Railroad Accident Reporting

SUMMARY: FRA is amending the railroad accident reporting regulations in

several ways. First, railroads are required to adopt internal control

procedures to ensure accurate reporting of accidents, casualties,

injuries, illnesses and highway-rail grade crossing accidents. Second,

railroads are allowed the option to submit, update, and amend accident,

casualty, and highway-rail accident reports through transfer of

information on computer diskettes, magnetic tapes, or electronically

over telephone lines. Third, the accident and injury reporting forms,

including definitions, are amended to allow for the collection of

additional safety information. Fourth, injury and illness, as well as

derailment and collision, recordkeeping requirements are amended to

require the recordation of reportable and accountable, i.e.,

nonreportable, illnesses and injuries as well as the recordation of

reportable and accountable rail equipment accidents and incidents.

Finally, the method for calculation of the accident reporting monetary

threshold is amended to allow for use of publicly available data and

statistics. The purpose of the rule is to enhance the quality of

information FRA collects pertaining to rail equipment accidents and

incidents, as well as illnesses, injuries and casualties to railroad

employees, passengers and other persons on railroad property.

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

ADDRESSES: Any petition for reconsideration should be submitted to the

Docket Clerk, Office of Chief Counsel, Federal Railroad Administration,

400 Seventh Street, S.W., Room 8201, Washington, D.C. 20590.

FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director,

Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street,

S.W., Washington, D.C. 20590 (telephone 202-501-4863 or 202-366-0543);

or Marina C. Appleton, Trial Attorney, Office of Chief Counsel, FRA,

400 Seventh Street, S.W., Washington, D.C. 20590 (telephone 202-366-

0628).

SUPPLEMENTARY INFORMATION:

Background

A. Purpose and Structure of the Accident Reporting Regulations

FRA's primary function is to promote safety within the railroad

industry. To carry out its safety mission, FRA requires information

about the conditions of the nation's railroads to set safety standards,

to enforce those standards, and to develop railroad injury and accident

prevention programs. The injury and accident reports submitted by the

railroads form a principal basis for FRA's railroad safety program. FRA

uses injury and accident data for, among other things, establishing its

inspection strategy, determining comparative trends of railroad safety,

and calculating the costs and benefits of proposed safety rules. FRA

also uses railroad accident, injury and illness data to determine if

new regulations are needed or if current regulations are in need of

revision. Because FRA uses the data in all aspects of its operations,

it is important that the data it receives be as accurate and consistent

as possible.

The railroad accident reporting regulations set forth in 49 CFR

Part 225 require railroads to submit monthly reports to FRA summarizing

collisions, derailments, and certain other accidents/incidents

involving damages above a periodically revised dollar threshold, as

well as certain injuries to passengers, employees, and other persons on

railroad property.

Section 225.19 of the regulations divides railroad accidents/

incidents into three categories: (1) highway-rail grade crossing

accidents/incidents; (2) rail equipment accidents/incidents; and (3)

death, injury, or occupational illness accidents/incidents. Every

railroad accident/incident that meets the stated criteria for each

category must be reported to FRA as required under 49 CFR 225.11.

Because the reporting requirements and the information needed regarding

each category of accident/incident are unique, a different reporting

form is used for each category. If the circumstances of an accident/

incident are such that it falls within two or even all three

categories, then a separate reporting form for each category must be

completed by the railroad.

B. General Accounting Office Study on Accident Reporting to FRA

During the late 1980s, Congress, increasingly concerned with

railroad safety, asked the General Accounting Office (GAO) to determine

whether FRA's safety programs were adequate to protect railroad

employees and the general public from injuries associated with train

accidents. GAO studied FRA's railroad injury and accident reporting

data and issued a report in April 1989 (GAO/RCED-89-109) that raised

important questions about the quality of railroad compliance with FRA's

accident reporting regulations. GAO found that there were

underreporting and inaccurate reporting of injury and accident data for

1987 by the railroads it audited.

GAO recommended that FRA (a) require railroads to establish injury

and accident reporting internal control procedures; (b) include an

analysis of railroads' internal control procedures for reporting in

FRA's safety records inspections; (c) provide inspectors with the

authority to take enforcement actions against railroads with deficient

internal control procedures; (d) require railroads to update reports on

workdays lost due to injuries; and (e) clarify FRA's requirement for

railroads to update accident reports when significant changes occur.

C. Advance Notice of Proposed Rulemaking on Accident Reporting

In response to the GAO audit, FRA published an advance notice of

proposed rulemaking (ANPRM) on March 14, 1990 (55 FR 9469) soliciting

comments and suggestions from the public regarding methods for

improving FRA's injury and accident reporting system and its governing

regulations. Interested parties were invited to participate in a public

hearing held on May 17, 1990, and to file written comments prior to May

25, 1990. The responses to that public notice provided additional

information and identified further issues and subissues related to the

matters in the ANPRM. In order to further explore matters related to

the accident/incident reporting system, FRA held informal, open

meetings on June 13, 1991, August 22, 1991, and August 18, 1992, in

Washington, D.C., with members of the Association of American Railroads

(AAR) Committee for Uniformity in Reporting. At the request of rail

labor representatives, FRA also held an informal, open meeting on

October 21, 1991, in Washington, D.C., to discuss the same issues with

representatives of various rail unions.

D. Notice of Proposed Rulemaking on Accident Reporting

FRA published a notice of proposed rulemaking (NPRM) on accident

reporting on August 19, 1994 (59 FR

[[Page 30941]]

42880), and conducted a series of public hearings to obtain the

industry's views and comments on specific issues addressed in the NPRM.

Public hearings were held in Washington, D.C. on October 5-6, 1994; in

Kansas City, Missouri on October 19, 1994; and in Portland, Oregon on

November 3, 1994. FRA examined the issues and interests involved and

made a preliminary inquiry among the hearing participants to determine

whether additional hearings or regulatory meetings could be successful

in narrowing areas of disagreement and exploring possible

accommodations. Most participants expressed interest in continuing the

rulemaking process by holding additional or supplementary regulatory

meetings, roundtables or workshops. After further deliberation, FRA

decided that an informal public regulatory conference would prove

advantageous in the development of the accident reporting regulations.

E. Public Regulatory Conference

In accordance with a notice published on December 27, 1994 (59 FR

66501), FRA held an informal public regulatory conference on January

30-February 2, 1995, in Washington, D.C. to further discuss issues

related to its NPRM on railroad accident reporting. In accordance with

the provisions of the Administrative Procedure Act (5 U.S.C. 551 et

seq.), the public regulatory conference was a continuation of the

accident reporting rulemaking proceeding. The format of the discussions

was informal and employed a topical, interactive approach. Conference

participants offered various alternative approaches in response to the

specific proposals set forth in the NPRM. The AAR and The American

Short Line Railroad Association (ASLRA) requested that they be allowed

to address specific topics by the existing comment deadline of March

10, 1995, and that such comments be incorporated into a second or

supplemental NPRM. FRA believed that a decision as to whether or not to

issue a supplemental NPRM was premature at this point in the rulemaking

proceeding. FRA therefore requested, through publication in the Federal

Register (60 FR 9001), that written comments addressing all issues in

the NPRM be filed no later than March 10, 1995, as specified in FRA's

December 27, 1994, notice. After thorough review and analysis of the

submitted comments, FRA stated that it would decide whether a

supplemental NPRM was warranted for this rulemaking and would issue a

decision in the Federal Register. FRA also stated that the decision

whether or not to issue a supplemental NPRM would be based primarily on

the extent that written comments addressed constructive, creative

solutions to the subjects and issues involved in the NPRM.

F. Supplemental Notice of Proposed Rulemaking

FRA published a notice on July 3, 1995 (60 FR 34498), which stated

that a second or supplemental NPRM would be issued for the rulemaking

to revise the railroad accident reporting regulations. The decision to

issue a supplemental NPRM was made pursuant to requests advanced by

some participants at the public regulatory conference held on January

30-February 2, 1995, in Washington, D.C., during which specific topics

were discussed related to the accident reporting NPRM. It was

anticipated that the supplemental NPRM would address whether or not a

meaningful performance standard for accident reporting could be devised

for use by the railroads. It was also anticipated that the supplemental

NPRM would discuss revised documentation requirements for the proposed

Internal Control Plan; calculation of damage costs for rail equipment

accidents and incidents for the determination of whether the threshold

is met for FRA reporting purposes; and the proposed definition for the

classification ``Worker on Duty'' as it pertains to ``Contractors'' and

``Volunteers'' performing safety-sensitive functions.

FRA reviewed thoroughly the written comments received in response

to the NPRM, the transcripts of the public hearings, as well as the

transcripts of the public regulatory conference. This review revealed

that a supplemental NPRM was not warranted. By notice published in the

Federal Register on January 24, 1996 (61 FR 1892), FRA announced that

it would not issue a supplemental NPRM in the rulemaking; instead, the

final rule would deal fully with major alternative resolutions for the

issues in the rulemaking, explaining clearly why they were endorsed or

rejected in favor of the option selected.

Summary of Public Comments

FRA received comments from the AAR, ASLRA, the Brotherhood of

Railway Carmen (BRC), the Brotherhood of Maintenance of Way Employes

(BMWE), the Brotherhood of Locomotive Engineers (BLE), the Brotherhood

of Railroad Signalmen (BRS), individual members of some of these

associations, the State of California's Public Utilities Commission,

the Contra Costa County Health Services Department of the State of

California, the American Trucking Associations (ATA), the Tourist

Railroad Association, the Association of Railway Museums, Inc. (ARM),

the Illinois Railway Museum, the American Public Transit Association

(APTA), the National Railroad Construction and Maintenance Association,

Inc. (NRC), and individual members of the public.

Section-by-Section Analysis

A. Section 225.33 Internal Control Plan

Proposed Rule

FRA proposed that each railroad must prepare and maintain an

Internal Control Plan (ICP) that required institution of proper

internal control procedures for reporting. FRA believed that requiring

an ICP would ensure the reconciliation and incorporation of accident/

incident and injury/illness data from the various departments within

the railroad for submission to the railroad's reporting officer. The

proposed rule required that the reporting office have access to all

pertinent claims records, including medical records and payroll

records, and be notified by claims and medical departments of each new

case/claim opened by a railroad worker. The proposal also stated that

identification of offices and responsible railroad officers would aid

FRA in identification of procedural weaknesses in reporting. FRA

proposed periodical review of the ICP by FRA in order to detect

procedural deficiencies. If FRA should find the railroad to be in

noncompliance, the proposed regulation allowed FRA to cite that

railroad for violating procedural requirements of the ICP when

inaccurate reporting was found and the cause could be attributed to

internal control weakness.

Comments

This proposal created significant controversy among the railroad

representatives who participated in the proceeding. Most railroad

commenters did not support mandated internal control procedures.

Railroad representatives stated that they did not want to change or

modify any internal control plan, if such a plan was already in place,

to fit the ICP as proposed by FRA. Railroad members also believed that

the plan was too detailed and, as such, would require constant updating

in order to accommodate normal changes such as personnel changes and

reorganizations. These members also perceived that the ICP would result

in additional, unjust monetary penalties for steps missed in the ICP

that led to

[[Page 30942]]

inaccurate accident reporting. As proposed, if a reporting violation

was found, then the railroad might be fined for both the reporting

violation and any departure from the ICP which resulted in the

reporting violation. Instead of an ICP mandated by FRA, AAR and its

constituent members suggested that FRA adopt a performance standard for

determining and measuring a railroad's compliance with reporting

requirements.

ASLRA and its members stated that the performance standard proposed

by AAR should be adopted for Class I railroads, but that such a

standard would be impracticable for the short line industry since each

short line's sample size would be too small to make such an approach

meaningful. ASLRA supported the concept of development and maintenance

of an ICP by other than Class I railroads. However, ASLRA believed that

elements of the ICP should be determined by each railroad to suit its

unique needs and circumstances and that such elements should not be

mandated by FRA.

Rail labor associations and other commenters opposed adoption of

the performance standard proposed by AAR in lieu of specific ICP's

because they believed that such a standard could not ensure reliable,

accurate and uniform reporting data on an industry-wide basis. These

commenters proposed adoption of uniform, formalized ICP's with some

minor modifications to FRA's proposed ICP to allow for more flexibility

in its actual requirements.

Most railroads did not support FRA's provision authorizing civil

penalties for inaccurate reporting due to internal control weakness.

Most other commenters favored an enforcement system in which monetary

penalties might be issued against the railroad for inaccurate reporting

resulting from noncompliance with procedures outlined in the ICP.

AAR's Proposed Performance Standard

AAR proposed that FRA adopt a performance standard for determining

whether a railroad complied with reporting requirements. The

performance standard proposed by AAR was based on methods selected from

a set of statistical procedures developed for use by the U.S. Military

(MIL-STD-105E, 1989) as means of statistically controlling process

quality in a stable environment. Specifically, AAR proposed that:

(a) Each railroad would maintain a written ICP which would achieve

a compliance rate of 99 percent for the accident and incident reports

required under Sec. 225.11. This written ICP would be developed

internally by each reporting railroad.

(b) The compliance rate would be based on a reporting period

covering a closed twelve-month calendar year.

(c) The compliance rate would be determined by comparing accident

and incident reports filed with FRA against the railroad-maintained

data base which contains information about employee injuries, employee

illnesses, as well as property damage, so that determinations about

reportability may be reasonably made.

(d) Audits conducted to determine the compliance rate would conform

to the following procedures:

(1) Each railroad would provide FRA a list of both reportable and

nonreportable accidents/incidents and illnesses/injuries for a

specified calendar year and would make accident/incident and injury/

illness reports available for inspection by FRA;

(2) FRA would take a random sample from the list of these reports.

Sampling procedures would conform to the military performance standard.

