Rule, 66 FR 5916, 5946, January 19, 

2001. In such cases the employee’s jobrelated tasks and exposures did not 

create or contribute to the risk that an 

injury or illness would occur. Id. Rather, 

these activities are events or exposures 

arising from the operation of a railroad 

because they occurred in the work 

environment. Likewise, normal body 

movements (e.g., walking, climbing a 

staircase, bending down, sneezing) 

engaged in by an employee at the time 

of injury are also events arising from the 

operation of a railroad, even if the body 

movement is not related to the 

employee’s job related tasks. See 66 FR 

5916, 5957–5958, January 19, 2001. 

Correspondingly, events or exposures 

involving contractors or volunteers that 

occur on property owned, leased or 

maintained by the railroad, also arise 

from the operation of a railroad even if 

they do not have a clear connection to 

a specific work activity, condition, or 

substance that is peculiar to the railroad 

transportation business. 

Section 225.6 Consolidated Reporting 

FRA proposes to add § 225.6 

addressing consolidated railroad 

accident/incident reporting for certain 

integrated railroad systems. 

Title 49 U.S.C. 20901 requires that 

each ‘‘railroad carrier’’ submit to FRA a 

monthly report of its accidents/ 

incidents. Title 49 U.S.C. 20102 defines 

a ‘‘railroad carrier’’ as a ‘‘person 

providing railroad transportation.’’

‘‘Person,’’ as defined by 1 U.S.C. 1 

‘‘include[s] corporations, companies, 

associations, firms, partnerships, 

societies, and joint stock companies, as 

well as individuals.’’ Generally, FRA 

has considered subsidiary corporations 

as discrete ‘‘persons’’ or ‘‘railroad 

carrier[s],’’ each individually 

responsible for complying with FRA’s 

accident/incident reporting 

requirements, regardless of the 

subsidiary’s affiliation with any other 

incorporated railroad. This 

interpretation is consistent with the 

general rule that the corporate parent 

shareholder is not liable for the debts of 

the subsidiary. As such, FRA has 

generally treated each incorporated 

‘‘railroad carrier’’ as an independent 

entity responsible for complying with 

Federal railroad safety laws, regardless 

of the railroad’s affiliation with any 

other incorporated entity. 

Due to the proliferation of mergers 

within the railroad industry however 

(since 1970, the dozens of Class I 

railroads then in existence have merged 

into an industry structure of just seven 

Class I railroads), incorporation is no 

longer a reliable indicator of who is 

truly ‘‘providing railroad 

transportation’’ since merged railroads 

do not always become a single legal 

entity. Many railroad mergers were 

structured so that the acquiring (i.e., 

parent) railroad allowed the target (i.e., 

subsidiary) railroad to survive as a 

separate legal entity after the merger. 

Acquiring railroads preferred this type 

of merger because certain rights and 

properties of the target railroad were 

more likely to remain intact than if the 

target disappeared. This proclivity still 

holds true. 

Because merged railroads may operate 

as independent entities, or as a single 

larger commonly controlled integrated 

railroad system, compliance with and 

enforcement of part 225 is increasingly 

difficult, since the operations of merged 

railroads often become so integrated that 

parent railroad corporations (and 

consequently FRA) are not necessarily 

able to disaggregate their operations, 

especially in terms of identifying which 

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subsidiary railroad employs a worker or 

owns the equipment or trackage 

involved in an accident/incident. As a 

result, accident and incident recording 

and reporting inaccuracies by the 

railroads are more likely to occur, and 

remain undiscovered by FRA, thus 

undermining the integrity of FRA’s 

accident and incident databases. For 

these reasons, Canadian National 

Railroad, in the latter half of 2004, 

requested that FRA allow them to report 

their operationally integrated 

subsidiary’s accidents/incidents on a 

consolidated basis, rather than 

discreetly. Upon review of the issue, for 

purposes of part 225 only, FRA 

proposes to adhere to the view that 

where a parent corporation dominates 

its subsidiary railroads and operates as 

a single, integrated United States 

railroad system, FRA may consider the 

dominating corporation as principal 

(i.e., the ‘‘provider of railroad services’’) 

for the entire system, and the subsidiary 

corporation(s) as agent, thus making the 

acts of the latter in effect the acts of the 

former. In other words, FRA may treat 

the parent corporation as the ‘‘railroad 

carrier’’ for that system. This means that 

the parent corporation is responsible for 

the system’s compliance with part 225, 

and that any time an FRA representative 

finds an instance of noncompliance by 

any of the subsidiaries making up the 

system, the FRA representative may 

recommend to FRA’s Office of Chief 

Counsel that a civil penalty be issued 

against the parent corporation. 

A parent corporation may request in 

writing that FRA treat its commonly 

controlled railroad carriers, which 

operate as a single, seamless, integrated 

United States rail system, as a single 

railroad carrier for purposes of part 225 

compliance. The written request must 

provide a list of the subsidiary railroads 

controlled by the parent corporation and 

an explanation as to how the subsidiary 

railroads operate as a single, seamless, 

integrated United States railroad system. 

If, upon review of this information, it 

is FRA’s belief that ‘‘the provider of 

railroad services’’ is actually the parent 

corporation, FRA may treat the parent 

corporation as the railroad carrier for 

purposes of part 225. If the agency 

grants the request, the parent 

corporation must enter into a written 

agreement with FRA specifying which 

subsidiaries are included in its railroad 

system, consenting to assume 

responsibility for compliance with part 

225 for all named subsidiaries making 

up the system, and consenting to 

guarantee any liabilities owed to the 

United States government that are 

incurred by its named subsidiaries for 

violating part 225. Any change to the 

subsidiaries making up the railroad 

system will require execution of an 

amended agreement. 

This interpretation is consistent with 

the Surface Transportation Board’s 

(STB) Decision Ex Parte No. 634 

(Proposal to Require Consolidated 

Reporting by Commonly Controlled 

Railroads) (November 7, 2001). In this 

decision, STB required that each group 

of railroads that operate as a single, 

integrated United States rail system 

whose cumulative operating revenues 

meet the Class I threshold, submit 

consolidated annual financial reports 

that combine the operations of all their 

commonly controlled railroads that 

operate as an integrated rail system 

within the United States. Prior to this 

decision, STB did not require 

commonly owned railroads to report on 

a consolidated basis. As such, families 

of railroads that were operated as an 

integrated system with cumulative 

operating revenues well above the $250 

million threshold were not required to 

file financial reports so long as the 

operating revenues of each individual 

railroad was less that $250 million. By 

requiring that all components of an 

integrated system be combined, STB 

asserts that it is able to gather more 

meaningful and accurate information on 

the large rail systems operating in the 

United States, and determine whether 

the railroad systems are Class I (large 

railroads), Class II (medium-sized 

railroads), or Class III (smaller 

railroads). Likewise, FRA believes that 

by treating all components of an 

integrated system as a single railroad, 

FRA will be able to gather more 

meaningful and accurate accident/ 

incident data. 

Section 225.9 Telephonic Reports of 

Certain Accidents/Incidents and Other 

Events 

FRA proposes to clarify its accident/ 

incident telephonic reporting 

requirements related to fatalities that 

occur at highway-rail grade crossings as 

a result of train accidents or train 

incidents. 

Currently, FRA requires railroads to 

report immediately, via telephone, to 

the NRC ‘‘a fatality at a highway-rail 

grade crossing as a result of a train 

accident or train incident.’’

§ 225.9(a)(2)(iii). FRA has found that 

confusion exists as to the applicability 

of this requirement when death does not 

actually occur at the scene of the 

highway-rail grade crossing accident/ 

incident, but some hours or days later, 

after the fatally injured person is taken 

to the hospital for treatment. 

Upon review, FRA proposes to revise 

the telephonic reporting requirement for 

highway-rail grade crossing fatalities to 

require that such fatalities must be 

telephonically reported only if death 

occurs within 24 hours of the accident/ 

incident. This proposal is consistent 

with Department of Transportation, 

Office of Inspector General’s November 

28, 2005, recommendation (Report No. 

MH–2006–016) to FRA that the FRA 

amend § 225.9 to clarify reporting 

requirements and include criteria that 

require railroads to report to NRC any 

death that occurs within 24 hours of a 

highway-rail grade crossing accident/ 

incident. 

FRA also proposes a technical 

amendment to paragraph (a)(2)(iv) by 

adding the words ‘‘or more’’ after 

$150,000 to clarify that the telephonic 

reporting requirement is triggered when 

a train accident results in damage of 

$150,000 or more to railroad and 

nonrailroad property. 

Section 225.11 Reporting of Accidents/ 

Incidents 

In this section, FRA proposes to list 

each primary accident/incident group 

described in § 225.19 (i.e., Highway-Rail 

Grade Crossing; Rail Equipment; and 

Death, Injury and Occupational Illness) 

by subsection. By identifying each 

group of accidents/incidents with a 

different subsection, FRA will be better 

able to access data and differentiate 

among data elements. For example, 

currently, if FRA issues a violation 

against a railroad for alleged noncompliance with § 225.11, FRA’s case 

tracking database captures this as a 

violation of § 225.11. With such limited 

information, FRA is unable to easily 

identify what type of reporting noncompliance is alleged (i.e., failure to 

report a highway-rail grade crossing 

accident/incident; failure to report a rail 

equipment accident/incident or failure 

to report an accident/incident involving 

a death, injury or occupational illness). 

Such capability will provide FRA with 

better and more useful data, as well as 

quicker access to the data. 

FRA also proposes to update this 

section to reflect the proposed 

provisions in § 225.37 regarding filing 

accident/incident reports with FRA via 

optical media (CD–ROM) and 

electronically via the Internet. 

§ 225.15 Accidents/Incidents Not To 

Be Reported 

In this section, FRA proposes to revise 

§ 225.15 to include a comprehensive list 

of injury/illness and rail equipment 

accident/incident reporting exceptions 

(formerly listed partially in § 225.15 and 

in the FRA Guide). As discussed in the 

Section-by-Section Analysis of § 225.5, 

‘‘Definitions’’ with respect to the 

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52504 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

definition of ‘‘Work-relatedness,’’

OSHA’s regulations require that 

‘‘[employers] must consider an injury or 

illness to be work-related if an event or 

exposure in the work environment 

either caused or contributed to the 

resulting condition or significantly 

aggravated a pre-existing condition.’’ 29 

CFR § 1904.5(a). OSHA’s regulation goes 

on to explain that ‘‘Work-relatedness is 

presumed for injuries and illnesses 

resulting from events or exposures 

occurring in the work environment, 

unless an exception in [29 CFR] 

1904.5(b) specifically applies.’’ 29 CFR 

1904.5 (a). FRA has established certain 

reporting exceptions in § 225.15 and has 

also adopted OSHA’s reporting 

exceptions in the current FRA Guide. 

FRA’s proposed list of exceptions 

includes both the FRA orientated 

exceptions and exceptions set forth by 

OSHA at 29 CFR 1904.5(b) as adopted 

by FRA. Upon drafting this Notice to 

incorporate the reporting exceptions 

into this section, FRA reviewed the 

applicability of each injury and illness 

reporting exception as related to the 

class of injured person, and incorporates 

this information into the rule text. 

In making this revision, FRA leaves 

paragraph (a) substantively unchanged. 

In paragraph (b), FRA addresses 

reporting exceptions for Class A—

Worker on Duty—Employee injuries and 

illness. Paragraph (b)(1) retains the 

current paragraph (b) reporting 

exception relating to injuries and 

illnesses occurring in living quarters. To 

paragraph (b) FRA adds additional 

reporting exceptions applicable to 

Employees on Duty—Class A 

(paragraphs (b)(2) through (b)(3)). These 

exceptions do not affect a railroad’s 

obligation to report to FRA Class B—

Employee not on duty injuries. 

Paragraph (c) contains reporting 

exceptions applicable to all employees 

(whether on or off duty). With respect 

to the reporting exception listed in 

paragraph (c)(3), FRA wishes to clarify 

that an injury or illness that is solely the 

result of an employee eating, drinking, 

or preparing food or drink for personal 

consumption is not reportable. It does 

not matter if the employee bought the 

food on the employer’s premises or 

brought the food into work. For 

example, if the employee is injured by 

choking on a sandwich while in the 

employer’s establishment, the case 

would not be considered work-related. 

If, however, the employee is made ill by 

ingesting food contaminated by 

workplace contaminants (such as lead), 

or gets food poisoning from food 

supplied by the employer, the case 

would be considered reportable if the 

case meets the general reporting criteria 

set forth at § 225.19(d)(1)–(d)(6). 

In paragraph (d), FRA addresses the 

applicability of the reporting exceptions 

listed in paragraph (b) and (c) to 

contractors and volunteers. The 

reporting exceptions for employee 

injuries and illnesses apply equally to 

volunteer injuries and illnesses and to 

contractor injuries (contractor illnesses 

are not reportable to FRA). Because an 

injury to a contractor, or injury to or 

illness of a volunteer, must occur on 

property owned, leased or maintained 

by the railroad (rather than in the work 

environment), any reference to the term 

‘‘work environment’’ in paragraph (b) is 

construed to mean, for the purposes of 

paragraph (d) only, on property owned, 

leased, or maintained by the railroad. 

The application of the exceptions as 

stated in paragraph (d) does not reflect 

any change to FRA’s provisions, but is 

included to clarify the applicability of 

the reporting exceptions to contractors 

and volunteers. Paragraph (e) addresses 

reporting exceptions for rail equipment 

accidents/incidents which are currently 

included in the FRA Guide. 

The agency believes these exceptions 

should be incorporated into the rule, 

and that doing so will provide a better 

understanding of FRA’s employee injury 

and illness reporting requirements. The 

reporting exceptions do not affect a 

railroad’s obligation to maintain records 

of accidents/incidents as required by 

§ 225.25 (Form FRA F 6180.98, 

‘‘Railroad Employee Injury and/or 

Illness Record’’ and Form FRA F 

6180.97, ‘‘Initial Rail Equipment 

Accident/Incident Record’’), as 

applicable. 

FRA also proposes to eliminate from 

the reporting exceptions suicides and 

attempted suicides. In doing so FRA is 

proposing that casualties due to suicides 

and attempted suicides, that meet the 

general reporting criteria listed in 

§ 225.19(d)(1) through (d)(6), be 

reported to the agency on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet),’’ as a 

new category of data called ‘‘suicide 

data.’’ Under the proposed system, a 

fatality to a person due to that person’s 

commission of suicide as determined by 

a coroner or other public authority; or 

a reportable injury to a person due to 

that person’s attempt to commit suicide 

as determined by a public authority, 

would be reported to FRA regardless of 

the need for other reporting of the event 

(i.e., the suicide resulted in a reportable 

train accident or highway-rail grade 

crossing collision). These suicide data 

cases would not be reported to OSHA by 

FRA. FRA will not include suicide data 

(as defined in § 225.5) in its periodic 

summaries of data on the number of 

injuries and illnesses associated with 

railroad operations. FRA will maintain 

suicide data in a database that is not 

publicly accessible. Accordingly, 

suicide data will not be available on 

FRA’s Web site for individual reports or 

downloads. Suicide data will, however, 

be available to the public in aggregate 

format on FRA’s Web site and via 

requests under the Freedom of 

Information Act (FOIA). For additional 

information FOIA request see FRA’s 

Web site at http://www.fra.dot.gov/us/ 

foia. Suicide data counts will be 

included in casualty counts on Forms 

FRA F 6180.57, ‘‘Highway-Rail Grade 

Crossing Accident/Incident Report,’’

and FRA F 6180.54, ‘‘Rail Equipment 

Accident/Incident Report,’’ in order that 

number of casualties reported to FRA on 

Form FRA F 6180.55a, ‘‘Railroad Injury 

and Illness Summary (Continuation 

Sheet),’’ for the month is consistent with 

the number of casualties reported to 

FRA on each of these accident/incident 

reporting forms. See § 225.41, ‘‘Suicide 

data.’’ See also Section-by-Section 

Analysis for § 225.5, ‘‘Definitions,’’ and 

Appendix H, ‘‘Forms,’’ for additional 

information. 

FRA believes that it is important to 

collect data on suicides. Death by 

suicide is a national problem as 

indicated by the fact that more than 

30,000 Americans die by suicide each 

year. Currently, there are no reliable 

reports about how many of these deaths 

occur on railroad property. The 

California Public Utilities Commission 

indicates that more than 55 percent of 

pedestrian railroad fatalities in 

California are attributed to suicide, and 

according to the American Association 

of Suicidology, railroads that have 

tracked probable suicides on the rail 

system report that suicides are 

responsible for 39 percent of pedestrian 

fatalities. Additionally, a March 3, 2005, 

Chicago Tribune article, ‘‘Suicide is Top 

Cause of Train Track Deaths; State 

Looks for Ways to Prevent Fatalities,’’

indicates that in 2004, there were 30 

probable suicide deaths and an 

additional three attempts involving 

trains in Chicago alone, and that suicide 

was the leading cause of rail-related 

fatalities in Illinois for 2004, which led 

Illinois to implement a systematic 

tracking program of such incidents on 

rail property. This information 

illustrates the fact that there are a large 

number of fatalities occurring on 

railroad property without any national 

initiative to collect data that might be 

used to address these events. 

Since it appears that suicides 

contribute significantly to the total 

number of fatalities that are occurring 

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on railroad tracks, it is appropriate to 

report suicides in addition to the other 

causes of death in the industry. By 

requiring the information be reported as 

suicide data, these fatalities will not be 

included in the normally reported 

fatality data. These new data may help 

FRA, organizations promoting safety on 

and around railroad property, and 

suicide prevention agencies, assess the 

problem and develop programs to 

decrease the incidence of suicides by 

train. 

FRA notes that the collection of 

suicide data will also aid the Federal 

Transit Administration (FTA) in its 

collection and analysis of commuter 

railroad accidents, since FRA provides 

certain commuter railroad safety data to 

FTA. FTA relies on FRA to provide to 

it data on the types of accidents 

occurring on commuter rail, their 

primary causes, and the consequences, 

in terms of fatalities (which for FTA 

includes suicides under 49 CFR part 

659), injuries and property damage. The 

data FRA provides to FTA, however, is 

somewhat incomplete, in that FRA 

cannot provide suicide data to FTA. 

Consequently, FTA, which uses this 

information to better inform their 

assessments of safety plans and hazard 

analysis performed by commuter rail 

grantees applying for FTA grants, must 

work with an incomplete data set. 

In order for FRA to capture suicide 

data, FRA proposes to require railroads 

to indicate suicide or attempted suicide 

on Forms FRA F 6180.55a, ‘‘Railroad 

Injury and Illness Summary 

(Continuation Sheet)’’; FRA F 6180.54, 

‘‘Rail Equipment Accident/Incident 

Report’’; and FRA F 6180.57, ‘‘HighwayRail Grade Crossing Accident/Incident 

Report’’ as follows: 

(1) Form FRA F 6180.55a—FRA 

proposes to require an ‘‘X’’

representative of ‘‘suicide or attempted 

suicide’’ be placed in ‘‘Special Cause 

Code’’ block 5r. FRA also proposes to 

change the title of block 5m, currently 

‘‘Result,’’ to ‘‘Tools.’’ This change is a 

correction to the current form and is 

necessary to maintain consistency with 

types of Circumstance Codes in 

Appendix F of the FRA Guide. 

(2) Form FRA F 6180.54—FRA 

proposes to add four Miscellaneous 

Cause Codes for use in block 38 as 

follows: (i) Code M309 ‘‘Suicide 

(Highway-Rail Grade Crossing 

Accident)’’; (ii) Code M310 ‘‘Attempted 

Suicide (Highway-Rail Grade Crossing 

Accident)’’; (iii) Code M509 ‘‘Suicide 

(Other Misc.)’’; and (iv) Code M510 

‘‘Attempted Suicide (Other Misc.)’’. 

