Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[Docket No. FRA-2006-26173; Notice No. 3]

RIN 2130-AB82

Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements

AGENCY:

Federal Railroad Administration (FRA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

This final rule revises FRA's existing regulations addressing accident/incident reporting in order to clarify ambiguous regulations and to enhance the quality of information available for railroad casualty analysis. In addition, FRA has revised the FRA Guide for Preparing Accident/Incident Reports (FRA Guide), its accident/incident recording and reporting forms and its Companion Guide: Guidelines for Submitting Accident/Incident Reports by Alternative Methods (Companion Guide).

DATES:

The final rule is effective Wednesday, June 1, 2011.

FOR FURTHER INFORMATION CONTACT:

Arnel B. Rivera, Staff Director, U.S. Department of Transportation, Federal Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room W33-306, 1200 New Jersey Avenue, SE., Washington, DC 20590 (

telephone:

202-493-1331); or Gahan Christenson, Trial Attorney, U.S. Department of Transportation, Federal Railroad Administration, Office of Chief Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-204, 1200 New Jersey Avenue, SE., Washington, DC 20590 (

telephone:

202-493-1381).

SUPPLEMENTARY INFORMATION:

I. The FRA Guide and the Companion Guide

In addition to revising its regulations in the Code of Federal Regulations, FRA has revised the FRA Guide. The FRA Guide is posted on FRA's Web site at

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

Hard copies of the FRA Guide will be available upon request. Information on requesting hard copies of the FRA Guide can be found in § 225.21, “Forms,” of this final rule.

FRA has also revised its Companion Guide containing instructions for electronically submitting monthly reports to FRA. The Companion Guide is posted on FRA's Web site at

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

II. Background

A. Statutory Authority for the Accident/Incident Reporting Requirements in 49 CFR Part 225 (Part 225)

FRA's accident/incident reporting requirements

1

in Part 225, both as they exist today and as they are amended by this final rule, were issued under the statutory authority of the following three statutes:

2

1

The discussion under this section (II)(A) concerns the statutory authority for the reporting provisions of Part 225 only,

e.g.,

49 CFR 225.11 and 225.21, and does not address the statutory authority for the penalty, investigative, or other provisions of Part 225.

2

This final rule adds a fourth statute to the statutory foundation for the accident/incident reporting requirements in Part 225: 28 U.S.C. 1746, Unsworn declarations under penalty of perjury. Public Law 94-550, sec. 1(a), Oct. 18, 1976, 90 Stat. 2534. Pursuant to that statute, the requirement in 49 U.S.C. 20901 that accident reports be submitted “under oath” (and, therefore, signed and notarized) has been converted into one of two alternative requirements, the second being submission of a signed, unsworn declaration saying that it is being made subject to penalty of perjury.

• 49 U.S.C. 20901 (formerly, part of the Accident Reports Act);

• 49 U.S.C. 20103(a) (formerly, part of the Federal Railroad Safety Act of 1970); and

• 49 U.S.C. 322(a) (formerly, part of the Department of Transportation Act).

The Accident Reports Act was enacted in 1910,

3

Public Law 165, the Act of May 6, 1910, ch. 208, 36 Stat. 350 (1910). Section 1 of the Accident Reports Act required—

3

Federal requirements that railroads report their accidents date back to before 1910, as evidenced by two provisions in the Accident Reports Act as originally enacted. The first section of the Accident Reports Act contained a proviso that relieved carriers “from the duty of reporting accidents in their annual financial and operating reports made to the commission[,]” and Section 6 repealed an accident reporting law enacted in 1901, ‘An Act requiring common carriers * * * to make full reports of all accidents to the Interstate Commerce Commission.‘ Approved March third, nineteen hundred and one * * *”

every common carrier engaged in interstate or foreign commerce by railroad to make to the Interstate Commerce Commission [ICC] * * * a monthly report, under oath, of all collisions, derailments, or other accidents arising from the operation of such railroad under such rules and regulations as may be prescribed by the [ICC,] which report shall state the nature and causes thereof and the circumstances connected therewith * * *.

Emphasis added. In addition, Section 5 of the Accident Reports Act authorized the ICC “to prescribe for such common carriers a method and form for making the reports hereinbefore provided.” Together, Sections 1 and 5 of the Accident Reports Act afforded the ICC authority to promulgate regulations to carry out the reporting provisions of the Accident Reports Act.

In 1960, the Accident Reports Act was amended to remove language in Section 1 conferring rulemaking authority on the ICC to require railroads to (“report * * * under such rules and regulations as may be prescribed by the [ICC]”) and to add to Section 5 clearer language conferring that rulemaking authority (“The [ICC] is authorized to prescribe such rules and regulations and such forms for making the reports herein before provided as are necessary to implement and effectuate the purpose of this Act.”). Public Law 86-762 (September 13, 1960), 74 Stat. 903. In 1966, the Department of Transportation Act transferred the responsibility for prescribing regulations to carry out the Accident Reports Act, as amended, from the ICC to the Secretary of Transportation. Sec. 6(e)(1)(K) of Public Law 89-670 (October 15, 1966), 80 Stat. 939. In addition, the Secretary delegated this responsibility to the Administrator of the Federal Railroad Administration by regulation. 49 CFR 1.49(c)(11). Later, in 1988, the Accident Reports Act was amended so as to expand its applicability from “common carriers engaged in interstate commerce by railroad” to include all “railroads.” Sec. 15 of Public Law 100-342 (June 22, 1988), 102 Stat. 633. The same legislation required railroads to include in any of their reports that assigned employee error as a cause of an accident/incident to include, at the employee's option, a statement “explaining any factors the employee alleges contributed to the accident or incident.”

Id.

at Sec. 24.

In 1994, the Accident Reports Act, as amended (then codified at 45 U.S.C. 38-43a), along with virtually all of the other Federal railroad safety laws, was repealed, and its provisions were revised, reenacted as positive law, and recodified without substantive change at 49 U.S.C. 20901-20903, Accidents and Incidents, with its penalty provisions in 49 U.S.C. chapter 213, Penalties, Public Law 103-272, 108 Stat. 745 (July 5, 1994). During the 1994 recodification of the rail safety laws, Congress repealed, but did not reenact or recodify the text of Section 5 of the Accident Reports Act, as amended (then codified at 45 U.S.C. 42), which authorized the Secretary “to prescribe such rules and regulations and such forms for making the reports hereinbefore provided as are necessary to implement and effectuate the purposes of [the Accident Reports Act].” Congress concluded that this section was “[un]necessary because of

49 [U.S.C.] 322(a).”

See

H.R. Rep. No. 103-180, 502, 584 (1993);

reprinted in

1994 U.S.C.C.A.N. 1319, 1401. Although Public Law 103-272 was not intended to change the substance of the laws as recodified, this is an example of how its repeal of an “unnecessary” law apparently changed the statutory basis of a regulation. Of course, recodification did not change any law substantively, so in a sense, Section 5 of the Accident Reports Act survives to the extent that it is legally necessary.

The preamble to this final rule refers to the current, recodified version of what was formerly known as the Accident Reports Act, by its section numbers in title 49 of the U.S. Code. Currently, § 20901 requires, in part, that railroad carriers file with the Secretary of Transportation reports on “all accidents and incidents resulting in injury or death to an individual or damage to equipment or a roadbed arising from the carrier's operations during the month.”

The second major statutory authority for the accident/incident reporting requirements in Part 225 is 49 U.S.C. 20103, formerly § 202 of the Federal Railroad Safety Act of 1970 (FRSA). Public Law 91-458 (October 16, 1970), 84 Stat. 971. Like the Accident Reports Act, the FRSA was repealed in 1994, and its provisions were revised, reenacted as positive law, and recodified without substantive change primarily at 49 U.S.C. chapter 201, with penalty provisions in 49 U.S.C. chapter 213. As amended, 49 U.S.C. 20103(a) provides, in pertinent part, that “[t]he Secretary of Transportation, as necessary, shall prescribe regulations and issue orders for every area of railroad safety supplementing laws and regulations in effect on October 16, 1970.” The Secretary also delegated this authority to the Administrator of FRA. 49 CFR 1.49(m). In 1974, FRA reissued its accident reporting regulations under the added authority of the FRSA to cover additional railroads and require reporting of occupational illnesses. 39 FR 43222, December 11, 1974.

The third major statutory authority for the accident/incident reporting requirements in Part 225 is 49 U.S.C. 322(a), which was enacted in 1966, and codified in § 9(e) of the Department of Transportation Act. The statutory provision at 49 U.S.C. 322(a) reads as follows:

The Secretary of Transportation may prescribe regulations to carry out the duties and powers of the Secretary. An officer of the Department of Transportation may prescribe regulations to carry out the duties and powers of the officer.

Under 49 U.S.C. 322(a), an officer of the Department of Transportation may prescribe regulations to carry out the duties of the officer. Section 103(d) of title 49, U.S. Code, provides that the head of the FRA is the Administrator, and the Administrator of FRA is an “officer of the Department of Transportation,” within the meaning of 49 U.S.C. 322(a). Section 103(g)(1) of title 49, U.S. Code, provides that “the Administrator shall carry out—* * * duties and powers related to railroad safety vested in the Secretary by * * * chapters 203-211 of this title, and by chapter 213 of this title for carrying out chapters 203 through 211.” Consequently, the duty of carrying out 49 U.S.C. chapter 209 is clearly one of the “duties of the officer,” within the meaning of 49 U.S.C. 322(a). Accordingly, the FRA Administrator may prescribe regulations to carry out 49 U.S.C. chapter 209.

B. Occupational Safety and Health Act

Although not a statutory authority for the accident/incident reporting requirements of Part 225, the Occupational Safety and Health Act (OSH Act), which Congress enacted in 1970, has shaped these requirements. Public Law 91-596, codified as amended at 29 U.S.C. 651

et seq.

While the OSH Act gives the Secretary of Labor a broad, general authority to regulate working conditions that affect the occupational safety and health of employees, it also recognized the existence of similar authority in other Federal agencies. Section 4(b)(1) of the OSH Act, codified at 29 U.S.C. 653(b)(1), provides that the OSH Act shall not apply to working conditions as to which another Federal agency exercises statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Because FRA exercises statutory authority to prescribe and enforce standards and regulations for all areas of railroad safety under 49 U.S.C. chapter 201, OSHA's jurisdiction may be preempted by FRA under section 4(b)(1) of the OSH Act with regards to certain matters related to railroad safety.

See

Policy Statement asserting FRA jurisdiction over matters involving the safety of railroad operations, 43 FR 10584, March 14, 1978.

With respect to employee injury and illness recordkeeping, however, OSHA's Occupational Safety and Health Review Commission ruled that the railroad industry must comply with OSHA requirements and must afford the Secretary of Labor's representatives access to these records.

Secretary of Labor

v.

Conrail

(OSHRC Docket No. 80-3495, 1982). In doing so, the Commission indicated that employee injury and illness recordkeeping does not come within the purview of section 4(b)(1) of the OSH Act and, therefore, OSHA's jurisdiction has not been displaced by FRA's employee injury and illness recordkeeping and reporting regulations. Nevertheless, the Commission did state, “[t]his does not mean that railroad industry employers must use the OSHA form, No. 200, mentioned in section [29 CFR] 1904.2(a). Section 1904.2(a) allows an employer to maintain `an equivalent which is as readable and comprehensible [as the OSHA 200 form] to a person not familiar with it.' ”

4

Under OSHA's current regulations, 49 CFR 1904.3 states that “[i]f you create records to comply with another government agency's injury and illness recordkeeping requirements, OSHA will consider those records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA accepts the other agency's records under a memorandum of understanding with that agency, or if the other agency's records contain the same information as this Part 1904 requires you to record.” Accordingly, because FRA's employee injury and illness recordkeeping and reporting requirements employ equivalent standards to those promulgated by OSHA, OSHA does not require railroad carriers to maintain OSHA records in addition to FRA records. Rather, railroad carriers are only required to report employee injuries and illnesses to FRA in accordance with FRA's regulations. FRA makes all railroad employee injury and illness data available to OSHA for use in its complementary program of regulation, and provides this data to the Bureau of Labor Statistics (BLS) each year for inclusion in the Department of Labor's national occupational injury and illness database.

4

It should be noted that the OSHA 200 form has been subsequently renamed as the OSHA 300 form.

C. Overview of Part 225 and Recent Amendments

Part 225 contains a series of specific accident/incident recording and reporting requirements. The purpose of FRA's accident/incident recordkeeping and reporting regulations is “to provide the Federal Railroad Administration with accurate information concerning the hazards and risks that exist on the Nation's railroads. FRA needs this information to effectively carry out its statutory responsibilities under 49 U.S.C. chapters 201-213. FRA also uses this information for determining

comparative trends of railroad safety and to develop hazard elimination and risk reduction programs that focus on preventing railroad injuries and accidents.” 49 CFR 225.1. Part 225's central provision requires that each railroad subject to Part 225 submit to FRA monthly reports of all accidents and incidents that meet FRA's reporting criteria. 49 CFR 225.11. Railroad accidents/incidents are divided into three groups, each of which corresponds to the type of reporting form that a railroad must file with FRA: (1) Highway-rail grade crossing accidents/incidents; (2) rail equipment accidents/incidents; and (3) deaths, injuries and occupational illnesses.

See

49 CFR 225.19.

In 1996, FRA published extensive amendments to its accident/incident reporting regulations. 61 FR 30940, June 18, 1996; 61 FR 67477, December 23, 1996. This was the first major revision of the accident/incident reporting requirements since 1974. The primary purpose of the revision was to increase the accuracy, completeness, and utility of FRA's accident database and to clarify certain definitions and regulatory requirements. Among other things, these amendments required railroads to adopt and comply with an Internal Control Plan (ICP) to ensure accurate reporting of accidents and incidents.

In 2003, FRA again published extensive amendments to its accident/incident reporting regulations (FRA's 2003 Final Rule). 68 FR 10107-10140, March 3, 2003. The primary purpose of these revisions was to conform FRA's accident/incident reporting requirements to OSHA's newly revised occupational injury and illness recording and reporting requirements. 66 FR 5916-6135, January 19, 2001 (codified at 29 CFR Parts 1904 and 1952) (OSHA's 2001 Final Rule). FRA's 2003 Final Rule also addressed other issues and provided for an alternative method of recording claimed occupational illnesses with the advent of Form FRA F 6180.107, “Alternative Record for Illness Claimed to be Work-Related.”

III. Proceedings to Date

On September 9, 2008, FRA published a Notice of Proposed Rulemaking (NPRM), which proposed miscellaneous amendments to FRA's accident/incident reporting regulations in order to clarify ambiguous regulations and to enhance the quality of information available for railroad casualty analysis.

See

73 FR 52496. The NPRM also proposed revisions to the 2003 FRA Guide and FRA's Accident/Incident recording and reporting forms.