Railroads would have to achieve a compliance rate of 99 percent; for

example, one rejection out of a random sample of 100 cases. A rejection

would be defined as a railroad's failure to report a reportable

occurrence; and

(3) Audits would be conducted by FRA personnel, and audit results

would be provided in writing to the railroad.

(e) If a railroad failed to achieve a compliance rate of 99

percent, then the railroad would be subject to a monetary penalty and

would have to submit an action plan within 30 days to FRA explaining

what corrective action had been taken to achieve 99-percent compliance.

(f) If a railroad failed to achieve a compliance rate of 99 percent

in two consecutive audits, then the railroad would be subject to

another monetary penalty; would be required to submit an action plan

within 30 days to FRA explaining what corrective action had been taken

to achieve 99-percent compliance; and would be subject to a follow-up

audit after 30 days from submission of the action plan to FRA. Further,

the railroad might be directed to file with FRA an ICP detailing

internal reporting processes and procedures.

FRA had an independent statistical firm examine and review the

military performance standard to determine whether it was feasible to

apply the standard to measure compliance with accident/incident

reporting requirements. A summary of this report has been included as

Attachment 1. This firm concluded that the military performance

standard invoked by AAR (MIL-STD-105E, 1989) was based on sound

statistical methods; however, several problems existed with the

standard's application to accident reporting. A brief description of

the deficiencies follows:

(a) Reporting by a railroad is not a stable process. AAR's

reporting process has not been fully defined or tested in the real

world; and its stability has not been demonstrated. AAR assumed that

reporting would be a stable process and applied procedures appropriate

only for stable processes.

(b) AAR's sample-inclusion criterion is flawed. The denominator for

nonreportable accidents and incidents can be inflated to ensure that

the 99-percent compliance rate is achieved. The AAR formula for

determining a railroad's compliance rate is:

compliance rate = 1.00 - (number of failures to report reportable

cases/(total number of reportable cases + total number of nonreportable

cases)).

For determining sample size, AAR's sampling plan combines

reportable and nonreportable accidents and incidents. For counting

failures or rejections, AAR's sampling plan recognizes only the

reporting errors in nonreportable accidents and incidents, but not the

reporting errors related to reportable accidents and incidents. In this

scenario, therefore, increasing the number of nonreportable cases would

improve the compliance rate for that reporting railroad.

(c) AAR overstated the compliance rate. Using any reasonable

definition of ``compliance rate,'' the AAR sampling plan, at best,

achieves only a 97-percent compliance rate. See Attachment 1 for

further discussion.

(d) AAR's performance standard lacks requirements for maintaining

written ICPs. The Military Standard includes a general requirement for

developing written procedures (such as an ICP), which FRA could require

to be made available to its inspectors for review. AAR's performance

standard does not permit FRA to direct a railroad to develop an ICP

until after the railroad fails to demonstrate 99-percent compliance in

two consecutive audits. Without written procedures, i.e., an ICP, it is

not possible to guarantee full implementation of management decisions

by line employees.

(e) AAR's performance standard does not implement the full set of

procedures prescribed in the Military Standard. Specifically, AAR's

performance standard fails to implement ``switching procedures,'' which

are needed when consecutive lots or batches are rejected. ``Switching

procedures'' are a set of

[[Page 30943]]

rules that tell users when to adopt ``normal,'' ``tightened,'' or

``reduced'' inspection. AAR's performance standard lacks switching

procedures and rules, and AAR has not determined the compliance rate

bias resulting from this lack.

Even if the AAR's performance standard were revised to deal with

some of these problems, it would still fail to meet the main objective

of the ICP, which is to improve the accuracy of the submitted accident

and injury reports. Hypothetically, a railroad could meet an improved

version of the AAR's performance standard by reporting all of the

reportable accidents and incidents, but the submitted reports could be

riddled with inaccuracies that the ICP would have prevented. For

example, in the case where an employee is injured, the submitted

``Railroad Injury and Illness (Continuation Sheet)'' (Form FRA F

6180.55a) may state that the employee missed five days from work

because the employee's initial medical report indicated that he or she

missed five work days. However, in actuality, the employee missed 20

work days for his or her injury. In this example, the failure to

provide the reporting officer with the correct payroll ``time and

attendance'' information resulted in an inaccurate filed report, with

no harm to the railroad's compliance rate under even a modified AAR

performance standard.

Final Rule

Section 225.33 Internal Control Plan

FRA believes that an Internal Control Plan (ICP) best provides the

procedures necessary to ensure that complete, reliable, and accurate

data is obtained, maintained, and disclosed by the railroads. FRA

investigations have repeatedly found instances in which departments

within the same railroad failed to provide to the railroad reporting

officer information critical to determining reportability or

information necessary for filing an accurate and complete report. Thus,

the final rule adopts the proposed ICP with modifications recommended

by various parties in this proceeding.

The ICP is not a ``command and control'' system; it is a type of

performance standard which ensures the accuracy of a process and, in

this case, the process is accident/incident reporting. This ICP

requirement does not tell the railroad how to develop the internal

control procedures; how the lines of communication should be

established; the type of correspondence to be used; the forms that

should be used; which executives in the company are responsible for

reportability decisions; nor the periods of time necessary for

information exchange. The ICP is a performance standard that dictates

the necessity for communication within each railroad to ensure that

proper reporting will be accomplished. The changes to the proposed ICP

allow each railroad, including the short lines, the flexibility to

design an ICP suitable to the needs and circumstances of the particular

railroad. The ICP, therefore, may vary in size from one that is a few

pages for smaller railroads and short lines, to one of considerable

size for the major carriers.

In general, the ICP challenges the railroads to develop a Total

Quality Management (TQM) system to ensure that there are no errors in

reporting. ``No errors'' means that all reportable accidents and

incidents are reported to the FRA and that each report is accurately

completed prior to submission to FRA, in other words, a ``zero

tolerance'' policy with respect to inaccurate reporting. TQM focuses on

continuous and incremental improvements of process performance. In

contrast, acceptance testing, as in AAR's proposed performance

standard, judges acceptability of process output by applying predefined

criteria. AAR's proposed performance standard suggests, therefore, that

some defects in reporting are permissible.

The ICP also addresses intimidation and harassment of any person

calculated to prevent or discourage such person from either receiving

proper medical treatment for an injury or illness or from reporting an

accident, incident, illness or injury. FRA has become increasingly

aware that many railroad employees fail to disclose their injuries to

the railroad or fail to accept reportable treatment from a physician

because they wish to avoid potential harassment from management or

possible discipline that is sometimes associated with the reporting of

such injuries. FRA is also aware that in some instances supervisory

personnel and mid-level managers are urged to engage in practices which

may undermine or circumvent the reporting of injuries and illnesses.

Railroads must remain proactive in accurate reporting of all reportable

accidents, injuries and illnesses, and must not engage in practices

that could manipulate reportability of these incidents. In some

instances, railroads report an injury or illness to FRA only after FRA

inspectors make management aware that a particular injury or illness

was not reported. Many times FRA inspectors conduct an investigation

pursuant to a complaint from an employee alleging that his or her

injury/illness was not properly reported or was not reported at all.

Again, the railroad usually reports this injury/illness to FRA only

after FRA informs management of the situation.

FRA remains committed to improving the accuracy of the accident

reporting data base and can do so only with the full cooperation of

both rail workers and management. In order to address this widespread

problem, the ICP mandates that each railroad adopt a policy statement

which affirms that intimidation or harassment by any officer, manager,

supervisor, or employee of the railroad that aims to undermine or

negatively influence the treatment of persons with an injury or illness

or that adversely affects the reporting of such injuries and illnesses

will not be tolerated nor permitted and that appropriate prescribed

disciplinary action may be taken by the railroad against such person

committing the harassment or intimidation. The policy statement

addressing intimidation and harassment must be disseminated to all

employees, supervisors and to all levels of railroad management.

Further, the railroad must have procedures in place to process

complaints when the railroad's intimidation and harassment policy has

been violated, and such procedures must also be disseminated to all

employees and management/supervisory personnel.

Consequently, the final rule states in Sec. 225.33(a) that each

railroad shall adopt and comply with a written Internal Control Plan

that must be maintained at the office where the railroad's reporting

officer conducts his or her official business or duties. The ICP must

be amended, as necessary, to reflect any significant changes to the

railroad's internal reporting procedures. The ICP is to include, at a

minimum, each of the following ten components:

(1) A policy statement indicating the railroad's commitment to

complete and accurate reporting of all accidents, incidents, injuries,

and occupational illnesses arising from the operation of the railroad.

This statement should include, in absolute terms, that harassment or

intimidation of any person that is calculated to discourage or prevent

such person from receiving proper medical treatment or from reporting

an accident, incident, injury or illness will not be permitted or

tolerated and will result in some stated disciplinary action against

such person committing the harassment or intimidation.

(2) The dissemination of the policy statement; complaint

procedures. Each railroad must provide to all employees,

[[Page 30944]]

supervisory personnel, and management the policy statement described in

paragraph (a)(1). Each railroad must have procedures to process

complaints from any person when the policy stated in paragraph (a)(1)

is violated, and to impose the appropriate prescribed disciplinary

actions on each person found to have violated the policy. These

procedures must be disclosed to railroad employees, supervisors and

management. The railroad must provide ``whistle blower'' protection to

any person subject to this policy, and such policy must be disclosed to

all railroad employees, supervisors and management.

(3) Copies of internal forms and/or a description of the internal

computer reporting system used for the collection and internal

recording of accident and incident information.

(4) A description of the internal procedures used by the railroad

for the processing of forms and/or computerized data regarding accident

and incident information.

(5) A description of the internal review procedures applicable to

accident and incident information collected, and reports prepared by,

the railroad's safety, claims, medical and/or other departments engaged

in collecting and reporting accident and incident information.

(6) A description of the internal procedures used for collecting

cost data and compiling costs with respect to accident and incident

information.

(7) A description of applicable internal procedures for ensuring

adequate communication between the railroad department responsible for

submitting accident and incident reports to FRA and any other

department within the railroad responsible for collecting, receiving,

processing and reporting accidents and incidents.

(8) A statement of applicable procedures providing for the updating

of accident and incident information prior to reporting to FRA and a

statement of applicable procedures providing for the amendment of

accident and incident information as specified in the FRA Guide for

Preparing Accidents/Incidents Reports.

(9) A statement that specifies the name and title of the railroad

officer responsible for auditing the performance of the reporting

function; a statement of the frequency (not less than once per calendar

year) with which audits are conducted; and identification of the site

where the most recent audit report may be found for inspection and

photocopying.

(10) A brief description of the railroad organization, including

identification of (i) all components that regularly come into

possession of information pertinent to the preparation of reports under

this part (e.g., medical, claims, and legal departments; operating,

mechanical, and track and structures departments; payroll, accounting,

and personnel departments); (ii) the title of each railroad reporting

officer; (iii) the title of each manager of such components, by

component; and (iv) all officers to whom managers of such components

are responsible, by component. A current organization chart would

satisfy items (iii) and (iv).

The penalty schedule is amended so that if the railroad fails to

adopt the ICP, then that railroad is subject to the assessment of a

civil monetary penalty in the amount of $2,500 or, if willful, $5,000.

Also each railroad's reporting error arising from noncompliance with

the ICP subjects that railroad to the assessment of a civil monetary

penalty in the amount of $2,500 or, if willful, $5,000. Consequently,

if a reporting violation is found, then the railroad may be fined for

both the reporting violation and any departure from the ICP which

resulted in the reporting violation. FRA may require the railroad to

make modifications to its ICP to prevent such reporting errors in the

future. However, if there is a reporting violation, but FRA determines

that the ICP was followed by the railroad, then just one violation may

be written. FRA believes that availability of a monetary civil penalty

is necessary in order to compel the railroads to correct procedural

deficiencies and weaknesses in their ICPs. However, in some instances

FRA may employ use of a compliance order or other remedy in lieu of

civil penalties where appropriate in order to promote future

compliance.

Additionally, FRA may assess a civil monetary penalty against any

railroad employee, manager, or supervisor who willfully causes a

violation or noncompliance with any requirement of Part 225, including

Secs. 225.33(a) and (b), requiring adherence to the railroad's

intimidation and harassment policy and noninterference with that

policy. FRA may issue these civil penalties pursuant to 49 U.S.C.

21301, 21302, and 21304. Also see Appendix A to Part 209 of the Code of

Federal Regulations for other sanctions. Criminal penalties and/or

imprisonment provided for in 49 U.S.C. 21311 may also be imposed on any

individual who knowingly and willfully makes a false entry in a record

or report required by the accident reporting regulations or other

regulations issued under 49 U.S.C. chapter 201; destroys, mutilates,

changes, or falsifies such a record or report; does not enter required

specified facts in a such record or report; makes or preserves such a

record or report in violation of such a regulation or order; or who

files a false record or report with FRA. FRA wants to make it clear to

all railroads that it will be diligent in its efforts to ensure that

all parties adhere to and comply with the intimidation and harassment

policy in the ICP. It should be noted that FRA will be aggressive in

pursuing enforcement sanctions against any person found to be in

violation of the railroad's harassment and intimidation policy.

FRA's proposal in Sec. 225.33(b) which stated that railroads must

make ``a reasonable and conscientious effort to adhere to the Plan'' is

too vague and would undoubtedly create considerable variability in

perceptions of compliance. Thus, FRA has eliminated this requirement.

FRA believes that imposition of a monetary penalty and other

enforcement sanctions on the reporting railroad and against individuals

as discussed above provides an incentive for the reporting railroad and

all parties to observe and follow its internal control procedures.