These codes would be added to 

Appendix C, ‘‘Train Accident Cause 

Codes’’ to refer to ‘‘Suicide or 

Attempted Suicide’’ for use in ‘‘Primary 

Cause Code’’ block 38. Railroads would 

also be required to include suicides and 

attempted suicides in the casualty 

counts in blocks 46, 47, and 48, as 

applicable. 

(3) Form FRA F 6180.57—FRA 

proposes to add to block 41, currently 

titled ‘‘Driver Action,’’ (FRA is 

proposing to change this title to 

‘‘Highway User Action,’’ for additional 

information see Changes to FRA Guide, 

section N, ‘‘Appendix H, ‘‘Forms’’, 

subsection 8, ‘‘FRA Form FRA F 

6180.57’’) a selection for ‘‘Suicide or 

Attempted Suicide.’’ Railroads would 

also be required to include suicides and 

attempted suicides in the casualty 

counts in blocks 46, 49, and 52, as 

applicable. See Section-by-Section 

Analysis for Appendix H, ‘‘Forms’’ for 

additional information. 

FRA notes that it is also concerned 

that suicides are being reported as 

trespasser fatalities, because railroads 

do not always make reasonable inquiry 

in their efforts to determine the cause of 

death. In fact, FRA has found that a 

number of reported trespasser fatalities 

are actually suicides. Accordingly, FRA 

is revising Chapter 6 of the FRA Guide 

to clarify that in order to fulfill its 

responsibilities to maintain accuracy in 

reporting, a railroad must try to obtain 

documentation indicating the cause of 

death by contacting the coroner or other 

public official by telephone and, if 

unsuccessful in obtaining the needed 

information, in writing. The railroad 

must continue its efforts to obtain this 

information for a period of six months 

following the month in which the 

fatality occurred. The railroad must 

keep a record of its efforts to obtain such 

documentation. This record and any 

documentation obtained must be 

available for review and copying by an 

FRA representative under the same 

criteria as set forth in § 225.35(b). 

Section 225.17 Doubtful Cases 

In this section, FRA proposes to revise 

part 225 by redesignating the ‘‘Alcohol 

or Drug Involvement’’ provisions 

currently contained in this paragraph 

(d) to a newly added § 225.18. FRA has 

often observed that the inclusion of the 

two unrelated topics in one section has 

led to confusion among interested 

parties. The move is, therefore, intended 

to reduce possible confusion and does 

not pose any substantive change to 

FRA’s current accident/incident 

reporting requirements. FRA also 

proposes a technical amendment to the 

first sentence of paragraph (a) by 

inserting the word ‘‘of,’’ which was 

inadvertently omitted, between the 

words ‘‘officer’’ and ‘‘a railroad’’

revising the sentence to read: ‘‘The 

reporting officer of a railroad * * *.’’

Section 225.18 Alcohol or Drug 

Involvement 

As stated above, FRA proposes to add 

a new section, § 228.18, and redesignate 

the Alcohol and Drug provisions 

currently contained in § 225.17(d) to a 

new section, § 225.18, for clarity 

purposes only. FRA does propose 

technical amendments to proposed 

paragraph § 225.18(b) (currently 

§ 225.17(d)(2)) changing the word ‘‘title’’

to ‘‘chapter’’ to reference the correct 

term and inserting ‘‘49 CFR’’ in front of 

the reference to § 219.209 for clarity. 

FRA also proposes to amend § 225.18(d) 

(currently § 225.17(d)(4)) by changing 

the word ‘‘paragraph’’ to ‘‘section’’ to 

accommodate the proposed redesigation 

of § 225.17(d) to § 225.18(a)–(d). 

Section 225.19 Primary Groups of 

Accidents/Incidents 

In this section, FRA proposes to revise 

paragraph (d) to clarify the agency’s 

existing reporting requirements for 

death, injury and occupational illness 

and to further conform those 

requirements to OSHA’s recordkeeping 

and reporting regulations. 

FRA’s accident/incident reporting 

regulations that concern railroad 

occupational casualties should be 

maintained, to the extent practicable, in 

general conformity with OSHA’s 

recordkeeping and reporting regulations 

to permit comparability of data on 

occupational casualties between various 

industries, to allow integration of 

railroad industry data into national 

statistical databases, and to improve the 

quality of data available for analysis of 

casualties in railroad accidents/ 

incidents. See Section-by-Section 

Analysis for § 225.5, ‘‘Definitions’’ with 

respect to ‘‘Discernable cause.’’

Moreover, maintaining such 

compatibility allows railroads to report 

occupational casualties only to FRA 

rather than to OSHA and to FRA. See 29 

CFR 1904.3. 

With respect to employee injury and 

illness recording, OSHA’s regulations 

requires that ‘‘each employer * * * 

must record each fatality, injury and 

illness that is work-related; and is a new 

case; and meets one or more of the 

general recording criteria * * * or the 

application to specific cases.’’ 29 CFR 

1904.4(a). 

By rewording paragraph (d) to more 

closely model OSHA’s wording, FRA is 

better conforming its reporting 

requirements to that of OSHA. FRA is 

also clarifying that only new cases are 

reportable. The current regulation 

requires that the injury or illness must 

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52506 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

be a new case or a significant 

aggravation of a pre-existing injury or 

illness. FRA therefore proposes, that to 

be reportable, a significant aggravation 

of a pre-existing case must be a ‘‘new 

case’’ (i.e., a case in which either the 

employee has not previously 

experienced a reported injury or illness 

of the same type that affects the same 

part of the body, or the employee 

previously experienced a reported 

injury or illness of the same type that 

affected the same part of the body but 

had recovered completely (all signs had 

disappeared) from the previous injury or 

illness and an event or exposure in the 

work environment caused the signs or 

symptoms to reappear). 

FRA also proposes to amend 

paragraph (d) by revising the general 

reporting criteria, specifically paragraph 

(d)(2), which currently states, ‘‘injury to 

any person that results in medical 

treatment,’’ to include ‘‘significant 

injury to any person’’ and ‘‘loss of 

consciousness to any person.’’ Failure to 

include these classes of injuries as 

reportable for ‘‘any person’’ rather than 

just railroad employees in the general 

criteria in the agency’s 2003 Final Rule 

(68 FR 10107, March 3, 2003), has 

resulted in FRA not capturing data for 

non-employees with respect to 

significant injuries. 

In addition, FRA proposes to amend 

paragraph (d)(6)(v) to remove the word 

‘‘independently’’ for purposes of clarity. 

As explained in the Section-by-Section 

Analysis the § 225.5 definition of 

‘‘Injury or Illness,’’ MSD’s are injuries 

and illnesses under the rule and are 

subject to the same recording criteria 

that apply to other injuries and 

illnesses. 

Lastly, FRA proposes to amend 

paragraph (d)(6) to include covered data 

cases. The addition of covered data 

cases to § 225.19(d) is a technical 

amendment and intended to correct the 

inadvertent omission of the criteria in 

the current rule text. The addition does 

not alter FRA’s reporting criteria or its 

policy on covered data as stated in 

§ 225.39. 

Section 225.21 Forms 

In this section, FRA proposes to 

amend paragraph (j) in relation to the 

use of Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work-Related.’’

Specifically, FRA is proposing to make 

use of the Form FRA F 6180.107, in 

place of Form FRA F 6180.98, ‘‘Railroad 

Employee Injury and/or Illness Record,’’

optional rather than mandatory, and to 

amend and redesignate the instructions 

for use of the form currently set forth at 

§ 225.21(j) to § 225.25(i) under the 

section entitled ‘‘Recordkeeping.’’ See 

Section-by-Section Analysis for 

§ 225.25, ‘‘Recordkeeping,’’ for 

additional information. 

Section 225.25 Recordkeeping 

In this section, FRA proposes to 

eliminate from paragraph (a) the words 

‘‘that arise from the operation of the 

railroad’’ in order to maintain 

continuity with the agency’s proposed 

definition of ‘‘accountable injury or 

illness.’’ See Section-by-Section 

Analysis for § 225.5, ‘‘Definitions,’’ for 

additional information. Moreover, such 

language is redundant with respect to 

reportability, as § 225.19(d) clearly 

indicates an injury or illness is only 

reportable if an event or exposure 

arising from the operation of a railroad 

is a discernable cause of the resulting 

condition or a discernable cause of a 

significant aggravation to a pre-existing 

injury or illness. 

FRA also proposes to revise the 

criteria for using Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work-Related’’ and sets 

forth all of the information that must be 

included in an alternative railroaddesigned record that may be used in lieu 

of the Form FRA F 6180.107. 

Prior to FRA’s most recent 

amendments to part 225 in 2003, FRA 

required all accountable and reportable 

injuries and illnesses be recorded on 

Form FRA F 6180.98, ‘‘Railroad 

Employee Injury and/or Illness Record,’’

or an equivalent record containing the 

same information. The subset of those 

cases that qualified for reporting were 

then reported to FRA on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet).’’ If the 

case was not reported, the railroad was 

required to state, on Form FRA F 

6180.98, ‘‘Railroad Employee Injury 

and/or Illness Record,’’ or the 

equivalent record, the reason the injury 

or illness was not reportable. According 

to the final rule preamble, 68 FR 10107, 

10118, March 3, 2003: 

[a]lthough this system has generally worked 

well, problems have arisen with respect to 

accounting of claimed occupational illnesses. 

As further explained below, railroads are 

subject to tort-based liability for illnesses and 

injuries that arise as a result of conditions in 

the workplace. By their nature, many 

occupational illnesses, particularly repetitive 

stress cases, may arise either from exposures 

outside the workplace, inside the workplace, 

or a combination of the two. Accordingly, 

issues of work-relatedness become very 

prominent. Railroads evaluate claims of this 

nature using medical and ergonomic experts, 

often relying upon job analysis studies as 

well as focusing on the individual claims. 

With respect to accounting and 

reportability under part 225, railroad 

representatives asserted their concern that 

mere allegations (e.g., receipt of a complaint 

in a tort suit naming a large number of 

plaintiffs) not give rise to a duty to report. 

They added that many such claims are 

settled for what amounts to nuisance values, 

often with no admission of liability on the 

part of the railroad, so even the payment of 

compensation is not clear evidence that the 

railroad viewed the claim of workrelatedness as valid. 

Although sympathetic to these concerns, 

FRA was disappointed in the quality of data 

provided in the past related to occupational 

illness. Indeed, in recent years the number of 

such events reported to FRA has been 

extremely small. FRA has an obligation to 

verify, insofar as possible, whether the 

railroad’s judgments rest on a reasonable 

basis, and discharging that responsibility 

requires that there be a reasonable audit trail 

to verify on what basis the railroad’s 

decisions were made. 

As a result, FRA established at 

§ 225.25(i)(1) a separate category of 

claimed illnesses to be recorded on a 

new form, Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work Related.’’ This 

category is comprised of: Illnesses for 

which there is insufficient information 

to determine whether the illness is 

work-related; illness for which the 

railroad has made a preliminary 

determination that the illness was not 

work-related; and illnesses for which 

the railroad has made a final 

determination that the illness is not 

work-related. 

For any case determined to be 

reportable, under § 225.25(i)(2) the 

railroad has been required to remove the 

designation ‘‘illness claimed to be workrelated’’ and transfer the record to the 

reporting officer for retention and 

reporting in the normal manner. In the 

event the railroad determined the case 

was not reportable, § 225.25(i)(3) 

requires that the railroad record an 

explanation in ‘‘narrative’’ block 19 of 

Form FRA F 6180.107, ‘‘Alternative 

Record for Illnesses Claimed to be 

Work-Related,’’ of the reason(s) the 

railroad made that determination, 

making reference to the ‘‘most 

authoritative’’ information relied upon. 

FRA believed that this system of 

accounting for contested illnesses 

would focus responsibility for reporting 

decisions and provide an appropriate 

audit trail. In addition, FRA thought 

that it would result in a body of 

information that could be used for 

research into the causes of prevalent 

illnesses, particularly in the case of 

musculoskeletal disorders. See 68 FR 

10107, 10118, March 3, 2003. 

Unfortunately, this has not been the 

case. 

Rather than use the Form FRA F 

6180.107, ‘‘Alternative Record for 

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Illnesses Claimed to be Work-Related,’’

to record only those illnesses for which 

the railroad: has insufficient 

information to determine whether the 

illness is work-related; has made a 

preliminary determination that the 

illness is not work-related; or has made 

a final determination that the illness is 

not work-related, FRA found that 

frequently railroads are recording all 

occupational illnesses on Form FRA F 

6180.107 as a matter of practice even 

before evaluating the sufficiency of 

information provided and/or workrelatedness, and that railroads allowed 

these records to remain unevaluated for 

periods of several months or more 

without being updated or reviewed for 

work-relatedness. Moreover, FRA has 

found that railroads are not creating the 

Form FRA F 6180.107 record no later 

than seven working days after receiving 

information or acquiring knowledge that 

an employee is claiming they have 

incurred an occupational illness, as 

required by the FRA Guide. 

Consequently, this system of accounting 

has not focused responsibility for 

reporting decisions, not provided an 

appropriate audit trail, not resulted in a 

body of information that can be used in 

the future for research into the causes of 

prevalent illnesses, and has not been 

helpful in correcting the underreporting of occupational illnesses to 

FRA. 

In order to correct this problem, FRA 

proposes to refine the circumstances 

and procedures related to the recording 

of claimed occupational illnesses on 

Form FRA F 6180.107, ‘‘Alternative 

Record for Illnesses Claimed to be 

Work-Related.’’ Specifically, FRA 

proposes to allow the use of the Form 

FRA F 6180.107 to record only those 

claimed occupational illnesses for 

which the railroad carrier has not 

received, from the employee or their 

representative, information sufficient to 

determine whether the occupational 

illness is work-related. FRA’s proposal 

also includes, among other things, 

requirements that railroads: enter each 

illness claimed to be work-related on 

the record no later than seven working 

days after receiving information or 

acquiring knowledge that an employee 

is claiming they have incurred an 

occupational illness; make a good faith 

effort to obtain information necessary on 

occupational illness cases to make a 

reporting decision by December 1 of the 

next calendar year; document the 

receipt of new or additional case 

information in ‘‘narrative’’ block 19 of 

Form FRA F 6180.107 within seven 

days of receipt and to re-evaluate the 

case in light of the new information 

within 30 days of receipt of the 

information; complete a Form FRA F 

6180.98 for any claimed occupational 

illness case determined to be 

accountable or reportable within seven 

days of making such determination; to 

retain the record in accordance with the 

provisions set forth in § 225.27 and 

report the illness in accordance with 

regular reporting requirements; and 

provide complete narratives on Form 

FRA F 6180.107 for those cases the 

railroad determines are not reportable. 

The proposal also specifically defines 

what data elements an alterative 

railroad-designed Form FRA F 6180.107 

must contain. 

FRA proposes to amend the 

requirement at paragraph § 225.25(b)(6) 

so that the alternative railroad-designed 

record for Form FRA F 6180.98, 

‘‘Railroad Employee Injury and/or 

Illness Record,’’ require the input of the 

‘‘Employee identification number’’ only, 

to eliminate for privacy reasons the 

employee social security number 

option. FRA is proposing a like 

requirement for the alternative railroaddesigned record for Form FRA F 

6180.107, ‘‘Alternative Records for 

Illnesses Claimed to be Work-Related.’’

FRA is also proposing corresponding 

changes for Forms FRA F 6180.98 and 

6180.107. See Section-by-Section 

Analysis for Appendix H, ‘‘Forms.’’

FRA also proposes to replace the term 

‘‘log entry’’ at § 225.25(b)(28) with 

‘‘record’’ and ‘‘report’’ at § 225.25(e)(28) 

with ‘‘record.’’ Both of these sections 

refer to ‘‘records,’’ specifically 

alternative railroad-designed Form FRA 

F 6180.98, ‘‘Railroad Employee Injury 

and/or Illness Record’’ and alternative 

railroad-designed Form FRA F 6180.97, 

‘‘Initial Rail Equipment Accident/ 

Incident Record,’’ respectively. This 

amendment is merely technical and is 

not intended by the agency to affect any 

substantive change. 

FRA also proposes to amend the 

requirements for these alternative 

railroad-designed records by amending 

§§ 225.25(b)(28) and (e)(28), and 

proposed (j)(25), respectively, to reflect 

that the date required is the initial date 

the form was signed/completed. FRA 

finds it necessary to make such change 

because certain railroads do not retain 

the initial date a record was completed, 

but only the date of the most recent 

update to the record. Consequently, 

FRA is unable to discern if the railroad 

entered each reportable and accountable 

injury and illness and each reportable 

and accountable rail equipment 

accident/incident on the appropriate 

record, as required by § 225.25(a) 

through (e), no later than seven working 

days after receiving information or 

acquiring knowledge that an injury or 

illness or rail equipment accident/ 

incident has occurred, as required by 

§ 225.25(f). FRA believes that specifying 

the date which is required to be 

maintained on the record will resolve 

any confusion regarding the 

requirement. FRA is proposing a like 

requirement for the alternative railroaddesigned Form FRA 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work-Related.’’ FRA is 

proposing corresponding changes for 

Forms FRA F 6180.98, 6180.97 and 

6180.107. See Section-by-Section 

Analysis for Appendix H, ‘‘Forms.’’

Section 225.27 Retention of Records 

In this section, FRA proposes a fiveyear record retention requirement for 

Form FRA F 6180.107, ‘‘Alternative 

Record for Illnesses Claimed to be 

Work-Related.’’ FRA does so because 

the current rule does not set forth a 

retention period for these forms. Five 

years is the same retention period as 

that of Form FRA F 6180.98, ‘‘Railroad 

Employee Injury and/or Illness Record,’’

and appropriate for accurate 

recordkeeping and auditing purposes. 

FRA also proposes a requirement that in 

the event a railroad opts to submit their 

monthly Form FRA F 6180.55, 

‘‘Railroad Injury and Illness Summary’’

via optical media or electronically via 

the Internet, rather than in hard copy, 

the railroad retain the original 

completed hard copy for a period of five 

years after the calendar year to which it 

relates. If the railroad opts to submit the 

report to FRA via the Internet, FRA 

proposes to require that the railroad also 

retain a hard copy printout of FRA’s 

electronic notice acknowledging receipt 

of the submission for a period of five 

years after the calendar year to which 

the report acknowledged relates. FRA 

proposes these requirements in light of 

the new electronic submission options 

proposed in § 225.37, ‘‘Magnetic media 

transfer and electronic submission’’ of 

this notice. 

Lastly, FRA proposes system 

standards for the electronic retention, by 

railroads, of accident/incident records. 

Historically, railroads have retained 

these records in hard copy form. FRA, 

however, is not opposed to railroads 

maintaining these records electronically 

so long as the integrity of the record is 

maintained. In order to ensure such 

integrity, FRA is proposing minimum 

system requirements for electronic 

retention of accident/incident records. 

Section 225.33 Internal Control Plan 

In this section, FRA proposes to 

clarify current ambiguity of element 

number 11 of the internal control plan 

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52508 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

to allow railroads to have multiple 

named custodians and locations of 

completed Forms FRA F 6180.107, 

‘‘Alternative Records for Illnesses 

Claimed to be Work-Related,’’ or the 

alternate railroad-designed forms and 

supporting documentation. FRA 

recognizes that railroads do not 

necessarily keep completed Claimed 

Occupational Illness Records in a 

centralized location, and that different 

individuals may be responsible for 

keeping the records. By amending the 

regulation, railroads will be able to 

accurately indicate who the custodians 

are and where the custodians and 

records are located. 

Section 225.37 Magnetic Media 

Transfer and Electronic Submission 

FRA is updating the title of this 

section to reflect changes in technology. 

It will read, ‘‘Optical media transfer and 

electronic submission.’’ FRA also is 

instituting two changes related to Form 

FRA F 6180.55, ‘‘Railroad Injury and 

Illness Summary.’’ FRA believes that 

both of these changes will reduce 

railroad burdens related to completing 

and submitting this form. 