The NPRM further requested comments and suggestions on four issues of concern. First, FRA requested comments and suggestions for any additional information that might be gathered on Form FRA F 6180.57, “Highway-Rail Grade Crossing Accident/Incident Report,” that would be useful in determining how and why highway-rail grade crossing accidents/incidents occur. Second, FRA requested comments and suggestions on whether FRA should require railroads to complete the longitude and latitude blocks on Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet)” (blocks 5s and 5t), for reportable trespasser casualties only, and on Form FRA F 6180.54, “Rail Equipment Accident/Incident Report” (blocks 50 and 51). Third, FRA requested comments and suggestions on whether FRA should change the method by which telephonic reports of accidents/incidents, as required by § 225.9, are made to FRA. Fourth, FRA requested comments and suggestions on whether FRA should require railroads to report to FRA on Form FRA F 6180.55a suicides and attempted suicides, otherwise referred to as “suicide data,” and on concerns regarding State access to such reports.

On September 10, 2008, during the 36th Railroad Safety Advisory Committee (RSAC) meeting, RSAC Task No. 2008-02 was presented for acceptance. The task offered to the RSAC for consideration was to review comments received on FRA's NPRM and would have allowed the RSAC to make recommendations for the content of the final rule. The task was withdrawn at the meeting without RSAC acceptance.

Following publication of the NPRM in the

Federal Register

, FRA held a public hearing in Washington, DC on December 18, 2008, and extended the comment period for an additional thirty (30) days following the hearing. The hearing enabled the exchange of information regarding FRA's proposed amendments, and allowed the public to articulate their issues and concerns regarding the NPRM, so that such concerns could be addressed in the final rule. The hearing was attended by a number of railroads, organizations representing railroads, and labor organizations. FRA received oral and written testimony at the hearing as well as written comments during the extended comment period. A copy of the hearing transcript was placed in Docket No. FRA-2006-26173 on

http://www.regulations.gov.

During the initial and extended comment period, FRA received comments and heard testimony from the following organizations, in addition to comments from individuals, listed in alphabetical order:

• American Association for Justice (AAJ);

• Association for American Railroads (AAR);

• American Train Dispatchers Association (ATDA);

• BNSF Railway Company (BNSF);

• Brotherhood of Locomotive Engineers and Trainmen (BLET);

• Brotherhood of Maintenance of Way Employees Division (BMWED);

• Brotherhood of Railroad Signalman (BRS);

• California Public Utilities Commission (CPUC);

• U.S. Department of Labor (DOL);

• Illinois Commerce Commission/Transportation Bureau/Rail Safety Section (ICC);

• Kansas City Southern Railway Company (KCS);

• Metro-North Commuter Railroad Company (MNCW);

• National Railroad Passenger Corporation (Amtrak);

• New York State Metropolitan Transportation Authority (NYSMT);

• NJ Transit Rail Operations (NJT);

• Norfolk Southern Corporation (NS);

• Southeastern Pennsylvania Transportation Authority (SPTA);

• Union Pacific Railroad Company (UP); and

• United Transportation Union (UTU).

As an initial matter, when developing this final rule, FRA carefully considered all of the comments, information, data, and proposals submitted to Docket No. FRA-2006-26173 and discussed during the hearing. In addition, FRA's extensive knowledge and experience with enforcing the existing accident/incident reporting regulations was also relied upon when developing this final rule. FRA addresses the comments in the Section-by-Section Analysis of this final rule and elsewhere as appropriate.

One such comment to the NPRM stated that FRA should have used an RSAC working group for this rulemaking. FRA, however, is not required to engage the RSAC in formulating regulations. Here, as discussed above, FRA held a hearing and provided two comment periods during which interested parties had opportunities to comment on the NPRM.

IV. Section-by-Section Analysis

Technical Amendment

Throughout the rule text, this final rule updates the agency's address and other mailing addresses, when appropriate, to reflect FRA's relocation to the new U.S. Department of Transportation headquarters building. This revision affects §§ 225.7(a), 225.11(b), 225.12(g)(3), and the introductory paragraph of § 225.21. This change is also reflected in the FRA

Guide, the accident/incident reporting and recording forms, and the Companion Guide.

§ 225.1

Purpose.

The final rule removes the preemption language dealing with part 225 from this section. FRA believes that this language is unnecessary because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of FRA's regulations. Providing a separate Federal regulatory provision concerning the regulation's preemptive effect is duplicative and unnecessary.

§ 225.3

Applicability.

In this section, the final rule makes a technical amendment to the introductory text of paragraph (b) with respect to that paragraph's reference to FRA's required ICP elements. Currently, paragraph (b) refers only to ICP elements 1 through 10. The final rule revises the paragraph to include element number 11 (added in FRA's 2003 Final Rule), which requires railroads to include in their ICPs a statement that specifies the name, title, and address of the custodian of the railroad's Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related” records and all supporting documentation, as well as the location of such documents.

See

68 FR 10107, 10139, March 3, 2003.

§ 225.5

Definitions.

The final rule amends paragraph (1) of the definition of “Accident/incident” to clarify the definition and to conform to the FRA Guide. In the NPRM, FRA set forth to clarify the definition of accident/incident with respect to impacts at highway-rail grade crossings. Commenters generally indicated that further clarification was necessary regarding under what circumstances sidewalks and pathways are considered to be part of a highway-rail grade crossing site.

In response to these comments, FRA determined that the proposed definition required revision. As such, the final rule provides that “Accident/incident” means, in part, any impact between railroad on-track equipment and a highway user at a highway-rail grade crossing. The final rule, elsewhere in § 225.5, defines the term “highway-rail grade crossing” to mean a location where a public highway, road, street, or a private roadway, including associated sidewalks, crosses one or more railroad tracks at grade, or a location where a pathway explicitly authorized by a public authority or a railroad carrier that is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others, that is not associated with a public highway, road, street, or a private roadway, crosses one or more railroad tracks at grade. The definition of “highway-rail grade crossing” further provides that the term “sidewalk” means that portion of a street between the curb line, or the lateral line of a roadway, and the adjacent property line or, on easements of private property, that portion of a street that is paved or improved and intended for use by pedestrians. The FRA Guide provides a diagram illustrating the definition of the term sidewalk.

See

FRA Guide, Chapter 2. In addition, the final rule provides that the term “highway user” may include an automobile, bus, truck, motorcycle, bicycle, farm vehicle, pedestrian, or any other mode of surface transportation motorized and un-motorized.

FRA does not believe that this clarifying amendment increases the burden on railroads because it is consistent with common industry practice as well as FRA's long-standing policy. Moreover, even if reporting accidents at such pathways was not standard industry practice, any increased burden would be nominal. Based on the U.S. DOT National Highway-Rail Crossing Inventory, FRA estimates that there are approximately 2,000 grade crossings in the United States that are not associated with highways, roads, streets, or private roadways and that very few highway-rail grade crossing accidents/incidents occur at these locations each year. Accordingly, even if this did place a new burden on railroads to report accidents/incidents not previously reported, the burden would be insignificant in light of the small number of additional reports that would be required.

The final rule also clarifies that sidewalks that may be used to cross railroad tracks at grade are considered to be part of (

i.e.,

associated with) the highway-rail grade crossing. The definition of sidewalk included in the final rule clarifies which sidewalks are considered associated with the crossing. FRA does not believe this clarification will result in any change to current railroad reporting practices. In addition, the definition of the term “sidewalk” is based on the definition of the term as articulated in the 2009 edition of the Federal Highway Administration's Manual on Uniform Traffic Control Devices. The FRA Guide includes an illustrative diagram to help clarify the meaning of the term “sidewalk.”

See

FRA Guide, Chapter 2.

A comment to the NPRM suggested that FRA use the term “road user” rather than the term “highway user.” The final rule does not adopt this suggestion in order to maintain consistency between the terms “highway user” and “highway-rail grade crossing.” A comment also sought clarification that there are no exceptions to reporting collisions between on-track equipment and highway users. FRA believes that the final rule is clear that any impact between a highway user and on-track equipment at a highway-rail grade crossing qualifies as a highway-rail grade crossing accident/incident and that further clarification is not required. A comment also recommended that impacts at highway-rail grade crossings be referred to as “train-vehicle collisions,” rather than “accidents/incidents.” The final rule does not adopt this suggestion because such an amendment is not consistent with the historical use of such terms.

The final rule also amends paragraph (3) of the definition of “Accident/incident” to conform to the revised language in § 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).

In the NPRM, FRA proposed amending the definition of “Accountable injury or illness” to mean any abnormal condition or disorder of a railroad employee that manifests

within

the work environment and causes or requires a railroad employee to be examined or treated by a qualified health care professional, but does not meet the general reporting criteria listed in § 225.19(d)(1) through (d)(6) regardless of whether the condition or disorder is discernably caused by an event or exposure in the work environment.

The final rule amends the definition of “Accountable injury or illness” to conform to the amended definition of “injury or illness;” to eliminate redundancy by removing the word “activity” from the phrase “by an event, exposure, or activity in the work environment” as the amended definition of “event or exposure” in the final rule includes activities; to eliminate potential underreporting of work-related injuries and illnesses; to ensure that potentially reportable injuries and illnesses are documented, tracked, and evaluated for reporting and auditing purposes; and to delete the phrase “not otherwise reportable” due to its ambiguity.

See

Section-by-Section Analysis for § 225.19(d), “Primary groups of accidents/incidents; Death, injury and occupational illness.” The final rule amends the definition of “Accountable injury or illness” to mean

“any abnormal condition or disorder of a railroad employee that causes or requires the railroad employee to be examined or treated by a qualified health care professional, regardless of whether or not it meets the general reporting criteria listed in § 225.19(d)(1) through (d)(6), and the railroad employee claims that, or the railroad otherwise has knowledge that, an event or exposure arising from the operation of the railroad is a discernable cause of the abnormal condition or disorder.”

The language proposed in the NPRM specified that an accountable injury or illness is one that “does not meet the general reporting criteria.” The final rule replaced this with “regardless of whether or not it meets the general reporting criteria” because an injury or illness may eventually become reportable or the railroad may not have enough information at the time to determine whether the injury or illness is reportable. These are clarifications and do not pose any change to FRA's accident/incident recording or reporting requirements.

The purpose of Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” is to create an initial record of, and audit trail for, each potentially reportable injury or illness. As such, under the previous recording requirements, railroads were required to complete the Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” for each accountable and reportable injury or illness within seven (7) working days after first becoming aware of the accountable or reportable injury or illness. As a result, under FRA's 2003 Final Rule's definition of accountable and reportable injury and illness, a railroad had to make an initial determination with regard to the work-relatedness of an injury or illness within seven working days. Once a railroad determined that an employee injury or illness was not work-related, the railroad was not obligated to create any record or report of the casualty.

In many cases, injuries and illnesses, and/or the signs and symptoms thereof, manifest in the work environment without the cause(s) being readily apparent. Therefore, a railroad, during its initial seven day investigation, may have determined that an injury or illness was not work-related when additional investigation and time would have shown that the injury or illness was in fact work-related. Consequently, FRA is concerned that some railroads are prematurely attributing the cause of an injury or illness solely to a non-work-related event or exposure occurring outside the work environment. FRA was similarly concerned that some railroads were not investigating pertinent information about employee injuries and illnesses to make an accurate work-relatedness determination. As a result, FRA believes that some railroads may have under-reported employee injuries and illnesses, and, because a Form FRA F 6180.98 was not completed to initially record the injury or illness, no audit trail was created. In such circumstances, FRA and the railroads were left unaware of the potentially reportable or accountable injury. Moreover, by only requiring a record for those casualties that were ultimately determined to be work-related within the initial seven days period, FRA was prevented from later evaluating the reportability of the injury or illness in order to determine whether the reporting officer made an appropriate reporting decision or whether the railroad complied with its duty to investigate the injury or illness.

In consideration of the comments and FRA's safety mission, the final rule contains a revised definition. The definition contained in the final rule triggers the railroads' responsibility to create a Form FRA F 6180.98 for (

i.e.,

an accountable injury or illness) any abnormal condition or disorder of a railroad employee that causes or requires the railroad employee to be examined or treated by a qualified health care professional regardless of whether or not it meets the general reporting criteria in § 225.19(d), and the employee claims that, or the railroad otherwise has knowledge that, the injury or illness is work-related. Therefore, the definition in the final rule eliminates the requirement that a railroad record all injuries or illnesses based on manifestation regardless of cause. While railroads are still required to complete the Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” for each accountable and reportable injury or illness within seven working days after first becoming aware of the accountable or reportable injury or illness, the revised definition of accountable injury/illness will alleviate the railroad's need to make a final decision with regard to work-relatedness when an employee claims or suspects that the injury or illness is in fact work-related and will ensure that a record of each potentially reportable injury or illness is created.

See

Section-by-Section Analysis of § 225.25 for additional information. This approach helps to ensure that railroads record and thoroughly investigate injuries and illnesses where the employee claims that an event or exposure in the work environment is a discernable cause of the employee's injury or illness but additional investigation is necessary. This approach creates an audit trail of potentially work-related employee injuries and illnesses, and, because the railroad need not make a final determination regarding work relatedness within seven days, provides additional time for railroads to complete the work-related analysis. Moreover, this approach allows FRA to use the audit trail to better understand railroads' reporting processes and their application of the applicable regulations.

FRA received numerous comments addressing the proposed definition of “Accountable injury or illness.” Because of the language adopted in the final rule, a majority of those comments are no longer applicable. At the hearing and in the written comments, several railroads and organizations representing labor and railroads asserted that FRA's reporting requirements must be based upon work-relatedness and, therefore, the proposed amendment was outside of FRA's authority. While FRA disagrees with this assertion, this issue is no longer relevant. FRA has been tasked with and given the authority to prescribe regulations that “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” 49 U.S.C. 20102. Moreover, FRA has the authority to investigate “an accident or incident resulting in serious injury to an individual or to railroad property.”

Id.

As such, the proposed changes were well within FRA's authority as they were meant to improve FRA's safety data and to allow FRA to audit railroad reporting decisions. Finally, although FRA makes every effort to maintain consistent reporting requirements with those of OSHA, FRA's accident/incident recording requirements are based solely on FRA's program needs and purposes, and as such may differ from OSHA's requirements to any extent FRA believes is necessary.

Comments by NJT, UP, and AAR, among others, asserted that the proposed amendments could increase the misclassification of data by capturing too much information. As an initial matter, these comments concerned the language proposed in the NPRM. Regardless, with respect to the language in the final rule, railroads should already be reviewing all employee claimed or suspected work-related injuries and illnesses. FRA is simply requiring that the railroad document these suspected work-related injuries.