B. Section 225.37 Computer Magnetic Media Transfer and Electronic

Submission

Proposed Rule

FRA proposed, in Sec. 225.37, to amend the current reporting

requirements to provide railroads the option of using magnetic media

(computer diskettes and magnetic tape) in lieu of the paper (``hard

copy'') forms currently submitted to transmit both the initial and

updated versions of the following reports: (a) the ``Rail Equipment

Accident/ Incident Report'' (Form FRA F 6180.54); (b) the ``Railroad

Injury and Illness Summary (Continuation Sheet)'' (Form FRA F

6180.55a); and (c) the ``Highway-Rail Grade Crossing Accident/Incident

Report'' (Form FRA F 6180.57). FRA proposed that reports submitted via

magnetic media would be due within 30 days after expiration of the

month in which the accident/incident occurred.

In particular, the proposed rule allowed railroads, in

Sec. 225.37(a), subject to various conditions, the option to submit

magnetic media that would contain: (a) initial accident/incident

reports, (b) updates or amendments to all reports previously submitted

in hard copy, and (c) updates or amendments to reports initially

transmitted on magnetic media.

The proposed rule allowed railroads to continue to submit hard copy

reports,

[[Page 30945]]

as the current regulations require, but to update the data contained on

the hard copy by way of magnetic media. Alternatively, the proposal

allowed railroads the option of utilizing magnetic media exclusively

for all initial reports and all updates and amendments to those

reports. FRA proposed that all transmissions of updated or amended

reports by means of magnetic media would be added to a year-to-date

file created exclusively for each reporting railroad. This year-to-date

file would include all updates and amendments on reported accidents and

incidents and would be maintained by FRA.

FRA also proposed, in Sec. 225.37(b), to require that when a

railroad utilizes the magnetic media option, whether to submit an

initial report, or an updated or amended report, it was to submit along

with the magnetic media: (a) a sworn report, as required by 49 U.S.C.

20901 (formerly contained at Sec. 1 of the Accident Reports Act, 45

U.S.C. 38), in the form of a notarized ``Railroad Injury and Illness

Summary'' (Form FRA F 6180.55), and (b) a signed ``Batch Control Form''

for magnetic media. The requirement to submit a notarized Form FRA F

6180.55 is necessary to ensure that railroad reporting officials attest

to the validity of the information reported to FRA in the magnetic

media. It also provides FRA with evidence necessary to hold those

officials accountable for false reporting.

Since the magnetic media option is a fairly new concept, FRA

proposed, in Sec. 225.37(c), to require the railroads that utilize this

medium to initially include the hard copy of the particular accident/

incident report with the magnetic media. During this assimilation

period, FRA would compare the data on hard copy reports to the data

contained in the magnetic media to determine if the information

reported via magnetic media was consistent and reliable. This

requirement would ensure quality control and would provide FRA a

measure by which to gauge accurate reporting. After a three-month

period of 100-percent accuracy verification, FRA would notify the

railroad in writing that the hard copy was no longer necessary.

Comments

Nearly all commenters expressed an interest in implementing some

kind of electronic transmission and exchange of data from the railroads

to FRA. Several commenters expressed the desire to have a standard,

consistent format that would assure the credibility of the original

report while others expressed the desire to submit data utilizing a

variety of different reporting formats designed by the individual

railroads. Some commenters recommended that FRA should design and make

available to all railroads a software package of the formats required

for transmission of all types of data in order to ensure uniformity in

reporting. Several commenters suggested that FRA should examine another

option for the transfer of data to FRA, i.e., electronic submission of

data over telephone lines.

Final Rule

Section 225.37 Magnetic Media Transfer and Electronic Submission

Section 225.37 of the final rule allows for the submission of

accident reporting data to FRA by two alternate means: (1) magnetic

media (computer diskette or magnetic tape), or (2) electronically, over

telephonic lines. Submission of this data through either means remains

optional for the reporting railroad.

Section 225.37(a) states that railroads utilizing either option may

submit the following reports, updates to reports, and amendments to

reports to FRA:

(1) the ``Rail Equipment Accident/Incident Report'' (Form FRA F

6180.54);

(2) the ``Railroad Injury and Illness Summary'' (Form FRA F

6180.55);

(3) the ``Railroad Injury and Illness Summary (Continuation

Sheet)'' (Form FRA F 6180.55a);

(4) the ``Highway-Rail Grade Crossing Accident/Incident Report''

(Form FRA F 6180.57); and

(5) the ``Batch Control Form'' (Form FRA F 6180.99). Section

225.37(d) states that each railroad that employs either option must

submit its monthly reporting data to FRA in a year-to-date file format.

For example, the railroad's April submission must contain the reporting

data for the months of January through April, including any amendments

or updates for the months of January through March.

Section 225.37(b) states that each railroad utilizing the magnetic

media option must submit the following:

(1) the computer diskette or magnetic tape;

(2) the ``Batch Control Form'' (Form FRA F 6180.99); and

(3) the notarized hard copy of the ``Railroad Injury and Illness

Summary'' (Form FRA F 6180.55), signed by the railroad's reporting

officer.

Also note that each railroad need submit only one ``Batch Control

Form'' (Form FRA F 6180.99) with its monthly submission since the

``Batch Control Form'' contains the sum totals for the four reports

that appear on the form.

As previously stated, the notarization of Form FRA F 6180.55 is

required by 49 U.S.C. 20901 and this form must continue to be submitted

to FRA in hard copy format. Also note that the proposal requiring the

railroad reporting officer's signature on the Batch Control Form is not

adopted in the final rule. The format for the Batch Control Form is set

forth in Attachment 2 to this final rule.

Legislation before Congress (the ``Department of Transportation

Regulatory Reform Act of 1996'') would amend 49 U.S.C. 20901(a) to

eliminate the requirement that railroads file notarized monthly reports

with FRA regarding accidents and incidents on their properties. The

amendment would allow the Secretary to specify the frequency with which

reports must be filed; provide discretion to set different reporting

requirements for different classes of railroads; and facilitate

electronic filing and a corresponding reduction in paper filings. It is

believed these amendments would reduce unnecessary expense and delay

associated with filing monthly reports, particularly for small

railroads and those railroads which may have no events to report for a

particular month.

Section 225.37(c) outlines the requirements for submission of data

electronically, through telephonic means. The requirements for

electronic submission parallel those for magnetic media submissions.

The only difference is that a railroad utilizing the electronic

submission option must transmit its year-to-date file reporting data to

an FRA-designated computer. Note, however, that each railroad must

continue to submit the notarized hard copy of the ``Railroad Injury and

Illness Summary'' (Form FRA F 6180.55).

Section 225.37(e) states that, initially, each railroad utilizing

either the magnetic media or electronic submission option must submit

the hard copy report(s) for each accident/incident it reports by such

means. FRA will continually review the hard copy reports against the

data submitted electronically or by means of magnetic media for that

reporting railroad. Once the magnetic media or electronic submission is

in total agreement with the submitted hard copies of the reports for

three consecutive reporting months, FRA will notify the railroad, in

writing, that submission of the hard copy reports is no longer

required. However, note that each railroad must continue to submit the

notarized hard copy of the ``Railroad Injury and Illness Summary''

(Form FRA F 6180.55) with its magnetic media or electronic submissions

until such time that legislation is passed eliminating this

requirement.

The next revised FRA Guide will contain more detail concerning the

submission of data via magnetic media

[[Page 30946]]

or, electronically, over telephone lines or other means.

C. Section 225.27 Retention of Records

Proposed Rule

FRA proposed that railroads that chose to submit their data via

magnetic media or electronically, over telephone lines, as discussed in

the previous section, would remain responsible for having on file hard

copies of the reports identified in the current regulations at

Sec. 225.21. Therefore, FRA proposed, in Sec. 225.27(c), that each

railroad must maintain on file, at one or more central locations

designated by the railroad, a signed copy of both the ``Rail Equipment

Accident/Incident Report'' (Form FRA F 6180.54) and the ``Highway-Rail

Grade Crossing Accident/Incident Report'' (Form FRA F 6180.57), as well

as a copy of all other reports pursuant to Part 225. This requirement

was also meant to include a hard copy of any record submitted via

magnetic media or, electronically, over telephone lines, so as to

enable both federal and State inspectors, as well as other authorized

representatives, a means by which to verify whether the railroad

reported a specific accident/incident or injury/illness to FRA.

Comments

Most railroads expressed concern that the requirement for records

to be maintained at one or more central locations was far too stringent

and impracticable. In contrast, rail labor representatives agreed with

the FRA proposal that railroads should have a hard copy of all records

on file at a central location designated by that railroad. With new

moves by railroads to centralize functions of their operations, the

State of California suggested that railroads should be required to

provide a central location for retention of records within the

boundaries of each State in which it operates.

Final Rule

Section 225.27 Retention of Records

Section 225.27(a) states that each railroad must retain the

``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)

and the Monthly List of Injuries and Illnesses (both discussed in

detail later in this preamble), as required by Sec. 225.25, for at

least five years after the end of the calendar year to which they

relate. The ``Initial Rail Equipment Accident/Incident Record'' (Form

FRA F 6180.97), as required by Sec. 225.25, must be retained for at

least two years after the end of the calendar year to which they

relate. The ``Initial Rail Equipment Accident/Incident Record'' is

discussed in detail later in this preamble.

Please note that maintenance and access to any record and report

required under this part are discussed in this preamble in the section

entitled ``Access to Records and Reports'' (Sec. 225.35).

D. Reporting Definitions and Forms

1. Form FRA F 6180.45--``Annual Summary Report of Railroad Injury and

Illness''

Form FRA F 6180.45 has been used by the rail industry to report all

deaths, injuries, and occupational illnesses of on-duty railroad

employees that occurred during the calendar year.

Proposal

FRA proposed to eliminate the requirement for submission of the

``Annual Summary Report of Railroad Injury and Illness'' (Form FRA F

6180.45). However, certain blocks of information on this form were

deemed important for accurate injury and illness data analysis.

Information regarding ``Terminations or Permanent Transfers'' found in

column ``8'' on the annual summary report lists the number of cases in

column ``3'' (Total Lost Workday Cases) and column ``7'' (Non-Fatal

Cases without Lost Workdays) that resulted in either the termination or

the permanent transfer of the employee for reasons related to the

sustained injury or occupational illness. FRA proposed to move the

block designated ``Terminations or Permanent Transfers'' to the

``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form FRA

F 6180.55a). Similarly, FRA proposed to move the blocks that solicit

information on ``Establishments Included in this Report'' and ``Average

Employment in Reporting Year'' on the annual summary report to the

``Annual Railroad Report of Employee Hours and Casualties, by State''

(Form FRA F 6180.56).

Comments

Commenters agreed with FRA's proposal to eliminate Form FRA F

6180.45 and to transfer the information blocks pertaining to

``Terminations or Permanent Transfers,'' ``Establishments Included in

this Report, and ``Average Employment in Reporting Year'' to other

existing reporting forms.

Final Rule and Decision

The final rule eliminates the requirement for railroads to submit

the ``Annual Summary Report of Railroad Injury and Illness'' (Form FRA

F 6180.45). Blocks that solicit information on ``Establishments

Included in this Report'' and ``Average Employment in Report Year'' are

transferred to the ``Annual Railroad Report of Employee Hours and

Casualties, by State'' (Form FRA F 6180.56) as blocks ``4'' and ``5,''

respectively. The block designated ``Termination or Permanent

Transfer'' is transferred to the ``Railroad Injury and Illness Summary

(Continuation Sheet)'' (Form FRA F 6180.55a) as block ``5r.''

2. Form FRA F 6180.54--``Rail Equipment Accident/Incident Report''

Collisions, derailments, explosions, fires, acts of God, and other

events involving the operation of standing or moving on-track equipment

resulting in more than $6,300 of reportable damage (the current

reporting threshold) must be reported using Form FRA F 6180.54. FRA

proposed to make limited changes to the ``Rail Equipment Accident/

Incident Report.'' The format for the revised ``Rail Equipment

Accident/Incident Report'' (Form FRA F 6180.54) is set forth in

Attachment 3 to this final rule.

a. Special Study Blocks

Proposal

FRA proposed establishment of three new blocks on Form FRA F

6180.54, each designated as a ``Special Study Block'' (SSB), to collect

information on specific accident issues over a specified time period in

response to particular hazards or associated railroad risks that are of

safety concern.

Comments

AAR and its constituent members opposed the addition of the special

study blocks to the ``Rail Equipment Accident/Incident Report'' (Form

FRA F 6180.54). AAR stated that gathering information, as the need may

arise, would be somewhat expensive due to the computer programming

necessary to complete the SSB information. These same members stated

that collection of SSB information would be time consuming for the rail

industry since instructions would have to be issued to the field as to

what type of information is actually needed.

Several union representatives felt that the addition of the SSBs to

Form FRA F 6180.54 was necessary to collect pertinent data but that FRA

should be very specific in its information request.

Other parties stated that if FRA decided not to add the SSBs as

proposed, then the block allowing for a narrative description of the

special event should be completed by the reporting railroad only when

other blocks did not define the special circumstances surrounding the

accident.

[[Page 30947]]

Final Decision

The ``Rail Equipment Accident/Incident Report'' (Form FRA F

6180.54) contains two SSBs in block ``49.'' As the need arises, FRA

will notify the railroads in writing or, if appropriate, through

publication in the Federal Register, of the purpose and the type of

information that is to be collected. FRA will be as specific as

possible in order to minimize both costs and the amount of time

associated with the collection of this new information. Each SSB has 20

characters in order to standardize the data structure for computer

files. FRA believes the SSBs will prove extremely valuable in

collecting information to help FRA identify and evaluate issues of

safety concern as well as other nonsafety issues as the need arises.

FRA anticipates that use of one or more SSBs will be occasional,

rather than continuous. As appropriate, FRA will consult with the

Railroad Safety Advisory Committee (RSAC) before formulating the

respective information collections.

b. Reporting Definitions

Proposal

First, FRA proposed to make it clear that when estimating damage

costs, the labor costs to be reported are only the direct labor costs

to the railroad, e.g., hourly wages, transportation costs, and hotel

expenses. The cost of fringe benefits would be excluded when

calculating direct labor costs. Second, for services performed by a

contractor, FRA proposed that the railroad would estimate a direct

hourly labor cost by multiplying the contractor's total labor hours

charged to the railroad by the applicable direct hourly wage rate for a

railroad worker in that particular craft. Third, FRA proposed to make

it clear that overhead is to be excluded from damage costs due to the

unacceptable non-uniform treatment of overhead under the current

process. Lastly, FRA proposed that material costs would be calculated

based upon the costs of acquiring new material, even if the railroad

chose to use refurbished or used material in its actual repairs.