FRA has replaced the oath and 

notarization requirement for Form FRA 

F 6180.55, ‘‘Railroad Injury and Illness 

Summary,’’ with a requirement that the 

signature be signed under penalty of 

perjury in accordance with 28 U.S.C. 

1746. 

Title 49 U.S.C. 20901 requires that a 

railroad file an Accident/Incident report 

‘‘under oath’’ no later than 30 days after 

the end of each month. To fulfill this 

requirement, FRA currently requires 

that a railroad reporting officer make a 

sworn statement, under oath, before a 

notary public each month attesting to 

the accuracy that month’s submission. 

The question has arisen as to whether 

an unsworn, unnotarized statement is 

adequate to fulfill the section 20901 

oath requirement. 

In 1976, Congress addressed the use 

of ‘‘unsworn declarations under penalty 

of perjury,’’ in lieu of a sworn affidavit. 

Title 28 U.S.C. 1746, ‘‘Unsworn 

Declarations Under Penalty of Perjury,’’

provides that ‘‘wherever, under any law 

of the United States or under any rule, 

regulation, order, or requirement made 

pursuant to law, any matter is required 

or permitted to be supported, 

evidenced, established, or proved by the 

sworn declaration, verification, 

certificate, statement, oath, or affidavit, 

in writing of the person making the 

same (other than a deposition, or an 

oath of office, or an oath required to be 

taken before a specified official other 

than a notary public), such matter may, 

with like force and effect, be supported, 

evidenced, established, or proved by the 

unsworn declaration, certificate, 

verification, or statement, in writing of 

such person which is subscribed by 

him, as true under penalty of perjury, 

and dated * * *’’ and provides 

examples of the form the declaration, 

certificate, verification, or statement 

must take. Consequently, the oath 

requirement of 20901 can be met via an 

unsworn, unnotarized statement, so 

long as the statement meets the 

requirements set forth in 28 U.S.C. 1746. 

FRA is also updating the regulatory 

text to include provisions allowing 

railroads to make their monthly 

reporting submissions (Forms FRA F 

6180.54, ‘‘Rail Equipment Accident/ 

Incident Report’’; 6180.55a, ‘‘Railroad 

Injury and Illness Summary 

(Continuation Sheet)’’; 6180.57, 

‘‘Highway-Rail Grade Crossing 

Accident/Incident Report’’) to FRA via 

optical media (CD–ROM) or 

electronically via the Internet. Batch 

control forms (Form FRA F 6180.99) are 

no longer required for submission. Form 

FRA F 6180.55, ‘‘Railroad Injury and 

Illness Summary,’’ reports and Form 

FRA F 6180.81 ‘‘Employee Human 

Factor Attachment’’ reports; may also be 

submitted through these means, 

however the Form FRA F 6180.55 must 

submitted as an image of the completed 

and signed hard copy and must be in 

.pdf or .jpg file format only; and the 

Form FRA F 6180.81 must also be in 

.pdf or .jpg file format. If a railroad opts 

to submit their completed Form FRA F 

6180.55 to FRA via optical media or 

electronically via the Internet, the 

railroad must maintain the original 

completed and signed Form FRA F 

6180.55 for at least five years after the 

calendar year to which the report relates 

in accordance with proposed 

§ 225.27(c). FRA will provide to the 

railroad an electronic notice 

acknowledging the agency’s receipt 

Form FRA F 6180.55 reports which are 

filed electronically via the Internet. The 

railroad must also maintain a hard copy 

print out this acknowledgment notice 

for at least five years after the calendar 

year to which the report acknowledged 

relates in accordance with proposed 

§ 225.27(c). 

FRA is also proposing to add a 

paragraph (f) a statement requiring that 

railroads choosing to use the optical 

medical or electronic submission via 

Internet option must use one of the 

approved formats specified in the 

Companion Guide. FRA will reject 

submissions that do not adhere to the 

required formats, which may result in 

the issuance of one or more civil penalty 

assessments against a railroad for failing 

to provide timely submissions of 

required reports as required by § 225.11. 

Section 225.41 Suicide Data 

In this section, FRA proposes to add 

§ 225.41 ‘‘Suicide Data,’’ to detail FRA’s 

intended use of suicide data. See 

Section-by-Section Analysis for 

§ 225.15, ‘‘Accidents/Incidents Not To 

Be Reported’’ for additional 

information. 

Appendix A to Part 225—Schedule of 

Civil Penalties 

Appendix A to part 225 contains a 

schedule of civil penalties for use in 

connection with this part. FRA may 

revise the schedule of civil penalties in 

issuing the final rule to reflect revision 

made to part 225. Because such penalty 

schedules are statements of agency 

policy, notice and comment are not 

required prior to their issuance. See 5 

U.S.C. 553(b)(3)(A). Nevertheless, 

commenters are invited to submit 

suggestions to FRA describing the types 

of actions or omissions for each 

proposed regulatory section that would 

subject a person to the assessment of a 

civil penalty. Commenters are also 

invited to recommend what penalties 

may be appropriate, based upon the 

relative seriousness of each type of 

violation. 

FRA notes that in December 2006, it 

published proposed statements of 

agency policy that would amend the 25 

schedules of civil penalties issued as 

appendixes to FRA’s safety regulations, 

including part 225. See 71 FR 70589, 

Dec. 5, 2006. The proposed revisions are 

intended to reflect more accurately the 

safety risks associated with violations of 

the rail safety laws and regulations, as 

well as to make sure that the civil 

penalty amounts are consistent across 

all safety regulations. Although the 

schedules are statements of agency 

policy, and FRA has authority to issue 

revisions without having to follow the 

notice and comment procedures of the 

Administrative Procedure Act, FRA has 

provided members and representatives 

of the general public an opportunity to 

comment on the proposed revisions 

before amending them. FRA is currently 

evaluating all of the comments received 

in preparing final statements of agency 

policy, and the schedule of civil 

penalties to part 225 may be revised as 

a result, independent of the rulemaking 

proceeding. 

Proposed Revisions to the FRA Guide 

Generally, FRA proposes to make the 

following changes to the FRA Guide: 

Improve the table of contents; add a 

subject index; reorganize chapter 

contents for ease of use; include 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52509 

necessary updates; include new 

‘‘Questions and Answers’’ and 

‘‘Scenarios’’ taken from the FRA Safety 

Data Web page (http:// 

safetydata.fra.dot.gov/officeofsafety) 

and from OSHA’s Web page (http:// 

www.osha.gov/comp-links.html) to 

clarify reporting issues; and to eliminate 

redundant language by replacing 

verbatim reiterations of part 225 rule 

text where appropriate and instead, cite 

references to part 225 (for ease of 

reference FRA proposes to include the 

full regulatory text of part 225 in a 

newly created appendix K of the FRA 

Guide). More specific changes include: 

A. Chapter 1, ‘‘Overview of Accident/ 

Incident Reporting and Recordkeeping 

Requirements.’’ FRA proposes to revise 

the paragraph titled, ‘‘Telephonic 

Reports of Certain Accidents/Incidents’’

in accordance with this amendments set 

forth in § 225.9 of this proposal, and to 

include the telephonic reporting 

requirements set forth in 49 CFR parts 

229, ‘‘Railroad Locomotive Safety 

Standards’’; part 233, ‘‘Signal Systems 

Reporting Requirements’’; part 234, 

‘‘Grade Crossing Signal System Safety’’; 

and part 219, ‘‘Control of Alcohol and 

Drug Use.’’ Such incorporation is for 

informational purposes only, and places 

no new reporting requirements on 

railroads. By including these 

requirements in the guide, FRA hopes to 

better disseminate its telephonic 

reporting requirements, and improve 

railroad compliance by providing a 

single reference location for determining 

when accident/incident telephonic 

notification is required. 

FRA also proposes to amend the 

section entitled ‘‘Close of Calendar 

Year’’ by clarifying the requirements for 

submitting late and amended reports, 

revising the time frame in which FRA 

will accept additional late and amended 

accident/incident reports, and changing 

from optional to mandatory the filing of 

amended reports for certain accidents/ 

incidents. 

FRA publishes final accident/incident 

counts following the conclusion of a 

reporting year. Submission of the 

December report concludes the 

reporting year. However, railroads are 

still required to provide to FRA late 

reports of unreported accidents/ 

incidents and amended reports that 

correct or update earlier submissions. 

Currently, the FRA Guide (Chapter 

1—Page 12 through 13) specifies three 

cutoff dates for filing late and amended 

accident/incident reports following the 

completion of the reporting year: 

(1) April 15 of the of the next calendar 

year; 

(2) December 1 of the following year: 

and 

(3) Five years after the end of the 

calendar year to which the accident/ 

incident report relates. 

FRA has found this reporting scheme 

to be confusing and outdated with the 

advent of improved technology. 

Moreover, improvements in database 

management strategies allow for 

contemporaneous viewing of reporting 

accident/incident statistics and have 

eliminated the need to impose artificial 

deadlines for keeping files open or for 

FRA to publish interim reports. As such, 

FRA proposes to remove references to 

the cutoff date of April 15th of the next 

calendar year for accepting late reports 

and amendments. Accordingly, FRA 

will receive and process any and all late 

and amended reports for a period of five 

years following the calendar year to 

which an amended or late report relates. 

This accommodation does not relieve a 

railroad of its obligation to promptly file 

a late or amended report upon becoming 

aware of an omission, mistake or 

otherwise, in accordance with § 225.13 

and the late and amended reporting 

guidance set forth in this Guide. FRA 

will continue to publish its Annual 

Report of Railroad Safety Statistics. 

Because the accident/incident databases 

will remain open for updating for a 

period of five years, the statistics 

published in the Annual Report will be 

subject to change. The authoritative 

source for rail safety statistics will now 

be the Office of Safety’s Web site: 

http://safetydata.fra.dot.gov/ 

OfficeofSafety. 

To clarify, FRA does not propose to 

change the following late and amended 

reporting requirements which are 

currently set forth in the FRA Guide: 

(1) Railroads must file amended 

reports with FRA through December 1 of 

the year following the year in which the 

accident/incident was initially reported. 

(2) Railroads must file late reports 

with FRA for five years (following the 

end of the calendar year to which the 

accident/incident relates) for all 

unreported accident/incidents. 

FRA does, however, propose to 

change its reporting requirements with 

respect to certain specified accidents/ 

incidents. Currently, the FRA Guide 

states that railroads ‘‘should’’ continue 

to file amended reports after December 

1 of the following year (i.e., for five 

years after the end of the calendar year 

to which they relate) for the changes 

listed below. FRA proposes to make 

such amended reporting mandatory. 

Accordingly, FRA proposes that 

railroads shall continue to file amended 

reports for five years after the end of the 

calendar year to which they relate for 

the following changes: 

(1) Railroad Injury and Illness 

Summary (Continuation Sheet) (Form 

FRA F 6180.55a): Change from Injury to 

Fatality (only if the injured person dies 

within 180 days from the date of the 

injury); 

(2) Highway-Rail Grade Crossing 

Accident/Incident Report (Form FRA F 

6180.57): Change from Injury to Fatality, 

change in Grade Crossing ID, change in 

the Rail Equipment Involved; 

(3) Rail Equipment Accident/Incident 

Report (Form FRA F 6180.54): Change 

from Injury to Fatality, change in Grade 

Crossing ID, Rail Equipment Involved, 

Primary Cause Code, Contributing Cause 

Code, Type of Territory, Number of Cars 

Releasing or Evacuation. 

FRA further proposes that railroads 

shall continue to file amended reports 

for five years after the end of the 

calendar year to which they relate for 

the additional changes listed below: 

(1) Railroad Injury and Illness 

Summary (Continuation Sheet) (Form 

FRA F 6180.55a): A significant change 

in the number of reportable days away 

from work or days restricted; a 

significant change is at least a 10% 

variance in the number of actual 

reportable days away from work or days 

restricted compared to the number of 

days already reported. 

(2) Railroad Equipment Accident/ 

Incident Report (Form FRA F 6180.54): 

A significant change in the damage costs 

for reportable rail equipment accidents/ 

incidents; a significant change is a 10% 

variance between the damage amount 

reported to FRA and the current cost 

figures. 

B. Chapter 2, ‘‘Definitions.’’ FRA 

proposes to revise or add certain 

definitions for clarification or ease of 

reference and to remove definitions that 

are simply reiterations of definitions set 

forth in § 225.5. FRA proposes to add 

definitions for ‘‘Barricaded Crossing’’ to 

mean ‘‘a highway-rail grade crossing 

that is temporarily closed to highway 

users’’; and ‘‘Closed Crossing’’ to mean 

a location where a crossing has been 

physically removed or where rail 

operations or highway traffic is not 

possible. This does not include 

crossings that are temporarily closed for 

repairs to the track structure, crossing 

surface, or roadway approaches. 

Examples are locations where the 

crossing has been barricaded and 

highway crossing surface material 

removed; where the railroad tracks have 

been cut or barricaded or physically 

removed; where a connecting turnout 

has been removed; or where rail 

operations are not possible because the 

railroad tracks are paved over, etc. 

Crossings along such inactive railroad 

lines are closed. FRA adds these 

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52510 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

definitions to the FRA Guide to 

eliminate confusion about the meaning 

of a ‘‘closed’’ versus ‘‘barricaded’’

crossing and to revise the definition of 

‘‘closed crossing’’ to agree with the 

definition used in the Grade Crossing 

Inventory System (GCIS). The GCIS is a 

voluntary system used by states, 

railroads and the Federal government to 

profile crossings and determine which 

crossings need improved warning 

systems for highway users. The FRA 

and other users regularly compare 

information from the Highway-Rail 

Crossing Accident/Incident Reports 

(Form FRA F 6180.57) to the GCIS. 

Clearly defining ‘‘closed crossing’’ and 

‘‘barricaded crossing,’’ and making the 

GCIS and FRA definitions consistent 

will reduce confusion and aid in grade 

crossing accident/incident reporting 

accuracy. 

FRA proposes to add a definition for 

‘‘Gap’’ to mean, ‘‘the horizontal space 

between the edge of the passenger 

boarding platform and the edge of the 

rail car door threshold plate, and the 

vertical difference from the top of the 

passenger boarding platform and the top 

of the rail car threshold.’’ This 

definition with minor variation was 

recommended by the RSAC General 

Passenger Safety (GPS) Task Force 

reported to the full RSAC on October 25, 

2007, along with the Cause Code 

Recommendations for platform gap 

related injuries (see discussion for 

Appendix F of the FRA Guide). The full 

RSAC agreed to the recommendations 

on October 25, 2007. 

FRA proposes to add a definition for 

‘‘Gap Incident’’ to mean, ‘‘an event 

involving a person who, while involved 

in the process of boarding or alighting 

a passenger train at a rail car door 

threshold plate at a high level passenger 

boarding platform (i.e., a platform that is 

48’’ or more above the top of the rail), 

has one or more body parts enter the 

area between the car body and the edge 

of the platform. The following are 

examples of a Gap Incident: 

—While boarding or alighting a 

passenger train at a high level 

passenger boarding platform a person 

misjudges the gap, resulting in the 

person’s leg entering the gap. 

—While boarding or alighting a 

passenger train at a high level 

passenger boarding platform, a person 

is struck by a closing door, resulting 

in the person’s leg entering the gap. 

The following are not examples of a 

Gap Incident: 

—While boarding or alighting a 

passenger train at a high level 

passenger boarding platform, a person 

misjudges the gap and falls into the 

vestibule or platform, without a body 

part entering the gap. 

—While walking on a passenger station 

at a high level passenger boarding 

platform, a person slips on the 

platform, at a location other than the 

rail car door threshold, resulting in 

the person’s leg entering the gap. 

The definition and examples of ‘‘Gap 

Incident’’ was recommended by the 

RSAC General Passenger Safety (GPS) 

Task Force reported to the full RSAC on 

October 25, 2007, along with Cause 

Code Recommendations for platform 

gap related injuries (see discussion for 

Appendix F of the FRA Guide). The full 

RSAC agreed to these recommendations 

on October 25, 2007. FRA has adopted 

these recommendations with slight 

variation. See section on Changes to the 

FRA Guide, discussion of Appendix F. 

FRA proposes to amend the definition 

of ‘‘locomotive’’ to support changes 

necessary to include EMU and DMU 

cars on FRA Form F 6180.54, ‘‘RailEquipment Accident/Incident Report.’’

In the current FRA Guide (May 1, 2003), 

a cab car is defined as a locomotive; 

there is no definition for EMU and DMU 

cars, which created confusion because 

these cars provide power to the consist 

can therefore also be classified as 

locomotives. 

FRA proposes to add a definition for 

‘‘vehicle’’ to include automobiles, buses, 

trucks, motorcycles, bicycles, farm 

vehicles, and all other modes of surface 

transportation, motorized and 

unmotorized. 

C. Chapter 3, Form FRA F 6180.55, 

‘‘Railroad Injury and Illness Summary.’’

FRA proposes to revise the instructions 

for the use of this form consistent with 

the changes proposed in this NPRM. See 

Section-by-Section Analysis for 

§ 225.27, ‘‘Retention of records’’

§ 225.37, ‘‘Magnetic media transfer and 

submission,’’ and Proposed Revisions to 

the FRA Guide, Appendix H, ‘‘Forms’’

for additional information. 

D. Chapter 4, Form FRA F 6180.98, 

‘‘Railroad Employee Injury and/or 

Illness Record.’’ FRA proposes to revise 

the instructions for the use of this form 

consistent with the changes proposed in 

this NPRM. See Section-by-Section 

Analysis for § 225.5, ‘‘Definitions’’

definition for Accountable Injury or 

Illness; § 225.25, ‘‘Recordkeeping’’ and 

Proposed Revisions to the FRA Guide, 

Appendix H, ‘‘Forms’’ for additional 

information. 

E. Chapter 5, Form FRA F 6180.97, 

‘‘Initial Rail Equipment Accident/ 

Incident Record.’’ FRA proposes to 

revise the instructions for the use of this 

form consistent with the changes 

proposed in this NPRM. See Section-bySection Analysis for § 225.25, 

‘‘Recordkeeping’’ and Proposed 

Revisions to the FRA Guide, Appendix 

H, ‘‘Forms’’ for additional information. 

F. Chapter 6, Form FRA F 6180.55a, 

‘‘Railroad Injury and Illness Summary 

(Continuation Sheet).’’ FRA proposes to 

revise the instructions for the use of this 

form consistent with the changes 

proposed in this NPRM. FRA also 

proposes to add instructions that if an 

injury is due to a gap incident, the 

railroad must use in block 5n (‘‘Cause’’), 

‘‘Probable Reason for Injury/Illness 

Circumstance Codes’’ code number 18—

Slipped, fell, stumbled due to Gap, 

regardless of whether other codes may 

also be applicable. See Section-bySection Analysis for §§ 225.5, 

‘‘Definitions’’; § 225.15, ‘‘Accidents/ 

Incident not to be reported’’; § 225.19 

‘‘Primary Groups of Accidents/ 

Incidents’’and Proposed Revisions to 

the FRA Guide, Appendix H, ‘‘Forms’’

for additional information. 

FRA also proposes to revise Chapter 

6 to instruct railroads that they must 

presume that a highway user who is 

involved in a highway-rail grade 

crossing accident/incident and is 

transported from the scene of a 

highway-rail grade crossing accident/ 

incident to a medical facility via 

ambulance or other form of medical 

conveyance, did, more likely than not, 

sustain an FRA reportable injury (i.e., an 

injury meeting the general reporting 

criteria set forth at § 225.19(d)(1) 

through (d)(6)). Absent evidence to 

rebut the presumption, the railroad 

must report the injury to FRA on Form 

FRA F 6180.55a, and include the 

casualty on Form FRA F 6180.57. If the 

railroad later discovers that the highway 

user did not sustain a reportable injury, 

the railroad must notify FRA in 

accordance with the late reporting 

instructions set forth at § 225.13. FRA is 

proposing this change because the 

agency has found that railroads are 

under-reporting highway-rail grade 

crossing accidents/incidents related to 

injuries to persons other than railroad 

employees due to the railroads’ limited 

access to injured highway users’

medical records, especially in light of 

privacy protections related to health 

information provided by the Health 

Insurance Portability and 

Accountability Act of 1996 (HIPAA), 

Public Law 104–191. 