Many comments also stated that the proposed changes are not connected to

identifying safety hazards and that the previous reporting scheme did not result in underreporting. As explained above, the prior definition created an inadequate audit trail. In addition, FRA believes that the prior reporting system did result in underreporting due to the difficulties related to making a final work-relatedness determination within seven days for certain injuries and illnesses. Also, prior to this final rule, when a railroad made an initial incorrect or premature recording decision that an injury or illness was not recordable, the reporting system did not ensure that the railroad would catch the problem at a later time. Now, with the clarification that when an employee claims that, or railroad otherwise has knowledge that, an injury or illness is work-related, a railroad will be required to record such injuries and illnesses. In addition, the final rule improves the audit trail created by the railroads and better enables FRA to review reporting decisions and to identify reporting problems.

Other comments suggested that the current reporting scheme captures all of the necessary data. Specifically, AAR argued that there are sufficient tools currently in place, such as the ICP, to identify underreporting. UP argued that it is using a reliable review process that allows it to identify where additional information is required so that it is making accurate reporting decisions. The ICP requires the railroad to audit its own reporting and make appropriate changes in its reporting system to improve the quality of reporting. In the preamble of the June 18, 1996 regulation, FRA challenged the railroads to develop a Total Quality Management (TQM) system to have zero defects in reporting. The final rule is consistent with the purpose of the ICP, which is to have complete and accurate reporting. (49 CFR 225.33(a)(1)). FRA has found that the current tools do not always capture injuries or illnesses where the cause of the injury or illness is not readily apparent. The previous ICP did not create an audit trail for a situation in which a railroad determined that the injury or illness is not work-related, therefore, FRA and the railroads were hindered in reviewing and auditing the initial reporting decisions. AAR stated in post-hearing comments that disparities in reporting between railroads is not a sign of underreporting. However, without making an initial record and monitoring injuries and illnesses, it is difficult for the railroads or FRA to completely understand or explain the disparities in reporting. The changes in the final rule will allow FRA to review the railroad's decision making process to better understand those disparities and to better understand which safety measures are effective in preventing certain types of injuries and illnesses.

Commenters also argued that the proposed amendments were overly burdensome, suggesting that railroads would have to record every minor injury or illness, and that they may somehow violate the Americans with Disabilities Act (ADA), as railroads would be forced to follow up on and collect non-work-related medical information. Again, these comments relate to the proposed language in the NPRM, thus, they are not entirely applicable to the language adopted in the final rule. The final rule simply requires railroads to make a record of each injury or illness that the employee suspects or claims, or the railroad otherwise has knowledge that, is work-related. And, as noted, railroads should already be investigating these potentially work-related injuries and illnesses. FRA is simply asking the railroads to document their investigation of all potentially work-related injuries and illnesses where the employee claims or suspects the casualty is work-related, rather than just those that are ultimately determined to be work-related. During the hearing, in response to allegations that the amendment would result in violations of privacy laws, FRA asked that the railroads submit additional comments explaining how the amendment would force railroads to violate privacy laws. AAR stated that the proposed language would force employers to request personal information without providing any safety benefit. As explained above, the changes in the final rule are aimed at improving safety in the rail industry and justify requesting sensitive information, particularly where the employee suspects or claims, or the railroad knows, that the injury or illness is work-related. Moreover, the definition in this final rule does not expand the scope of the injuries or illnesses to be investigated under FRA's 2003 Final Rule but simply creates a recordkeeping requirement.

Several commenters stated that the meaning of the terms “manifests” and “abnormal” were vague. As an initial matter, the final rule does not include the term “manifests.” In addition, FRA's use of the term “abnormal” is clear, and is consistent with OSHA's language.

Finally, several commenters suggested that FRA should review railroads' reporting and recording decisions based on whether or not a decision is reasonable. AAR stated that employers are in the best position to determine whether an injury or illness is work-related. Pursuant to § 225.17, “Doubtful cases,” FRA cannot delegate its authority to decide matters of judgment when facts are in dispute. FRA must be able to ensure that its accident/incident data is complete and accurate. Consequently, the final reporting decision is FRA's. AAR also stated that if OSHA disagrees with an employer's decision, OSHA has the burden of proving that the injury or illness was work-related. Consistent with OSHA, the FRA Guide explains that, once an employer determines that an injury or illness is not reportable “and FRA subsequently issues a citation for failure to report, the Federal Government would have the burden of proving that the injury or illness was work-related.”

See

FRA Guide. To meet its burden, FRA must show that it is more likely than not that an event or exposure arising from the operation of the railroad was a discernable cause of the injury or illness or an event or exposure was a discernable cause of the significant aggravation of a pre-existing injury or illness. Except with respect to occupational illnesses, FRA's 2003 Final Rule states that “it is the railroad's responsibility to determine whether an illness is work-related,” meaning that “FRA's role will be to determine whether the reporting officer's determination was reasonable.” FRA emphasizes, this language refers to only occupational illnesses and FRA retained the ability to present evidence that the railroad's decision was in fact not reasonable. 68 FR 10119, March 3, 2003.

In the NPRM, FRA proposed amending the definition of “Accountable rail equipment accident/incident” to mean “a collision, derailment, fire, explosion, act of God, or other event involving the operation of railroad on-track equipment (standing or moving) that does not result in reportable damages greater than the current reporting threshold to railroad on-track equipment, signals, track, track structures, and roadbed.” The final rule defines “Accountable rail equipment accident/incident” to mean “(1) any derailment regardless of whether or not it causes any damage or (2) any collision, highway-rail grade crossing accident/incident, obstruction accident, other impact, fire or violent rupture, explosion-detonation, act of God, or other accident/incident involving the operation of railroad on-track equipment (standing or moving) that results in damage to the railroad on-track equipment (standing or moving), signals, track, track structures or roadbed and that damage impairs the

functioning or safety of the railroad on-track equipment (standing or moving), signals, track, track structures or roadbed.”

Under the definition contained in FRA's 2003 Final Rule, generally, an accountable rail equipment accident/incident meant an incident that resulted in damage below the reporting threshold and that, if not attended to, would disrupt railroad service. FRA has found through its audits and enforcement tools that the term “disruption of service” has not been consistently understood or uniformly applied throughout the railroad industry. Moreover, FRA found that the previous definition of accountable rail equipment accident/incident failed to adequately capture the accidents and incidents FRA originally intended and currently requires to be recorded and/or reported for data analysis and safety purposes. Specifically, FRA originally created the Form FRA F 6180.97 to establish a means by which railroads could record and FRA could audit railroad reporting decisions with regard to the reporting of railroad accidents/incidents on Form FRA F 6180.54. FRA has expanded its use of the Form FRA F 6180.97 to identify safety hazards in yards and terminals, which has benefited FRA's safety efforts, as those incidents are precursors for reportable accidents and incidents.

Based upon FRA's thorough review and consideration of the comments and FRA's goals of creating an audit trail, applying a uniform and simpler standard and capturing data that will allow it to identify and eliminate safety hazards, FRA believes that the language adopted in the final rule is more appropriate than the language proposed in the NPRM. FRA received numerous comments addressing the proposed amendments to the definition of “Accountable rail equipment accident/incident” and, based upon the language adopted in the final rule, a majority of those comments are no longer applicable.

FRA received comments that the proposed definition would create a substantial burden on the railroads as it would require them to record every minor incident regardless of the amount of damage and the connection to safety. The final rule does not require railroads to report or record damage that is the result of normal wear and tear. Rather, as in FRA's 2003 Final Rule, this final rule only classifies an accident/incident as an “accountable rail equipment accident/incident” when it results from a derailment, collision, highway-rail grade crossing accident/incident, obstruction accident, other impact, fire or violent rupture, explosion-detonation, act of God, or other accident/incident involving the operation of railroad on-track equipment (standing or moving). FRA intends to use the information captured to learn about precursors to reportable accidents/incidents and to improve safety. The final rule clarifies that, with the exception of derailments, an incident must result in damage and that damage must impair the functioning or safety of the railroad on-track equipment (standing or moving), signals, track, track structures or roadbed. Consequently, FRA is not requiring the railroads to record minor incidents that result from normal wear and tear. Consistent with FRA's 2003 Final Rule, FRA believes it is necessary to record every derailment as such information will provide greater insight into their causes and will prevent future reoccurrences, including those that may result in hazardous material spills, significant damage, and/or casualties. Finally, the definition adopted in the final rule, which eliminates the disruption of service criteria, creates a clear reporting standard that will allow for easier and more consistent enforcement and compliance.

SEPTA suggested, in one comment, that FRA retain the disruption of service criteria. FRA did not implement this suggestion. As discussed above, the disruption of service criteria does not capture all of the data FRA needs to ensure safety. Moreover, FRA has found that the disruption of service criteria has not been uniformly applied. FRA believes that the language adopted in the final rule is more appropriate and not overly burdensome.

In addition, several commenters suggested that the proposed definition was unclear and that it was unclear what information FRA was attempting to capture. FRA believes that the language adopted in this final rule, however, is clear and will allow for the uniform application of the standard.

The final rule includes a definition for “Discernable cause.” In order to clarify the meaning of this term and to ensure consistency with OSHA's reporting requirements, the final rule defines “Discernable cause” in § 225.5 to mean, “a causal factor capable of being recognized by the senses or the understanding.”

See also, Webster's Third New International Dictionary

(1961);

Webster's Third New International Dictionary, Unabridged

(1971). The definition further provides that “[a]n event or exposure arising from the operation of a railroad is a discernable cause of (

i.e.,

discernably caused) an injury or illness if, considering the circumstances, it is more likely than not that the event or exposure is a cause of the injury or illness. The event or exposure arising from the operation of a railroad need not be a sole, predominant or significant cause of the injury or illness, so long as it is a cause (

i.e.,

a contributing factor).”

FRA's accident/incident reporting regulations concerning railroad occupational casualties are maintained, to the extent practicable, in general conformity with OSHA's recordkeeping and reporting regulations, in order to permit comparability of data on occupational casualties between various industries, to allow integration of railroad industry data into national statistical databases, and to improve the quality of data available for analysis of casualties in railroad accidents/incidents.

5

Moreover, maintaining such compatibility allows railroads to report occupational casualties only to FRA, rather than to OSHA and to FRA.

See

29 CFR 1904.3.

5

It should be noted that under OSHA's regulations, the term “recording” is used. Under FRA's regulations and the FRA Guide, the term “reporting” is used. The OSHA system requires recording into the OSHA 300 Log whereas FRA has always used the term “reporting” in its regulations and in the FRA Guide because the Accident Reports Act of 1910, as amended, requires “a railroad carrier [to] file a report * * * on all accidents and incidents * * *” 49 U.S.C. 20901.

With respect to employee injury and illness recording, OSHA's 2001 Final Rule, states that “each employer * * * must record each fatality, injury and illness that is work-related; and is a new case; and meets one or more of the general recording criteria * * * or the application to specific cases.” 66 FR 5916, 5945, January 19, 2001, codified at 29 CFR 1904.4(a). OSHA's 2001 Final Rule goes on to state that “[employers] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness,” and that “[w]ork-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in [29 CFR] 1904.5(b)(2) specifically applies.” 66 FR 5916, 5946, January 19, 2001, codified at 29 CFR 1904.5(a).

After OSHA's 2001 Final Rule was published, the National Association of Manufacturers (NAM) filed a legal challenge to the final rule, with respect to (among other things) the final rule's presumption of work-relatedness. On November 16, 2001, OSHA and NAM entered into a settlement agreement to resolve NAM's legal challenge. The parties then entered into a revised

settlement agreement on November 29, 2001. The revised settlement agreement was published in the Federal Register at 66 FR 66943, December 27, 2001. As part of the NAM-OSHA settlement, the parties agreed to the following:

Section 1904.5(a) states that “[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition. Work relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment * * *” Under this language, a case is presumed work-related if, and only if, an event or exposure in the work environment is a discernable cause of the injury or illness or of a significant aggravation to [sic] pre-existing condition. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause.

Section 1904.5(b)(2) states that a case is not recordable if it “involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.” This language is intended as a restatement of the principle expressed in 1904.5(a), described above. Regardless of where signs or symptoms surface, a case is recordable only if a work event or exposure is a discernable cause of the injury or illness or of a significant aggravation to a pre-existing condition.

Section 1904.5(b)(3) states that if it is not obvious whether the precipitating event or exposure occurred in the work environment or elsewhere, the employer “must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” This means that the employer must make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness, or a significant aggravation to a pre-existing condition. If the employer decides the case is not work-related, and OSHA subsequently issues a citation for failure to record, the Government would have the burden of proving that the injury or illness was work-related.”

In 2003, FRA revised its accident/incident reporting regulations to conform, to the extent practicable, to OSHA's revised requirements.

See

68 FR 10108-10140, March 3, 2003. In doing so, FRA took into account the NAM-OSHA settlement agreement, in particular the agreement's reference to the term “discernable,” to qualify or describe cause. FRA included the phrase “discernable cause” in its definitions of “Accident/incident,” “Accountable injury or illness,” and “Occupational illness” in § 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.

On January 15, 2008, FRA received a letter from the DOL's Office of the Solicitor (OSHA Letter) confirming FRA's understanding and application of the NAM-OSHA settlement agreement and OSHA's recordkeeping requirements with regard to “work-relatedness,” in addition to providing further clarification on particular points of law. In the OSHA Letter, OSHA stated that “`[d]iscernable' is used in the ordinary sense; that is, capable of being recognized by the senses or the understanding.” OSHA Letter at 3. OSHA's definition came from Webster's Third International Dictionary. The OSHA Letter goes on to state that an event or exposure is a discernable cause if, “considering the circumstances, it is more likely than not that the event or exposure is a cause of the injury or illness.”

Id.

FRA submitted the OSHA Letter to Docket Number FRA 2006-26173 on December 10, 2008.

FRA received several comments from the railroads and other organizations regarding the proposed definition of discernable cause. Many comments stated that the proposed definition was inconsistent with OSHA's reporting requirements. As explained above, FRA adopted a definition that is virtually identical to and consistent with OSHA's definition to ensure that railroads need to report only to one agency and that there is consistent reporting across industries. One comment suggested that OSHA requires that the cause be distinguishable from other causes, and that FRA's definition is inconsistent. Although OSHA requires that an event or exposure be a tangible cause, it does not require that the event or exposure be the main or predominate cause of the injury or illness. In addition, neither OSHA nor FRA require that the railroad calculate the exact amount of cause a particular event or exposure played in the subsequent injury or illness, only that it be a cause. Moreover, like OSHA, where it is difficult to determine whether the event or exposure is a cause, FRA requires that the employer consider the circumstances surrounding the event or exposure to determine whether it is more likely than not a cause.

Other comments suggested requiring that the event or exposure in the work environment be the predominant or main cause to ease the reporting burden and to simplify the reporting scheme. However, this suggestion would make the definition inconsistent with OSHA. In the OSHA Letter, OSHA stated, with regards to “causation,” that “the employer need not weigh the relative contributions of occupational and non-occupational factors to the injury or quantify the extent of the occupational contributions.”