Comments

Most commenters favored the proposal to include only direct labor

costs when estimating damage costs for labor, and to exclude overhead

costs from reporting. On the other hand, most railroads did not support

the proposal that material/equipment costs should be calculated based

upon the costs of newly acquired material, even if the railroad chose

to use refurbished or used material in its actual repairs. Railroad

representatives stated that if the railroad has available, or is able

to obtain, used material to repair or replace ``in kind'' the damaged

material, charging the material at an artificial cost would

inaccurately assess the real economic impact of the incident. Further,

these commenters stated that to charge material ``incorrectly'' would

require railroads to set up expensive duplicate recordkeeping. Most

railroad representatives also stated that it would be difficult to

derive the equivalent direct labor hours and rates from contractual

services involved in railroad accident and repair costs.

Most rail labor associations stated that the costs of all materials

utilized to effectuate repair (whether to new, used or refurbished

equipment) should be based upon a uniform cost for new material and

that such costs should be determined by FRA using a uniform scale.

These commenters stated that such standardized costs based on a uniform

scale would eliminate any advantage or disadvantage relative to the

volume of materials purchased, the vendor or manufacturer used, or the

age of equipment or materials involved in the incident. Further, rail

labor representatives favored standardized person-hour costs to assure

a uniform mechanism for accurate comparison of identical or similar

accidents. Using this approach, these commenters stated that accident

reporting would be reduced to a ``level playing field'' from one

railroad to the next.

Final Decision

When estimating damage costs, the labor costs to be reported are

only the direct labor costs to the railroad, e.g., hourly wages,

transportation costs, and hotel expenses. The cost of fringe benefits

is excluded when calculating direct labor costs. Overhead is also

excluded when calculating damage costs due to the unacceptable non-

uniform treatment of overhead under the current process.

For services performed by a contractor, a direct hourly labor cost

is calculated by multiplying the contractor's total labor hours charged

to the railroad by the applicable direct hourly wage rate for a

railroad worker in that particular craft. However, if a railroad cannot

match the equivalent craft to the labor hours spent by a contractor,

then the railroad must use the loaded rate, i.e., the cost by hour for

labor, fringe benefits, and other costs and fees for services charged

by the contractor for the tasks associated with the repair of the

track, equipment, and structures due to the train accident.

Due to the controversy surrounding FRA's proposal to calculate

material costs based upon the costs of acquiring new material, even if

the railroad chose to use refurbished or used material in its actual

repairs, FRA has decided to reexamine this issue in a subsequent

rulemaking for the accident reporting regulations in consultation with

the Railroad Safety Advisory Committee. Therefore, the current

methodology used to calculate material costs, i.e., depreciated value

estimates, will continue to be used by all railroads.

c. Filing of an Amended Form FRA F 6180.54

As stated in the proposed rule, the FRA Guide was changed to

specifically provide that amended reports are filed only if

subsequently acquired information showed the damage to be at least a

ten-percent variance from the amount originally reported to FRA (see

page V-2 of the FRA Guide). This change became effective January 1,

1993.

3. Form FRA F 6180.55a--``Railroad Injury and Illness Summary

(Continuation Sheet)''

The ``Railroad Injury and Illness Summary (Continuation Sheet)''

(Form FRA F 6180.55a) collects information about injuries, fatalities,

and illnesses of railroad workers, trespassers, contractors, and

passengers and about highway-rail grade crossing injuries and

fatalities. FRA proposed numerous changes to this form in order to

collect data that would aid in development of railroad injury and

accident prevention programs. The format for the revised ``Railroad

Injury and Illness Summary (Continuation Sheet)'' (Form FRA F 6180.55a)

is set forth in Attachment 4 to this final rule.

a. Exposure to Hazardous Materials

Proposal

FRA proposed to add an additional block to Form FRA F 6180.55a to

collect data on the number of persons injured, as well as the type of

injury (e.g., burn, inhalation, rash), due to release and exposure to

hazardous materials.

Comments

Some commenters supported the proposal to add this block of

information while others stated that this type of information would be

better collected by expanding the existing injury/illness codes

currently used to complete Form FRA F 6180.55a. Several commenters

expressed concern with this proposal since they believed it would be

difficult to obtain this information, especially in the case

[[Page 30948]]

where the individual does not tell the railroad that he or she was

exposed to hazardous materials.

Final Decision

Form FRA F 6180.55a contains block ``5q'' entitled ``Exposure to

Hazmat,'' which is used to collect data on the number of persons

injured and the type of injury resulting from exposure to hazardous

materials.

The Research and Special Projects Administration (RSPA) collects

injury and fatality data associated with the release of hazmat. RSPA

Form DOT 5800.1 counts the number of fatalities, hospitalized injuries

and non-hospitalized injuries associated with a hazmat release.

However, RSPA's data cannot provide FRA with the type of person injured

or the type of exposure. FRA believes that collection of this

information is critical to its data base. The next revised FRA Guide

will contain the codes used to complete this block.

FRA does not agree with the comments that obtaining information on

hazardous materials exposure would be very difficult for a railroad to

obtain. For employees of the railroad, most would inform their employer

of such exposure and, for those employees who did not inform their

employer, the railroad would not have knowledge of the exposure and

therefore would not be able to report it on the Form. Further, for

members of the general public, the reporting railroad usually can

gather information on their exposure to release of a hazardous material

from the claims filed by such persons.

b. County/Day of Month/Time of Day

Proposal

FRA proposed the addition of blocks to collect information on the

county where the incident occurred, as well as the day of the month and

the time of day when the incident occurred.

Comments

Most commenters believed that information that would help pinpoint

and identify an accident site was useful and would help identify

problem areas and regional patterns. A few commenters stated that

present requirements for location information provide sufficient

information to identify accident sites.

Final Decision

Form FRA F 6180.55a contains blocks ``5b'' (day of the month);

``5c'' (time of day); and ``5d'' (county) in order for FRA safety

inspectors to determine which sites or railroad shops have more

injuries or illnesses and to assist FRA inspectors in records

inspections.

c. Gender/Ethnicity.

Proposal

FRA proposed requiring the gender and ethnicity of the person

injured or ill in an effort to help identify whether particular groups

of individuals, particularly trespassers, are more susceptible than

others to certain injuries and illnesses.

Comments

Almost all commenters opposed the addition of blocks to gather

information on the ethnicity and gender of the injured or ill person.

These commenters stated that reporting of gender and ethnicity would

lead to misunderstandings between employees and supervisors as to why

this information was necessary and, that for trespassers, verification

of ethnicity would be difficult, if not impossible.

Final Decision

FRA agrees that collection of information, particularly with

respect to ethnicity, would be difficult to collect and may be

perceived as violating privacy rights of the employee, trespasser,

passenger or any other individual injured in a train related accident/

incident. Therefore, the proposed blocks to collect gender and

ethnicity information on the ``Railroad Injury and Illness Summary

(Continuation Sheet)'' are not adopted in the final rule.

d. Circumstance Codes

Proposal

FRA proposed to develop new codes, in addition to those currently

used, to describe the cause and/or circumstance of injuries and

illnesses not currently covered by the regulations. Specifically, these

circumstance codes would be used to complete the following blocks of

information on Form FRA F 6180.55a: ``Physical Act,'' ``Location,''

``Event,'' ``Result,'' and ``Cause.''

Comments

Most commenters agreed that the existing occurrence codes were

outdated and in need of revision; however, they stated that there was

no need to add an entire set of new circumstance codes. These

commenters stated that some of the circumstance codes, as proposed,

were redundant and lacked objectivity and thus recommended revision of

the existing occurrence codes through the AAR's Uniformity in Reporting

Committee. Other commenters believed that the addition of the proposed

codes was necessary and desirable because such data would help identify

particular hazards.

These commenters also suggested that FRA should expand the codes to

include special non-employee cause codes.

Final Decision

The occurrence codes used to best describe the event or activity

that caused the casualty (found in Appendix F of the FRA Guide) will

become obsolete as of December 31, 1996. A set of codes will be

developed to complete the information in blocks ``5j--Physical Act,''

``5k--Location,'' ``5l--Event,'' ``5m--Result,'' and ``5n--Cause'' for

Form FRA F 6180.55a. FRA will shortly issue a letter requesting one or

more special meetings with an advisory committee or, with the AAR

Committee for Uniformity in Reporting, members of ASLRA, rail labor

associations, and other interested groups, to assist in the development

of the new circumstance codes for reporting accidents/incidents.

e. Termination or Permanent Transfer

Since FRA eliminated the requirement for submission of the ``Annual

Summary Report of Railroad Injury and Illness'' (Form FRA F 6180.45),

data on ``Termination or Permanent Transfer'' is now collected in block

``5r'' on the ``Railroad Injury and Illness Summary (Continuation

Sheet)'' (Form FRA F 6180.55a).

f. Narrative on Unusual Circumstances.

Proposal

FRA proposed the addition of a narrative block on Form FRA F

6180.55a that would allow the reporting railroad the opportunity to

provide details (up to 250 characters) on any unusual circumstance(s)

surrounding the railroad worker's injury or illness.

Comments

Many commenters expressed concern regarding the intended use of the

narrative and questioned whether or not completion of the narrative

would be optional for the reporting railroad.

Final Decision

Form FRA F 6180.55a contains a narrative block ``5s'' that allows

the railroad the opportunity to further explain unusual circumstances

surrounding a worker's injury or illness using up to 250 characters.

Completion of this narrative is mandatory for the reporting railroad

unless the injury or illness can be adequately described using all

other entries (information blocks) on the form.

[[Page 30949]]

4. Form FRA F 6180.55--``Railroad Injury and Illness Summary''

The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55) is

used by the industry to summarize a railroad's accidents/incidents for

a given month. This report must be filed with FRA even when no

accidents/incidents occurred during the reporting month.

The FRA Guide currently classifies persons as:

(1) Employees on Duty (Class A),

(2) Employees Not on Duty (Class B),

(3) Passengers on Trains (Class C),

(4) Other Nontrespassers (Class D),

(5) Trespassers (All Classes)(Class E), and

(6) Contractor Employees (Class F).

These ``person'' classifications are used by the reporting railroad

for completing the ``Railroad Injury and Illness Summary'' (Form FRA F

6180.55) and the ``Railroad Injury and Illness Summary (Continuation

Sheet)'' (Form FRA F 6180.55a).

The format for the revised ``Railroad Injury and Illness Summary''

(Form FRA F 6180.55) is set forth in Attachment 5 to this final rule.

a. Classifications of Persons

Proposal

1. ``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On

Railroad Property''

FRA proposed to add a new classification of person entitled

``Nontrespassers--Off Railroad Property'' to include those individuals

(nontrespassers) who are injured while off railroad property and to

distinguish them from nontrespassers injured while on railroad

property.

Comments

All commenters supported the proposal for the breakdown of the

classification ``Nontrespassers'' into the classifications of

``Nontrespassers--Off Railroad Property'' and ``Nontrespassers--On

Railroad Property'' and believed that these distinctions would be

useful in identifying particular safety problems with these person

groups.

Final Decision

The ``Railroad Injury and Illness Summary'' (Form FRA F 6180.55)

contains the classifications of persons entitled ``Nontrespassers--On

Railroad Property'' (Class D) and ``Nontrespassers--Off Railroad

Property'' (Class J). An injury ``off railroad property,'' includes an

injury resulting from an event, such as a derailment or collision, that

begins on railroad property but ends on public or private non-railroad

property, so long as the injury is incurred while the person is

physically located off railroad property. Similarly, if a derailment

results in a release of hazardous materials onto public or private non-

railroad property and the hazardous material injures a

``Nontrespasser'' located on public or private non-railroad property,

the injury is reported as an injury to ``Nontrespassers--Off Railroad

Property'' (Class J). Conversely, injuries to nontrespassers occurring

while on public or private railroad property are reported as injuries

to ``Nontrespassers--On Railroad Property'' (Class D).

2. ``Worker on Duty'' and ``Worker Not on Duty''

FRA proposed that a ``Worker on Duty'' be defined as an individual

who receives direct monetary compensation from the railroad or who is

engaged in either (i) the operation of on-track equipment or (ii) any

other safety-sensitive function for the railroad. FRA proposed that the

classifications ``Worker on Duty'' (Class A) and ``Worker Not on Duty''

(Class B) would replace the presently used classifications of persons

``Employee on Duty'' (Class A) and ``Employee Not on Duty'' (Class B),

respectively. Additionally, FRA proposed that the definition of a

``Worker on Duty'' would be expanded to include individuals who do not

necessarily receive direct compensation from the railroad (including

certain contractor employees and volunteers) and who perform either (i)

the operation of on-track equipment or (ii) any other safety-sensitive

activity for the reporting railroad.

Comments

Most commenters did not object to the proposal to change the terms

``Employee on Duty'' and ``Employee not on Duty'' to ``Worker on Duty''

and ``Worker not on Duty,'' respectively. Commenters, however, did

object to the proposed expansion of the definition of a ``Worker on

Duty'' to include ``Contractors'' and ``Volunteers'' who perform either

safety-sensitive functions for the railroad or who operate on-track

equipment. Commenters did not want injuries and illnesses sustained by

such contractors and volunteers to be counted under the ``Worker on

Duty'' classification. Nor did commenters want the hours worked by such

``Contractors'' and ``Volunteers'' to be reported as ``railroad worker

hours.''