FRA emphasizes, however, that this 

presumption does not relieve railroads 

of their duty to make reasonable inquiry 

to determine the nature and severity of 

highway-rail grade crossing injuries and 

to accurately report such injuries. FRA 

has found that railroads often do not 

make such reasonable inquiry. 

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Accordingly, FRA is clarifying that in 

order to fulfill its responsibilities in 

determining the nature and severity of 

highway-rail grade crossing injuries and 

to accurately report such injuries, a 

railroad must try to contact the injured 

individual or their representative by 

telephone and, if unsuccessful in 

obtaining the needed information, in 

writing. The railroad must keep a record 

of its efforts to make such contact. This 

record and documentation of any 

information obtained must be available 

for review and copying by an FRA 

representative under the same criteria as 

set forth in § 225.35 (b). 

Lastly, FRA is concerned that 

fatalities that are actually suicides are 

being reported as trespasser fatalities. 

Often this occurs because railroads do 

not always make reasonable inquiry in 

their efforts to determine the cause of 

death. In fact, FRA has found that a 

number of reported trespasser fatalities 

are actually suicides. Accordingly, FRA 

is revising Chapter 6 to clarify that in 

order to fulfill its responsibilities in 

determining the nature of a trespasser 

fatality and to accurately report such 

fatality, a railroad must try to obtain 

documentation indicating the cause of 

death by contacting the coroner or other 

public official by telephone and, if 

unsuccessful in obtaining the needed 

information, in writing. The railroad 

must continue its efforts to obtain this 

documentation for a period of six 

months following the month in which 

the fatality occurred. The railroad must 

keep a record of its efforts to obtain such 

documentation. This record and any 

documentation obtained must be 

available for review and copying by an 

FRA representative under the same 

criteria as set forth in § 225.35 (b). 

G. Chapter 7, pertaining to Form FRA 

F 6180.54, ‘‘Rail Equipment Accident/ 

Incident Report.’’ FRA proposes to 

revise the instructions for the use of this 

form consistent with the changes 

proposed in this NPRM. FRA also 

proposes to add instructions to Chapter 

7 requiring that if an accident is caused 

by a bond wire attachment issue (see 

proposed Appendix C ‘‘Train Accident 

Cause Codes’’), information on the 

methods and locations of those 

attachments be provided in the narrative 

block 52. See Section-by-Section 

Analysis for §§ 225.5, ‘‘Definitions’’; 

§ 225.15, ‘‘Accidents/Incident not to be 

reported’’; § 225.19 ‘‘Primary Groups of 

Accidents/Incidents’’and Proposed 

Revisions to the FRA Guide, Appendix 

H, ‘‘Forms’’ for additional information. 

See Section-by-Section Analysis for 

§ 225.5, ‘‘Definitions,’’ § 225.15, 

‘‘Accidents/Incident not to be reported’’

and Proposed Revisions to the FRA 

Guide, Appendix H, ‘‘Forms’’ for 

additional information. 

H. Chapter 10, pertaining to Form 

FRA F 6180.57, ‘‘Highway-Rail Grade 

Crossing Accident/Incident Report.’’

FRA proposes to revise the instructions 

for the use of this form consistent with 

the changes proposed in this NPRM. See 

Section-by-Section Analysis for 

§ 225.15, ‘‘Accidents/Incident not to be 

reported’’ and Proposed Revisions to the 

FRA Guide, Appendix H, ‘‘Forms’’ for 

additional information. 

FRA also proposes to revise Chapter 

10 to instruct railroads that they must 

presume that a highway user who is 

involved in a highway-rail grade 

crossing accident/incident and is 

transported from the scene of a 

highway-rail grade crossing accident/ 

incident to a medical facility via 

ambulance or other form of medical 

conveyance, did, more likely than not, 

sustain an FRA reportable injury (i.e., an 

injury meeting the general reporting 

criteria set forth at § 225.19(d)(1) 

through (d)(6)). Absent evidence to 

rebut the presumption, the railroad 

must report the injury to FRA on Form 

FRA F 6180.55a, ‘‘Railroad Injury and 

Illness Summary (Continuation Sheet)’’

and include the casualty on Form FRA 

F 6180.57. In order to fulfill its 

responsibilities in determining the 

nature and severity of a highway-rail 

grade crossing injury and to accurately 

report such injury, a railroad must try to 

contact the injured individual or their 

representative by telephone and, if 

unsuccessful in obtaining the needed 

information, in writing. The railroad 

must keep a record of its efforts to make 

such contact. This record and 

documentation of any information 

obtained must be available for review 

and copying by an FRA representative 

under the same criteria as set forth in 

§ 225.35(b). For additional information 

see Section-by-Section Analysis for 

§ 225.15 ‘‘Accidents/Incidents not to be 

reported’’ and Proposed Revisions to the 

FRA Guide, Subsection F, Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet).’’

I. Chapter 13, pertaining to Form FRA 

F 6180.107, ‘‘Alternative Record for 

Illness Claimed to be Work-Related.’’

FRA proposes to revise the instructions 

for the use of the form consistent with 

the changes proposed in this NPRM. See 

Section-by-Section Analysis for 

§ 225.21, ‘‘Forms,’’ § 225.25, 

‘‘Recordkeeping,’’ § 225.27 ‘‘Record 

Retention,’’ § 225.33, ‘‘Internal Control 

Plan’’ and Proposed Revisions to the 

FRA Guide, Appendix H, ‘‘Forms’’ for 

additional information. 

J. Appendix A, ‘‘Railroad Codes.’’

FRA proposes to provide updates to the 

railroad codes. 

K. Appendix C, ‘‘Train Accident 

Cause Codes.’’ FRA proposes to add or 

revise the following Train Accident 

Cause Codes: 

• T224 ‘‘Rail defect originating from 

bond wire attachment.’’ FRA 

proposes to add Train Accident 

Cause Code T224 response to the 

National Transportation Safety 

Board’s (NTSB) 2005 

recommendation that FRA provide 

a train accident cause code for 

derailments caused by bond wire 

attachments. This recommendation 

arose from the NTSB’s investigation 

of the derailment of northbound 

National Railroad Passenger 

Corporation (Amtrak) train No. 58 

while operating on Canadian 

National (CN) track near Flora, 

Mississippi, on April 6, 2004. The 

derailment resulted in one fatality, 

35 injuries (that were reportable to 

FRA), and damage costs of 

approximately $7 million. The 

NTSB recommended that FRA 

include in the FRA Guide a train 

accident cause code for derailments 

caused by rail cracks originating 

from bond wire attachments, and 

that information on the methods 

and locations of those attachments 

be provided in the narrative section 

of the accident/incident report 

((NTSB Recommendation Number 

RAR–05/02); 

• S104 ‘‘Radio controlled switch not 

locked effectively.’’ FRA proposes 

to amend Train Accident Cause 

Code S104 by adding ‘‘(equipment 

failure)’’ to the code’s description. 

The description of Cause Code S104 

as amended would read, ‘‘Radio 

controlled switch not locked 

effectively (equipment failure).’’

FRA incorporated this change in 

order to clarify that S104 pertains to 

equipment failure, not human error. 

• H707 ‘‘Radio controlled switch not 

locked effectively.’’ FRA proposes 

to amend Train Accident Cause 

Code H707 by adding ‘‘(human 

error)’’ to the code’s description. 

The proposed description for Cause 

Code H707 denotes ‘‘Radio 

controlled switch not locked 

effectively (human error).’’ FRA 

incorporated this change in order to 

clarify that H707 pertains to human 

error, not equipment failure. 

• M 309 ‘‘Grade Crossing Suicide’’; 

M310 ‘‘Grade Crossing Attempted 

Suicide’’; M509 ‘‘Suicide Resulting 

in Train Accident’’; and M510 

‘‘Attempted Suicide Resulting in 

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Train Accident’’ for use in block 38 

of Form FRA F 6180.54, ‘‘Rail 

Equipment Accident/Incident 

Report.’’ See Section-by-Section 

Analysis for § 225.15, ‘‘Accidents/ 

incidents not to be reported’’ and 

Proposed Revisions to the FRA 

Guide, Appendix H, ‘‘Forms’’ for 

additional information. 

L. Appendix F, ‘‘Circumstance 

Codes.’’ FRA added the following 

‘‘Probable Reason for Injury/Illness 

Circumstance Codes,’’ (Probable Reason 

Circumstance Code) under the subtitle 

‘‘Remotely controlled locomotive(s) 

environment’’ to the Remote Control 

Locomotive Switching Operations 

Fatality Analysis Codes (RCL SOFA 

Codes) to the May 1, 2003, guide as 

amended: 

• R1 Object fouling track, related to 

using RCL. 

• R2 Outside caused (e.g., assaulted/ 

attacked), related to using RCL. 

• R3 Lack of communication, related 

to using RCL. 

• R4 Slack adjustment during 

switching operation, related to using 

RCL. 

• R5 Insufficient training, related to 

using RCL. 

• R6 Failure to provide adequate 

space between equipment during 

switching operation, related to using 

RCL. 

• R7 Close or no clearance, related to 

using RCL. 

• R8 Act of God, related to using RCL. 

• U1 Object fouling track, unrelated 

to using RCL. 

• U2 Outside caused (e.g., assaulted/ 

attacked), unrelated to using RCL. 

• U3 Lack of communication, 

unrelated to using RCL. 

• U4 Slack adjustment during 

switching operation, unrelated to using 

RCL. 

• U5 Insufficient training, unrelated 

to using RCL. 

• U6 Failure to provide adequate 

space between equipment during 

switching operations unrelated to using 

RCL. 

• U7 Close or no clearance, unrelated 

to using RCL. 

• U8 Act of God, unrelated to using 

RCL. 

In the final regulation to 49 CFR part 

225, 68 FR 10107, March 3, 2003, new 

codes and form changes were made to 

accommodate the recording events 

when remote control locomotive 

operations (RCL) were involved. 

A special task group of railroad safety 

officers representing labor and industry 

and FRA members was created in the 

RSAC Accident/Incident Working 

Group to discuss the coding of RCL. The 

results of the special task group would 

be presented to the entire working group 

for approval. The concern of the 

reporting officers was to prevent any 

major changes to the then current forms 

or databases. In part, this rested on their 

information technology offices’ internal 

charges for making major programming 

changes. The FRA team was tasked with 

finding a way to include RCL involved 

accidents and incidents on the 

following three forms: Form FRA F 

6180.54, ‘‘Rail Equipment Accident/ 

Incident Report’’; Form FRA F 6180.57, 

‘‘Highway-Rail Crossing Accident/ 

Incident Report’’; and Form FRA F 

6180.55a, ‘‘Railroad Injury/Illness 

Summary (Continuation Sheet),’’

without changing the database 

structures. 

The FRA found a way to capture RCLrelated incidents on both the Form FRA 

F 6180.54, ‘‘Rail Equipment Accident/ 

Incident Report,’’ and Form FRA F 

6180.57, ‘‘Highway-Rail Crossing 

Accident/Incident Report’’ without 

expanding the database or making a 

major change on the form or the 

respective database. Capturing this 

information on Form FRA F 6180.55a, 

‘‘Railroad Injury and Illness 

(Continuation Sheet),’’ remained 

problematic due to the small number of 

data fields and limited amount of data 

collected for each reportable event. FRA 

developed a solution by expanding the 

number of Probable Causes in the 

Circumstance Codes. The method 

chosen by FRA, and accepted by the 

RSAC Working Group, was to take each 

code for Probable Reason Circumstance 

Codes and create two additional codes, 

one for RCL-related to the event and 

another for RCL involved but unrelated 

to the event. Therefore, the probable 

reason of ‘‘Equipment,’’ code 04 had 

two additional codes: ‘‘Equipment, 

related to using RCL,’’ code 24, and 

‘‘Equipment, unrelated to using RCL,’’

code 44. This technique, although 

clumsy, satisfied railroad safety 

reporting officers, rail labor officials, 

and the FRA. 

Codes 21 through 59 in Probable 

Reason for the ‘‘Remotely Controlled 

Locomotive(s) Environment’’ was 

approved by the full RSAC Working 

Group for Accident/Incident Reporting. 

At a later RSAC Working Group Meeting 

in New Orleans, LA, a new discussion 

started about the Probable Reason 

Circumstance Codes. This discussion 

centered on Switching Operations 

Fatality Analysis (SOFA). SOFA events 

were claiming 40 to 50 percent of all 

fatalities of railroad workers. The 

Working Group decided to include new 

codes to insure that fatal and non-fatal 

SOFA events were culled from other 

injuries. A small task group was formed, 

and worked one evening to develop the 

eight new codes. The full Working 

Group approved these SOFA codes the 

next day. However, there was an 

oversight by the Working Group in the 

process. There should have been two 

additional sets of codes for SOFA RCL 

events (related to RCL and unrelated to 

RCL). This oversight was not discovered 

until October 2003, well after the 

publication and effective date of the 

revised regulation. 

All of the parties to the Full Working 

Group agreed that any omission in 

capturing SOFA related injuries was a 

serious problem. FRA developed 16 

additional codes to correspond to the 

previous eight codes. The new codes R1 

through R8 and U1 through U8 were 

promulgated in December 2003, and 

were subsequently added to the FRA 

Guide to remedy the immediate 

concern. While the initial publication of 

these SOFA codes was not subject to a 

notice and comment period, FRA invites 

comments on the addition of these 

SOFA codes in this NPRM. 

FRA is also proposing to add new 

Circumstance Codes to Appendix F of 

the FRA Guide for use on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet),’’ to 

better identify injuries that occur in or 

due to platform gaps. FRA believes that 

the collection of this information will 

allow the agency to assess the 

magnitude of these types of injuries, 

identify locations where platform gap 

related injuries frequently occur, and 

ultimately aid FRA in efforts to reduce 

such injuries. 

The RSAC General Passenger Safety 

(GPS) Task Force reported to the full 

RSAC on October 25, 2007, its Cause 

Code Recommendations for platform 

gap related injuries as follows: 

(1) To the ‘‘Physical Act Circumstance 

Codes’’ add codes for: 

• Passenger Train-Boarding. 

• Passenger Train-Alighting. 

Also revise the ‘‘Physical Act 

Circumstance Codes’’ to clarify that 

codes 63 (stepping up) and 64 (stepping 

over) are to be used for boarding/ 

alighting at high level platforms. 

(2) To Part III of the ‘‘Location 

Circumstance Codes’’ add codes for: 

• Rail Car Door Threshold Plate to 

Edge of Platform Gap. 

• Area Between Coupled Cars and 

Platform. 

• Area Along Car body, other than 

Threshold Plate and Platform Edge. 

• Car in Vestibule. 

• On Platform—Other. 

Also change Location Circumstance 

Code C2—‘‘On Platform’’ to ‘‘On 

Platform Station.’’

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(3) To the ‘‘Event Circumstance 

Codes’’ add a code for: 

• Slipped, fell, stumbled due to Gap. 

(4) To Part I of the ‘‘Location 

Circumstance Codes’’ add a code for: 

• Other than Platform. 

Also change the Location 

Circumstance Code ‘‘P–Passenger 

Terminal’’ to ‘‘P–Passenger Station on 

Platform.’’

(5) To the ‘‘Tools, Machinery, 

Appliances, Structures, Surfaces, (etc.) 

Circumstance Codes’’ add codes for: 

• Door, End or Side—Passenger 

Train. 

• Door, Trap. 

The full RSAC agreed to these 

recommendations on October 25, 2007. 

Subsequently, FRA’s Safety 

Knowledge Management Division’s 

(SKMD) database experts reviewed the 

RSAC approved coding scheme in an 

effort to prevent redundant codes, 

develop ease in coding for reporting 

officers and clerks not familiar with all 

the nuances in gap incidents, and to 

develop a system to easily cull gap 

incidents from the casualty database. 

Based on this review, FRA proposes to 

add the following new codes to 

Appendix F—Circumstance Codes as 

follows: 

(1) To the ‘‘Physical Act Circumstance 

Codes’’ FRA proposes to add code: 

• 80—Stepping across (passenger 

cars). 

(2) To Part III of the ‘‘Location 

Circumstance Codes’’ FRA proposes to 

add codes: 

• G1—Rail Car Door Threshold Plate 

to Edge of Platform—Gap. 

• G2—Area Between Coupled Cars 

and Platform. 

• G3—Area Along Car body, other 

than Threshold Plate and Platform Edge. 

• G4—Car in Vestibule. 

(3) To the ‘‘Probable Reason for 

Injury/Illness Circumstance Codes’’ FRA 

proposes to add code: 

• 18—Slipped, fell, stumbled due to 

Gap. 

(4) To the ‘‘Tools, Machinery, 

Appliances, Structures, Surfaces, (etc.) 

Circumstance Codes’’ FRA proposes to 

add codes: 

• 1G—Door, End or Side—Passenger 

Train. 

• 2G—Door, Trap—Passenger Train. 

The instructions for coding gap 

incidents will be included in the 

proposed revisions to the FRA Guide. 

M. Appendix G, ‘‘FRA Regional 

Offices and Headquarters.’’ FRA 

proposes to update these entries. 

N. Appendix H, ‘‘Forms.’’ FRA 

proposes to revise its forms, as follows: 

(1) Form FRA F 6180.97 and Form 

FRA F 6180.98. FRA proposes to revise 

block 36 on Form FRA F 6180.97 ‘‘Date’’

to state ‘‘Date Initially Signed/ 

Completed’’; and block 44 on Form FRA 

F 6180.98 ‘‘Date’’ to state ‘‘Date Initially 

Signed/Completed’’ to clarify that the 

block must contain the initial date the 

form was completed. FRA finds it 

necessary to make such change because 

certain railroads do not retain the initial 

date a record was completed, but only 

the date of the most recent update to the 

record. Consequently, FRA is unable to 

discern if the railroad entered each 

reportable and accountable injury and 

illness and each reportable and 

accountable rail equipment accident/ 

incident on the appropriate record, as 

required by § 225.25 (a)–(e), no later 

than seven working days after receiving 

information or acquiring knowledge that 

an injury or illness or rail equipment 

accident/incident has occurred, as 

required by § 225.25(f). FRA believes 

that specifying the date which is 

required to be maintained on the record 

will resolve any confusion regarding the 

requirement. 

(2) Form FRA F 6180.97. FRA 

proposes to rename block 12, ‘‘Division’’

to ‘‘Subdivision’’ and require railroads 

to provide train accident location by 

providing subdivision data in this block 

as a means of improving railroad safety 

in the area of train accidents. If the 

railroad is not so divided, enter the 

word ‘‘system.’’ If subdivision data are 

not applicable, the railroad must enter 

terminal/yard name. This change would 

also apply to alternative railroaddesigned Form FRA 6180.97. This 

change is consistent with the proposed 

‘‘Division’’ to ‘‘Subdivision’’ change on 

Form FRA F 6180.54. See paragraph 

N(6) of this appendix, ‘‘Form FRA F 

6180.54’’ for additional information. 

FRA also wishes to clarify that in 

situations of joint operations, block 26, 

‘‘Equipment Damage (in dollars)’’ refers 

to the aggregate amount of equipment 

damage incurred for all railroads 

involved, and that Block 27, ‘‘Track, 

Signal, Way & Structure Damage (in 

dollars)’’ refers to the aggregate amount 

of track, signal, way and structure 

damage incurred for all track owners. 

This revision does not change existing 

reporting requirements, and should not 

represent an additional reporting 

burden, because both railroads should 

already be exchanging relevant cost data 

to determine if the accident was FRA 

reportable. 