Id.

As such, “discernable” in this context does not mean obvious. In addition, requiring that the event or exposure be the predominant or main cause would exclude certain injuries and illnesses, and would be difficult to measure and enforce.

Some comments requested that medical evidence factor into the causation decision. Consistent with OSHA, FRA recognizes that when causation is not obvious, that “consultation with a health care professional” may play a part in the reportability determination.

Id.

However, the final reporting decision is made by a railroad's reporting officer and the responsibility cannot be delegated to another individual. Railroads also asked what weight FRA gives to medical evidence compared to other types of evidence. Again, FRA, like OSHA, acknowledges that medical consultation may be a factor the railroad reporting officer considers, but the reporting officer may not delegate the reporting decision to a health care professional. As stated in the definition, “[i]f it is unclear whether the work event was a cause of the injury, the employer must evaluate the employee's work duties and environment and decide whether it is more likely than not that work was a cause.”

Id.

Thus, an employer is responsible for considering all of the relevant evidence obtained through its inquiry when making a reporting decision. When reviewing the railroad's reporting decision, FRA considers various factors when giving weight to a health care professional's opinion, including, but not limited to, whether the health care professional clearly documented his or her findings, whether the conclusion is supported by evidence, and whether the health care professional provided a medical assessment or, instead, a conclusory statement.

Finally, commenters asserted that FRA “always” takes employees at their word and, therefore, railroads are not truly free to consider contradictory medical evidence. However, that is not the case. As stated in § 225.17, “Doubtful cases,” FRA has the authority to resolve factual disputes. During its audit, FRA reviews the basis for a railroad's reporting decision, in addition to the “investigatory materials,

including, but not limited to, the following: The initial report filed by the affected person, witness statements, transcripts of hearings, medical records, time and attendance records, and the purpose of payouts made in connection with the accident/incident.”

See

FRA Guide, Chapter 1. Moreover, FRA conducts additional investigation and consults with its own health care professional when appropriate. At the conclusion of its investigation, FRA will review the railroad's reporting decision and all of the associated evidence to determine whether it is more likely than not that an event or exposure arising from the operation of the railroad is a discernable cause of the injury.

Commenters suggested using an evidence-based approach to determine causation. During his testimony, Dr. M. Hadler commented that individuals often have difficultly recognizing what caused their injuries and tend to attribute cause to the environment they are in at the time their pain becomes unbearable. Consequently, Dr. Hadler suggested using a more scientific approach (such as a pain diary) to determine causation. Additionally, KCS and UP suggested that FRA use the National Institute for Occupational Safety and Health's (NIOSH) approach to determine causation. FRA, however, has chosen to adopt OSHA's language and method of determining causation so that railroads may report injuries and illnesses to only one agency, FRA. If FRA adopted the NIOSH approach then railroads would be responsible for reporting employee injuries and illnesses separately to both OSHA and FRA. FRA collection of employee injuries and illnesses must be consistent with OSHA's system to make a reliable national database. Failure to be consistent with OSHA would trigger dual reporting requirements for railroads (to OSHA and to FRA). UP supported adopting the NIOSH approach because it believes that each person shows injuries and illnesses differently. Thus, UP and KCS would like an approach that considers the unique factors for each person. Under FRA's approach, a railroad should conduct an inquiry into any potentially reportable or accountable injury or illness. At the conclusion of its investigation, the railroad must decide whether, considering the circumstances, it is

more likely than not

that an event or exposure arising from the operation of the railroad is a discernable cause of an injury or illness. Consequently, under this approach, a railroad may consider the various unique factors associated with each employee's potentially reportable or accountable injury or illness, including but not limited to an employee's medical and work history, in addition to an employee's statements regarding his or her injury or illness.

Commenters also suggested that the definition of discernable cause is too broad. Specifically, commenters suggested that the definition requires railroads to collect information that is not relevant to occupational safety and will result in over-reporting. Again, the definition of discernable cause is consistent with FRA's longstanding policy and with OSHA's interpretation. As a result, the definition will not change railroad reporting responsibilities and, in fact, will ease the reporting burden (as railroads have to report to only one agency). Like OSHA, FRA does not require that the cause be occupational in nature.

See also

Section-by-Section Analysis for § 225.5, “Definitions—Work-related.” Also, the definition is appropriate as it allows FRA to identify injuries and illnesses for which events or exposures arising from the operation of the railroad play a role, and it is not overly broad as the injuries and illnesses must also meet one of the reporting criteria. In addition to the benefits of collecting uniform data across industries, FRA is not collecting information regarding minor injuries with no safety impact as an event or exposure arising from the operation of the railroad must be a discernable cause and the injury or illness must be severe enough to meet one of the reporting criteria.

Commenters also stated that the definition of discernable cause is vague and fails to provide clear guidance to railroads. Specifically, one comment stated that the dictionary definition was uninformative. As explained above, the cause need not be the sole or predominant cause, rather it must be a contributing factor. If it is not clear whether the event or exposure was a discernable cause, the employer must consider the surrounding circumstances to determine reportability. FRA believes that the definition and standard are clear. Moreover, when a railroad is unsure about the reportability of an injury or illness, FRA recommends that a railroad make a report or utilize FRA's “claimed but not admitted” process as described in 49 CFR 225.17(c).

Commenters suggested that FRA is creating a geographic presumption and, therefore, the definition is inconsistent with OSHA. Moreover, commenters want to limit the cause to just those injuries that are occupational in nature (

i.e.,

related to performing job-related activities).

See

Section-by-Section Analysis for § 225.5, “Definitions—Event or exposure arising from the operation of the railroad” and “Definition Work related.” For employees, consistent with OSHA, the final rule requires that an event or exposure in the work environment be a discernable cause of the injury or illness. Therefore, FRA is still requiring causation and, as such, an injury or illness is not work-related simply because signs or symptoms arise in the work environment. For non-employees, FRA requires that an event or exposure arising from the operations of the railroad be a discernable cause of the casualty, and, as such, FRA did not create a geographic presumption. Although the railroads would like to limit reportable injuries and illnesses to those caused by events and exposure that are uniquely occupational, consistent with OSHA, FRA simply requires for employees that an event or exposure arising from the operation of the railroad be a discernable cause of the injury or illness.

See

Section-by-Section Analysis for § 225.5, “Definition—Work related.”

Finally, commenters suggest that employers, and not FRA, are in the best position to determine causation. Consistent with OSHA, for purposes of § 225.11, FRA is not reviewing a railroad's reporting decision to determine whether it was reasonable (except in the case of occupational illness (

See

FRA's 2003 Final Rule)); rather, FRA is determining whether an injury or illness is reportable.

The final rule defines an “Event or exposure” as an “incident, activity, or occurrence.” FRA included the definition to clarify that event or exposure is a term that is to be broadly interpreted and to eliminate redundant language in the rule text.

Many of the comments that FRA received suggested that normal body movements such as walking or sneezing do not constitute an event or exposure. However, consistent with OSHA, FRA considers “normal body movements” to be events within the definition.

See

OSHA Letter at 3. Such normal body movement cases are only reportable if they arise from the operation of the railroad and cause or contribute to the injury or illness.

See

Section-by-Section Analysis for § 225.5, “Definition—Work related” and “Definition—Discernable cause.” Consistent with OSHA's requirements, FRA does not require that the event or exposure be an “obvious cause” of the injury or illness, or be occupational in nature and, therefore, normal body movements may result in reportable injuries or illnesses.

The final rule amends and restructures the definition of “Event or exposure arising from the operation of a railroad” to clarify its meaning. The term “event or exposure arising from the operation of a railroad” and its definition were added in FRA's 2003 Final Rule to more narrowly tailor what types of accidents/incidents were considered to “arise from the operation of a railroad” and were, therefore, potentially reportable. 68 FR 10108, 10115-16, March 3, 2003.

FRA's 2003 Final Rule's definition consisted of three-tiers that addressed the different classifications of persons on and off railroad property. The first tier defined “event or exposure arising from the operation of a railroad” broadly “with respect to any person on property owned, leased, or maintained by the railroad, an activity of the railroad that is related to its rail transportation business or an exposure related to the activity.” The final rule revises this first tier of the definition by changing “any person” to “a person who is not an employee of the railroad.” This amendment is consistent with the intent of FRA's 2003 Final Rule:

FRA developed a compromise position, proposing that railroads not be required to report deaths or injuries to persons who are not railroad employees that occur while off railroad property unless they result from a train accident, a train incident, a highway-rail grade crossing accident/incident, or a release of a hazardous material or other dangerous commodity related to the railroad's rail transportation business.

68 FR 10108, 10109, March 3, 2003.

The revision clarifies that the definition was intended to apply only to persons who are not railroad employees. The final rule also removes the phrase “an activity of the railroad” such that tier one of the definition concerns an event or exposure that is related to the performance of the railroad's rail transportation business. The final rule also removes the reference to “activity” since the definition of “event or exposure” in the final rule includes “activity.” The final rule also revises the language proposed in the NPRM to clarify that the newly consolidated tier one subpart (i) deals with a person who is not an employee and is on railroad property, rather than an event or exposure occurring on property. FRA believes this clarifying language is consistent with the intent of FRA's 2003 Final Rule. As this change is consistent with current industry reporting practices and the language in the FRA's 2003 Final Rule, the amendment to the final rule should have no impact on reporting practices and, in fact, is more consistent with current practices than the language proposed in the NPRM.

The second tier also defined “event or exposure arising from the operation of a railroad” broadly, but “with respect to an employee of the railroad (whether on or off property owned, leased or maintained by the railroad), an activity of the railroad that is related to the performance of its rail transportation business or an exposure related to that activity.” The final rule clarifies this paragraph by revising the definition to state “with respect to a person who is an employee of a railroad, an event or exposure that is work-related.” This amendment removes the phrase “an activity of the railroad,” since the definition of “event or exposure” in the final rule includes “activity.” The final rule also removes the phrase “(whether on or off property owned, leased, or maintained by the railroad)” and the phrase “that is related to the performance of the railroad's rail transportation business * * *” because the term “work-related” encompasses both of those requirements.

The third tier defined “Event or exposure arising from the operation of a railroad” narrowly with respect to a person who is neither on the railroad's property nor an employee of the railroad, to include only certain enumerated events or exposures,

i.e.,

a train accident, a train incident, or a highway-rail crossing accident/incident involving the railroad; or a release of hazardous material from a railcar in the railroad's possession or a release of another dangerous commodity if the release is related to the railroad's rail transportation business.

68 FR 10108, 10116, March 3, 2003.

The final rule revises the language proposed in the NPRM to clarify that the new consolidated tier one subpart (ii) deals with a person who is not an employee and is not on railroad property, rather than an event or exposure not occurring on property. FRA believes this clarifying language is consistent with the intent of FRA's 2003 Final Rule. As this change is consistent with current industry reporting practices and the language in FRA's 2003 Final Rule, the amendment to this final rule should have no impact on reporting practices and, in fact, is more consistent with current industry practices than the language proposed in the NPRM.

The final rule consolidates tier one, tier two, and tier three of the definition into two tiers so that tier one is applicable to non-employees and tier two is applicable to employees. The amendments and restructuring are clarifying measures and do not change the meaning of the definition. The definition continues to mean, consistent with FRA's 2003 Final Rule, “that a railroad would not have to report to FRA the death of or injury to an employee of a contractor to the railroad who is off railroad property (or deaths or injuries to any person who is not a railroad employee) unless the death or injury results from a train accident, train incident, or highway-rail grade crossing accident involving the railroad; or from a release of a hazardous material or some other dangerous commodity in the course of the railroad's rail transportation business. In addition, FRA would require railroads to report work related illnesses only of railroad employees and under no circumstances the illness of employees of a railroad contractor.”

68 FR 10108, 10116, March 3, 2003.

The final rule amends the language proposed in the NPRM in the first tier by clarifying that a person who is not an employee is considered to be on railroad property when they are on property that the railroad operates over (

e.g.,

operating rights), in addition to property owned, leased, or maintained by the railroad. FRA does not believe that this clarifying amendment increases the burden on railroads because it is consistent with common industry practice as well as FRA's long-standing policy. Any burden created by this amendment would be nominal, as a majority of these incidents would have been captured elsewhere under the prior definition.

The final rule also amends the language proposed in the NPRM in the first tier (ii)(A) by removing “highway-rail grade crossing accident or incident” from the list of accidents/incidents considered to be “events or exposures arising from the operation of the railroad” when a non-employee is off railroad property. FRA is removing highway-rail grade crossing accident or incident from the list of off property accidents/incidents because it is repetitive, as those types of accidents and incidents are already captured under train accident and train incident. FRA also added the term “non-train incident.” Non-train incident is defined as an “event that results in a reportable casualty, but does not involve the movement of on-track equipment nor cause reportable damage above the threshold established for train accidents.”

See

§ 225.5, “Definitions—Non train incident.” FRA included “non-train incident” to make the definition consistent with FRA's 2003 Final Rule and the 2003 FRA Guide. In the 2003 FRA Guide, non-train incidents were included in the list of accidents/incidents. This amendment

simply clarifies that FRA wants to retain the non-train incidents events captured under the prior rule and it was inadvertently removed in the NPRM. FRA does not believe that this clarifying amendment increases the burden on railroads because it is consistent with the FRA's 2003 Final Rule, the 2003 FRA Guide, common industry practice, as well as FRA's long-standing policy.

Amtrak's comments suggested that FRA's definition creates a geographic presumption of work-relatedness. However, for an injury or illness to be reportable, an event or exposure arising from the operation of the railroad must be a discernable cause. As such, it is not enough that the signs or symptoms of an injury or illness arose in the work environment.

See

Section-by-Section Analysis for § 225.5, “Definition—Work related.”

The final rule makes a technical amendment to the definition of “General reporting criteria” to include criteria number [225.19(d)] (6), “Illness or injury that meets the application of any of the [enumerated] specific case criteria,” which was inadvertently omitted in FRA's 2003 Final Rule.

The final rule also revises the definition of “Highway-rail grade crossing” to mean a location where a public highway, road, street, or a private roadway, including associated sidewalks, crosses one or more railroad tracks at grade, or a location where a pathway explicitly authorized by a public authority or railroad carrier that is dedicated for the use of non-vehicular traffic, including pedestrians, bicyclists, and others, that is not associated with a public highway, road, or street, or a private roadway, crosses one or more railroad tracks at grade. The definition further provides that the term “sidewalk” means that portion of a street between the curb line, or the lateral line of a roadway, and the adjacent property line or, on easements of private property, that portion of a street that is paved or improved and intended for use by pedestrians.