Railroads strongly opposed the proposal to make carriers

responsible for gathering and submitting information relative to hours

worked by contractor employees. Railroad representatives claimed that

they did not have data on contractor hours and had no process in place

to accumulate and verify total hours worked by contractor employees.

Railroads believed that if FRA deemed this information critical to its

data base, then the contractor should be compelled to report its hours

directly to FRA or other pertinent federal agencies, such as the

Occupational Safety and Health Administration (OSHA).

Final Decision

A ``Worker on Duty--Employee'' (Class A) is defined as an

individual who receives direct monetary compensation from the railroad.

All reportable injuries and illnesses are reported as those to a

``Worker on Duty--Employee'' (Class A) in block ``5f'' on Form FRA F

6180.55a together with the applicable job code series of the service

performed.

An ``Employee not on Duty'' (Class B) is defined as an individual

(i) who receives direct monetary compensation from the railroad and

(ii) who is on railroad property for purposes connected with his or her

employment or with other railroad permission, but (iii) who is not ``on

duty'' as currently defined in the FRA Guide.

3. (i) ``Volunteer'' and (ii) Volunteer or Contractor Employee Who Is

Classified as a ``Worker on Duty''

FRA proposed that ``Volunteer'' be added to the classes of persons,

for purposes of completing Sections A and B on Form FRA F 6180.55, and

that ``Volunteer'' be defined to include an individual who willingly

performs a service for the reporting railroad; who does not receive

direct monetary compensation from that railroad; and who is not engaged

in either (i) the operation of on-track equipment or (ii) any other

safety-sensitive function for the reporting railroad. As proposed, such

injuries or illnesses sustained by this volunteer would be reported on

the ``Railroad Injury and Illness Summary (Continuation Sheet)'' (Form

FRA F 6180.55a) as injuries to a ``Volunteer.'' Further, FRA proposed

that the railroad report all hours for that tour of service as

``volunteer hours'' on the ``Railroad Injury and Illness Summary''

(Form FRA F 6180.55).

In contrast, FRA proposed that injuries or illnesses sustained by

an individual, including a ``Volunteer'' or a ``Contractor'' who was

engaged in either (i) the operation of on-track equipment or (ii) any

other safety-sensitive function for the railroad, would be reported as

[[Page 30950]]

injuries/illnesses to a ``Worker on Duty'' (Class A) on the ``Railroad

Injury and Illness Summary (Continuation Sheet)'' (Form FRA F

6180.55a). Further, FRA proposed that the railroad report all hours

worked by such a ``Volunteer'' or ``Contractor'' for that tour of

service as ``railroad worker hours'' on the ``Railroad Injury and

Illness Summary'' (Form FRA F 6180.55).

FRA further elaborated on this issue at the public regulatory

conference held in Washington, D.C. where FRA proposed development of

three new subclasses of ``Worker on Duty,'' which would include (i)

``Worker on Duty--Employee,'' (ii) ``Worker on Duty--Contractor,'' and

(iii) ``Worker on Duty--Volunteer.''

Comments

Many commenters supported the development of the three

classifications of a ``Worker on Duty'' as proposed and discussed at

the public regulatory conference. These commenters stated that the

three classifications would be beneficial for recordkeeping purposes

and would aid in tracking the frequency rate of accidents and injuries

for each person category. Commenters agreed that the three proposed

classifications of ``Worker on Duty'' were qualitatively and

quantitatively different in terms of training, tenure, supervisory

oversight, motivational and disciplinary regimes, and experience and,

that such a distinction should be captured in FRA's database to ensure

the opportunity to analyze these differences. Many railroads supported

the development of the three classifications of a ``Worker on Duty''

provided that the FRA reportable injury ratio would still reflect only

the classification of ``Worker on Duty--Employee'' (Class A). As stated

previously, most commenters were opposed to reporting injuries and

illnesses sustained by ``Contractors'' and ``Volunteers'' who perform

either ``safety-sensitive functions'' or who ``operate on-track

equipment'' under the classification of ``Worker on Duty.'' These

commenters believed that a distinction between railroad employees and

such contractors and volunteer workers should be maintained for

reporting purposes and, that such a distinction would allow FRA to

compare the accident/injury rates of ``Railroad Workers on Duty'' to

those of ``Contractors'' and/or ``Volunteers.''

Railroads also opposed reporting hours worked by a ``Volunteer'' or

``Contractor'' who was engaged in either (i) the operation of on-track

equipment or (ii) any other safety-sensitive function for the railroad

as ``railroad worker hours'' on Form FRA F 6180.55.

Final Decision

A ``Worker on Duty--Volunteer'' (Class H) is a volunteer who does

not receive direct monetary compensation from the railroad and who is

engaged in either (i) the operation of on-track equipment or (ii) any

other safety-sensitive function for the railroad as defined in

Sec. 209.303.

Section 209.303 of title 49 of the Code of Federal Regulations

describes ``safety-sensitive functions'' as applying to the following

individuals:

(a) Railroad employees who are assigned to perform service subject

to the Hours of Service Act (45 U.S.C. 61-64b) during a duty tour,

whether or not the person has performed or is currently performing such

service, and any person who performs such service;

(b) Railroad employees or agents who:

(1) Inspect, install, repair, or maintain track and roadbed;

(2) Inspect, repair, or maintain, locomotives, passenger cars, and

freight cars;

(3) Conduct training and testing of employees when the training or

testing is required by the FRA's safety regulations; or

(c) Railroad managers, supervisors, or agents when they:

(1) Perform the safety-sensitive functions listed in paragraphs (a)

and (b) of this section;

(2) Supervise and otherwise direct the performance of the safety-

sensitive functions listed in paragraphs (a) and (b) of this section;

or

(3) Are in a position to direct the commission of violations of any

of the requirements of parts 213 through 236 of this title.

Note that there have been amendments and additions to the set of

railroad safety regulations found in the Code of Federal Regulations;

thus, ``safety-sensitive functions'' in Sec. 209.303(c)(3) is

interpreted to include railroad managers, supervisors, etc., when they

are in a position to direct the commission of violations of any of the

requirements of parts 213 through 240 of title 49 of the Code of

Federal Regulations.

Hours worked by a ``Worker on Duty--Volunteer'' (Class H) are not

reported on any form because FRA recognizes from the comments received

in response to this proposal that railroads may have difficulty in

acquiring this information.

A volunteer who does not receive direct monetary compensation from

the railroad and who is not engaged in either (i) the operation of on-

track equipment or (ii) any other safety-sensitive function for the

railroad as defined in Sec. 209.303 is classified as a ``Volunteer--

Other'' (Class I), and hours worked by this person also are not

reported on any FRA form.

Similarly, a ``Worker on Duty--Contractor'' (Class F) is an

employee of a contractor for a railroad who does not receive direct

monetary compensation from the railroad and who, while on railroad

property, is engaged in either (i) the operation of on-track equipment

or (ii) any other safety-sensitive function for the railroad as defined

in Sec. 209.303. Hours worked by persons in Class F are not reported on

any FRA form due to the difficulty railroad representatives expressed

they would have in acquiring this data.

A contractor employee for a railroad who does not receive direct

monetary compensation from the railroad and who is not engaged in

either (i) the operation of on-track equipment or (ii) any other

safety-sensitive function for the railroad as defined in Sec. 209.303

is classified as a ``Contractor--Other'' (Class G) and hours worked by

this person are similarly not reported on any FRA form.

Also note that the FRA reportable injury ratio will continue to

reflect only injuries sustained by the persons in Class A, ``Worker on

Duty--Employee.'' This will preserve the bench marking tool utilized by

the railroad industry while ensuring that FRA has the information

necessary to distinguish injuries between railroad workers, and

contractors and volunteers engaged in any safety-sensitive function or

in the operation of on-track equipment.

To summarize, Form FRA F 6180.55 (Railroad Injury and Illness

Summary) now contains the following classifications of persons:

(1) Worker on Duty--Employee (Class A),

(2) Employee not on Duty (Class B),

(3) Passengers on Trains (Class C),

(4) Nontrespassers--On Railroad Property (Class D),

(5) Trespassers (Class E),

(6) Worker on Duty--Contractor (Class F),

(7) Contractor--Other (Class G),

(8) Worker on Duty--Volunteer (Class H),

(9) Volunteer--Other (Class I), and

(10) Nontrespassers--Off Railroad Property (Class J).

These classifications will not be defined in the rule text for the

accident reporting regulations; rather, they will be defined in the

next revised FRA Guide.

The following are examples of situations involving reportable

injuries suffered by a ``Worker on Duty--Volunteer,'' a ``Volunteer--

Other,'' a

[[Page 30951]]

``Worker on Duty-- Contractor,'' and a ``Contractor--Other'' in the

course of different types of work performed:

Example 1. A volunteer operates a locomotive for an excursion

railroad. Operation of a locomotive clearly falls within the realm

of ``operation of on-track equipment.'' If the volunteer sustains a

reportable injury during operation of the locomotive, then the

incident is reported on the ``Railroad Injury and Illness Summary

(Continuation Sheet)'' (Form FRA F 6180.55a) as an injury to a

``Worker on Duty-- Volunteer'' (Class H), with the applicable job

code series.

Example 2. A volunteer sells memorabilia at a historic railroad.

Selling memorabilia does not fall within the scope of either ``the

operation of on-track equipment'' or ``any other safety-sensitive

function.'' When such a volunteer sustains a reportable injury, such

injury, is reported on Form FRA F 6180.55a as an injury to a

``Volunteer--Other'' (Class I).

Example 3. A volunteer sells tickets for train rides on a

tourist railroad and also clears vegetation adjacent to roadbed.

Under 49 CFR 213.37, vegetation is to be cleared from the roadbed

for safe rail operations; vegetation clearing is thus an aspect of

maintaining roadbed under Sec. 209.303(b)(1) and, therefore,

considered a ``safety-sensitive function.'' Any injury or illness

sustained by the volunteer during the vegetation clearing is

classified as one to a ``Worker on Duty--Volunteer'' (Class H) with

the applicable reporting requirements for purposes of Form FRA F

6180.55a. If any reportable injury is sustained by the volunteer

during the process of selling tickets, then such injury is

classified as one to a ``Volunteer--Other'' (Class I). If, however,

the volunteer sells tickets and then clears vegetation during the

same tour, then all injuries are considered as those attributable to

a ``Worker on Duty--Volunteer'' (Class H). Therefore, when a

volunteer is engaged in ``mixed service,'' the railroad must report

all reportable injuries and illnesses for that volunteer as those to

a ``Worker on Duty--Volunteer'' (Class H) on Form FRA F 6180.55a.

Conversely, when a contractor employee is engaged in such ``mixed

service'' on railroad property, the railroad must report all

reportable injuries and illnesses for that volunteer as those to a

``Worker on Duty-- Contractor'' (Class F) on Form FRA F 6180.55a,

with the applicable job code series of the service performed.

Example 4. The employee of a contractor performs payroll as well

as time-and-attendance functions for the railroad on railroad

property. Such functions are not considered ``safety-sensitive''

because they are not related to the continued safety of the railroad

and do not fall under the definition of any ``safety-sensitive

function'' as defined in Sec. 209.303. Thus, injuries sustained by

this contractor performing those tasks are reported on Form FRA F

6180.55a as those attributable to a ``Contractor--Other'' (Class G).

Example 5. A contractor employee inspects and replaces roller

bearings for the reporting railroad on the railroad's property.

Injuries sustained by this contractor are reported as those to a

``Worker on Duty--Contractor'' (Class F) on Form FRA F 6180.55a.

Under 49 CFR 215.113, cars with defective roller bearings should not

be in service, thus any illness or injury associated with

replacement of roller bearings is a ``safety-sensitive function''

qualifying as an injury or illness attributable to a ``Worker on

Duty-- Contractor'' (Class F). In contrast, if this same injury was

sustained by a contractor employee at the contractor's facility off

railroad property, then such injury would not be reported to FRA.

5. FRA Form F 6180.56--``Annual Railroad Report of Employee Hours and

Casualties, by State''

A summary of all hours worked by railroad employees during the

report year is made on Form FRA F 6180.56. This form is submitted as

part of the monthly ``Railroad Injury and Illness Summary'' (Form FRA F

6180.55) for the month of December of each year. The format for the

revised ``Annual Railroad Report of Employee Hours and Casualties, by

State'' (Form FRA F 6180.56) is set forth in Attachment 6 to this final

rule.

Final Decision

Information on ``Establishments Included in this Report'' and

``Average Employment in Report Year,'' which previously appeared on

Form FRA F 6180.45, is now found on Form FRA F 6180.56 in blocks ``4''

and ``5'' respectively, because, as discussed previously in this

preamble, FRA has eliminated the requirement to submit Form FRA F

6180.45. A column reflecting a count for ``Casualties'' is also added

to Form FRA F 6180.56.

6. FRA Form F 6180.57--``Highway-Rail Grade Crossing Accident/Incident

Report''

Form FRA F 6180.57 collects information on accidents and incidents

occurring at highway-rail grade crossings. Any impact, regardless of

severity, between a railroad on-track equipment consist and any user of

a public or private crossing site, including sidewalks and pathways,

must be reported on this form. The information collected on this report

is vital to identifying and resolving problems at highway-rail grade

crossings. The format for the revised ``Highway-Rail Grade Crossing

Accident/Incident Report'' (Form FRA F 6180.57) is set forth in

Attachment 7 to this final rule.

a. Occupants

Proposal

Under the heading ``Highway Vehicle Property Damage/Casualties'' on

the currently used form, FRA proposed to delete blocks ``43'' through

``45,'' which requested information on the total number of occupants

and the total number of occupants killed and injured, and to replace

those blocks with several new ones to gather additional information on

the number of highway-rail crossing users killed or injured; the total

number of highway-rail grade crossing users involved in the incident;

the number of railroad workers killed or injured; the total number of

people on the train at the time of the incident; and the number of

train passengers killed or injured.