(3) Form FRA F 6180.98. FRA 

proposes to replace the ‘‘Social Security 

Number’’ requirement in block 6 with a 

requirement for ‘‘Employee 

Identification Number.’’ FRA proposes 

this change in response to privacy 

concerns. This chapter will include 

instructions addressing FRA’s proposed 

requirement that (by amending the 

definition for ‘‘Accountable Injury or 

Illness’’) railroads complete a Form FRA 

F 6180.98, ‘‘Railroad Employee Injury 

and/or Illness Record’’ of all injuries 

and illnesses when such abnormal 

condition or disorder manifests within 

the work environment regardless of 

whether the condition or disorder is 

discernably caused by an event or 

exposure in the work environment. 

(4) Form FRA F 6180.55. FRA has 

eliminated the notary requirement on 

Form FRA F 6180.55 block 10, and 

replace it with a requirement that the 

report be signed under penalty of 

perjury as follows: 

(1) If executed within the United States, its 

territories, possessions, or commonwealths: 

‘‘I declare (or certify, verify, or state) under 

penalty of perjury that the foregoing is true 

and correct. Executed on (date). 

(Signature).’’

(2) If executed without (i.e., outside of) the 

United States: ‘‘I declare (or certify, verify, or 

state) under penalty of perjury under the 

laws of the United States of America that the 

foregoing is true and correct. Executed on 

(date). 

(Signature).’’

FRA is able to replace the oath 

requirement, mandated by 49 U.S.C. 

20901 with a signature under penalty of 

perjury under 28 U.S.C. 1746. See 

Section-by-Section analysis for 

proposed § 225.37, ‘‘Magnetic media 

transfer and electronic submission,’’ for 

additional information. 

(5) Form FRA 6180.55a. FRA proposes 

to require railroads to place an ‘‘X’’

representative of ‘‘suicide’’ or 

‘‘attempted suicide’’ be in block 5r 

when reporting a suicide or attempted 

suicide. FRA also proposes to add 

instructions that if an in injury is due 

to a gap incident, the railroad must use 

in block 5n (‘‘Cause’’), ‘‘Probable Reason 

for Injury/Illness Circumstance Codes’’

code number 18—Slipped, fell, 

stumbled due to Gap, regardless of 

whether other codes may also be 

applicable. See Section-by-Section 

analysis for § 225.15, ‘‘Accidents/ 

incidents not to be reported,’’ for 

additional information. FRA also 

proposes to change the title of block 5m 

from ‘‘Result’’ to ‘‘Tools’’ to remain 

consistent with the wording in 

Appendix F. 

(6) Form FRA F 6180.54. FRA 

proposes to revise block 30 by changing 

the name of the block from ‘‘Methods of 

Operation’’ to ‘‘Type of Territory.’’ The 

block will have five coding blocks. Each 

of the five coding blocks printed in 

block 30 will be labeled for exclusive 

use in accordance with codes listed in 

the proposed Appendix J. The coding 

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52514 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

blocks are representative of the 

following information: The first block 

(mandatory) will indicate the type of 

territory (signaled or non-signaled); the 

second block (mandatory) will indicate 

the authority for movement; and the 

third, fourth, and fifth blocks (optional) 

will indicate additional information 

through the use of supplemental codes. 

FRA proposes to make this change 

because in the past few years, with the 

advancement of Positive Train Control 

(PTC), there has been a growing 

requirement for FRA to definitively 

identify signalized versus ‘‘dark’’

territory. 

The revisions should make 

completing the block less burdensome 

and allow for the identification of 

territory in a manner compatible with 

the railroads’ internal railroad coding 

system. These changes are consistent 

with suggestions by railroads and the 

AAR that such coding be made easier 

and that the FRA Guide provide clearer 

instruction. They also take into 

consideration railroad concerns about 

expense associated with having to revise 

the form and expressed the desire for 

FRA to retain the current form and 

redesign the coding system but not 

change the database structure. See 

Proposed Revisions to the FRA Guide, 

Appendix J, ‘‘Type of Territory Codes’’

for additional information. 

FRA proposes to rename block 12, 

‘‘Division’’ to ‘‘Subdivision’’ and require 

railroads to provide train accident 

location by subdivision data (proposed 

block 12) on Form FRA F 6180.54 as a 

means of improving railroad safety in 

the area of train accidents. If the railroad 

is not so divided, enter the word 

‘‘system.’’ If subdivision data is not 

applicable, the railroad must enter 

terminal/yard name. 

FRA needs a permanent means of 

determining the location of an accident. 

This is especially meaningful when a 

release of hazardous materials or 

leakage of diesel fuel has occurred. 

Having the location information for all 

train accidents will allow FRA to 

develop better inspection planning, 

identify locations of hazardous 

materials contamination affecting the 

health and/or environment, and provide 

to the Transportation Security 

Administration another tool for security 

planning. Traditionally, FRA and the 

railroad industry have relied on the 

railroad milepost system to reference 

location, and in many cases, location 

data derived from the milepost system 

is accurate for short-term issues. Over 

the long-term, however, railroads do 

change mileposts during mergers and 

reorganizations. Also, mileposts can be 

inaccurate when a railroad is able to 

build a shorter link, or when a railroad 

does not remove old mileposts when 

replacement mileposts, which have a 

different starting location, are installed. 

Ultimately, FRA believes geographic 

coordinates (i.e., latitude/longitude) are 

the best indicator of location, and the 

agency is requesting public comment 

whether FRA should require railroads to 

complete longitude and latitude data 

fields on Form FRA F 6180.54 and Form 

FRA F 6180.55a, ‘‘Railroad Injury and 

Illness Summary (Continuation Sheet).’’

See Background section of this notice. 

In the interim, FRA believes that 

subdivision data is the best location 

identifier available, and as such is 

proposing its inclusion on Form FRA F 

6180.54. 

FRA proposes to add to block 49, 

‘‘Special Study Block’’ descriptive 

references ‘‘a.’’ to line one and ‘‘b.’’ to 

line two for ease of reference. FRA 

proposes to require railroads to indicate 

in block ‘‘Special Study Block’’ 49a the 

type of track an accident/incident 

occurred on, by using the codes ‘‘CWR’’

for continuous welded rail or ‘‘OTH’’ for 

other. FRA notes that the special study 

block was created to allow for the 

collection of specific accident 

information as the need arises. See 61 

FR 30940, June 18, 1996. The primary 

purpose of these revisions to the rule is 

to increase the accuracy, completeness, 

and utility of FRA’s accident database 

and the clarity of the definitions and 

requirements. In light of recent trackrelated accidents/incidents, FRA finds it 

necessary to gather and analyze data of 

this nature. The collection and analysis 

of this data is consistent with 49 CFR 

part 213 regarding joint bar inspection 

and reporting. 

To account for suicides and attempted 

suicides on Form FRA F 6180.54, FRA 

proposes add four Miscellaneous Cause 

Codes to Appendix C for use in block 

38, Primary Cause Code: M309 ‘‘Suicide 

(Highway-Rail Grade Crossing)’’; M310 

‘‘Attempted Suicide (Highway-Rail 

Grade Crossing)’’; M509 ‘‘Suicide (Other 

Misc.)’’; and M510 ‘‘Attempted Suicide 

(Other Misc.)’’ to Appendix C, ‘‘Train 

Accident Cause Codes’’ to indicate 

‘‘Suicide or Attempted Suicide.’’

Additionally, FRA proposes to require 

railroads to include suicides and 

attempted suicides in the casualty 

counts in boxes 46, 47, and 48, as 

applicable, and to maintain consistent 

casualty counts between the different 

reporting forms. 

FRA proposes, for all highway-rail 

grade crossing fatalities, to require 

railroads to include a brief description 

in narrative block 52 of the 

circumstances of the accident. 

FRA also proposes that if an accident 

is caused by a bond wire attachment 

issue (see proposed Appendix C ‘‘Train 

Accident Cause Codes’’), information on 

the methods and locations of those 

attachments be provided in the narrative 

block 52. 

(7) Forms FRA F 6180.54 and FRA F 

6180.57. FRA proposes to amend the 

‘‘Type of Equipment,’’ block 25 on Form 

FRA F 6180.54 and block 24 on Form 

FRA F 6180.57 as follows: 

• Code of ‘‘2’’ was ‘‘Passenger Train’’; 

this will be changed to ‘‘Passenger 

Train—Pulling.’’

• Code of ‘‘3’’ was ‘‘Commuter 

Train’’; this will be changed to 

‘‘Commuter Train—Pulling.’’

• New code ‘‘B’’ will read ‘‘Passenger 

Train—Pushing.’’

• New code ‘‘C’’ will read ‘‘Commuter 

Train—Pushing.’’

• New Code ‘‘D’’ will read ‘‘EMU 

Train.’’

• New Code ‘‘E’’ will read ‘‘DMU 

Train.’’

These amendments will allow for the 

delineation of additional types of 

equipment in FRA’s database. 

Specifically, locomotives pushing or 

pulling, and EMU and DMU trains. The 

need for such requirement comes in 

light of the 2004 passenger train 

collision in Glendale, California, 

wherein a number of individuals were 

killed or injured. Subsequent to this 

collision, FRA realized that under its 

current reporting criteria, it could not 

determine from the database if the 

passenger or commuter equipment being 

used was in ‘‘pull’’ or ‘‘push’’ mode at 

the time of an accident/incident (i.e., 

whether the locomotive unit providing 

power was in the front or back of the 

train); necessary analysis was completed 

by determining railroad equipment and 

practice on individual routes. Also, 

since EMU and DMU trains are neither 

pushing nor pulling since all the cars 

are involved in providing power to the 

train, FRA needed to provide a code to 

accurately describe that circumstance as 

well. 

(8) FRA Form FRA F 6180.57. FRA 

proposes to amend block 16, ‘‘Position’’

to read (1) Stalled or stuck on crossing 

(currently ‘‘Stalled on Crossing’’); (2) 

Stopped on Crossing; (3) Moving over 

crossing; (4) Trapped on crossing by 

traffic (currently ‘‘Trapped’’); (5) 

Blocked on crossing by gates. In doing 

so, FRA is clarifying the difference 

between choices (1) and (4). FRA has 

found that under the current options 

railroads do not necessarily understand 

that current option (4) ‘‘Trapped’’ means 

trapped by traffic. FRA is also adding a 

fifth option, (5) ‘‘Blocked on crossing by 

gates’’ to indicate those situations 

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wherein a highway-user perceives that 

the user is prevented from leaving the 

crossing because the highway user is 

blocked in by crossing gates. 

FRA proposes to amend Form FRA F 

6180.57 by changing the title of block 34 

from ‘‘Whistle Ban’’ to ‘‘Roadway 

Conditions’’ and include the following 

options: (A) Dry; (B) Wet; (C) Snow/ 

Slush; (D) Ice; (E) Sand, Mud, Dirt, Oil, 

Gravel; (F) Water (Standing, Moving). In 

this block the railroad is to indicate 

roadway conditions at the time of the 

highway-rail grade crossing accident/ 

incident. This information is needed, as 

data provided to FRA regarding 

‘‘Weather Conditions’’ block 23 does not 

necessarily indicate road conditions. 

For example, while the weather may be 

clear at the time of a highway-rail grade 

crossing accident/incident, the roadway 

may be wet, covered with snow, or icy. 

This change will provide FRA with vital 

information useful in assessing risks 

and causes of highway rail grade 

crossing accident/incidents. FRA no 

longer needs to capture Whistle Ban/ 

Quiet Zone information of Form FRA 

6180.57, as this information is provided 

to FRA in Quiet Zone Notices of 

Establishment. See FRA 49 CFR part 

222. 

FRA proposes to change the title of 

blocks 38, ‘‘Driver’s Age’’; 39, ‘‘Driver’s 

Gender’’; 40, ‘‘Driver Drove Behind or in 

Front of Train and Struck or Was Struck 

by Second Train’’; and 41, ‘‘Driver,’’ by 

replacing the term ‘‘Driver’’ or 

‘‘Driver’s’’ with ‘‘Highway User’’ or 

‘‘Highway User’s’’ as applicable; and in 

blocks 40 (in block title) and 41 (in 

block’s response options) also replace 

the term ‘‘drove’’ with ‘‘went.’’ Such 

change clarifies that FRA proposes that 

railroads provide the information for all 

highway users involved in a highwayrail grade crossing accident/incident, 

rather than just for drivers. FRA is 

reviewing how best to collect this 

information, including revising these 

blocks on Form FRA F 6180.57 and 

amending the instructions in the FRA 

Guide for completing the form. Any 

such form revisions and corresponding 

changes to the FRA Guide will be 

published in the Final Rule. In the 

meantime, FRA welcomes comments 

and suggestions on this issue. 

FRA proposes to add the following 

descriptive options to block 41: ‘‘Went 

around or thru temporary barricade’’

and ‘‘Suicide or attempted suicide.’’

FRA also proposes to revise the ‘‘Drove 

around or thru the gate’’ descriptor to 

two separate descriptive choices: ‘‘Went 

around gate’’; and ‘‘Went thru gate.’’

If ‘‘Went around or thru temporary 

barricade’’ is selected in block 41 due to 

the temporary closure of the crossing, 

explain in the narrative block 54 the 

circumstance of the closure (e.g., the 

roadway was closed for repair of 

crossing surface; maintenance/testing of 

automated warning devices; etc.). 

Additionally, explain how the closure 

was accomplished (e.g., roadway closed 

to traffic with jersey barriers on both 

approaches; roadway closed with 

construction barrels on easterly 

approach; etc.). 

In the event of a suicide or attempted 

suicide, option 8, ‘‘Suicide or attempted 

suicide’’ must be indicated in block 41, 

regardless of whether other choices may 

also be applicable. FRA proposes to 

require the inclusion of the suicide or 

attempted suicide in the casualty counts 

in blocks 46, 49, and 52, as applicable, 

and to maintain consistent casualty 

counts between the different reporting 

forms. 

FRA proposes to amend the title of 

block 48, ‘‘Total Number of HighwayRail Crossing Users’’ to read ‘‘Total 

Number of Vehicle Occupants 

(including driver).’’ Collection of this 

data allows FRA to cross-check 

‘‘Casualty to:’’ block 46 with the number 

of vehicle occupants in block 48. FRA 

has found that collecting this 

information serves as an important tool 

in analyzing reports and ensuring 

continuity and compliance in reporting. 

In accordance with Chapter 2 of the 

FRA Guide, vehicles include 

automobiles, buses, trucks, motorcycles, 

bicycles, farm vehicles, and all other 

modes of surface transportation, 

motorized and unmotorized. 

FRA proposes to require in ‘‘Special 

Study Block’’ 53a, that railroads are to 

indicate whether the highway-rail 

crossing accident/incident was recorded 

by a locomotive video recorder; and if 

so, whether information gathered in 

viewing the recording was used by the 

railroad to complete the FRA HighwayRail Grade Crossing Accident/Incident 

Report. To facilitate the collection of 

this information, FRA will include 

instructions in the FRA Guide and place 

two sets of ‘‘yes or no’’ options in block 

53a; one for ‘‘video taken’’ and one for 

‘‘video used.’’ Collecting this 

information will provide FRA with 

knowledge as to the availability of video 

footage for particular accidents/ 

incidents; give FRA an indication of 

how often and to what degree railroads 

are collecting and reviewing video 

footage of these accidents/incidents; and 

make available to FRA an additional 

tool to study the causes and 

circumstances of these accidents/ 

incidents. Whether or not video footage 

was captured and reviewed for a 

particular accident/incident may also 

serve as an indicator as to the accuracy 

or detail of the railroad’s accident/ 

incident report. For additional 

information on requirements related to 

event recorders, see 49 CFR 229.135, 

‘‘Event Recorders.’’

FRA is proposing to include 

instructions that railroads should limit 

the use of the ‘‘unknown’’ option in 

block 36, ‘‘Crossing warning 

Interconnected with Highway Signals’’

and block 37, ‘‘Crossing Illuminated by 

Street Lights or Special Lights.’’ FRA 

has found that an inordinate number of 

completed Form FRA F 6180.57 forms 

are submitted to the agency with 

‘‘unknown’’ marked box 36 and/or 37. 

Railroads have an obligation to submit 

accurate reports to FRA and not simply 

mark ‘‘unknown’’ without investigating 

the matter. Therefore, FRA is using this 

opportunity to require that in Block 36, 

a railroad must only enter option 3, 

‘‘unknown’’ after having first consulted 

with the signal department of the 

railroad responsible for track 

maintenance in an effort to obtain the 

information. In Block 37, the railroad 

must only enter option 3, ‘‘unknown’’

after the railroad has first made a 

diligent effort to discern the relevant 

lighting conditions in an effort to obtain 

the information, but still cannot make a 

determination. FRA proposes these 

limitations in order to increase the 

quantity and accuracy of data the 

agency gathers related to highway-rail 

grade crossing accidents/incidents by 

requiring railroads to make an effort to 

gather the information. 

FRA notes that the agency is 

proposing many of the Form FRA F 

6180.57 revisions in response to a 

November, 28, 2005, report by the 

Department of Transportation’s Office of 

Inspector General, ‘‘Audit of Oversight 

of Highway-Rail Grade Crossing 

Accident Reporting, Investigations, and 

Safety Regulations, Report No. MH–

2006–016. 

(9) Form FRA F 6180.107. FRA 

proposes to revise block 6 on Form FRA 

F 6180.107, ‘‘Employee Number or 

Social Security Number’’ to ‘‘Employee 

Identification Number’’ to address 

privacy concerns. 

FRA proposes to revise block 23 on 

Form FRA F 6180.107 ‘‘Date the Log 

Entry was Completed (mm/dd/yy)’’ to 

state ‘‘Date initially signed/completed.’’

FRA proposes this change to clarify that 

the block must contain the initial date 

the form was completed. FRA finds it 

necessary to make such change because 

the agency has found certain railroads 

do not retain the initial date a record 

was completed, but only the date of the 

most recent update to the record. FRA 

is making this revision to ensure that it 

can discern if the railroad entered each 

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52516 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

claimed occupational illness on the 

appropriate record no later than seven 

working days after receiving 

information or acquiring knowledge that 

an injury or illness or rail equipment 

accident/incident has occurred, as 

proposed in this NPRM in § 225.25(i)(2). 

FRA believes that by specifying the date 

required to be maintained on the record, 

any confusion regarding the 

requirement will be resolved. 

O. Appendix I, ‘‘Model Internal 

Control Plans, Including Model 

Statement of Policy against Harassment 

and Intimidation and Model Complaint 

Procedures.’’ FRA proposes to reorder 

the ICP components in Appendix I’s 

sample Internal Control Plan (ICP) to 

more closely model the listing of 

components as set forth in § 225.33. 

P. Appendix J, ‘‘Type of Territory 

Codes.’’ FRA proposes the addition of 

an Appendix J, which will provide Type 

of Territory Codes and instructions for 

use of those codes when completing 

proposed block 30, ‘‘Type of Territory,’’

on Form FRA F 6180.54, ‘‘Rail 

Equipment Accident/Incident Report.’’

The codes will represent type of 

territory (i.e., signaled territory versus 

non-signaled territory); the authority for 

movement (i.e., signal indication; 

mandatory directive; other than main 

track—Rule 105); and additional 

miscellaneous supplemental codes. See 

Proposed Revisions to the FRA Guide, 

Appendix H, ‘‘Forms’’ for additional 

information. 

Q. Appendix K, ‘‘Electronic 

Submission of Reports to FRA.’’ FRA 

proposes to add this appendix to 

specifically provide electronic 

submission instructions and guidance. 

R. Appendix L, ‘‘49 CFR part 225.’’

FRA proposes to include in this section 

the full regulatory text of part 225. 