Although this revision was not expressly addressed in the NPRM, it is consistent with FRA's long-standing practice as well as the Railroad Safety Improvement Act of 2008 (the “RSIA”). Specifically, sections 2 and 204 of the RSIA define “crossing” to include such pathway crossings. Furthermore, section 209 of the RSIA requires that FRA audit railroads to ensure that all grade crossing collisions and fatalities are properly reported. Thus, FRA's audits must review railroad records to ensure that crossings, including such pathway crossing accidents/incidents, are reported. The final rule's definition makes FRA's regulations consistent with the RSIA's requirements and enables accurate auditing and reporting. Moreover, FRA proposed revisions to the definition of “Accident/Incident” with respect to impacts at highway-rail grade crossings, and received comments on the proposal. FRA's responses to those comments are discussed above.

The final rule defines “Injury or illness” to mean an “abnormal condition or disorder,” (this is consistent with OSHA's definition at 29 CFR 1904.46). FRA is adding the definition to provide examples of injuries and illnesses and to clarify that pain is an injury or illness when it is sufficiently severe to meet the general reporting criteria listed in § 225.19(d)(1) through (d)(6).

See

OSHA's Final Rule, 66 FR 5916, 6080, January 19, 2001. The final rule also amends the definition to clarify that a musculoskeletal disorder (MSD) is an injury or illness.

See

OSHA's Final Rule, 66 FR 5916, 6017, January 19, 2001 and 68 FR 38601, 38602, June 30, 2003. The addition of the definition is not a substantive change to FRA's current accident/incident recording and reporting requirements. Rather, the final rule added the definition in an effort to eliminate confusion as to what constitutes an injury or illness. FRA also wishes to emphasize that injuries and illnesses are reportable only if they are new cases discernably caused or significantly aggravated by an event or exposure arising from the operation of a railroad, that meet one or more of the general reporting criteria.

In response to the NPRM, FRA received comments that asserted that the proposed definition was not consistent with OSHA because pain and MSDs are not injuries or illnesses. However, in the OSHA Letter, OSHA confirmed FRA's understanding that “pain is an injury or illness * * * when it is sufficiently severe to meet the general reporting criteria” and that the MSDs are injuries and illnesses as they constitute “abnormal conditions.” OSHA Letter at 4.

Commenters also stated that the proposed definition is overly broad and would require the railroads to report minor injuries and illnesses. Because the injury or illness must still meet the general reporting criteria, FRA will not be capturing minor injuries and illnesses. Moreover, these amendments are clarifications and do not alter the railroads' current responsibilities. FRA uses all of this information, including information about MSDs and lower back pain, to identify health and safety risks arising from railroad operations.

Other commenters suggested that the experience of pain in the work environment should not be considered an injury as the person might simply be experiencing pain as the result of an injury or illness that was caused by an event or exposure not arising from the operation of the railroad. UP argued, for example, that a person may experience pain simply as a result of age or psychological reasons. The final rule does not require railroads to report injuries or illnesses that are not caused by an event or exposure in the work environment. Thus, signs or symptoms of a prior injury or illness that simply manifest within the work environment or on property owned, leased, operated over or maintained by railroad, are not reportable. Pain is only reportable when an event or exposure arising from the operation of the railroad is a discernable cause of that pain or significantly aggravated that pain and it meets the general reporting criteria.

Several commenters stated that the term “abnormal condition” is not clear. This terminology is consistent with OSHA's requirements. Moreover, FRA believes that the term is, in fact, clear and requires railroads to report adverse medical conditions caused by events or exposures arising from the operation of the railroad. This definition, in addition to the examples, provides sufficient guidance for railroads to properly identify reportable injuries and illnesses. UP stated that the definition was vague and unclear, and, as a result, UP suggested a definition based upon diagnostic criteria. An injury or illness that is simply the result of events or exposures outside of the work environment is not reportable. Thus, an injury that is simply the result of the aging process is not reportable. Moreover, an injury or illness must be caused by an event or exposure arising from the operation of the railroad. Thus, if an event or exposure arising from the operation of the railroad significantly aggravated a preexisting condition or if the person is more susceptible to an injury or illness discernably caused by an event or exposure arising from the operation of the railroad due to age, then the injury or illness is reportable. As the workforce ages, FRA is interested in learning more about the impact on these demographics and work place safety. As such, FRA believes that the definition contained in the final rule is appropriate.

The final rule amends the definition of “New case” to apply to all persons rather than only to employees. Correspondingly, the final rule replaces the phrase “in the work environment” with “arising from the operation of a railroad,” because the term “work environment” applies only to

employees. This revision is consistent with the statutory requirement that railroads report to FRA “all accidents and incidents resulting in injury or death to an individual * * * arising from the carrier's operations during the month,” not just accidents and incidents resulting in injury or death to railroad employees.

See

49 U.S.C. 20901. FRA believes that this amendment does not affect the reporting requirements. The final rule also includes the descriptor “discernably” before the word “caused” in order to maintain consistency within part 225.

Commenters to the NPRM stated that the amendments to the definition of “New case” inappropriately expanded the definition to apply to all persons and, in so doing, would create significant costs and reporting burdens. While the amendments do expand “New case” to address persons beyond employees, the changes are meant to make the definition consistent with the statutory requirement that railroads report casualties to all persons. 49 U.S.C. 20901. Moreover, expanding the term “New case” to address casualties to non-employees should not create significant additional burdens as the revision is meant to provide guidance to the railroads about when a new record or report must be created and when the railroads should only update a previously created record or report for an “existing case.” As such, railroads need only make a new record or report when it is a “new case” and may simply update a record or report for an “existing case.”

The final rule also amends the definition of “Qualified health care professional” by removing the otolaryngologist example (which had stated: “[f]or example, an otolaryngologist is qualified to diagnose a case of noise induced hearing loss and identify potential causal factors, but may not be qualified to diagnose a case of repetitive motion injuries.”). The final rule removes this example in order to clarify that physicians are not limited by their specialty and may diagnosis conditions while operating within the scope of their license, registration, or certification. As such, as a licensed physician, an otolaryngologist may diagnose conditions other than those related to the ear, nose, and throat. A comment to the NPRM stated that the example should not be removed, that doctors should not be able to diagnosis conditions outside of their specialty, and that the example should be amended from referencing “repetitive motion injuries” to “work-related musculoskeletal disorders.” As noted, the final rule clarifies that physicians may diagnose conditions outside of their specialty while operating within the scope of their license, registration, or certification. This position is consistent with the current rule; however, the otolaryngologist example created confusion (which is why it was removed).

The final rule revises the definition of “Railroad.” Currently, part 225 defines “railroad” as “a person providing railroad transportation.” In order to attain better consistency with Congress' 1994 revisions to 49 U.S.C. 20102, the final rule defines “railroad” to mean “a railroad carrier,” and adds a definition to § 225.5 for “railroad carrier” to mean a “person providing railroad transportation.” Congress added the term “Railroad carrier” to 49 U.S.C. 20102 in 1994 (Pub. L. 103-272, 108 Stat 745), as part of a larger effort “[t]o restate the laws related to transportation in one comprehensive title” and “attain uniformity [of language] within the title.”

See

House Report No. 103-180 at 3, reprinted in 1994 U.S.C.C.A.N. 818, 820. Specifically, Congress defined “railroad carrier” at 49 U.S.C. 20102 (2) as a “person providing railroad transportation,” in order to “distinguish between railroad transportation and the entity providing railroad transportation.”

See

House Report No. 103-180 at 79, reprinted in 1994 U.S.C.C.A.N. 818, 898. FRA's definition of “railroad transportation” remains unchanged.

The final rule adds a definition for “Significant aggravation of a pre-existing injury or illness.” This definition is consistent with both OSHA's definition as set forth at 29 CFR 1904.5(b)(4) and the current version (effective May 1, 2003) of the FRA Guide. FRA has added this definition to § 225.5 for clarification and ease of reference.

The final rule further clarifies that the provisions concerning days away from work and restricted duty only relate to railroad employees. This clarifying amendment was made in response to a comment requesting additional clarification about whether these provisions apply to “any person.” This amendment is consistent with the reporting criteria found in § 225.19 and will not create any additional burden on the railroads.

Commenters stated that the definition for “Significant aggravation of a pre-existing injury or illness” is not consistent with the OSHA definition. Specifically, Amtrak argued that FRA's definition is different than OSHA's because it contains the term “discernable cause.” However, FRA included this language for clarity and the definition is, in fact, consistent with OSHA's language. Pursuant to the OSHA-NAM Agreement, a case “is presumed work-related if, and only if, an event or exposure in the work environment is a discernable cause of the injury or illness or of a significant aggravation to [sic] preexisting condition.”

Amtrak further argued that FRA's removal of “occupational” preceding the phrase “event or exposure” is also inconsistent with OSHA. This revision is consistent with the statutory requirement that railroads report to FRA “all accidents and incidents resulting in injury or death to an individual arising from the carrier's operations during the month,” not just accidents and incidents resulting in injury or death to railroad employees.

See

49 U.S.C. 20901. While OSHA only captures information relating to employees, FRA collects and uses information for various classifications of persons. As such, FRA requires railroads to submit information relating to non-employee injuries and illnesses that arise from the operation of the railroad.

The final rule also adds a definition for “Suicide data.” Consistent with FRA's decision to remove suicide and attempted suicide from its current § 225.15 reporting exceptions (

see

Section-by-Section Analysis for 225.15, “Accidents/Incident not to be reported”), and to begin collecting suicide related data, FRA is adding to § 225.5 a definition for “Suicide data.” In the NPRM, FRA proposed that “Suicide data” mean data regarding the death of an individual due to that individual's commission of suicide as determined by a coroner or other public authority; or injury to an individual due to that individual's attempted commission of suicide as determined by a public authority.

The final rule revises the definition of “Suicide data” to mean “data regarding the death of an individual due to the individual's commission of suicide as determined by a coroner, public police officer or other public authority; or injury to an individual due to that individual's attempted commission of suicide as determined by a public police officer or other public authority.” The FRA Guide explains that a “public authority” is a Federal, State or local government entity, such as a public health department, that has the legal authority to declare a fatality a suicide or a casualty to a person as an attempted suicide. Moreover, the FRA Guide provides for what documentation a railroad is required to have to show that a person committed suicide or attempted to commit suicide.

See

Section-by-Section Analysis for § 225.41, “Suicide data.”

FRA emphasizes that only the information about the death of, or injury to, the individual who committed the suicidal act is considered to be suicide data. Thus, information about the death of, or injury to, any other person caused by another person's commission of a suicidal act is not suicide data. FRA will not report suicide data to OSHA. FRA will not include suicide data (as defined in § 225.5) in its periodic summaries of data on the number of injuries and illnesses associated with railroad operations. FRA will maintain suicide data in a database that is not publicly accessible. Accordingly, suicide data will not be available on FRA's Web site for individual reports or downloads, however, suicide data will be available to the public in aggregate format on FRA's Web site and via requests under the Freedom of Information Act.

See

§ 225.41, “Suicide data.” FRA inspectors and State agencies participating in investigative activities under part 212 will have access to the individual records and reports.

See

§ 225.31. States also can obtain individual reports directly from the railroads pursuant to § 225.1.

Commenters requested that FRA clarify what is considered a public authority. As explained above, a “public authority” is a Federal, State or local government entity, such as a public health department, that has the legal authority to declare a fatality a suicide or a casualty to a person an attempted suicide. MTA asked whether public authority would include “a railroad police department or other State or local police department.” FRA does not consider a railroad police officer a public authority within the meaning of those terms. Another commenter suggested using the phrase “appropriately qualified public authority” to define public authority. FRA believes that the revised definition provides sufficient clarity as to what is considered a public authority.

Commenters also suggested that collecting this information (

e.g.,

a coroner's report) is time consuming and that FRA should consider this fact when requiring that a railroad complete the relevant forms within a specific period of time. FRA acknowledges that it may take additional time to confirm cause of death. As explained, FRA needs this information to prevent future casualties and to improve rail safety. However, after acquiring knowledge that a reportable injury or illness occurred, a railroad must create a Form FRA F 6180.55a for reportable injury and illness within thirty days after the expiration of the month during which the accidents/incidents occurred. As such, a railroad may submit the report as a fatality if a final determination with regard to cause of death has not yet been reached and, at a later time, update and amend the record or report once the railroad is able to confirm cause of death. If a railroad is unable to confirm whether an individual committed suicide at the end of the investigative period, the deceased should be listed as the applicable type person (

e.g.,

trespasser, non-trespasser). FRA allows railroads to accept verbal confirmation of an attempted suicide or suicide from a public authority, so long as the railroad documents in writing the specifics of the conversation and creates the required audit trail, as explained in the FRA Guide, rather than requiring written confirmation from the public police officer, coroner or other public authority.

See

Section-by-Section Analysis for § 225.41, “Suicide data.”

The final rule revises the definition of “Work environment” to explain that the work environment means the establishment and other locations where one or more railroad employees are working or are present as a condition of employment. This revision provides additional clarity and better conforms FRA's definition with OSHA's definition at 29 CFR 1904.5(b)(1).

The final rule revises the definition of “Work-related” by removing the words “incident, activity, or the like” and replacing them with “event or exposure” because the definition of “event or exposure” in this section encompasses those terms. The definition explains that an injury or illness is presumed work-related if an event or exposure in the work environment is a discernable cause of the resulting condition or a discernable cause of a significant aggravation to a pre-existing injury or illness. The causal event need not be peculiarly occupational in nature so long as it occurs in the work environment, and is a discernable cause (

i.e.,

contributory factor). Further, the final rule states that if an injury or illness is within the presumption, the employer can rebut the work-relatedness only by showing that the case falls within an exception listed in 49 CFR 225.15. This presumption is consistent with the NAM-OSHA settlement agreement, 66 FR 66943, December 27, 2001, and with OSHA's regulations which require that “[employers] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” 29 CFR 1904.5(a). That regulation goes on to explain that “[w]ork-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in [29 CFR] 1904.5(b) specifically applies.”

Id.

at 29 CFR 1904.5(b)(2), OSHA also sets forth nine exceptions to its injury and illness reporting requirements. The final rule sets forth all FRA accident/incident reporting exceptions in § 225.15.

See

Section-by-Section Analysis for § 225.15, “Accidents/Incident not to be reported.”

In addition, in cases where it is not obvious whether a precipitating event or exposure occurred in the work environment, the employer must evaluate the employee's work duties and environment to decide whether it is more likely than not that an event or exposure in the work environment contributed to the employee's injury or illness. FRA's requirement is consistent with the NAM-OSHA settlement agreement and OSHA's regulations at 29 CFR 1904.5(b)(3), in which OSHA addresses how an employer should handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment, stating “in these situations, [the employer] must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”

FRA also wishes to clarify that an event or exposure that occurs in the work environment need not have a clear connection to a specific work activity, condition, or substance that is peculiar to the railroad transportation business in order be an “event or exposure arising from the operation of a railroad.” Examples of events or exposures arising from the operation of a railroad include an employee tripping for no apparent reason while walking across a level floor; an employee being sexually assaulted by a co-worker; or an employee being injured by an act of violence perpetrated by one co-worker against a third party.