Comments

No negative comments were received in response to this proposal.

Final Decision

Form FRA F 6180.57 requests the following information under the

heading ``Highway Vehicle Property Damage/Casualties'':

Block 46: the number of highway-rail crossing users (i.e.,

pedestrians and vehicle occupants) killed; and the number of highway-

rail crossing users injured;

Block 48: the total number of highway-rail crossing users involved

in the incident (including the driver);

Block 49: the number of railroad employees killed; and the number

of railroad employees injured;

Block 50: the total number of people on the train at the time of

the incident (including passengers and train crew); and

Block 52: the number of train passengers killed; and the number of

train passengers injured.

b. Amtrak/Autotrain Distinction

Proposal

FRA proposed to eliminate the distinction between Amtrak and

Autotrain in item ``1'' on the current Form, as such a distinction is

now obsolete.

Comments

No negative comments were received in response to this proposal.

Final Decision

The distinction between Amtrak and Autotrain is deleted from Form

FRA F 6180.57.

c. Signal Crossing Warning

Proposal

FRA further proposed to clarify the question in block ``32,''

``[w]as the signaled crossing warning identified in item ``31''

operating?'' Item ``31'' listed several types of signal devices (active

and passive). Confusion existed in

[[Page 30952]]

completing this information when the report identified a passive device

and then the railroad reported it as not operating.

Comments

Rail labor associations believed that this information would

effectively capture the status of the warning device at the time of the

accident and that such information was crucial to FRA's data bank to

track the effectiveness of rail safety regulations pertaining to

highway-rail grade crossings. Most other commenters agreed that this

question was in need of further clarification by FRA.

Final Decision

Block ``32'' is now block ``33'' on Form FRA F 6180.57, is entitled

``Signaled Crossing Warning,'' and refers the reader to the reverse

side of the form for instructions and codes in completing this block.

The instructions for completing block ``33'' read as follows:

Only if Types 1-6, Item 32, are indicated, mark in Block 33 the

status of the warning devices at the crossing at the time of the

accident using the following codes:

1. Provided minimum 20-second warning.

2. Alleged warning time greater than 60 seconds.

3. Alleged warning time less than 20 seconds.

4. Alleged no warning.

5. Confirmed warning time greater than 60 seconds.

6. Confirmed warning time less than 20 seconds.

7. Confirmed no warning.

If status code 5, 6, or 7 was entered, also enter a letter code

explanation from the list below:

A. Insulated rail vehicle.

B. Storm/lightning damage.

C. Vandalism.

D. No power/batteries dead.

E. Devices down for repair.

F. Devices out of service.

G. Warning time greater than 60 seconds attributed to accident-

involved train stopping short of the crossing, but within track

circuit limits, while warning devices remain continuously active

with no other in-motion train present.

H. Warning time greater than 60 seconds attributed to track

circuit failure (e.g., insulated rail joint or rail bonding failure,

track or ballast fouled, etc.).

J. Warning time greater than 60 seconds attributed to other

train/equipment within track circuit limits.

K. Warning time less than 20 seconds attributed to signals

timing out before train's arrival at the crossing/island circuit.

L. Warning time less than 20 seconds attributed to train

operating counter to track circuit design direction.

M. Warning time less than 20 seconds attributed to train speed

in excess of track circuit's design speed.

N. Warning time less than 20 seconds attributed to signal

system's failure to detect train approach.

P. Warning time less than 20 seconds attributed to violation of

special train operating instructions.

R. No warning attributed to signal system's failure to detect

the train.

S. Other cause(s). Explain in Narrative Description.

d. Narrative Block

Proposal

A narrative block allowing for up to 250 characters was proposed

for addition to Form FRA F 6180.57 in order to gather information on

unusual causes/circumstances surrounding the highway-rail grade

crossing accident/incident.

Comments

Almost all commenters requested that completion of the narrative

block remain optional on their part.

Final Decision

Form FRA F 6180.57 contains block ``54'', entitled ``Narrative

Description.'' Completion of this narrative is mandatory for the

reporting railroad unless the accident/incident can be described

adequately using all other informational blocks on the form.

e. Special Study Blocks

Proposal

FRA also proposed at the public regulatory conference the addition

of three Special Study Blocks (SSBs) to Form FRA F 6180.57 in order to

gather essential data as the need arises.

Comments

Some commenters believed that SSBs on this form would be useful for

capturing specialized data which could be used, for instance, to

analyze or predict trends in safety hazards or to initiate planning for

correction of identified problems. The American Trucking Associations

(ATA) requested that the use of the SSB should be publicly announced in

the Federal Register so that affected highway users would be aware of

any special study that may be undertaken, and that they be afforded an

opportunity for appropriate input.

Final Decision

The ``Highway-Rail Grade Crossing Accident/Incident Report'' (Form

FRA F 6180.57) contains two special study blocks (SSBs) in block

``53.'' As the need arises, FRA will notify the railroads in writing,

or if appropriate, through publication in the Federal Register, of the

purpose and the type of information that is to be collected. In

conjunction with the Federal Highway Administration (FHWA), FRA will

publish in the Federal Register any announcement affecting highway

users, thus allowing motor carriers the opportunity to provide FRA

pertinent special study information. FRA will be as specific as

possible in order to minimize both costs and the amount of time

associated with the collection of this new information. Each SSB has 20

characters in order to standardize the data structure for computer

files. FRA believes the SSBs will prove extremely valuable in

collecting information to help FRA identify and evaluate issues of

safety concern as well as other nonsafety issues as the need arises.

f. Whistle Bans and Signal System Failure

Proposal

FRA also proposed to add two new questions to the ``Highway-Rail

Grade Crossing Accident/Incident Report'' to gather information on

whether whistle bans were in effect and observed at the time of the

accident/incident, and whether there was signal system failure within

the last seven calendar days up to and including the day of the

accident. The codes for completing both items would be included in the

next revised FRA Guide.

Comments

Rail labor associations viewed these information blocks necessary

as this information would effectively capture the status of the warning

device prior to the time of the accident. Many railroads stated that

the proposed question on whistle bans was necessary to collect

information on this subject due to the increased focus by the media, as

well as state and federal agencies, on accidents occurring at grade

crossings. A few railroads opposed addition of these questions but

failed to express their reasoning as to why such questions should not

be added to the form. All participants at the public hearings and at

the public regulatory conference acknowledged their concern in

connection with whistle bans and further emphasized the need for

federal regulations requiring the sounding of a locomotive horn upon

approaching and entering public highway-rail grade crossings.

ATA stated that current whistle bans were unacceptable and that

highway users approaching a grade crossing are fully entitled to be

warned of the approach of a train by every practicable means. They

further commented that active warning devices frequently

[[Page 30953]]

malfunction in a manner indicating the approach of a train when such is

not the case. ATA stated that a specific warning of the approach of a

train, through sounding of the whistle, is essential to safety and that

active warning devices were not adequate substitutes for the

requirement to have the engineer sound the whistle.

The proposal to add the question regarding signal system failure to

Form FRA F 6180.57 had a similar response in that some commenters

opposed addition of this question while others stated that the

information was critical to identifying problems at highway-rail grade

crossings. ATA urged that, not only should the existence of a failure

be noted, but that the nature of the failure should be included in the

record. ATA stated that this information could be a significant factor

particularly where active warning devices falsely indicate the approach

of a train.

Final Decision

It is imperative that FRA ascertain as many details concerning

accidents connected with whistle bans. Thus, the ``Highway-Rail Grade

Crossing Accident/Incident Form'' (Form FRA F 6180.57) contains

question ``34'' to gather information on whether whistle bans were in

effect and observed at the time of the accident/incident. The codes for

completing this block will be included in the next revised FRA Guide.

However, the proposal to gather information on whether there was

signal system failure within the last seven calendar days up to and

including the day of the accident is not adopted. FRA collected

information about signal failures and false activations for a period of

27 months over the past several years. The statistical results did not

indicate a correlation between a signal failure and an accident within

seven days of such failure. The burden to collect this information

therefore cannot be justified based upon FRA's study. If new data

should indicate that this information is needed, then FRA will gather

such information using the Special Study Blocks (SSBs) on Form FRA F

6180.57.

g. Motorist Age/Gender/Impairment

Proposal

In order to collect more information on motorists involved in

highway-rail grade crossing accidents, FRA proposed to amend Form FRA F

6180.57 to require information under the heading ``Motorist,'' if

known, on the motorist's age and gender, and whether the motorist was

impaired by alcohol or drugs at the time of the accident/incident.

Comments

As to the proposed block for ``Motorist Impairment,'' most

commenters believed the information was useful but preferred that

reporting of this data remain optional for the reporting railroad.

Since all grade crossing accidents are routinely investigated by the

local police, information on motorist impairment is normally provided

to the railroad only after the police conclude their investigation,

which may be several weeks or months after the actual accident. Most

commenters agreed that motorist age and gender information was readily

available and easier to collect than information on motorist

impairment.

Final Decision

Form FRA F 6180.57 does not contain a block on ``Motorist

Impairment.'' If FRA deems this information necessary at some point in

the future, the Special Study Blocks (SSBs) on Form FRA F 6180.57 may

be utilized to collect data regarding impaired motorists.

The ``Highway-Rail Grade Crossing Accident/Incident Report''

contains block ``38'' for the driver's age, and block ``39'' for the

driver's gender (sex). This information is readily available to the

reporting railroad, however, completion of driver's age in block ``38''

and driver's gender in block ``39'' remains optional for the reporting

railroad. However, FRA encourages each railroad to be as diligent as

possible in completing these and any other optional information blocks.

h. Trapped Motorist

Proposal

At the public regulatory conference, FRA proposed the collection of

information regarding situations where motorists are trapped by other

motor vehicle traffic in order to help identify alternative grade

crossing protection systems that may prevent this situation.

Comments

Rail labor associations regarded this information useful for

identifying alternate grade crossing protection systems that may help

prevent this type of situation. A few commenters believed that this

requirement was troublesome because in most cases railroads would have

to make a judgment call. These commenters requested that completion of

this information remain optional for the reporting railroad. ATA

supported the inclusion of this data element so that FRA receive clear

information as to what actually happens in such a situation.

Final Decision

Form FRA F 6180.57 contains entry ``#4. Trapped'' in block ``16''

entitled ``Position'' to allow for the collection of information

regarding situations where motorists are trapped by other motor vehicle

traffic. FRA will include the codes for completion of this entry in the

next revised FRA Guide. The narrative block (block ``54'') can also be

used to explain and expand on the actual occurrence. FRA believes this

information is critical to its data base in order to identify alternate

grade crossing protection systems that may help prevent occurrence of

this type of situation.

7. Form FRA F 6180.78--``Notice to Railroad Employee Involved in Rail

Equipment Accident/Incident Attributed to Employee Human Factor;

Employee Statement Supplementing Railroad Accident Report''

If a railroad should cite an employee human factor as the primary

or contributing cause of a rail equipment accident/incident, then

current regulations require the reporting railroad to complete the

``Railroad Employee Human Factor Attachment'' (Form FRA F 6180.81), and

attach it to the ``Rail Equipment Accident/Incident Report'' (Form FRA

F 6180.54). Additionally, for each employee listed on Form FRA F

6180.81, the reporting railroad must complete part I, ``Notice to

Railroad Employee Involved in Rail Equipment Accident/Incident

Attributed to Employee Human Factor,'' on Form FRA F 6180.78, and must

provide a copy of this form to the employee within 45 days after the

end of the month in which the accident/incident occurred. Upon receipt

of Form FRA F 6180.78, the employee has the option of providing a

statement in part II (entitled ``Employee Statement Supplementing

Railroad Accident Report''). The format for the revised ``Notice to

Railroad Employee Involved in Rail Equipment Accident/Incident

Attributed to Employee Human Factor; Employee Statement Supplementing

Railroad Accident Report'' (Form FRA F 6180.78) is set forth in

Attachment 8 to this final rule.

Proposal

Recipients of the notice (Form FRA F 6180.78) are to include only

those railroad employees who were the primary cause or a contributing

cause of the rail equipment accident/incident. In order to minimize any

confusion or misunderstanding for recipients of the

[[Page 30954]]

notice, FRA proposed refinement of the language in the block entitled

``Notice to Recipient'' so that only those railroad employees who were

determined by the railroad to be the primary cause or a contributing

cause of the rail equipment accident/incident receive Form FRA F

6180.78.

Comments

The few comments received in response to this proposal were

favorable.

Final Decision

The block entitled ``Notice to Recipient'' on Form FRA F 6180.78

reads as follows:

Notice to Recipient. An accident occurred on the above date

which the railroad alleges was at least partially caused by an

action, lack of action, or the physical condition of a railroad

employee. The railroad is sending you this notice because it

believes that you had a role, but may not necessarily be the primary

or only person responsible for the accident's occurrence. The

railroad has reported to FRA that the primary and/or major

contributing cause(s) of this accident are those listed above. Other

causal factors related to this event may be described in the

narrative portion of the railroad's report; a copy of which is

attached.

You may submit a statement to FRA with a copy to this railroad

and comment on any aspect of the railroad's report. The decision

whether to submit such a statement is entirely optional on your

part. If you choose to do so, please see the additional notices and

instructions on the reverse of this form.

D. Recordkeeping

1. Sections 225.25(a) and (b) and the ``Railroad Employee Injury and/or

Illness Record'' (Form FRA F 6180.98)

Proposal

Section 225.25(a) currently refers to the log of injuries and

occupational illnesses at and for each railroad establishment. In order

to accurately identify and review both reportable and nonreportable

railroad injuries and illnesses, FRA proposed to amend Sec. 225.25(a)

to require that railroads maintain a log or report of all reportable

and ``nonreportable'' (i.e., ``recordable'') injuries and illnesses to

railroad employees for each railroad establishment using a new form

entitled ``Railroad Employee Injury and/or Illness Log'' (Form FRA F

6180.98). Over the years, FRA inspectors have found it increasingly

difficult to ascertain whether the railroad is reaching a correct

decision on whether to report a given injury or illness. Thus, the

requirement was proposed in order to alleviate the problem FRA

inspectors encounter during routine inspections. The format for the

``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)

is set forth in Attachment 9 to this final rule.