Regulatory Impact and Notices 

Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rule has been evaluated in 

accordance with existing policies and 

procedures, and determined to be nonsignificant under both Executive Order 

12866 and DOT policies and 

procedures. 44 FR 11034, February 26, 

1979. FRA has prepared and placed in 

the docket a regulatory analysis 

addressing the economic impact of this 

proposed rule. Document inspection 

and copying facilities are available at 

U.S. Department of Transportation, 

Docket Operations, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. Docket material is also 

available for inspection on the Internet 

at http://www.regulations.gov. 

Photocopies may also be obtained by 

submitting a written request to the FRA 

Docket Clerk at the Office of Chief 

Counsel, RCC–10, Mail Stop 10, Federal 

Railroad Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590; please refer to Docket No. FRA–

2006–26173. 

A regulatory system should protect 

and improve the health and safety of the 

American people. It should perform in 

a manner that improves the performance 

of the economy without imposing 

unacceptable or unreasonable costs on 

society. The changes in this proposed 

rulemaking would serve to simplify 

accident/incident reporting for 

railroads, ensure that railroad worker 

casualty statistics conform to the same 

criteria as statistics from other Federal 

agencies, and improve the quality of 

data available for analysis of railroad 

accidents and incidents. 

FRA believes that the amendments to 

part 225 will increase the accuracy, 

precision, completeness of railroad 

accidents/incident records and reports, 

and correspondingly, FRA’s and the 

railroad industry’s information base 

related to accidents and incidents. This 

increased awareness will not only aid 

FRA in assessing and managing risk, but 

aid railroads and their employees in 

recognizing and correcting dangerous 

conditions and practices in order to 

maintain a safe and healthy 

environment for railroad workers and 

the public. Accordingly, FRA is 

proposing the following regulatory 

changes: 

• Clarify ambiguous definitions and 

regulations; 

• Add necessary definitions; 

• Require railroads (by amending the 

definition of ‘‘Accountable Injury or 

Illness’’) to complete a Form FRA F 

6180.98, ‘‘Railroad Employee Injury 

and/or Illness Record’’ of all injuries 

and illnesses when such abnormal 

condition or disorder manifests within 

the work environment regardless of 

whether the condition or disorder is 

discernably caused by an event or 

exposure in the work environment; 

• Require the reporting of additional 

types of injuries to all persons; 

• Require the reporting of suicides 

and attempted suicides; 

• Include a comprehensive list of 

accident/incident reporting exceptions; 

• Allow for consolidated accident/ 

incident reporting by integrated railroad 

systems; 

• Set forth requirements for railroad 

electronic recordkeeping systems for 

purposes of part 225; 

• Update regulatory text, as 

applicable; 

• Enhance the quality of information 

available for railroad casualty analysis; 

• Clarify and limit which highwayrail grade crossing fatalities must be 

telephonically reported to the National 

Response Center; 

• Clarify and refine the criteria for 

using and retaining Form FRA F 

6180.107, ‘‘Alternative Record for 

Illnesses Claimed to be Work-Related,’’

and the alternative railroad-designed 

record; 

• Eliminate the oath and notarization 

requirements for Form FRA F 6180.55, 

‘‘Railroad Injury and Illness Summary’’; 

• Allow for the electronic submission 

via CD ROM or the Internet of Forms 

FRA F 6180.55, ‘‘Railroad Injury and 

Illness Summary’’ and 6180.81, 

‘‘Employee Human Factor Attachment’’

in .pdf or .jpg format; 

• Set forth record retention 

requirements for certain accident/ 

incident recording and reporting records 

not previously addressed; and 

• Update FRA’s address information. 

In addition to proposing revisions to 

its regulations, FRA is proposing 

revisions to the FRA Guide and to 

certain accident/incident recording and 

reporting forms. 

For the twenty-year period, the 

estimated quantified costs would total 

$6,721,717, and the PV of the estimated 

quantified costs is $3,640,099. For the 

twenty-year period, the estimated 

quantified benefits would total 

$1,772,811, and the PV of the estimated 

quantified benefits would total 

$885,565. 

The NPV of this analysis is a negative 

$2,754,533. This means that, according 

to this analysis and methodology it 

utilizes for the given twenty-year 

period, the discounted value of the 

estimated costs would exceed the 

discounted value of the estimated 

benefits by approximately $2,754,533. 

FRA anticipates further substantial 

benefits flowing from more precise and 

complete accident/incident reporting 

data. Not only does the analysis of 

reported data provide information as to 

the cause of an accident/incident, this 

data can help determine trends, assess 

hazards, and assist in the development 

of effective countermeasures that may 

then be implemented to prevent similar 

accidents and incidents from occurring 

in the future. More precise and 

complete data will also help to identify 

where safety-oriented programs should 

be focused and aid railroads and the 

Agency in setting priorities among 

establishments for inspection and safety 

improvement efforts. 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52517 

Regulatory Flexibility Act and Executive 

Order 13272 

The Regulatory Flexibility Act of 1980 

(5 U.S.C. 601 et seq.) and Executive 

Order 13272 (67 FR 53461, August 16, 

2002) require agency review of proposed 

and final rules to assess their impact on 

small entities. Pursuant to the 

Regulatory Flexibility Act of 1980, 5 

U.S.C. 605(b), FRA has prepared and 

placed in the docket a Certification 

Statement that assesses the small entity 

impact of this proposed rule, and 

certifies that this proposed rule is not 

expected to have a significant economic 

impact on a substantial number of small 

entities. 

Document inspection and copying 

facilities are available at the Docket 

Management Facility, U.S. Department 

of Transportation, West Building 

Ground Floor, Room W12–140, 1200 

New Jersey Avenue, SE., Washington, 

DC 20590. Docket material is also 

available for inspection on the Internet 

at http://www.regulations.gov. 

Photocopies may also be obtained by 

submitting a written request to the FRA 

Docket Clerk at Office of Chief Counsel, 

Federal Railroad Administration, Mail 

Stop 10, Room W31–109, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590; please refer to Docket No. FRA 

2006–26173. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601 as including a small business 

concern that is independently owned 

and operated, and is not dominant in its 

field of operation. The U.S. Small 

Business Administration (SBA) has 

authority to regulate issues related to 

small businesses, and stipulates in its 

size standards that a ‘‘small entity’’ in 

the railroad industry is a for profit ‘‘linehaul railroad’’ that has fewer than 1,500 

employees, a ‘‘short line railroad’’ with 

fewer than 500 employees, or a 

‘‘commuter rail system’’ with annual 

receipts of less than seven million 

dollars. See ‘‘Size Eligibility Provisions 

and Standards,’’ 13 CFR part 121 

subpart A. SBA’s ‘‘size standards’’ may 

be altered by Federal agencies, in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to that authority FRA has 

published a final statement of agency 

policy that formally establishes ‘‘small 

entities’’ or ‘‘small businesses’’ as being 

railroads, contractors and hazardous 

materials shippers that meet the revenue 

requirements of a Class III railroad as set 

forth in 49 CFR 1201.1–1, which is $20 

million or less in inflation-adjusted 

annual revenues, and commuter 

railroads or small governmental 

jurisdictions that serve populations of 

50,000 or less. See 68 FR 24891, May 9, 

2003, codified at Appendix C to 49 CFR 

part 209. The $20 million limit is based 

on the Surface Transportation Board’s 

revenue threshold for a Class III railroad 

carrier. Railroad revenue is adjusted for 

inflation by applying a revenue deflator 

formula in accordance with 49 CFR 

1201.1–1. 

This proposed rule applies to 

railroads. There are approximately 665 

small railroads that could potentially be 

affected. FRA anticipates that most of 

the recording and reporting burdens 

imposed by this proposed regulation 

will be born by railroads that are not 

considered small, due to the decreased 

likelihood that a small railroad will 

experience an accident/incident 

necessitating such recording and/or 

reporting. For example, on average over 

the 2005 to 2007 period, small railroads 

reported approximately only nine 

percent of all reportable casualties and 

only 10 percent of all reportable 

accidents/incidents. 

FRA also anticipates that proposed 

computer related burdens will be born 

by the larger railroads since smaller 

railroads since the large railroads 

choose to retain their accident/incident 

records and reports electronically in 

their own systems. Large railroads also 

submit their accident/incident reports to 

FRA electronically via their own 

systems. Most small railroads do their 

federally required accident/incident 

recordkeeping and reporting on a 

personal computer using FRA supplied 

Accident/Incident Report Generator 

(AIRG) software. This software allows 

railroads to send reports to FRA on a 

CD–ROM or to transmit the information 

to FRA over the Internet. FRA will send 

a free updated or new version of the 

AIRG software to any railroad that 

requests it. Other small railroads do not 

use a computer system for reporting. 

Accordingly, FRA does not anticipate 

that these burdens will be imposed on 

small entities. 

FRA invites comments from all 

interested parties concerning the 

potential economic impact on small 

entities caused by the proposed rule 

amendments. 

Paperwork Statement—Accident/ 

Incident Reporting and Recordkeeping 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995, 44 U.S.C. 3501 et seq. The 

sections of this regulation that contain 

the new information collection 

requirements and the estimated time to 

fulfill each requirement are as follows: 

CFR section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

Total annual 

burden cost 

225.6—Consolidated Reporting (New Requirements).718 railroads ........... 10 Reports .............. 40 hours .................. 400 $20,400 

—Written agreements on subsidiaries.718 railroads ........... 10 agreements ........ 2 hours .................... 20 1,020 

—Notifications on changes to subsidiaries and amended written 

agreement.

718 railroads ........... 2 notifications + 2 

agreements.

1 hr. + 1 hr. ............ 4 204 

225.9—Telephone Reports—Certain Accidents/Incidents and Other Events.718 railroads ........... 3,300 Reports ......... 15 minutes .............. 825 42,075 

225.11—Reporting of Rail Equipment 

Accidents/ Incidents (Form FRA F 

6180.54).

718 railroads ........... 3,600 forms ............. 2 hours .................... 7,200 367,200 

225.12(a)—Rail Equipment Accident/Incident Reports—Human Factor (Form 

FRA F 6180.81).

718 railroads ........... 1,600 forms ............. 15 minutes .............. 400 20,400 

225.12(b)—Rail Equipment Accident/Incident Reports—Human Factor—Part I 

Form FRA F 6180.78.

718 railroads ........... 1,000 notices + 

4,010 copies.

10 minutes + 3 minutes.367 18,717 

225.12(c)—Rail Equipment Accident/Incident Reports—Human Factor—Joint 

Operations.

718 railroads ........... 100 requests ........... 20 minutes .............. 33 1,683 

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52518 Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 

CFR section—49 CFR Respondent 

universe 

Total annual 

responses 

Average time 

per response 

Total annual 

burden hours 

Total annual 

burden cost 

225.12(d)—Rail Equipment Accident/Incident Reports—Human Factor—Late 

Identification.

718 railroads ........... 20 attachments + 20 

notices.

15 minutes .............. 10 510 

225.12(g)—Rail Equipment Accident/Incident Reports—Human Factor—Employee Supplement—Part II Form FRA 

F 6180.78.

Railroad Employees 75 statements ......... 1.5 hours ................. 113 5,311 

225.12(g)—Rail Equipment Accident/Incident Reports—Human Factor—Employee Confidential Letter.Railroad Employees 10 letters ................. 2 hours .................... 20 940 

225.13—Late Reports .............................. 718 railroads ........... 25 reports ............... 1 hour ..................... 25 1,275 

—Amended Rail Equipment 

Accident/ Incident Reports.

718 railroads ........... 50 amended reports/40 copies.1 hour + 3 minutes 52 2,652 

225.18—Alcohol or Drug Involvement ..... 718 railroads ........... 80 reports ............... 30 minutes .............. 40 2,040 

—Appended Reports ........................ 718 railroads ........... 5 reports ................. 30 minutes .............. 3 153 

225.19(a)—Highway-Rail Grade Crossing 

Accident/Incident Reports—(Form FRA 

F 6180.57).

718 railroads ........... 2,880 forms ............. 2 hours .................... 5,760 293,760 

—(c) Death, Injury, or Occupational 

Illness—Form FRA F 6180.55a.

718 railroads ........... 12,180 forms ........... 20 min.; 50 min. ...... 4,810 245,310 

225.21—Forms: 

—Form FRA F 6180.55—Railroad 

Injury/Illness Summary.

718 railroads ........... 8,616 forms ............. 10 minutes .............. 1,436 73,236 

—Form FRA F 6180.56—Railroad 

Annual Report of Manhours By 

State.

718 railroads ........... 718 forms ................ 15 minutes .............. 180 9,180 

—Form FRA F 6180.98—Railroad 

Employee Injury and/or Illness 

Record.

718 railroads ........... 22,500 forms ........... 1 hour ..................... 22,500 1,147,500 

—Form FRA F 6180.98—Copies ..... 718 railroads ........... 675 copies .............. 2 minutes ................ 23 1,081 

—Form FRA F 6180.97—Initial Rail 

Equipment Accident/Incident 

Record.

718 railroads ........... 14,000 forms ........... 30 minutes .............. 7,000 357,000 

—Form FRA F 6180.107—Alternate 

Record For Illnesses Claimed to 

Be Work Related.

718 railroads ........... 300 forms ................ 15 minutes .............. 75 3,825 

—Form FRA F 6180.39i—Notific. & 

Investigation Rpt..

654 railroads ........... 1,000 forms ............. 90 minutes .............. 1,500 76,500 

225.25—Posting of Monthly Summary .... 718 railroads ........... 8,616 lists ............... 16 minutes .............. 2,298 117,198 

225.27—Retention of Records ................ 718 railroads ........... 1,900 records .......... 2 minutes ................ 63 3,213 

225.33—Internal Control Plans—Amended.718 railroads ........... 25 amendments ...... 14 hours .................. 350 17,850 

225.35—Access to Records and Reports—Lists.15 railroads ............. 400 lists .................. 20 minutes .............. 133 6,783 

—Subsequent Years ......................... 4 railroads ............... 16 lists .................... 20 minutes .............. 5 255 

225.37—Optical Media Transfer and 

Electronic Submission.

8 railroads ...............

718 railroads ...........

200 transfers ...........

2,400 elec submissions.

3 minutes ................

3 minutes ................

10 

120 

510 

6,120 

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. Pursuant to 

44 U.S.C. 3506(c)(2)(B), FRA solicits 

comments concerning: Whether these 

information collection requirements are 

necessary for the proper performance of 

the functions of FRA, including whether 

the information has practical utility; the 

accuracy of FRA’s estimates of the 

burden of the information collection 

requirements; the quality, utility, and 

clarity of the information to be 

collected; and whether the burden of 

collection of information on those who 

are to respond, including through the 

use of automated collection techniques 

or other forms of information 

technology, may be minimized. For 

information or a copy of the paperwork 

package submitted to OMB, contact Mr. 

Robert Brogan, Information Clearance 

Officer, at 202–493–6292, or Ms. Nakia 

Jackson at 202–493–6073. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to Mr. Robert Brogan 

or Ms. Nakia Jackson, Federal Railroad 

Administration, 1200 New Jersey 

Avenue, SE., 3rd Floor, Washington, DC 

20590. Comments may also be 

submitted via e-mail to Mr. Brogan or 

Ms. Jackson at the following address: 

robert.brogan@dot.gov; 

nakia.jackson@dot.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. The final rule will 

respond to any OMB or public 

comments on the information collection 

requirements contained in this 

proposal. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

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Federal Register / Vol. 73, No. 175 / Tuesday, September 9, 2008 / Proposed Rules 52519 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

Federalism Implications 

Executive Order 13132, ‘‘Federalism’’

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the proposed regulation. 

Where a regulation has federalism 

implications and preempts State law, 

the agency seeks to consult with State 

and local officials in the process of 

developing the regulation. 

This is a rule with preemptive effect. 

The requirements of this rule establish 

uniform Federal railroad safety laws 

that must be met, and State 

requirements covering the same subject 

are displaced, whether those standards 

are in the form of State statutes, 

regulations, local ordinances, or other 

forms of State law, including State 

common law. Section 20106 of Title 49 

of the United States Code provides that 

all regulations prescribed by the 

Secretary related to railroad safety 

preempt any State law, regulation, or 

order covering the same subject matter, 

except a provision necessary to 

eliminate or reduce an essentially local 

safety hazard that is not incompatible 

with a Federal law, regulation, or order 

and that does not unreasonably burden 

interstate commerce. This is consistent 

with past practice at FRA, and within 

the Department of Transportation. 

However, while FRA’s regulations 

under part 225 preempt States from 

prescribing accident/incident reporting 

requirements, there is nothing in our 

regulations that preempts States from 

having their own accident notification 

requirements. Under § 225.1, 

‘‘[i]ssuance of these regulations under 

the Federal railroad safety laws and 

regulations preempts States from 

prescribing accident/incident reporting 

requirements. Any State may, however, 

require railroads to submit to it copies 

of accident/incident and injury/illness 

reports filed with FRA under this part, 

for accidents/incidents and injuries/ 

illnesses that occur in that State.’’ FRA 

does not propose to change this 

provision that a State may require a 

railroad to submit to the State copies of 

accident/incident and injury/illness 

reports that occur in that State. 

However, FRA may need to amend the 

provision with respect to ‘‘suicide 

data.’’ FRA is requesting comments on 

how to ensure that restrictions on the 

use and public availability of suicide 

data at the State level remain consistent 

with those FRA has prescribed in 

proposed § 225.41. Specifically, that 

suicide data (as defined in § 225.5) will 

not be included in any summaries of 

data on the number of injuries and 

illnesses associated with railroad 

operations; that suicide data is not 

publicly accessible; and that suicide 

data will only be available to the public 

in aggregate format. 

Additionally, section 20902 of title 49 

of the United States Code, which 

authorized the Secretary of 

Transportation to investigate certain 

accidents and incidents, provides: ‘‘[i]f 

the accident or incident is investigated 

by a commission of the State in which 

it occurred, the Secretary, if convenient, 

shall carry out the investigation at the 

same time as, and in coordination with, 

the commission’s investigation.’’ This 

section contemplates that States have an 

interest in carrying out simultaneous 

investigation in coordination with the 

Secretary, where convenient. It would 

be consistent with this interest to permit 

States to adopt their own accident 

notification requirements so as to allow 

a prompt, and perhaps coordinated 

investigation. 

FRA has analyzed this proposed rule 

in accordance with the principles and 

criteria contained in Executive Order 

13132. This proposed rule will not have 

a substantial effect on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among various levels of 

government. FRA concludes that this 

proposed rule will not impose any 

direct compliance costs on State and 

local governments and has no 

federalism implications, other than the 

preemption of State laws covering the 

subject matter of this final rule, which 

occurs by operation of law under 49 

U.S.C. 20106 whenever FRA issues a 

rule or order. For the foregoing reasons, 

FRA believes that this proposed rule is 

in accordance with the principles and 

criteria contained in Executive Order 

13132. 

International Trade Impact Assessment 

The Trade Agreement Act of 1979 

prohibits Federal agencies from 

engaging in any standards or related 

activities that create unnecessary 

obstacles to the foreign commerce of the 

United States. Legitimate domestic 

objectives, such as safety, are not 

considered unnecessary obstacles. The 

statute also requires consideration of 

international standards and where 

appropriate, that they be the basis for 

U.S. standards. 

This rulemaking is purely domestic in 

nature and is not expected to affect 

trade opportunities for U.S. firms doing 

business overseas or for foreign firms 

doing business in the United States. 

Environmental Impact 

FRA has evaluated this final rule in 

accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this proposed rule is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

See 64 FR 28547, May 26, 1999. Section 

4(c)(20) reads as follows: 

(c) Actions categorically excluded. 

Certain classes of FRA actions have 

been determined to be categorically 

excluded from the requirements of these 

Procedures as they do not individually 

or cumulatively have a significant effect 

on the human environment. * * * The 

following classes of FRA actions are 

categorically excluded: * * * (20) 

Promulgation of railroad safety rules 

and policy statements that do not result 

in significantly increased emissions or 

air or water pollutants or noise or 

increased traffic congestion in any mode 

of transportation. 