See

OSHA's 2001 Rule, 66 FR 5916, 5946, January 19, 2001. In such cases, the employee's job-related tasks and exposures did not create or contribute to the risk that an injury or illness would occur.

Id.

Rather, these activities are events or exposures arising from the operation of a railroad because they occurred in the work environment. Likewise, normal body movements (

e.g.,

walking, climbing a staircase, bending, sneezing) engaged in

by an employee at the time of injury are also events arising from the operation of a railroad, even if the body movement is not related to the employee's job-related tasks.

See

66 FR 5916, 5957-5958, January 19, 2001. Correspondingly, events or exposures involving contractors or volunteers, that occur on property owned, leased, operated over or maintained by the railroad, also arise from the operation of a railroad, even if they do not have a clear connection to a specific work activity, condition, or substance that is peculiar to the railroad transportation business.

UP contests the work-relatedness presumption. However, the final rule specifically adopts a presumption of work-relatedness that is identical to OSHA's presumption to provide uniformity in reporting requirements between OSHA and FRA and amongst railroads. Moreover, this allows railroads to report to one agency, FRA. In addition, uniform reporting requirements allow for comparing safety trends across industries and among railroads.

UP also suggests that a method/evidence-based approach should be employed. UP proposes that an injury or illness is considered work-related if “1. The medical findings of disease or injury are compatible with the effects of a disease-producing agent or an injury producing event to which the worker has been exposed; 2. Sufficient exposure is present in the worker's occupational environment to have caused the disease; and 3. The weight of the evidence supports the disease as having occupational rather than non-occupational origin.” Alternatively, BNSF suggested using the NIOSH approach when causation is not obvious. As explained above, under part 225, the railroad must decide whether, considering the circumstances, it is more likely than not that an event or exposure arising from the operation of the railroad is a discernable cause of an injury or illness. If an event or exposure is a discernable cause, then the injury or illness is presumed to be work-related. Under this approach, a railroad may consider the various unique factors associated with each employee's potentially work-related injury or illness, including, but not limited to, an employee's medical and work history, in addition to an employee's statements regarding his or her injury or illness.

Other commenters stated that the definition creates a geographic presumption because experiencing pain in the work environment is sufficient to make an injury or illness work-related and reportable. Contrary to this assertion, the final rule does not create a “geographic presumption,” as the event or exposure arising from the operation of the railroad must be a cause of the injury or illness; and, therefore, the manifestation of a sign or symptom in the work environment, by itself, does not make an injury work-related. Similarly, comments stated that the definition is so broad that everything is work-related. Again, an injury or illness is not work-related unless an event or exposure arising from the work environment is a discernable cause, and it meets one of the general reporting criteria. Moreover, FRA's definition of work-relatedness is consistent with OSHA's definition and enables OSHA and FRA to compare safety trends across industries.

Commenters stated that FRA should collect information about only injuries and illnesses caused by “occupational” events or exposures. UP claimed that, when railroads are required to report injuries or illnesses that result from non-occupational events, that data will not improve railroad safety. Commenters also stated that FRA is not collecting data about the hazards and risks actually associated with the railroad industry. For employee injuries and illnesses, OSHA does not require that the event or exposure be occupational in nature. Again, adopting OSHA's approach allows the railroads to report to one agency, FRA, and, so long as FRA maintains reporting requirements consistent with those of OSHA, FRA's regulations also allow for comparing safety trends between industries. Finally, FRA uses the information regarding injuries and illnesses that are not solely occupational in nature to improve safety and to more fully understand injuries and illnesses in the work environment.

§ 225.6 Consolidated Reporting

The final rule adds § 225.6, which provides an option for consolidated railroad accident/incident reporting for certain integrated railroad systems.

Section 20901 of title 49 of the United States Code requires that each “railroad carrier” submit to FRA a monthly report of its accidents/incidents. A “railroad carrier” is defined by 49 U.S.C. 20102 as a “person providing railroad transportation, except that, upon petition by a group of commonly controlled railroad carriers that the Secretary determines is operating within the United States as a single, integrated rail system, the Secretary may by order treat the group of railroad carriers as a single railroad carrier for purposes of one or more provisions of part A, subtitle V of this title and implementing regulations and order, subject to any appropriate conditions that the Secretary may impose.” “Person,” as defined by 1 U.S.C. 1, “include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”

The final rule provides that a parent corporation may request in writing that FRA treat its commonly controlled railroad carriers, which operate as a single, seamless, integrated United States rail system, as a single railroad carrier for purposes of part 225 compliance. The written request must provide a list of the subsidiary railroads controlled by the parent corporation and an explanation as to how the subsidiary railroads operate as a single, seamless, integrated United States railroad system. If FRA grants such a request, the parent corporation must enter into a written agreement with FRA specifying which subsidiaries are included in its railroad system, consenting to assume responsibility for compliance with part 225 for all named subsidiaries making up the system, and consenting to guarantee any liabilities owed to the United States government that are incurred by its named subsidiaries for violating part 225. Any change in the subsidiaries making up such a railroad system will require immediate notification to FRA and the execution of an amended agreement. In addition, executed agreements will be published in the docket.

FRA's final rule is consistent with the Surface Transportation Board's (STB) decision in Ex Parte No. 634 (Proposal to Require Consolidated Reporting by Commonly Controlled Railroads) (November 7, 2001). In this decision, STB required that each group of railroads that operate as a single, integrated United States rail system whose cumulative operating revenues meet the Class I threshold, submit consolidated annual financial reports that combine the operations of all their commonly controlled railroads that operate as an integrated rail system within the United States.

Commenters to the NPRM suggested that this revision will dilute reporting, and make it more difficult to compare trends and to identify problems. However, FRA believes that this revision will, in fact, enable the agency to gather more meaningful and accurate data. One comment also sought additional clarification on who can use consolidated reporting. Again, as discussed, a parent corporation may request consolidated reporting where its commonly controlled railroad carriers operate as a single, seamless, integrated

United States rail system. In addition, the STB decision, referenced above, provides further clarification.

§ 225.9 Telephonic Reports of Certain Accidents/Incidents and Other Events

The final rule amends the accident/incident telephonic reporting requirements related to fatalities that occur at highway-rail grade crossings as a result of train accidents or train incidents. FRA had required railroads to report immediately to the National Response Center (NRC), via telephone, “a fatality at a highway-rail grade crossing as a result of a train accident or train incident.” 49 CFR 225.9(a)(2)(iii). FRA has found that confusion exists as to the applicability of this requirement when death does not occur at the scene of the accident/incident, but occurs several hours or days later, after the fatally injured person is taken to the hospital for treatment.

As a result, the final rule revises the telephonic reporting requirement for highway-rail grade crossing fatalities to require telephonic reporting only if death occurs within 24 hours of the accident/incident. This revision is consistent with the Department of Transportation, Office of Inspector General's November 28, 2005 recommendation (Report No. MH-2006-016), which recommended that FRA amend § 225.9 to clarify the reporting requirements and to include criteria requiring railroads to report to NRC any death at a highway-rail grade crossing, only if death occurs within 24 hours of the accident/incident.

The final rule also makes a technical amendment to paragraph (a)(2)(iv) by adding the words “or more” after $150,000, to clarify that the telephonic reporting requirement is triggered when a train accident results in damage of $150,000 or more to railroad and non-railroad property.

In the NPRM, FRA requested comments and suggestions on four issues of concern. One of these issues was § 225.9 telephonic reporting. Specifically, the NPRM noted that FRA was considering changing the method by which telephonic reports of accidents/incidents, as required by § 225.9, are made. Under FRA's current regulations, railroads are required to telephonically report certain accidents/incidents to the NRC, who in turn provides notification of the accidents/incidents to FRA. The NPRM indicated that FRA was reviewing whether it would be preferable for railroads to report these accidents/incidents directly to FRA via electronic transmission, and invited comments and suggestions on the issue.

FRA received comments that were generally in favor of reporting such accidents/incidents directly to FRA via electronic transmission. One comment suggested that certain data should be collected, including railroad contact information closely associated with the accident/incident, train equipment identification, and hazardous materials identification. Another comment suggested that railroads should immediately report any type of railroad related fatality, including trespasser fatalities and suicides. After reviewing the issue and the comments, no changes are being made relating to direct reporting because FRA does not currently have the infrastructure to adequately address such reporting. However, FRA will take these comments into consideration in any further evaluation concerning direct reporting.

A commenter suggested that the immediate notification of such fatalities is not necessary because such data is captured in the monthly report submitted to FRA. FRA believes, however, that immediate reporting is necessary so that FRA has the opportunity to physically investigate the accident/incident before the scene is cleared. Such reporting ultimately results in the creation of more accurate data. A comment to the NPRM also suggested that a railroad cannot easily determine whether there has been a fatality if the individual does not die at the scene of the accident/incident. FRA believes that railroads must take reasonable steps to learn whether a fatality occurred within 24 hours of the highway-rail grade crossing accident/incident. Under the current regulation at § 225.9, there is no such time limit. As such, the final rule lessens the burden on the railroads to follow-up on such accidents/incidents under § 225.9 by only requiring railroads to report if a fatality occurs within 24 hours. As discussed, this final rule is consistent with the Department of Transportation, Office of Inspector General's November 28, 2005 recommendation (Report No. MH-2006-016). A comment to the NPRM also suggested that such reports be made electronically, rather than telephonically, to allow for greater efficiency and accuracy. FRA does not currently have the infrastructure to accommodate this suggestion. FRA does, however, currently receive electronic updates after the initial report to the NRC, which ensures that FRA has all of the relevant information. Lastly, a comment to the NPRM suggested that “horrible injuries” should also be reported under § 225.9. The final rule does not adopt this suggestion because the phrase “horrible injuries” is vague, would be difficult to enforce, and FRA Form F 6180.55a captures information relating to the nature of the injury.

The final rule also revises the Telephonic Reporting Chart contained in the FRA Guide, Appendix M in order to make it consistent with the final rule text as the chart contained in the 2003 Final Rule was not consistent with the regulatory text. These amendments are clarifying in nature, and will impose no additional burden on railroads.

See

FRA Guide for additional information.

§ 225.11 Reporting of Accidents/Incidents

In this section, the final rule lists 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 non-compliance 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 non-compliance is alleged (

e.g.,

failure to report a highway-rail grade crossing accident/incident; failure to report a rail equipment accident/incident or failure to report an accident/incident involving a death, injury or occupational illness). This final rule provides FRA with better and more useful data, while also providing quicker access to such data.

The final rule also updates this section to reflect the revised provisions in § 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, § 225.15 is revised to include a comprehensive list of injury/illness and rail equipment accident/incident reporting exceptions (formerly listed partially in § 225.15 and in the 2003 FRA Guide). As discussed in the Section-by-Section Analysis of § 225.5, “Definitions” with respect to the definition of “Work-relatedness,” OSHA's regulations require that “[employers] must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.” 29

CFR 1904.5(a). OSHA's regulation goes on to explain that “[w]ork-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in [29 CFR] 1904.5(b) specifically applies.” 29 CFR 1904.5(a). FRA established certain reporting exceptions in § 225.15 in FRA's 2003 Final Rule and also adopted OSHA's reporting exceptions in the 2003 FRA Guide.

FRA's list of exceptions in this final rule includes both the FRA created exceptions and the exceptions set forth by OSHA at 29 CFR 1904.5(b) as adopted by FRA. FRA reviewed the applicability of each injury and illness reporting exception as related to the class of injured person, and incorporates this information into the final rule text.

In making this revision, FRA leaves paragraph (a) substantively unchanged.

In paragraph (b), FRA addresses reporting exceptions for Worker on Duty—Employee (Class A) injuries and illnesses. Paragraph (b) retains the current paragraph (b)(1) reporting exception relating to injuries and illnesses occurring in living quarters. The final rule also adds additional reporting exceptions applicable to Worker on Duty—Employee (Class A) (paragraphs (b)(2) through (b)(3)). The final rule also revises the NPRM language to clarify that these exceptions do not affect a railroad's obligation to evaluate and report those injuries and illnesses as another class of persons (

i.e.,

Employee not on duty (Class B); Passenger on Trains (Class C); Nontrespassers-On Railroad Property (Class D); Trespassers (Class E)), rather than as only Employee Not On Duty (Class B). For example, an employer who is present in the work environment as a member of the general public and is injured may qualify as a Class C or Class D person, rather than as a Class B person. This is a clarifying amendment; therefore, it should not alter railroads' reporting responsibilities and is consistent with the exceptions contained in FRA's 2003 Final Rule and 2003 FRA Guide.

Paragraph (c) contains reporting exceptions applicable to all employees (whether on or off duty). With respect to the reporting exception listed in paragraph (c)(3), FRA wishes to clarify that an injury or illness that is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption is not reportable. It does not matter if the employee bought the food on the employer's premises or brought the food into work. For example, if the employee is injured by choking on a sandwich while in the employer's establishment, the case would not be considered work-related. If, however, the employee is made ill by ingesting food contaminated by workplace contaminants (such as lead), or gets food poisoning from food supplied by the employer, the case would be considered reportable if the case meets the general reporting criteria set forth at § 225.19(d)(1)-(d)(6). With respect to the reporting exception listed in paragraph (c)(5), self-inflicted casualties do not need to be reported except that, for FRA reporting purposes, a railroad will still be responsible for reporting or recording self-inflicted casualties that are determined to be suicides and attempted suicides that qualify as accountable or reportable. FRA will not be providing suicide data to DOL.

In paragraph (d), FRA addresses the applicability of the reporting exceptions listed in paragraph (b) and (c) to contractors and volunteers. The reporting exceptions for employee injuries and illnesses apply equally to volunteer injuries and illnesses and to contractor injuries (contractor illnesses are not reportable to FRA). Because an injury to a contractor, or injury to or illness of a volunteer, must occur on property owned, leased, operated over or maintained by the railroad (rather than in the work environment), any reference to the term “work environment” in paragraph (b) is construed to mean, for the purposes of paragraph (d) only, on property owned, leased, operated over, or maintained by the railroad. The application of the exceptions as stated in paragraph (d) do not reflect any change to FRA's provisions, but is included to clarify the applicability of the reporting exceptions to contractors and volunteers. Consistent with the changes made to the definition of “event or exposure arising from the operation of the railroad,” paragraph (d) was amended to include the term “operated over.” FRA does not believe that this clarifying amendment increases the burden on railroads because it is consistent with common industry practice as well as FRA's long-standing policy.

Lastly, paragraph (e) addresses reporting exceptions for rail equipment accidents/incidents which were included in the 2003 FRA Guide.