Comments

Many commenters expressed concern with the proposal to add

nonreportable injuries (``recordable'' injuries) to the proposed

``Railroad Employee Injury and/or Illness Log.'' Most railroad

representatives stated that this proposal would create another class of

reportable injuries, i.e., nonreportable recordables. These commenters

saw no justification for what they believed was a burdensome exercise

in recordkeeping. They also stated that this proposal would create

another avenue for issuance of citations and that FRA was taking

another step toward classifying every injury as reportable. Some

commenters suggested that the proposed definition of ``recordable'' was

too stringent in that every single injury or illness, however minor,

would have to be logged by the reporting railroad.

Some participants at the public regulatory conference requested

that FRA use the term ``nonreportable'' instead of the proposed

``recordable'' so that FRA's proposed ``recordables'' would not be

confused with OSHA's ``recordables.''

Many commenters urged FRA to allow each railroad use of a railroad-

designed log or form, instead of the specific log proposed in the NPRM,

as long as the railroad captured the data required on the FRA log.

Other commenters favored the proposal to log all ``recordable''

injuries and illnesses, and stated that such information should be

maintained on either FRA's log or some other format.

Final Rule

Recordkeeping--Sections 225.25(a) and (b) and the ``Railroad Employee

Injury and/or Illness Record'' (Form FRA F 6180.98)

FRA concludes that in order to effectively enforce railroad injury

reporting, all injuries and illnesses to railroad employees that arise

from the operation of the railroad and that cause the employee to be

examined or treated by a qualified health care professional must be

recorded using the ``Railroad Employee Injury and/or Illness Record''

(Form FRA F 6180.98). Unless FRA has the opportunity to examine those

injuries and illnesses deemed ``nonreportable'' as well as those deemed

``reportable'' by the railroad, it is difficult for FRA to determine

whether a railroad is properly making the ``reportable'' decision.

FRA agrees that use of the terms ``recordable'' and ``nonreportable

recordables'' to define those injuries and illnesses which are not

reportable to FRA but are recordable on the log may be confusing for

the railroad. The proposed term ``recordable'' or ``nonreportable

recordables'' is replaced therefore with the term ``accountable'' so as

to minimize any confusion.

An ``accountable'' injury or illness is defined as encompassing any

condition, not otherwise reportable, of a railroad worker that is

associated with an event, exposure, or activity in the work environment

that causes the worker to be examined or treated by a qualified health

care professional. Such treatment would usually occur at a location

other than the work environment; however, it may be provided at any

location, including the work site.

Any condition initially classified as accountable, i.e.,

``nonreportable'' or ``recordable,'' may subsequently become reportable

if certain consequences occur. For example, a minor cut that is

disinfected and covered with a bandage may later become infected and

require medical treatment. It would be difficult, if not impossible,

for the railroad to monitor self-treatment of such minor injuries.

Thus, the type of injuries that are generally expected to be recorded

on the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F

6180.98) are those that create a ``documentation trail.'' This

documentation could include records such as: incident reports; health

care provider records; claim payouts; or any other records that may

identify the fact that an employee has sustained physical harm while in

the work environment that required treatment. This broad scope is

necessary since all conditions, regardless of severity, must be

evaluated to determine if the requirements necessary for reporting the

injury/illness have been met.

Section 225.25(a) states that each railroad must maintain either

the ``Railroad Employee Injury and/or Illness Record'' (Form FRA F

6180.98), or an alternative railroad-designed record as described in

Sec. 225.25(b), to record all reportable and accountable injuries and

illnesses to railroad employees that arise from the operation of a

railroad for each railroad establishment where such employees report to

work. Section 225.25(b) outlines the information FRA requires on the

alternative railroad-designed record used in lieu of the ``Railroad

Employee Injury and/or Illness Record.'' All the information requested

on ``Railroad Employee Injury and/or Illness Record'' must be present

on the

[[Page 30955]]

alternative record. Although this information may be displayed in a

different order from that on the Railroad Employee Injury and/or

Illness Record, the order of the information shall be consistent from

one such record to another such record. The order chosen by the

railroad must be consistent for each of the railroad's reporting

establishments. Also note that the reporting railroad may choose to

have additional information on its record extending beyond the

information required on Form FRA F 6180.98.

Section 225.25(a) states that the ``Railroad Employee Injury and/or

Illness Record,'' or its alternate, must be maintained for each

operational railroad establishment, i.e., an establishment wherein

workers report to work such as an operating division, general office,

and major installations such as a locomotive or car repair or

construction facility. FRA believes that this requirement will help

alleviate the difficulty FRA inspectors encounter when attempting to

locate injury and illness information at railroad establishments.

Please refer to the discussion in Sec. 225.25(g) regarding maintenance

of these records at railroad establishments.

Section 225.25(c) states that each railroad must provide the

employee a copy of either the completed ``Railroad Employee Injury and/

or Illness Record'' (Form FRA F 6180.98) or the alternative railroad-

designed record upon his or her request, as well as a copy of any other

record or report filed with FRA or held by the railroad pertaining to

the employee's injury or illness. This requirement is necessary in

order to provide the injured or ill employee a means by which to review

and verify the reporting status of his or her injury or illness.

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

FRA determined that much of the information requested in the

supplementary record of injuries and illnesses pursuant to former

Sec. 225.25(b) would be collected on the new ``Railroad Employee Injury

and/or Illness Record'' (Form FRA F 6180.98). Thus, FRA proposed

elimination of this supplementary record.

Comments

All comments received in response to this proposal were favorable.

Final Rule

The requirement that each railroad maintain a supplementary record,

as required under former Sec. 225.25(b), is eliminated in the final

rule.

3. Sections 225.25 (d) and (e) and the ``Initial Rail Equipment

Accident/Incident Record'' (Form FRA F 6180.97)

Railroads have been required to maintain a log of only reportable

rail equipment accidents. Information on nonreportable events may be

found in ``unusual occurrence'' reports and ``morning reports'' that

are maintained at various locations by the railroad. However, there is

no guarantee that all of those reports are either available or

complete. As a result, during routine accident/incident records

inspections it is often difficult, if not impossible, for FRA

inspectors to identify the events that were determined by the railroad

to be nonreportable. The format for the ``Initial Rail Equipment

Accident/Incident Record'' (Form FRA F 6180.97) is set forth in

Attachment 10 to this final rule.

Proposal

In order to accurately identify and review both reportable and

nonreportable rail equipment accident/incidents, FRA proposed that

railroads must maintain a log to list all reportable and ``recordable''

rail equipment accidents using a new form entitled ``Rail Equipment

Accident/Incident Log'' (Form FRA F 6180.97). FRA proposed that a

recordable rail equipment accident/incident would encompass any event

not otherwise reportable, involving the operation of on-track equipment

that causes physical damage to either the on-track equipment or the

track upon which such equipment was operated and that requires the

removal or repair of rail equipment before any rail operations over the

track can continue. A recordable rail equipment accident/incident, if

not tended to, would thus disrupt railroad service. A scrape or

indentation to rail equipment, however, would not make a rail

equipment/accident recordable if routine rail operations over the track

can continue without such equipment being repaired or removed from

service.

Comments

Rail labor representatives supported use of the proposed

standardized FRA form for reporting certain rail equipment accidents/

incidents deemed nonreportable by the railroad. However, these

commenters proposed that a ``recordable'' accident and incident be

defined as:

Any event not otherwise reportable, involving the operation of

on-track equipment that causes personal injury requiring the worker

to be examined or treated by a qualified health care professional or

causes physical damage to either the on-track equipment or the

track, roadbed, signals and/or structures which requires removal,

replacement or repair of equipment, track, roadbed, signals and/or

structures. Incidents arising from broken knuckles, failed journals,

and dragging equipment that do not cause damage beyond that of the

item of equipment that failed, are not required to be logged on Form

FRA F 6180.97.

Under the definition proposed by rail labor, recordable rail

equipment accidents/incidents would not be limited to those occurring

exclusively on the railroad right-of-way; thus rail equipment

accidents/incidents involving ``shop crafts'' in the performance of

worker duties would be encompassed within the definition.

Many railroad representatives opposed a new log to record

reportable and recordable rail equipment accidents. They stated that

the log would create additional recordkeeping requirements with little

or no real benefit to rail safety and, that the proposal would create

another avenue for FRA to issue fines and penalties for what they

considered to be minor paperwork entries. Railroad representatives also

wanted further clarification on the definition of a ``recordable''

accident/incident especially with respect to what constituted a

``disruption'' to rail service.

Most commenters suggested that the term ``recordable'' should be

replaced with the term ``nonreportable'' so as to limit confusion with

the terminology.

Final Rule

Recordkeeping--Sections 225.25 (d) and (e) and the ``Initial Rail

Equipment Accident/Incident Record'' (Form FRA F 6180.97)

As stated previously, FRA agrees that use of the term

``recordable'' or ``nonreportable recordables'' to define those rail

equipment accidents and incidents which are not reportable to FRA but

are required to be recorded on the log may be confusing for the

railroad. The proposed term ``recordable'' or ``nonreportable

recordable'' is replaced therefore with the term ``accountable'' so as

to minimize any confusion.

FRA concludes that both reportable and accountable rail equipment

accidents and incidents must be recorded on the ``Initial Rail

Equipment Accident/Incident Record'' (Form FRA F 6180.97). FRA

inspectors must have a means by which they can determine whether the

reporting railroad is accurately making its ``reportability'' decision

pertaining to rail equipment accidents and incidents. In addition,

accountable events may be of

[[Page 30956]]

considerable interest in determining the safety of railroad facilities

and operations.

Further, the definition of an ``accountable'' rail equipment

accident/incident as proposed by rail labor is not adopted in the final

rule. FRA believes that personal injuries resulting from the operation

of on-track equipment do not need to be tied into the ``accountable''

rail equipment accident/incident definition since all reported injuries

and illnesses will be recorded on the monthly injury/illness list. This

list will be posted in a conspicuous location for and at each

establishment as described and discussed in the preamble to this final

rule under the section entitled ``Monthly List of Injuries and

Illnesses'' (Sec. 225.25(h)).

Consequently, an ``accountable'' rail equipment accident/incident

is defined as encompassing any event not otherwise reportable,

involving the operation of on-track equipment that causes physical

damage to either the on-track equipment or the track upon which such

equipment was operated and that requires the removal or repair of rail

equipment from the track before any rail operations over the track can

continue. An accountable rail equipment accident/incident, if not

tended to, thus would disrupt railroad service. Examples of

``disruption of service'' would include: loss of main track; one or

more derailed wheels; any train failing to arrive or depart at its

scheduled time; one or more cars or locomotives taken out of service;

or rerouting trains due to a damaged car or locomotive.

Section 225.25(d) states that each railroad must maintain either

the ``Initial Rail Equipment Accident/Incident Record'' (Form FRA F

6180.97), or an alternative railroad-designed record, to record all

reportable and accountable rail equipment accidents and incidents for

each railroad establishment. Thus, Sec. 225.25(e) allows railroads to

design and use an alternative railroad-designed record in lieu of the

``Initial Rail Equipment Accident/Incident Record.'' All the

information requested on the ``Initial Rail Equipment Accident/Incident

Record'' (Form FRA F 6180.97) must be present on the alternative record

designed and used by the railroad. Although this information may be

displayed in a different order from that on the Initial Rail Equipment

Accident/Incident Record, the order of the information shall be

consistent from one such record to another such record. The order

chosen by the railroad must also be consistent for each of the

railroad's reporting establishments. Also note that the reporting

railroad may choose to have additional information on its record

extending beyond the information required on Form FRA F 6180.97.

Section 225.25(d) states that the ``Initial Rail Equipment

Accident/Incident Record,'' or its alternate, must be maintained for

each operational railroad establishment, i.e., an establishment wherein

workers report to work, including, but not limited to, an operating

division, general office, and major installation such as a locomotive

or car repair or construction facility. FRA believes that this

requirement will help alleviate the difficulty FRA inspectors encounter

when attempting to locate rail equipment accident and incident

information at railroad establishments. Please refer to Sec. 225.25(g)

for a discussion of maintenance of these records at railroad

establishments.

4. Property Damage Estimate Worksheet and Record (Proposed Form FRA F

6180.xx(b))

Proposal

FRA proposed use of a ``Property Damage Estimate Worksheet and

Record'' (Form FRA F 6180.xx(b)) by the reporting railroad to determine

costs associated with damage to (i) on-track equipment, (ii) signal

equipment, (iii) track, (iv) track structures and roadbed, and (v)

costs of equipment rental and operation. These five cost categories

would be totaled to derive the total accident cost. As proposed, if the

total accident cost met or exceeded the reporting threshold, then the

total cost for ``damage to on-track equipment'' in ``Part A'' would be

transferred to a block entitled ``Equipment Damage'' on the ``Initial

Rail Equipment Accident/Incident Record'' (Form FRA F 6180.97).

Likewise, FRA proposed that the total cost for ``damage to signal

equipment,'' ``damage to track,'' and ``damage to track structures and

roadbed'' in ``Parts B, C, and D'' respectively, would be totaled and

that this amount would be transferred to a block entitled ``Track,

Signal, Way & Structure Damage'' on the ``Initial Rail Equipment

Accident/Incident Record.'' Finally, FRA proposed to print the

``Property Damage Estimate Worksheet and Record'' on the reverse side

of the ``Initial Rail Equipment Accident/Incident Record.''

Comments

Most hearing participants opposed adoption of this proposal. These

same participants expressed their concern with the proposed estimation

of property damage at the public regulatory conference. Written

comments received in response to this proposal further elucidated

problems with the proposed methods of determining the cost of the

damage.