In accordance with section 4(c) and 

(e) of FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

As a result, FRA finds that this 

proposed rule is not a major Federal 

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action significantly affecting the quality 

of the human environment. 

Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. No. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$100,000,000 or more (adjusted 

annually for inflation) [$141,000,000 in 

2008] in any 1 year, and before 

promulgating any final rule for which a 

general notice of proposed rulemaking 

was published, the agency shall prepare 

a written statement’’ detailing the effect 

on State, local, and tribal governments 

and the private sector. The proposed 

rule would not result in the 

expenditure, in the aggregate, of 

$141,000,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ 66 FR 28355, May 22, 

2001. Under the Executive Order, a 

‘‘significant energy action’’ is defined as 

any action by an agency (normally 

published in the Federal Register) that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this regulatory action is 

not a ‘‘significant energy action’’ within 

the meaning of Executive Order 13211. 

Privacy Act 

FRA wishes to inform all potential 

commenters that anyone is able to 

search the electronic form of all 

comments received into any agency 

docket by the name of the individual 

submitting the comment (or signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

To get more information on this matter 

and to view the Regulations.gov Privacy 

Notice go to http://www.regulations.gov/ 

search/footer/privacyanduse.jsp. You 

may review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

List of Subjects in 49 CFR Part 225 

Accident investigation, Penalties, 

Railroad safety, Railroads, Reporting 

and recordkeeping requirements, Safety 

and transportation. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

225 of chapter II, subtitle B of Title 49, 

Code of Federal Regulations as follows: 

PART 225—[AMENDED] 

1. The authority citation for part 225 

continues to read as follows: 

Authority: 49 U.S.C. 103, 322(a), 20103, 

20107, 20901–02, 21301, 21302, 21311; 28 

U.S.C. 2461, note; and 49 CFR 1.49. 

2. Section 225.3 is amended by 

revising the introductory text of 

paragraph (b) to read as follows: 

§ 225.3 Applicability. 

* * * * * 

(b) The Internal Control Plan 

requirements in § 225.33(a)(3) through 

(a)(11) do not apply to—

* * * * * 

3. Section 225.5 is amended by 

adding definitions for discernable cause, 

event or exposure, injury or illness, 

railroad carrier, significant aggravation 

of a pre-existing injury or illness, and 

suicide data; and by revising paragraphs 

(1) and (3) of the definition for accident/ 

incident, and the definitions of 

accountable injury or illness, 

accountable rail equipment accident/ 

incident, event or exposure arising from 

the operation of a railroad, general 

reporting criteria, new case, qualified 

health care professional, railroad, work 

environment and work-related to read as 

follows: 

§ 225.5 Definitions. 

* * * * * 

Accident/incident means: 

(1) Any impact between railroad ontrack equipment and a highway user 

(e.g., an automobile, bus, truck, 

motorcycle, bicycle, farm vehicle, 

pedestrian or other highway user) at a 

highway-rail grade crossing. Sidewalks, 

pathways, shoulders and ditches 

associated with the crossing are 

considered to be part of the crossing 

site. The term ‘‘highway user’’ includes 

pedestrians, cyclists, and all other 

modes of surface transportation, 

motorized and unmotorized. 

* * * * * 

(3) Each death, injury, or occupational 

illness that is a new case and meets the 

general reporting criteria listed in 

§ 225.19(d)(1) through (d)(6) if an event 

or exposure arising from the operation 

of a railroad is a discernable cause of the 

resulting condition or a discernable 

cause of a significant aggravation to a 

pre-existing injury or illness. The event 

or exposure arising from the operation 

of a railroad need only be one of the 

discernable causes; it need not be the 

sole or predominant cause. 

Accountable injury or illness means 

any abnormal condition or disorder of a 

railroad employee that causes or 

requires the railroad employee to be 

examined or treated by a qualified 

health care professional but does not 

meet the general reporting criteria listed 

in § 225.19(d)(1) through (d)(6). When 

such condition or disorder manifests 

within the work environment it is an 

accountable injury or illness regardless 

of whether the condition or disorder is 

discernably caused by an event or 

exposure in the work environment. 

When such condition or disorder 

manifests outside the work environment 

it is an accountable injury or illness if 

the condition or disorder is discernably 

caused by an event or exposure in the 

work environment. 

Accountable rail equipment accident/ 

incident means a collision, derailment, 

fire, explosion, act of God, or other 

event involving the operation of railroad 

on-track equipment (standing or 

moving) that does not result in 

reportable damages greater than the 

current reporting threshold to railroad 

on-track equipment, signals, track, track 

structures, and roadbed. 

* * * * * 

Discernable cause means a causal 

factor capable of being recognized by 

the senses or the understanding. An 

event or exposure arising from the 

operation of a railroad is a discernable 

cause of (i.e., discernably caused) an 

injury or illness if, considering the 

circumstances, it is more likely than not 

that the event or exposure is a cause of 

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the injury or illness. The event or 

exposure arising from the operation of a 

railroad need not be a sole, predominant 

or significant cause of the injury or 

illness, so long as it is a cause (i.e., a 

contributing factor). 

* * * * * 

Event or exposure includes an 

incident, activity, or occurrence. 

Event or exposure arising from the 

operation of a railroad includes—

(1) With respect to a person who is 

not an employee of the railroad: 

(i) An event or exposure that occurs 

on property owned, leased, or 

maintained by the railroad and is 

related to the performance of the 

railroad’s rail transportation business; or 

(ii) An event or exposure that occurs 

off property owned, leased, or 

maintained by the railroad directly 

resulting from one or more of the 

following railroad operations: 

(A) A train accident, a train incident, 

or a highway-rail grade crossing 

accident or incident involving the 

railroad; or 

(B) A release of a hazardous material 

from a railcar in the possession of the 

railroad or of another dangerous 

commodity that is related to the 

performance of the railroad’s rail 

transportation business. 

(2) With respect to a person who is an 

employee of the railroad, an event or 

exposure that is work-related. 

* * * * * 

General reporting criteria means the 

criteria listed in § 225.19(d)(1), (2), (3), 

(4), (5) and (6). 

* * * * * 

Injury or illness means an abnormal 

condition or disorder. Injuries include 

cases such as, but not limited to, a cut, 

fracture, sprain, or amputation. Illnesses 

include both acute and chronic 

illnesses, such as but not limited to, a 

skin disease, respiratory disorder, or 

poisoning. A musculoskeletal disorder 

is also an injury or illness. Pain is an 

injury or illness when it is sufficiently 

severe to meet the general reporting 

criteria listed in § 225.19(d)(1) through 

(d)(6). 

* * * * * 

New case means a case in which 

either the injured or ill person has not 

previously experienced a reported 

injury or illness of the same type that 

affects the same part of the body, or the 

injured or ill person previously 

experienced a reported injury or illness 

of the same type that affected the same 

part of the body but had recovered 

completely (all signs had disappeared) 

from the previous injury or illness, and 

an event or exposure arising from the 

operation of a railroad discernably 

caused the signs or symptoms to 

reappear. 

* * * * * 

Qualified health care professional is a 

health care professional operating 

within the scope of his or her license, 

registration, or certification. In addition 

to licensed physicians, the term 

qualified health care professional 

includes members of other occupations 

associated with patient care and 

treatment such as chiropractors, 

podiatrists, physicians assistants, 

psychologists, and dentists. 

Railroad means a railroad carrier. 

Railroad carrier means a person 

providing railroad transportation. 

* * * * * 

Significant aggravation of a preexisting injury or illness means 

aggravation of a pre-existing injury or 

illness that is discernably caused by an 

event or exposure arising from the 

operation of a railroad that results in: 

(1) With respect to any person: 

(i) Death, provided that the preexisting injury or illness would likely 

not have resulted in death but for the 

event or exposure; 

(ii) Loss of consciousness, provided 

that the pre-existing injury or illness 

would likely not have resulted in loss of 

consciousness but for the event or 

exposure; or 

(iii) Medical treatment in a case where 

no medical treatment was needed for 

the injury or illness before the event or 

exposure, or a change in the course of 

medical treatment that was being 

provided before the event or exposure. 

(2) With respect to a railroad 

employee, one or more days away from 

work, or days of restricted work, or days 

of job transfer that otherwise would not 

have occurred but for the event or 

exposure. 

* * * * * 

Suicide data means data regarding the 

death of an individual due to that 

individual’s commission of suicide as 

determined by a coroner or other public 

authority; or injury to an individual due 

to that individual’s attempted 

commission of suicide as determined by 

a public authority. Only the death of, or 

injury to, the individual who committed 

the suicidal act is suicide data. 

* * * * * 

Work environment means the 

establishment and other locations where 

one or more railroad employees are 

working or present as a condition of 

their employment. The work 

environment includes not only physical 

locations, but also the equipment or 

materials processed or used by an 

employee during the course of his or her 

work, and activities of a railroad 

employee associated with his or her 

work, whether on or off the railroad’s 

property. 

Work related means related to an 

event or exposure occurring within the 

work environment. An injury or illness 

is presumed work related if an event or 

exposure occurring in the work 

environment is a discernable cause of 

the resulting condition or a discernable 

cause of a significant aggravation to a 

pre-existing injury or illness. The causal 

event or exposure need not be 

peculiarly occupational so long as it 

occurs at work. For example, a causal 

event or exposure may be outside the 

employer’s control, such as a lightening 

strike; involve activities that occur at 

work but are not directly productive, 

such as horseplay; or involve activities 

that are not peculiar to work, such as 

walking on a level floor, bending down, 

climbing stairs or sneezing, which 

activities, along with other normal body 

movements, are considered work events. 

Regardless, so long as the event or 

exposure occurred at work and is a 

discernable cause of the injury or 

illness, the injury or illness is work 

related. It does not matter whether there 

are other or bigger causes as well, or that 

the activity at work is no different from 

actions performed outside work. If an 

injury is within the presumption of 

work-relatedness, the employer can 

rebut work-relatedness only by showing 

that the case falls within an exception 

listed in § 225.15. In cases where it is 

not obvious whether a precipitating 

event or exposure occurred at work or 

outside work, the employer must 

evaluate the employee’s work duties 

and environment and decide whether it 

is more likely than not that an event or 

exposure at work was at least one of the 

causes of the injury or illness. 

4. Section 225.6 is added to read as 

follows: 

§ 225.6 Consolidated reporting. 

A parent corporation may request in 

writing that FRA treat its commonly 

controlled railroad carriers, which 

operate as a single, seamless, integrated 

United States rail system, as a single 

railroad carrier for purposes of this part. 

(a) The written request must include 

the following: 

(1) A list of the subsidiary railroads 

controlled by the parent corporation; 

and 

(2) An explanation as to how the 

subsidiary railroads operate as a single, 

seamless, integrated United States 

railroad system. 

(b) The request must be sent to the 

FRA Docket Clerk, Federal Railroad 

Administration, U.S. Department of 

Transportation, RCC–10, Mail Stop 10, 

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West Building 3rd Floor, Room W31–

109, 1200 New Jersey Avenue, SE., 

Washington, DC 20590. Each request 

received shall be acknowledged in 

writing. The acknowledgment shall 

contain the docket number assigned to 

the request and state the date the 

request was received. 

(c) FRA will notify the applicant 

parent corporation of the agency’s 

decision within 90 days of receipt of the 

application. 

(d) If FRA approves the request, the 

parent corporation must enter into a 

written agreement with FRA specifying 

which subsidiaries are included in its 

railroad system, agreeing to assume 

responsibility for compliance with this 

part for all named subsidiaries making 

up the system, and consenting to 

guarantee any monetary penalty 

assessments or other liabilities owed to 

the United States government that are 

incurred by the named subsidiaries for 

violating Federal accident/incident 

reporting requirements. Any change in 

the subsidiaries making up the railroad 

system requires immediate notification 

to FRA and execution of an amended 

agreement. Executed agreements will be 

published in the docket. 

5. Section 225.7 is amended by 

revising paragraph (a) to read as follows: 

§ 225.7 Public examination and use of 

reports. 

(a) Accident/Incident reports made by 

railroads in compliance with these rules 

shall be available to the public in the 

manner prescribed by part 7 of this title. 

Accident/Incident reports may be 

inspected at the U.S. Department of 

Transportation, Federal Railroad 

Administration, Office of Safety, West 

Building 3rd Floor, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

Written requests for a copy of a report 

should be addressed to the Freedom of 

Information Act Coordinator, Office of 

Chief Counsel, Federal Railroad 

Administration, U.S. Department of 

Transportation, RCC–10, Mail Stop 10, 

West Building 3rd Floor, Room W33–

437, 1200 New Jersey Avenue, SE., 

Washington, DC 20590, and be 

accompanied by the appropriate fee 

prescribed in part 7 of this title. To 

facilitate expedited handling, each 

request should be clearly marked ‘‘FOIA 

Request for Accident/Incident Report.’’

For additional information on 

submitting a FOIA request to FRA see 

FRA’s Web site at http:// 

www.fra.dot.gov/us/foia. 

* * * * * 

6. Section 225.9 is amended by 

revising paragraph (a)(2)(iii) and (iv) to 

read as follows: 

§ 225.9 Telephonic reports of certain 

accidents/incidents and other events. 

(a) * * * 

(2) * * * 

(iii) A fatality resulting from a train 

accident or train incident at a highwayrail grade crossing when death occurs 

within 24 hours of the accident/ 

incident; 

(iv) A train accident resulting in 

damage (based on a preliminary gross 

estimate) of $150,000 or more to railroad 

and nonrailroad property; or 

* * * * * 

7. Section 225.11 is revised to read as 

follows: 

§ 225.11 Reporting of accidents/incidents. 

(a) Each railroad subject to this part 

shall submit to FRA a monthly report of 

all railroad accidents/incidents 

described below: 

(1) Highway-rail grade crossing 

accidents/incidents described in 

§ 225.19; 

(2) Rail equipment accidents/ 

incidents described in § 225.19; and 

(3) Death, injury and occupational 

illness accidents/incidents described in 

§ 225.19. 

(b) The report shall be made on the 

forms prescribed in § 225.21 in hard 

copy or, alternatively, by means of 

optical media or electronic submission 

via the Internet, 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. A 

copy of the FRA Guide may be obtained 

from the U.S. Department of 

Transportation, Federal Railroad 

Administration, Office of Safety 

Analysis, RRS–22, Mail Stop 25 West 

Building 3rd Floor, Room W33–107, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590 or downloaded 

from FRA’s Office of Safety Analysis 

Web site at http://safetydata.fra.dot.gov/ 

officeofsafety/, and click on ‘‘Click Here 

for Changes in Railroad Accident/ 

Incident Recordkeeping and Reporting.’’

8. Section 225.12 is amended by 

revising paragraph (g)(3) to read as 

follows: 

§ 225.12 Rail Equipment Accident/Incident 

Reports alleging employee human factor as 

cause; Employee Human Factor 

Attachment; notice to employee; employee 

supplement. 

* * * * * 

(g) * * * 

(3) Information that the employee 

wishes to withhold from the railroad 

must not be included in this 

Supplement. If an employee wishes to 

provide confidential information to 

FRA, the employee should not use the 

Supplement form (part II of Form FRA 

F 6180.78, ‘‘Notice to Railroad 

Employee Involved in Rail Equipment 

Accident/Incident Attributed to 

Employee Human Factor; Employee 

Statement Supplementing Railroad 

Accident Report’’), but rather provide 

such confidential information by other 

means, such as a letter to the employee’s 

collective bargaining representative, or 

to the U.S. Department of 

Transportation, Federal Railroad 

Administration, Office of Safety 

Analysis, RRS–22, Mail Stop 25 West 

Building 3rd Floor, Room W33–306, 

1200 New Jersey Avenue, SE., 

Washington, DC 20590. The letter 

should include the name of the railroad 

making the allegations, the date and 

place of the accident, and the rail 

equipment accident/incident number. 

* * * * * 

9. Section 225.15 is revised to read as 

follows: 

§ 225.15 Accidents/incidents not to be 

reported. 

The following accidents/incidents are 

not reportable: 

(a) With respect to persons other than 

railroad employees. A railroad is not to 

report injuries that occur at highway-rail 

grade crossings that do not involve the 

presence or operation of on-track 

equipment, or the presence of railroad 

employees then engaged in the 

operation of a railroad; 

(b) With respect to railroad employees 

on duty. A railroad is not to report the 

following injuries to or illnesses of a 

railroad employee as Class A—Worker 

on Duty—Employee, if any of the 

following conditions in paragraphs 

(b)(1) through (b)(3) of this section are 

met. This exception does not affect a 

railroad’s obligation to report injuries to 

an employee not on duty (Class B—

Employee not on Duty), or a railroad’s 

obligation to maintain a ‘‘Railroad 

Employee Injury/Illness Record’’ (Form 

FRA F 6180.98 or alternative railroaddesigned form). 

(1) The injury or illness occurred in 

or about living quarters not arising from 

the operation of a railroad; 

(2) At the time of the injury or illness, 

the employee was present in the work 

environment as a member of the general 

public rather than as an employee; or 

(3) The injury or illness is caused by 

a motor vehicle accident and occurs on 

a company parking lot or company 

access road while the employee is 

commuting to or from work. 

(c) With respect to railroad employees 

on or off duty. A railroad is not to report 

the following injuries to or illnesses of 

a railroad employee, Class A—Worker 

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on Duty—Employee or Class B—

Employee not on Duty, if any of the 

following conditions in paragraphs 

(c)(1) through (c)(7) of this section are 

met. 

(1) The injury or illness involves signs 

or symptoms that surface at work but 

result solely from a non-work-related 

event or exposure that occurs outside 

the work environment; 

(2) The injury or illness results solely 

from voluntary participation in a 

wellness program or in a medical, 

fitness, or recreational activity such as 

blood donation, physical examination, 

flu shot, exercise class, racquetball, or 

baseball; 

(3) The injury or illness is solely the 

result of an employee eating, drinking, 

or preparing food or drink for personal 

consumption. However, if the employee 

is made ill by ingesting food 

contaminated by workplace 

contaminants (such as lead), or gets food 

poisoning from food supplied by the 

employer, the case would be considered 

work-related and reported as either a 

Class A—Worker on Duty—Employee or 

Class B—Employee not on Duty 

depending on the employee’s duty 

status; 

(4) The injury or illness is solely the 

result of an employee doing personal 

tasks (unrelated to their employment) at 

the establishment outside of the 

employee’s assigned working hours; 

(5) The injury or illness is solely the 

result of personal grooming, self 

medication for a non-work-related 

condition, or is intentionally selfinflicted; 

(6) The illness is the common cold or 

flu (Note: Contagious diseases such as 

tuberculosis, brucellosis, hepatitis A, or 

plague are considered work-related if 

the employee is infected at work); or 

(7) The illness is a mental illness. 

Mental illness will not be considered 

work-related unless the employee 

voluntarily provides the employer with 

an opinion from a physician or other 

licensed health care professional with 

appropriate training and experience 

(psychiatrist, psychologist, psychiatric 

nurse practitioner, etc.) stating that the 

employee has a mental illness that is 

work-related. 

(d) With respect to contractors and 

volunteers. A railroad is not to report 

injuries to contractors and volunteers 

that are listed in paragraphs (b) and (c) 

of this section. For purposes of this 

paragraph only, an exception listed in 

paragraphs (b) and (c) referencing ‘‘work 

environment’’ is construed to mean for 

contractors and volunteers only, on 

property owned, leased, or maintained 

by the railroad. 

(e) With respect to rail equipment 

accident/incidents. A railroad is not to 

report the following rail equipment 

accidents/incidents: 

(1) Cars derailed on industry tracks by 

non-railroad employees or non-railroad 

employee vandalism, providing there is 

no involvement of railroad employees; 

and 

(2) Damage to out of service cars 

resulting from high water or flooding 

(e.g., empties placed on a storage or 

repair track). This exception does not 

apply if such cars are placed into a 

moving consist and as a result of this 

damage a reportable rail equipment 

accident results. 