The agency believes that the incorporation of these exceptions into the rule will provide a better understanding of FRA's employee injury and illness reporting requirements. Again, the reporting exceptions do not affect a railroad's obligation to maintain records of accidents/incidents as required by § 225.25 (Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” and Form FRA F 6180.97, “Initial Rail Equipment Accident/Incident Record”), as applicable.

The final rule also eliminates from the reporting exceptions suicides and attempted suicides. In doing so, FRA is requiring that casualties due to suicides and attempted suicides, that arise from the operation of the railroad and meet the general reporting criteria listed in § 225.19(d)(1) through (d)(6), be reported to the agency on Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet),” as a new category of data called “suicide data.” In addition, casualties due to suicides and attempted suicides that arise from the operation of the railroad and meet the general reporting criteria listed in § 225.19(d)(1) through (d)(6) should be included on Form FRA F 6180.55, “Railroad Injury and Illness Summary,” in Field 18, Reported Casualties. Under this system, a reportable injury caused as a result of a suicidal act is reported to FRA regardless of the need for other reporting of the event (

i.e.,

the suicide resulted in a reportable train accident or highway-rail grade crossing collision). FRA will not report such suicide data cases to DOL. FRA will also not include suicide data (as defined in § 225.5) in its periodic summaries of data on the number of injuries and illnesses associated with railroad operations. Instead, FRA will maintain such suicide data in a database that is not publicly accessible. Accordingly, suicide data will not be available on FRA's Web site for individual reports or downloads. Suicide data will, however, be available to the public in aggregate format on FRA's Web site and via requests under the Freedom of Information Act (FOIA). For additional information about FOIA requests, see FRA's Web site at

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

Suicide data will be available to FRA's inspectors and other authorized representatives, including State agencies participating in investigative surveillance activities under part 212.

See

Section-by-Section Analysis for § 225.41, “Suicide data.” States will also be able to obtain individual reports directly from the railroads pursuant to § 225.1.

See

§ 225.1, “Suicide data;”

see also

Section-by-Section Analysis for § 225.1, “Suicide data.”

In addition, casualties due to suicides and attempted suicides that arise from the operation of the railroad and meet the general reporting criteria listed in § 225.19(d)(1) through (d)(6) shall also be included in Field 18, Reported Casualties, on Forms FRA F 6180.55,

“Railroad Injury and Illness Summary.” This will allow FRA to verify the number of forms submitted with the count listed on the form. The railroad should report the person by the “type of person” regardless of the fact that it is suicide data. As such, if a trespasser commits suicide on the railroad, the railroad should report it as a trespasser fatality.

See

FRA Guide, Chapter 3.

Suicide data counts will also be included in casualty counts on Forms FRA F 6180.57, “Highway-Rail Grade Crossing Accident/Incident Report,” and FRA F 6180.54, “Rail Equipment Accident/Incident Report,” so that the number of casualties reported to FRA on Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet),” for the month is consistent with the number of casualties reported to FRA on each of these accident/incident reporting forms. In addition, suicide data counts will also be included in casualty counts on Form FRA F 6180.97, “Initial Rail Equipment Accident/Incident Record.”

See

§ 225.41, “Suicide data;”

see also

Section-by-Section Analysis for § 225.5, “Definitions,” and the FRA Guide, for additional information.

UP requested that highway-rail grade crossing accident/incidents that result from suicides or attempted suicides not be included on the Form FRA F 6180.57. As explained above, the final rule requires the inclusion of this information on the Form FRA F 6180.57 so that the number of casualties is consistent with the number of casualties on Form FRA F 6180.55a and on the Form FRA F 6180.54 that might also be required for the same incident. In addition, FRA only excludes the individuals who committed or attempted suicide and, therefore, casualties to others involved in the same incident as a result of the suicidal act may be reportable. Moreover, a Form FRA F 6180.57 must be created for any impact regardless of cause or intent. The Form FRA F 6180.57 does not require any Personal Identifying Information (PII) and, as such, FRA is not as concerned about making the individual forms available to the public.

See

FRA Guide.

FRA believes that it is important to collect data on suicides. Death by suicide is a national problem as indicated by the fact that more than 30,000 Americans die by suicide each year. Currently, there are no reliable reports about how many of these deaths occur on railroad property. The CPUC indicates that more than 55 percent of pedestrian railroad fatalities in California are attributed to suicide, and according to the American Association of Suicidology, railroads that have tracked probable suicides on the rail system report that suicides are responsible for 39 percent of pedestrian fatalities. Additionally, a March 3, 2005, Chicago Tribune article, “Suicide is Top Cause of Train Track Deaths; State Looks for Ways to Prevent Fatalities,” indicates that, in 2004, there were 30 probable suicide deaths and an additional three attempts involving trains in Chicago alone, and that suicide was the leading cause of rail-related fatalities in Illinois for 2004, which led Illinois to implement a systematic tracking program of such incidents on rail property. This information illustrates that there are a large number of fatalities occurring on railroad property without any national initiative to collect data that might be used to address these events.

Since it appears that suicides contribute significantly to the total number of fatalities that are occurring on railroad tracks, it is appropriate to report and collect data about suicides in addition to the other causes of death in the industry. By requiring that the information be reported as suicide data, these fatalities will not be included in the normally reported fatality data. This new data may help FRA, organizations promoting safety on and around railroad property, and suicide prevention agencies assess the problem and develop programs to decrease the incidence of suicides by train.

FRA notes that the collection of suicide data will also aid the Federal Transit Administration (FTA) in its collection and analysis of commuter railroad accidents, since FRA provides certain commuter railroad safety data to FTA. FTA relies on FRA to provide to it data on the types of accidents occurring on commuter rail, their primary causes, and the consequences, in terms of fatalities (which for FTA includes suicides under 49 CFR part 659), injuries and property damage. The data FRA provides to FTA, however, is somewhat incomplete, in that FRA cannot provide suicide data to FTA. Consequently, FTA, which uses this information to better inform their assessments of safety plans and hazard analysis performed by commuter rail grantees applying for FTA grants, must work with an incomplete data set.

Comments suggested that the collection of suicide data would create a duty on the part of the railroad to those individuals attempting to commit suicide as the railroads would now be aware of potential suicide hotspots. However, prior to this Final Rule, railroads were exempt from reporting suicides and attempted suicides. In order to exclude suicides and attempted suicides, railroads were required to prove cause of death by obtaining relevant documents to prove that a casualty was an attempted suicide or suicide. Consequently, railroads should already have knowledge of where suicides and attempted suicides are taking place. Therefore, the final rule does not create a new duty for the railroads, rather it simply requires them to compile the data. Ultimately, by collecting this information, FRA and other government agencies will be able to decrease the number of suicides and attempted suicides occurring on the railroad.

Amtrak stated in its comments that persons entering railroad property to commit suicide are considered trespassers and the suicide is considered a superseding event. As such, Amtrak claims that an event or exposure arising from the operation of the railroad is not a cause. Consistent with OSHA, FRA maintains a no fault reporting system. As such, it does not matter whether the person caused their own injury so long as the event or exposure arising from the operation of the railroad is a discernable cause and it meets the general reporting criteria. And, the collection of this data will help to decrease the number of suicides and attempted suicides that occur each year. Moreover, FRA will not be providing this information to DOL.

Commenters suggested that the collection of suicide data will not improve safety. As stated above, FRA believes that there are many benefits to collecting this information. Specifically, FRA will be able to determine where and how many suicides are occurring on the railroad. Suicides will be segregated from other fatalities, avoiding an over count of fatalities associated with railroad operations, and data will be gathered systematically so that others may use the data to design interventions.

In order for FRA to capture suicide data, the final rule requires railroads to indicate suicide or attempted suicide on Forms FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet);” FRA F 6180.54, “Rail Equipment Accident/Incident Report;” and FRA F 6180.57, “Highway-Rail Grade Crossing Accident/Incident Report;” as follows:

(1)

Form FRA F 6180.55a

—The final rule requires that an “X,” representative of “suicide or attempted suicide,” be placed in “Special Cause Code” block 5r, when applicable. The final rule also changes the title of block 5m from “Result” to “Tools.” This change is a correction to the current form and is

necessary to maintain consistency with types of Circumstance Codes in Appendix F of the FRA Guide.

(2)

Form FRA F 6180.54

—The final rule adds four Miscellaneous Cause Codes for use in block 38 as follows: (i) Code M309 “Suicide (Highway-Rail Grade Crossing Accident);” (ii) Code M310 “Attempted Suicide (Highway-Rail Grade Crossing Accident);” (iii) Code M509 “Suicide (Other Misc.);” and (iv) Code M510 “Attempted Suicide (Other Misc.).” These codes are added to Appendix C, “Train Accident Cause Codes” to refer to “Suicide or Attempted Suicide” for use in “Primary Cause Code” block 38. The final rule also requires railroads to include suicides and attempted suicides in the casualty counts in blocks 46, 47, and 48, as applicable.

(3)

Form FRA F 6180.57

—The final rule adds a code for “Suicide or Attempted Suicide” to block 41 (the final rule also changes, among other things, the title of block 41 from “Driver” to “Highway User.”). In addition, the final rule requires railroads to include suicides and attempted suicides, when appropriate, in the casualty counts in block numbers 46, 49, and 52.

See

FRA Guide for additional information.

In addition, when appropriate, the final rule requires railroads to indicate whether a suicide or an attempted suicide was a cause of an injury or illness or an accident or incident in the applicable narrative or description section on the following forms: FRA F 6180.98, “Railroad Employee Injury and/or Illness Record” and FRA F 6180.97, “Initial Rail Equipment Accident/Incident Record.” While employee suicides or attempted suicides are rare, FRA is still interested in capturing that information in order to learn more about suicides and attempted suicides in the work environment.

Commenters inquired as to whether the NPRM's proposed cause codes were sufficient to capture the facts surrounding suicides and attempted suicides. FRA believes that the codes and instructions listed above are sufficient at this time to identify key information. FRA welcomes the inclusion of additional information regarding such accidents/incidents in the applicable form's narrative section (

e.g.,

that the person is homeless).

FRA notes that it is also concerned that suicides are being reported as trespasser fatalities, because some railroads have not always made a reasonable inquiry in their efforts to determine the cause of death. In fact, FRA has found that a number of reported trespasser fatalities are actually suicides. Accordingly, FRA revises Chapter 6 of the FRA Guide to clarify that, in order to fulfill its responsibilities to maintain accuracy in reporting, a railroad must try to obtain verbal or written confirmation of a trespasser's cause of death by contacting the coroner, public police officer or other public authority by telephone and, if unsuccessful in obtaining the needed information by telephone, must follow-up in writing. The railroad must continue its efforts to obtain this information for a period of six months following the month in which the fatality occurred. The railroad must keep a record of its efforts to obtain such confirmation. This record and any documentation related to the case obtained by the railroad must be available for review and copying by an FRA representative under the same criteria as set forth in § 225.35(b). If a railroad cannot obtain confirmation of the cause of death by the end of the six month period, the railroad shall report the fatality as a trespasser fatality.

FRA also revises Chapter 6 of the FRA Guide to clarify what documentation is required to prove that an individual committed suicide or attempted to commit suicide. FRA understands that railroads often have difficulty obtaining copies of death certificates and/or have to wait until the death certificate becomes publicly available. As such, as explained in the FRA Guide, railroads may accept verbal confirmation of a suicide or attempted suicide from a coroner, public police officer, or other public authority. When receiving verbal confirmation of a suicide or attempted suicide, a railroad must create an audit trail of that confirmation so that FRA can independently verify and confirm the determination. As part of this audit trail, for example, the railroad must document the date and time of verbal confirmation in addition to the name, title, address, and telephone number of the person who determined the cause of death or injury.

Commenters stated that this information is too difficult to obtain, and that public authorities will often not cooperate with the railroads. Similarly, SEPTA suggested that the law prevents them from obtaining the written confirmation necessary to prove that a person committed suicide or attempted to commit suicide. However, railroads have been able to obtain this information under the requirements in the 2003 Final Rule and, therefore, FRA expects that they will continue to be able to do so. In addition, FRA hopes that allowing verbal confirmation will ease the railroad's burden. Finally, when investigating a trespasser fatality, if a railroad cannot obtain the required information after making a documented, good faith effort for six months, then the railroad may discontinue its investigation and report the casualty as a trespasser fatality.

Commenters also stated that the follow-up requirements are too burdensome. SEPTA suggested that railroads should only have to follow-up for 3 months, rather than 6 months. Moreover, other comments suggested that only one document request and one follow-up request should be necessary. However, based on past comments, railroads have asserted that public authorities require additional time to conclude that a fatality is a suicide. Therefore, FRA believes that the extended investigation period is necessary. Once a railroad obtains a determination, they may terminate their investigation. The FRA Guide indicates that a railroad must follow-up in writing only if a public authority cannot be reached by telephone, and then must continue such efforts for six months or until they have received confirmation. FRA does not mandate how the continued efforts be conducted, in writing or by telephone, so long as those efforts are documented. Consequently, after attempting to reach the public authority once by phone and in writing, a railroad may select the means by which they continue their investigation. Again, if a railroad cannot obtain the required information after making a documented, good faith effort for six months, then the railroad may discontinue its investigation and report the casualty as a trespasser fatality. Finally, FRA believes that these efforts are necessary based on the past apparent over-reporting of trespasser casualties that were in fact suicides.

§ 225.17 Doubtful Cases

In this section, the final rule amended part 225 by re-designating the “Alcohol or Drug Involvement” provisions, currently contained in § 225.17(d), to a newly added § 225.18. FRA has observed that the inclusion of the two unrelated topics in one section has led to confusion. This revision is intended to reduce possible confusion and does not substantively change FRA's current accident/incident reporting requirements.

§ 225.18 Alcohol or Drug Involvement

As stated above, the final rule adds a new section, § 228.18, re-designating the Alcohol and Drug provisions currently contained in § 225.17(d) to a new section, § 225.18, for purposes of clarity only. The final rule also makes the following technical amendments:

changing the word “title” to “chapter,” to reference the correct term; inserting “49 CFR” in front of § 219.209, for clarity; and changing the word “paragraph” to “section,” to accommodate the proposed re-designation of § 225.17(d) to § 225.18 (a)-(d).

Commenters suggested that contractors and subcontractors be included in § 225.18. The final rule does not adopt this suggestion because it is outside of the scope of the proposed rulemaking. Specifically, the NPRM did not propose any substantive changes, rather the sections were simply divided into two sections for purposes of clarity, and several technical amendments were made.

§ 225.19 Primary Groups of Accidents/Incidents

In this section, the final rule revises paragraph (d) to clarify the agency's existing reporting requirements for death, injury, and occupational illness and to further conform those requirements to OSHA's recordkeeping and reporting regulations.

As discussed, FRA's accident/incident reporting regulations that concern railroad occupational casualties are maintained, to the extent practicable, in general conformity with OSHA's recordkeeping and reporting regulations in order to enable data comparisons on occupational casualties between various industries, to allow integration of railroad industry data into national statistical databases, and to improve the quality of data available for analysis of casualties in railroad accidents/incidents.

See

Section-by-Section Analysis for § 225.5, “Definitions” with respect to “Discernable cause.” Moreover, maintaining such compatibility allows railroads to only have to report occupational casualties to FRA, rather than to both OSHA and FRA.

See

29 CFR 1904.3.

With respect to employee injury and illness recording, OSHA's regulations require that “each employer * * * must record each fatality, injury and illness that is work-related; and is a new case; and meets one or more of the general recording criteria * * * or the application to specific cases.” 29 CFR 1904.4(a).

By rewording paragraph (d) to more closely model OSHA's wording, the final rule better conforms its reporting requirements to that of OSHA. The final rule also clarifies that only new cases are reportable (the current regulation requires that the injury or illness must be a new case

or

a significant aggravation of a pre-existing injury or illness). The final rule, therefore, requires, that, to be reportable, a significant aggravation of a pre-existing case must be a “new case” (

i.e.,

a case in which either the employee has not previously experienced a

reported

injury or illness of the same type that affects the same part of the body, or the employee previously experienced a

reported

injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms had disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear).

The final rule also revises paragraph (d) by amending the general reporting criteria, specifically paragraph (d)(2), which currently states, “injury to any person that results in medical treatment,” to include “significant injury to any person” and “loss of consciousness to any person.” Failure to include these classes of injuries as reportable for “any person,” rather than just railroad employees, in the general criteria in the agency's 2003 Final Rule (68 FR 10107, March 3, 2003) has resulted in FRA not capturing data for non-employees with respect to significant injuries.

Amtrak expressed concern that extending the reporting criteria to non-employees would impose a significant burden on the passenger railroads. As an initial matter, significant injuries are limited to a small number of injuries (

e.g.,

fractured or cracked bone or punctured eardrum), which must be diagnosed by a qualified physician, further narrowing the number of probable cases. In addition, significant injuries are generally serious, and are the type of injuries the railroads should already be investigating, and will generally meet the other general reporting criteria (

i.e.

someone with a broken bone will most likely receive medical treatment). As such, these changes should not substantially increase the investigative duties of the railroad or the number of cases they are reporting. With respect to loss of consciousness cases, railroads will not be required to report cases where the passenger's loss of consciousness is not due to an event or exposure arising from the operation of the railroad. For these reasons, FRA does not believe that the additional reporting criteria for non-employees will significantly increase the number of reportable cases.

In addition, the final rule amends paragraph (d)(6)(E) (previously (d)(6)(v)) to remove the word “independently” for purposes of clarity. As explained in the Section-by-Section Analysis, MSD's are injuries and illnesses under the rule and are subject to the same recording criteria that apply to other injuries and illnesses.

Lastly, the final rule amends paragraph (d)(6) to include covered data cases. The addition of covered data cases to § 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.

§ 225.21 Forms

In this section, the final rule amends paragraph (j) in relation to the use of Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related.” Specifically, the final rule makes the use of the Form FRA F 6180.107, in place of Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” optional, rather than mandatory, and amends and redesignates the instructions for the use of the form currently set forth at § 225.21(j) to § 225.25(i), under the section entitled “Recordkeeping.”

See

Section-by-Section Analysis for § 225.25, “Recordkeeping,” for additional information and a discussion of the relevant comments.

The final rule also amends this section by adding a paragraph (k) to address the newly created Form FRA F 6180.150, “Highway User Injury Inquiry Form.”

See

FRA Guide. Form FRA F 6180.150 shall be used by the railroads in determining whether a highway user suffered a reportable injury or illness in addition complying with part 225's accident/incident requirements. A copy of the Form FRA F 6180.150 shall be sent to each potentially injured highway user, or their representative, involved in a highway-rail grade crossing accident/incident along with a cover letter and a prepaid/preaddressed return envelope.

See

FRA Guide, Chapter 10 for complete instructions. A railroad shall not send a Form FRA F 6180.150 to a highway user, or a highway user's representative, who has died as a result of the accident/incident. The railroad shall complete Part I of Form FRA F 6180.150 and send the form with the completed Part I to the highway user, or their representative.

See

FRA Guide for complete instructions. Moreover, the cover letter shall be drafted in accordance with the instructions contained in the FRA Guide.

See

FRA Guide, Chapter 10.

§ 225.25 Recordkeeping

In this section, the final rule eliminates from paragraph (a) the words “that arise from the operation of the

railroad,” in order to maintain conformity with the 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 reportablility, 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.

The final rule also revises the criteria for using Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related,” and sets forth all of the information that must be included in an alternative railroad-designed record that may be used in lieu of the form.

Prior to FRA's most recent amendments to part 225 in 2003, FRA required that all accountable and reportable injuries and illnesses be recorded on Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” or an equivalent record containing the same information. The subset of those cases that qualified for reporting were then reported to FRA on Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet).” If the case was not reported, the railroad was required to state, on Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” or the equivalent record, the reason the injury or illness was not reportable. According to the final rule preamble, 68 FR 10107, 10118, March 3, 2003:

Although this system has generally worked well, problems have arisen with respect to accounting of claimed occupational illnesses. As further explained below, railroads are subject to tort-based liability for illnesses and injuries that arise as a result of conditions in the workplace. By their nature, many occupational illnesses, particularly repetitive stress cases, may arise either from exposures outside the workplace, inside the workplace, or a combination of the two. Accordingly, issues of work-relatedness become very prominent. Railroads evaluate claims of this nature using medical and ergonomic experts, often relying upon job analysis studies as well as focusing on the individual claims.

With respect to accounting and reportability under part 225, railroad representatives asserted their concern that mere allegations (

e.g.,

receipt of a complaint in a tort suit naming a large number of plaintiffs) not give rise to a duty to report. They added that many such claims are settled for what amounts to nuisance values, often with no admission of liability on the part of the railroad, so even the payment of compensation is not clear evidence that the railroad viewed the claim of work-relatedness as valid.

Although sympathetic to these concerns, FRA was disappointed in the quality of data provided in the past related to occupational illness. Indeed, in recent years the number of such events reported to FRA has been extremely small. FRA has an obligation to verify, insofar as possible, whether the railroad's judgments rest on a reasonable basis, and discharging that responsibility requires that there be a reasonable audit trail to verify on what basis the railroad's decisions were made.

As a result, FRA established, at § 225.25(i)(1), a separate category of claimed occupational illnesses to be recorded on a new form, Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related.” This category is comprised of: Illnesses for which there is insufficient information to determine whether the illness is work-related; illnesses for which the railroad has made a preliminary determination that the illness was not work-related; and illnesses for which the railroad has made a final determination that the illness is not work-related.

For any case later determined to be reportable, under § 225.25(i)(2), the railroad has been required to remove the designation “illness claimed to be work-related” and transfer the record to the reporting officer for retention and reporting in the normal manner. In the event the railroad determined the case was not reportable, § 225.25(i)(3) requires that the railroad record an explanation in “narrative” block 19 of Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related,” describing the reason(s) the railroad made that determination, making reference to the “most authoritative” information relied upon.

FRA believed that this system of accounting for contested illnesses would focus responsibility for reporting decisions and provide an appropriate audit trail. In addition, FRA thought that it would result in a body of information that could be used for research into the causes of prevalent illnesses, particularly in the case of musculoskeletal disorders.

See

68 FR 10107, 10118, March 3, 2003. Unfortunately, this has not been the case.

Rather than use the Form FRA F 6180.107 “Alternative Record for Illnesses Claimed to be Work-Related,” to record only those illnesses described above, FRA found that railroads were frequently recording all occupational illnesses on Form FRA F 6180.107 as a matter of practice, even before evaluating the sufficiency of information provided and/or work-relatedness. Furthermore, FRA found that railroads were allowing these records to remain unevaluated for several months or more without updating or reviewing them for work-relatedness. Moreover, FRA found that railroads were not creating the Form FRA F 6180.107 record within seven working days after receiving information or acquiring knowledge that an employee asserted an occupational illness, as required by the FRA Guide. Consequently, this system of accounting did not focus responsibility for reporting decisions, did not provide an appropriate audit trail, did not result in a body of information that can be used in the future for research into the causes of prevalent illnesses, and was not helpful in correcting the under-reporting of occupational illnesses to FRA.

In order to correct this problem, the final rule refines the circumstances and procedures related to the recording of claimed occupational illnesses on Form FRA F 6180.107. Specifically, the final rule allows the use of the form to record only those claimed occupational illnesses for which the railroad carrier has not received, from the employee or their representative, information sufficient to determine whether the occupational illness is work-related. The final rule also includes, among other things, requirements that railroads: enter each illness claimed to be work-related on the record no later than seven working days after receiving information or acquiring knowledge that an employee is claiming they have incurred an occupational illness; make a good faith effort to obtain information necessary on occupational illness cases to make a reporting decision by December 1 of the next calendar year; document the receipt of new or additional case information in “narrative” block 19 of Form FRA F 6180.107 within fifteen calendar days of receipt, compared to the seven days proposed in the NPRM, and re-evaluate the case in light of the new information within forty-five calendar days of receipt of the information, compared to the thirty days proposed in the NPRM; complete a Form FRA F 6180.98 for any claimed occupational illness case determined to be accountable or reportable within seven calendar days of making such determination; retain the record in accordance with the provisions set forth in § 225.27 and report the illness in accordance with the regular reporting requirements; and provide complete narratives on Form FRA F 6180.107 for those cases the railroad determines are not reportable. The final rule also specifically defines

what data elements an alternative railroad-designed Form FRA F 6180.107 must contain.

Commenters suggested that there is no evidence of underreporting of occupational illnesses and, therefore, the narrowing of the use of the Form FRA F 6180.107 would impose a significant burden on the railroads. As explained above, FRA has found that the railroads have routinely used the Form FRA F 6180.107 to record all occupational illnesses and have failed to review additional evidence for lengthy periods of time, and that use of the form has resulted in the under-reporting of occupational illnesses. FRA believes that it is necessary to limit the use of the form to situations where the cause has not yet been determined, to avoid abuse of the form, to create an up-to-date audit trail, to continue to provide additional time to investigate causation based on the unique nature of occupational illnesses and to ensure that additional evidence is considered within a reasonable period of time.

Many of the commenters critiqued the requirement that railroads update the forms and review additional information within a certain period of time. Several railroads also requested additional time to review new evidence and to update the forms. During the hearing on the NPRM, FRA requested that the railroads provide FRA with a timeframe that they believe is appropriate to update the forms and review additional evidence. AAR suggested that the current reporting timeline, which requires the railroad to update the form by December 1 of the following year, is appropriate. However, AAR also felt that 365 calendar days would be appropriate. In its comments, AAR failed to explain why such a lengthy period of time would be necessary. As explained above, railroads have used the Form FRA F 6180.107 to avoid reporting occupational illness by failing to reconsider additional information and to fully investigate the occupational illness. As such, FRA does not believe railroads need 365 days to simply update a form and to consider new evidence. Upon review, the final rule lengthens the amount of time that the railroads have to review new evidence and to update the Form FRA F 6180.107 from 30 days to 45 days. Moreover, the Form FRA F 6180.107 is an optional form that the railroads may use for occupational illnesses where they have not yet determined the cause of the injury or illness.

AAR also submitted comments suggesting that the railroads should not be required to seek out information on claimed occupational illnesses. Specifically, AAR asserted that there is usually litigation surrounding these types of injuries and, as such, it is difficult to fully investigate the illnesses. Moreover, AAR claims that it will be difficult for FRA to determine whether the railroads made a good faith effort to determine causation. As an initial matter, the railroads' concerns about litigation should not prevent them from making reasonable inquires in addition to updating the Federally required forms as they receive and review new information. However, FRA specifically created the Form FRA F 6180.107 as an alternative form to provide the railroads with additional time to investigate these illnesses because of the unique nature of occupational illnesses and the external delays caused by litigation. Railroads should document their efforts, record new information, and evaluate that new information as required so that FRA can determine whether they are making a good faith effort. Again, the additional requirements are necessary based upon the railroads' past use of the Form FRA F 6180.107 to document all occupational illnesses without making an initial causal determination, even in cases when work-relatedness was obvious, and then failing to update the form when they acquired new information within a reasonable time period.

The final rule amends the requirement at § 225.25(b)(6) so that the alternative railroad-designed record for Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” requires the input of the “Employee identification number” only (eliminating for privacy reasons the employee social security number option). The final rule makes the same amendment to the alternative railroad-designed record for Form FRA F 6180.107, “Alternative Records for Illnesses Claimed to be Work-Related.” The final rule also makes corresponding changes for Forms FRA F 6180.98 and 6180.107.

See

FRA Guide.

The final rule replaces the term “log entry” at § 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 Form FRA F 6180.97, “Initial Rail Equipment Accident/Incident Record,” respectively. This amendment is technical, and is not intended to effect any substantive change.

The final rule also amends the requirements for alternative railroad-designed records by amending § 225.25(b)(28) and (e)(28), and the newly created (j)(25), to reflect that the date required is the initial date the form was signed/completed. FRA finds it necessary to make this change because certain railroads do not retain the initial date a record was completed, but only the date of the most recent update to the record. Consequently, FRA is unable to discern if the railroad entered each reportable and accountable injury and illness and each reportable and accountable rail equipment accident/incident on the appropriate record, as required by § 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 will resolve any confusion regarding the requirement. The final rule creates a similar requirement for the alternative railroad-designed Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related,” and Forms FRA F 6180.98, 6180.97, and 6180.107.

See

Section-by-Section Analysis for Appendix H, “Forms.”

§ 225.27 Retention of records

In this section, the final rule adds a five-year record retention requirement for Form FRA F 6180.107, “Alternative Record for Illnesses Claimed to be Work-Related” and Form FRA F 6180.150, “Highway User Injury Inquiry Form.” The 2003 Final Rule did not set forth a retention period for the Form FRA F 6180.107 and the Form FRA F 6180.150 is a newly created form. Five years is the same retention period as that of Form FRA F 6180.98, “Railroad Employee Injury and/or Illness Record,” and is appropriate for accurate recordkeeping and auditing purposes. In addition, the final rule makes a technical change by restructuring the format of paragraph (a) in order to provide additional clarity.

The final rule also adds a requirement that, in the event a railroad opts to submit their monthly Form FRA F 6180.55, “Railroad Injury and Illness Summary” via optical media or electronically via the Internet, rather than in hard copy, the railroad shall retain the original completed hard copy for a period of five years after the calendar year to which it relates. If the railroad opts to submit the report to FRA via the Internet, the final rule requires the railroad to also retain a hard copy print out of FRA's electronic notice acknowledging receipt of the submission for a period of five years after the calendar year to which the report acknowledged relates. These

requirements are made in light of the new electronic submission options in § 225.37, “Optical med

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