10. Section 225.17 is amended by 

revising paragraph (a) and removing 

paragraph (d) to read as follows: 

§ 225.17 Doubtful cases. 

(a) The reporting officer of a railroad 

will ordinarily determine the 

reportability or nonreportability of an 

accident/incident after examining all 

evidence available. The FRA, however, 

cannot delegate authority to decide 

matters of judgment when facts are in 

dispute. In all such cases the decision 

shall be that of the FRA. 

* * * * * 

11. Section 225.18 is added to read as 

follows: 

§ 225.18 Alcohol or drug involvement. 

(a) In preparing Form FRA F 6180.54, 

‘‘Rail Equipment Accident/Incident 

Report,’’ under this part, the railroad 

shall make such specific inquiry as may 

be reasonable under the circumstances 

into the possible involvement of alcohol 

or drug use or impairment in such 

accident or incident. If the railroad 

comes into possession of any 

information whatsoever, whether or not 

confirmed, concerning alleged alcohol 

or drug use or impairment by an 

employee who was involved in, or 

arguably could be said to have been 

involved in, the accident/incident, the 

railroad shall report such alleged use or 

impairment as provided in the current 

FRA Guide. If the railroad is in 

possession of such information but does 

not believe that alcohol or drug 

impairment was the primary or 

contributing cause of the accident/ 

incident, then the railroad shall include 

in the narrative statement of such report 

a brief explanation of the basis of such 

determination. 

(b) For any train accident within the 

requirement for post-accident testing 

under § 219.201 of this chapter, the 

railroad shall append to the Form FRA 

F 6180.54, ‘‘Rail Equipment Accident/ 

Incident Report,’’ any report required by 

49 CFR 219.209(b) (pertaining to failure 

to obtain samples for post-accident 

toxicological testing). 

(c) For any train or non-train incident, 

the railroad shall provide any available 

information concerning the possible 

involvement of alcohol or drug use or 

impairment in such accident or 

incident. 

(d) In providing information required 

by this section, a railroad shall not 

disclose any information concerning use 

of controlled substances determined by 

the railroad’s Medical Review Officer to 

have been consistent with 49 CFR 

219.103. 

12. Section 225.19 is amended by 

revising paragraph (d) to read as 

follows: 

§ 225.19 Primary groups of accidents/ 

incidents. 

* * * * * 

(d) Group III—Death, injury, or 

occupational illness. Each death, injury, 

or occupational illness that is a new 

case and meets the general reporting 

criteria listed in paragraphs (d)(1) 

through (d)(6) of this section shall be 

reported to FRA on Form FRA F 

6180.55a, ‘‘Railroad Injury and Illness 

Summary (Continuation Sheet)’’ if an 

event or exposure arising from the 

operation of a railroad is a discernable 

cause of the resulting condition or a 

discernable cause of a significant 

aggravation to a pre-existing injury or 

illness. The event or exposure arising 

from the operation of a railroad need 

only be one of the discernable causes; it 

need not be the sole or predominant 

cause. The general injury/illness 

reporting criteria are as follows: 

(1) Death to any person; 

(2) Injury to any person that results in: 

(i) Medical treatment; 

(ii) Significant injury diagnosed by a 

physician or other licensed health care 

professional even if it does not result in 

death, a day away from work, restricted 

work activity or job transfer, medical 

treatment, or loss of consciousness; or 

(iii) Loss of consciousness; 

(3) Injury to a railroad employee that 

results in: 

(i) A day away from work; or 

(ii) Restricted work activity or job 

transfer; 

(4) Occupational illness of a railroad 

employee that results in: 

(i) A day away from work; 

(ii) Restricted work activity or job 

transfer; 

(iii) Loss of consciousness; or 

(iv) Medical treatment; 

(5) Significant illness of a railroad 

employee diagnosed by a physician or 

other licensed health care professional 

even if it does not result in death, a day 

away from work, restricted work activity 

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or job transfer, medical treatment, or 

loss of consciousness; 

(6) Illness or injury that: 

(i) Meets the application of any of the 

following specific case criteria: 

(A) Needlestick or sharps injury to a 

railroad employee; 

(B) Medical removal of a railroad 

employee; 

(C) Occupational hearing loss of a 

railroad employee; 

(D) Occupational tuberculosis of a 

railroad employee; 

(E) Musculoskeletal disorder of a 

railroad employee if this disorder is 

reportable under one or more of the 

general reporting criteria; or 

(ii) Is a covered data case. 

* * * * * 

13. Section 225.21 is amended by 

revising the introductory text and 

paragraph (j) to read as follows: 

§ 225.21 Forms. 

The following forms and copies of the 

‘‘FRA Guide for Preparing Accident/ 

Incident Reports’’ may be obtained from 

the U.S. Department of Transportation, 

Federal Railroad Administration, Office 

of Safety Analysis, RRS–22, Mail Stop 

25, West Building, 3rd Floor, Room 

W33–107, 1200 New Jersey Avenue, SE., 

Washington, DC 20590 or downloaded 

from FRA’s Office of Safety Analysis 

Web site at http://safetydata.fra.dot.gov/ 

officeofsafety/, and click on ‘‘Click Here 

for Changes in Railroad Accident/ 

Incident Recordkeeping and Reporting.’’

* * * * * 

(j) Form FRA 6180.107—Alternative 

Record for Illnesses Claimed To Be 

Work-Related. Form FRA F 6180.107 or 

an alternative railroad-designed record 

may be used by a railroad in lieu of 

Form FRA F 6180.98, ‘‘Railroad 

Employee Injury and/or Illness Record’’

(described in paragraph (h) of this 

section), to record each illness claimed 

by an employee to be work-related that 

is reported to the railroad for which 

there is insufficient information for the 

railroad to determine whether the 

illness is work-related. This record shall 

be completed and retained in 

accordance with the requirements set 

forth in § 225.25 and § 225.27. 

14. Section 225.25 is amended by 

revising paragraphs (a), (b)(6) and 

(b)(28), paragraph (e)(28) and paragraph 

(i), and by adding paragraph (j) to read 

as follows: 

§ 225.25 Recordkeeping. 

(a) Each railroad shall maintain either 

the Railroad Employee Injury and/or 

Illness Record (Form FRA F 6180.98) or 

an alternative railroad-designed record 

as described in paragraph (b) of this 

section of all reportable and accountable 

injuries and illnesses of its employees 

for each railroad establishment where 

such employees report to work, 

including, but not limited to, an 

operating division, general office, and 

major installation such as a locomotive 

or car repair or construction facility. 

(b) * * * 

(6) Employee identification number; 

* * * * * 

(28) The railroad shall identify the 

preparer’s name; title; telephone 

number with area code; and the date the 

record was initially signed/completed. 

* * * * * 

(e) * * * 

(28) Date the record was initially 

signed/completed. 

* * * * * 

(i) Claimed Occupational Illnesses. (1) 

Each railroad may maintain a Form FRA 

F 6180.107, ‘‘Alternative Records for 

Illnesses Claimed To Be Work-Related,’’

or an alternate railroad-designed record 

as described in paragraph (j) of this 

section, in place of Form FRA F 

6180.98, ‘‘Railroad Employee Injury 

and/or Illness Record,’’ only for those 

claimed occupational illnesses for 

which the railroad has not received 

information sufficient to determine 

whether the occupational illness is 

work-related. 

(2) Each railroad shall enter each 

illness claimed to be work-related on 

the appropriate record, as required by 

paragraph (i)(1) of this section, as early 

as practicable, but no later than seven 

working days after receiving 

information or acquiring knowledge that 

an employee is claiming they have 

incurred an occupational illness. 

(3) When a railroad does not receive 

information sufficient to determine 

whether a claimed occupational illness 

case is accountable or reportable, the 

railroad shall make a good faith effort to 

obtain the necessary information by 

December 1 of the next calendar year. 

(4) Within seven calendar days of 

receiving additional information 

regarding a claimed occupational illness 

case, each railroad shall document 

receipt of the information, including 

date received and type of document/ 

information received, in narrative block 

19 of Form FRA F 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed To Be Work-Related.’’

(5) Within 30 calendar days of 

receiving additional information 

regarding a claimed occupational 

illness, each railroad shall re-evaluate 

the claimed occupational illness to 

determine work-relatedness, taking into 

account the new information, and 

document any findings resulting from 

the re-evaluation in narrative block 19 

of Form FRA F 6180.107, ‘‘Alternative 

Record for Illnesses Claimed To Be 

Work-Related.’’. 

(6) For any claimed occupational 

illness case determined to be 

accountable or reportable, each railroad 

shall: 

(i) Complete a Form FRA F 6180.98, 

‘‘Railroad Employee Injury and/or 

Illness Record’’ or alternative railroaddesigned form within seven days of 

making such determination; 

(ii) Retain the Form FRA F 6180.98 

‘‘Railroad Employee Injury and/or 

Illness Record’’ in accordance with 

§ 225.27; and 

(iii) Report the occupational illness, 

as applicable, in accordance with 

§ 225.11. 

(7) For any claimed occupational 

illness case determined not to be 

accountable or reportable, each railroad 

shall include the following information 

in narrative block 19 of Form FRA F 

6180.107, ‘‘Alternative Record for 

Illnesses Claimed To Be Work-Related’’

or alternative railroad-designed form: 

(i) Why the case does not meet 

reporting criteria; 

(ii) The basis upon which the railroad 

made this determination; and 

(iii) The most authoritative 

information the railroad relied upon to 

make the determination. 

(8) Although Form FRA 6180.107, 

‘‘Alternative Record for Illnesses 

Claimed to be Work-Related’’ (or the 

alternate railroad-designed form), may 

not include all supporting 

documentation, such as medical 

records, the alternative record shall note 

the custodian of those documents and 

where the supporting documents are 

located so that they are readily 

accessible to FRA upon request. 

(j) An alternative railroad-designed 

record may be used in lieu of the Form 

FRA F 6180.107, ‘‘Alternative Record 

for Illnesses Claimed to be WorkRelated.’’ Any such alternative record 

shall contain all of the information 

required on the Form FRA F 6180.107. 

Although this information may be 

displayed in a different order from that 

on Form FRA F 6180.107, the order of 

the information shall be consistent from 

one such record to another such record. 

The order chosen by the railroad shall 

be consistent for all of the railroad’s 

reporting establishments. Railroads may 

list additional information in the 

alternative record beyond the 

information required on Form FRA F 

6180.107. The alternative record shall 

contain, at a minimum, the following 

information: 

(1) Name of Reporting Railroad; 

(2) Case/Incident Number; 

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(3) Employee’s Name (first, middle, 

last); 

(4) Employee’s Date of Birth (mm/dd/ 

yy); 

(5) Employee’s Gender; 

(6) Employee Identification Number; 

(7) Date Employee was Hired (mm/ 

dd/yy); 

(8) Employee’s Home Address 

(include street address, city, State and 

Zip code); 

(9) Employee’s Home Telephone 

Number (with area code); 

(10) Name of Facility Where Railroad 

Employee Normally Reports to Work; 

(11) Location, or Last Know Facility, 

Where Employee Reports to Work; 

(12) Job Title of Railroad Employee; 

(13) Department to Which Employee 

is Assigned; 

(14) Date on Which Employee or 

Representative Notified Company 

Personnel of Condition (mm/dd/yy); 

(15) Name of Railroad Official 

Notified; 

(16) Title of Railroad Official Notified; 

(17) Nature of Claimed Illness; 

(18) Supporting Documentation; 

(19) Custodian of Documents (Name, 

Title, and Address); 

(20) Location of Supporting 

Documentation; 

(21) Narrative; 

(22) Preparer’s Name; 

(23) Preparer’s Title; 

(24) Preparer’s Telephone Number 

(with area code); and 

(25) Date the record was initially 

signed/completed (mm/dd/yy). 

15. Section 225.27 is amended by 

revising paragraph (a) and adding 

paragraphs (c) and (d) to read as follows: 

§ 225.27 Retention of records. 

(a) Each railroad shall retain the Form 

FRA F 6180.98, ‘‘Railroad Employee 

Injury and/or Illness Record’’; Form 

FRA F 6180.107, ‘‘Alternative Record 

for Illnesses Claimed to be WorkRelated’’; 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 Form 

FRA F 6180.97, ‘‘Initial Rail Equipment 

Accident/Incident Record,’’ required by 

§ 225.25 for at least two years after the 

end of the calendar year to which it 

relates. Each railroad must retain the 

Employee Human Factor Attachments 

(Form FRA F 6180.81, ‘‘Employee 

Human Factor Attachment’’) required by 

§ 225.12, the written notices to 

employees required by § 225.12 (Part I 

of Form FRA F 6180.78, ‘‘Notice to 

Railroad Employee Involved in Rail 

Equipment Accident/Incident 

Attributed to Employee Human Factor; 

Employee Statement Supplementing 

Railroad Accident Report’’), and the 

Employee Statements Supplementing 

Railroad Accident Reports described in 

§ 225.12(g) (Part II of Form FRA F 

6180.78, ‘‘Notice to Railroad Employee 

Involved in Rail Equipment Accident/ 

Incident Attributed to Employee Human 

Factor; Employee Statement 

Supplementing Railroad Accident 

Report’’) that have been received by the 

railroad for at least two years after the 

end of the calendar year to which they 

relate. 

* * * * * 

(c) Each railroad must retain the 

original hard copy of each completed 

and signed Form FRA F 6180.55, 

‘‘Railroad Injury and Illness Summary,’’

that the railroad submits to FRA on 

optical media (CD–ROM) or 

electronically via the Internet to 

aireports@frasafety.net for at least five 

years after the calendar year to which it 

relates. If the railroad opts to submit the 

report to FRA electronically via the 

internet, the railroad must also retain a 

hard copy print out of FRA’s electronic 

notice acknowledging receipt of the 

railroad’s submission for a period of five 

years after the calendar year to which 

the report acknowledged relates. 

(d) Railroads may retain accident/ 

incident records as required by 

paragraphs (a) and (b) of this section in 

hard copy format or in electronic format 

subject to the following system 

requirements: 

(1) Design Requirements. Any 

electronic record keeping system used 

to retain a record required to be retained 

by this part shall meet the following 

design parameters: 

(i) The electronic record system shall 

be designed such that the integrity of 

each record is retained through 

appropriate levels of security such as 

recognition of an electronic signature, or 

other means, which uniquely identify 

the initiating person as the author of 

that record. No two persons shall have 

the same electronic identity; 

(ii) The electronic system shall ensure 

that each record cannot be modified, or 

replaced, once the record is submitted 

to FRA; 

(iii) Any amendment to a record shall 

be electronically stored apart from the 

record which it amends. Each 

amendment to a record shall uniquely 

identify the person making the 

amendment and the date the 

amendment was made; 

(iv) The electronic system shall 

provide for the maintenance of reports 

as originally submitted to FRA without 

corruption or loss of data; and 

(v) Policies and procedures must be in 

place to prevent persons from altering 

electronic records, or otherwise 

interfering with the electronic system. 

(2) Accessibility and Availability. Any 

electronic record system used to create, 

maintain, or transfer a record required 

to be maintained by this part shall meet 

the following access and availability 

parameters: 

(i) Paper copies of electronic records 

and amendments to those records that 

may be necessary to document 

compliance with this part shall be 

provided to any representative of the 

FRA or of a State agency participating 

in investigative and/or surveillance 

activities under part 212 of this chapter 

or any other authorized representative 

for inspection and photocopying upon 

request in accordance with § 225.35; 

and 

(ii) Paper copies provided to FRA or 

of a State agency participating in 

investigative and/or surveillance 

activities under part 212 of this chapter 

or any other authorized representative 

shall be produced in a readable text 

format and all data shall be identified by 

narrative descriptions (e.g., ‘‘accident/ 

incident number,’’ ‘‘number of days 

away from work,’’ ‘‘date of occurrence,’’

etc.). 

16. Section 225.33 is amended by 

revising paragraph (a)(11) to read as 

follows: 

§ 225.33 Internal Control Plans. 

(a) * * * 

(11) In the case of the Form FRA F 

6180.107 or the alternate railroaddesigned form, a statement that specifies 

the name(s), title(s) and address(es) of 

the custodian(s) of these records, all 

supporting documentation, such as 

medical records, and where the 

documents are located. 

* * * * * 

17. Section 225.37 is revised to read 

as follows: 

§ 225.37 Optical media transfer and 

electronic submission. 

(a) A railroad has the option of 

submitting the following reports, 

updates, and amendments by way of 

optical media (CD–ROM), or by means 

of electronic submission via the 

Internet: 

(1) The Rail Equipment Accident/ 

Incident Report (Form FRA F 6180.54); 

(2) The Railroad Injury and Illness 

Summary (Form FRA F 6180.55); 

(3) The Railroad Injury and Illness 

Summary (Continuation Sheet) (Form 

FRA F 6180.55a); 

(4) The Highway-Rail Grade Crossing 

Accident/Incident Report (Form FRA F 

6180.57); and 

(5) The Employee Human Factor 

Attachment (Form FRA F 6180.81) (the 

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Employee Human Factor Attachment 

must be in .pdf or .jpg format only). 

(b) Each railroad utilizing the optical 

media option shall submit to FRA a 

computer CD–ROM containing the 

following: 

(1) An electronic image of the 

completed and signed hard copy of the 

Railroad Injury and Illness Summary 

(Form FRA F 6180.55) in .pdf or .jpg 

format only; and 

(2) The completed accident/incident 

report submissions. 

(c)(1) Each railroad utilizing the 

electronic submission via the Internet 

option shall submit to FRA at 

aireports@frasafety.net: 

(i) An electronic image of the 

completed and signed hard copy of the 

Railroad Injury and Illness Summary 

(Form FRA F 6180.55) in .pdf or .jpg 

format only; and 

(ii) The completed accident/incident 

report submissions. 

(2) FRA will provide to the railroad an 

electronic notice acknowledging receipt 

of submissions filed electronically via 

the Internet. 

(d) Each railroad employing either the 

optical media or electronic submission 

via the Internet option, shall submit its 

monthly reporting data for the reports 

identified in paragraph (a) of this 

section in a year-to-date file format as 

described in the FRA Guide. 

(e) In addition to fulfilling the 

requirements stated in paragraph (b) 

through (d) of this section, each railroad 

initially utilizing either the optical 

media or electronic submission via the 

Internet option, shall also initially 

submit the hard copy report(s) for each 

accident/incident it reports by such 

means. FRA will continually review the 

railroad’s submitted hard copy reports 

against the data the railroad has 

submitted by means of optical media or 

electronically via the Internet. Once the 

optical media or electronic submission 

via the Internet is in total agreement 

with the submitted hard copies of the 

reports for three consecutive reporting 

months, FRA will notify the railroad, in 

writing, that submission of the hard 

copy reports is no longer required. 

(f) A railroad choosing to use optical 

media or electronic submission via the 

Internet must use one of the approved 

formats specified in the Companion 

Guide. FRA will reject submissions that 

do not adhere to the required formats, 

which may result in the issuance of one 

or more civil penalty assessments 

against a railroad for failing to provide 

timely submissions of required reports 

as required by § 225.11. 

18. Section 225.41 is added to read as 

follows: 

§ 225.41 Suicide data. 

FRA does not include suicide data (as 

defined in § 225.5) in its periodic 

summaries of data on the number of 

injuries and illnesses associated with 

railroad operations. FRA will maintain 

suicide data in a database that is not 

publicly accessible. Suicide data will 

not be available on FRA’s Web site for 

individual reports or downloads. 

Suicide data will be available to the 

public in aggregate format on FRA’s 

Web site and via requests under the 

Freedom of Information Act. 

Issued in Washington, DC, on September 2, 

2008. 

Joseph H. Boardman, 

Administrator. 

[FR Doc. E8–20706 Filed 9–5–08; 11:15 am] 

BILLING CODE 4910–06–P 

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