Final Rule

Due to the controversy surrounding FRA's proposal to calculate

costs associated with damage to (i) on-track equipment, (ii) signal

equipment, (iii) track, (iv) track structures and roadbed, and (v)

costs of equipment rental and operation, FRA has decided to reexamine

this issue in a subsequent rulemaking for the accident reporting

regulations in consultation with FRA's Railroad Safety Advisory

Committee. Therefore, the final rule does not adopt the ``Property

Damage Estimate Worksheet and Record.''

5. Sections 225.25 (f) and (g) Updating and Maintaining the ``Railroad

Employee Injury and/or Illness Record'' (Form FRA F 6180.98) and the

``Initial Rail Equipment Accident/Incident Record'' (Form FRA F

6180.97)

Proposal

Discrepancies in logs are the most recurring problems FRA

inspectors encounter during an inspection. FRA has found that many

railroads fail to update existing logs in a timely manner, particularly

with respect to lost/restricted workdays. Therefore, in order to assure

that each railroad continuously updates the ``Railroad Employee Injury

and/or Illness Record'' (Form FRA F 6180.98) and the ``Initial Rail

Equipment Accident/Incident Record'' (Form FRA F 6180.97), or the

alternative railroad-designed records (each record hereinafter is

referred to as ``Record''), FRA proposed that each reportable and

recordable injury and illness, as well as each reportable and

recordable rail equipment accident/incident, must be entered on the

appropriate Record as early as practicable, but in any event no later

than seven working days after receiving information or acquiring

knowledge that an illness or injury has occurred or, that a rail

equipment accident/incident has occurred.

Additionally, FRA proposed that if either Record is maintained at a

centralized location, but not through electronic means, then a paper

copy of the record or report that is current within 35 days of the

month to which it applies must be available at the appropriate

establishment. When the Record for an establishment is maintained at a

central location through electronic means, FRA proposed, the records

for that establishment must be

[[Page 30957]]

available for review in a hard copy format (paper printout) within four

business hours of the request.

Comments

The few comments received in response to these proposals were

favorable. However, some commenters objected to the requirement that

records maintained through electronic means must be available for

review in ``hard copy'' within four business hours of the request.

These commenters were concerned with what action FRA would take if the

request could not be fulfilled within this prescribed time limit due to

problems outside the railroad's control.

Most commenters believed that, in most cases, seven days should be

sufficient to update the records. Some commenters were concerned that

this proposal failed to recognize the varying factual circumstances

that railroads may encounter before the initial information provided to

the railroad by the employee is verified. These commenters stated that

many times there are conflicting facts which must be sorted out before

a determination can be made as to whether the accident/incident or the

injury/illness is reportable or nonreportable.

Final Rule

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

Section 225.25(f) states that each railroad must enter each

reportable and accountable injury and illness on the ``Railroad

Employee Injury and/or Illness Record'' or the alternative railroad-

designed record, as early as practicable, but in any event, no later

than seven working days after receiving information or acquiring

knowledge that an illness or injury has occurred. Likewise, each

railroad must enter each reportable and accountable rail equipment

accident and incident on the ``Initial Rail Equipment Accident/Incident

Record'' or the alternative railroad-designed record, as early as

practicable, but in any event, no later than seven working days after

receiving information or acquiring knowledge that a rail equipment

accident or incident has occurred. FRA believes the seven-day

requirement is an extremely reasonable and generous amount of time

afforded railroads to enter information on the Record and to make a

decision on whether the illness/injury and/or accident/incident is

reportable or accountable.

Section 225.25(g) states that if either Record is maintained at a

centralized location, but not through electronic means, then a paper

copy of the Record that is current within 35 days of the month to which

it applies must be available at the appropriate establishment. When

either Record is maintained at a central location through electronic

means, the Record for that establishment must be available for review

in a hard copy format within four business hours of the request. Of

course, FRA anticipates that railroads would be able to provide the

requested information as soon as practicable. FRA believes the four-

hour time limit is more than a reasonable amount of time for the

railroad to provide information made pursuant to a request. FRA

recognizes that this request may be impossible to fulfill if the

establishment is experiencing problems with its computer or other

instruments used in obtaining the information electronically. No

punitive action would be taken by FRA for the railroad's failure to

supply the requested documents when circumstances outside the control

of the railroad preclude it from obtaining the information and the

railroad has exercised reasonable effort to correct the problem.

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

Proposal

FRA proposed that each railroad must maintain a list of all

reported injuries and illnesses for the previous month and that such

list be posted in a conspicuous location at each railroad establishment

within 30 days after expiration of the month during which the injuries

and illnesses occurred. For example, the monthly list of injuries and

illnesses for the month of May would have to be completed and posted by

the railroad no later than June 30th. Moreover, FRA proposed that the

monthly injury and illness list would be displayed for a minimum of 60

consecutive days so as to allow all workers at that establishment the

opportunity to view the list. Given the example above, the list, if

posted on June 30th, would remain posted for a minimum of 60 days, or

until August 30th. Further, if no reported injuries or illnesses were

associated with an establishment, FRA proposed that the posting shall

make reference to that fact.

Comments

Most commenters supported this proposal with some modifications.

Namely, commenters stated that the proposal requiring that the list be

posted within 30 days after expiration of the month during which the

injuries and illnesses occurred, coupled with the proposal that the

list be displayed for a minimum of 60 consecutive days was confusing.

Several railroad representatives suggested that railroads should be

allowed to post a ``year to date'' list of reportable and nonreportable

illnesses and injuries quarterly. These commenters stated that this

would provide more accurate information than a monthly listing and that

it would also produce less burdensome paperwork.

Some railroad representatives expressed concern that posting this

information (date, type and location of injury) in a public place may

lead to identification of the injured or ill person and, that the

identified person may perceive that his or her privacy rights have been

violated.

Rail labor associations supported the posting of the monthly

listing of injuries and illnesses and stated that ``each railroad

establishment'' should be consistently interpreted to require posting

at each establishment or assembly point where railroad workers report

to work.

Final Rule

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

Section 225.25(h) states that a listing of all reported injuries

and occupational illnesses for the previous month shall be posted in a

conspicuous location for and at each railroad establishment within 30

days after expiration of the month during which the injuries and

illnesses occurred. For purposes of fulfilling this requirement, this

posting will be necessary only for those establishments that are in

continual operation for a minimum of 90 calendar days or more. For

those establishments that do not meet this level of operation or time

requirement, the posting of reported injuries and illnesses must be

made at the next higher organizational level, i.e., the establishment

that controls or directs the activities that take place at the

temporary work site. Further, this listing must be posted in a

conspicuous location so that it may be observed by workers at that

establishment and shall remain continuously displayed for the next 12

months. This requirement therefore allows the employee the opportunity

to get a one-year ``snapshot'' of reportable injuries and illnesses

associated with that establishment. Thus, for example, April's list of

reportable injuries and illnesses must be posted by June 1, and must

remain posted until May 31 of the following year. This requirement

allows railroad workers the opportunity to easily and readily review

reportable illnesses and injuries for that

[[Page 30958]]

establishment in a cumulative fashion. FRA also believes that posting

of this monthly list of injuries and illnesses will improve the general

quality of illness and injury data.

Section 225.25(h) further states that incidents reported for

employees on the listing must be displayed in date sequence. The

listing must contain, at a minimum, the following information:

Name and address of the establishment;

Calendar year of the cases being displayed;

Incident number used to report case;

Date of the injury or illness;

Location of incident;

Regular job title of employee injured or ill;

Description of the injury or condition;

Number of days employee was absent from work at time of

posting; and the number of days of work restriction at time of posting;

Date of death, if the employee died;

Annual average number of railroad employees reporting to

this establishment;

Name, title, telephone number with area code, and

signature of preparer; and

Date the report was completed.

When there are no reportable injuries or occupational

illnesses associated with an establishment for that month, the listing

must make reference to this fact.

E. Employer Notification (Proposed Sec. 225.39(a)) and Copy of

``Railroad Employee Injury and/or Illness Record'' to Employee

(Proposed Sec. 225.39(b))

Proposal

Rail labor organizations have repeatedly expressed concern that

many injured employees fail to inform their employers of injuries. By

placing part of the burden for reporting on the individual railroad

employee, FRA believed it could improve the general quality of the

injury/illness reporting data. Consequently, FRA proposed in

Sec. 225.39(a) that railroad employees must notify their employer, in

writing, that they have sustained an injury and/or illness (whether

reportable or nonreportable) within seven calendar days of incurring

either the injury or illness or obtaining knowledge that they incurred

the injury or illness. FRA also recommended a civil monetary penalty

against the railroad employee for failure to notify his or her employer

of the injury or illness within the prescribed time period.

FRA also was concerned with the fact that injured workers did not

have the opportunity to review and verify the information on the

accident/illness report prior to submission of that report to FRA. FRA

thus proposed, in Sec. 225.39(b), that the reporting railroad must

provide the railroad employee with a copy of the completed ``Railroad

Employee Injury and/or Illness Record'' (Form FRA F 6180.98). FRA

believed that the general quality of injury and illness data would

improve by allowing the employee to participate in the reporting

process as set forth above. Similarly, FRA recommended a civil monetary

penalty against the railroad for its failure to issue this log to the

railroad employee within the prescribed time limit.

Comments

Railroad representatives strongly opposed this proposal and instead

recommended that all known injuries should be reported by the employee

to railroad officials immediately, but in any event, no later than the

end of the employee's shift. They also recommended that after obtaining

knowledge of incurring the injury or illness, notification to the

proper railroad official(s) should be mandatory within 24 hours of

obtaining such knowledge. These commenters also stated that if the

railroad had more stringent notification rules, then the railroad's

rules should govern the matter. Many railroad representatives commented

that they already require immediate notification of an injury and that

they cannot adequately investigate the circumstances and potential

causes of the injury or illness without immediate notice by the

employee. Further, these same commenters stated that a monetary penalty

issued to the employee was not appropriate and, that such sanctions

(i.e., disciplinary measures) were better left between the railroad and

the railroad employee.

In contrast, rail labor associations fully supported FRA's seven-

day notification proposal. However, these commenters did not support

the proposal to assess monetary penalties against an employee for his

or her failure to report an accident or injury within the seven-day

time frame. Instead, these commenters stated that railroads should be

held accountable for the actions of their supervisory personnel who

knowingly fail to report accidents or injuries that occur to railroad

employees. Rail labor representatives acknowledged that railroad policy

can, and often does, require more immediate notice than that proposed

by FRA, but they also stated that FRA's proposal did not in any way

hinder the right of railroads to establish their own policy regarding

the timeliness of injury or illness reporting. Rail labor also stated

that the proposed regulations should contain language that would

suspend the employee's seven-day notification in writing requirement in

the event of a severe injury which may prevent the employee from

complying with this provision.

In response to the proposal to require railroads to provide

employees with a copy of the completed injury and illness log (proposed

Sec. 225.39(b)), rail labor representatives stated that an employee

should be notified that his or her case has been reported to FRA by

either U.S. mail or by hand delivery in a sealed envelope on the

property at a time when the employee would regularly receive other

company correspondence. Rail labor supported the proposal to exempt the

railroad from the seven-day notification requirement when compliance

would not be possible due to a severe injury.

Final Rule

FRA does not adopt the proposed seven-day employer notification

requirement. Similarly, FRA does not adopt the proposal that would

require railroads to provide employees a copy of the completed

``Railroad Employee Injury and/or Illness Record'' within the

prescribed time limit of seven days. However, as discussed previously

in this preamble, Sec. 225.25(c) does require each railroad to provide

the employee, upon his or her request, a copy of either the completed

``Railroad Employee Injury and/or Illness Record'' (Form FRA F 6180.98)

or the alternative railroad-designed record, as well as a copy of any

other form, record, or report filed with FRA or held by the railroad

pertaining to the employee's injury or illness. Section 225.25(c) thus

eliminates the seven-day time limit in which to accomplish this

requirement. By providing this requested information, the employee will

have the opportunity to assess why, or why not, a particular event was,

or was not, reported to FRA.

FRA believes that requiring a paper trail to prove that employees

were in fact notified of how the railroad reported their injury, with a

receipt, places an unnecessary burden on railroads. Problems also exist

with the seven-day requirement in the case where the injured employee

may not be at his or her residence during this time period.

FRA believes that the amended recordkeeping requirements in

Sec. 225.25 will provide injured and ill railroad employees a means by

which to review

[[Page 30959]]

and verify the reporting status of their injury or illness.

F. Reporting Threshold

FRA has periodically adjusted the reporting threshold based on the

prices of a market basket of railroad labor and materials. The purpose

of these adjustments has been to maintain comparability between

different years of data by having the threshold keep pace with

equipment and labor costs so that each year the same groups of

accidents are included in the reportable accident counts.

Congress has given FRA some direction for modifying the procedure

for calculating the threshold in 49 U.S.C. 20901(b) (formerly contained

at section 15(a) of the Rail Safety Enforcement and Review Act (Pub. L.

102-365)): ``[i]n establishing or changing a monetary threshold for the

reporting of a railroad accident or incident, * * * damage cost

calculations'' shall be based ``only on publicly available information

obtained from (A) the Bureau of Labor Statistics; or (B) another

department, agency or instrumentality of the United States Government

if the information has been collected through objective, statistically

sound survey methods or has been previously subject to a public notice

and comment process in a proceeding of a Government department, agency,

or instrumentality.'' Congress allows an exception to this general rule

only if the necessary data is not available from the sources described,

and only after public notice and comment.

Proposal

FRA proposed to obtain in October, of the year that it would

publish a final rule on accident reporting, the latest Producer Price

Index (``PPI'') and National Employment Hours and Earnings figures from

the Department of Labor's Bureau of Labor Statistics (``BLS''). At that

time, the latest final figures, as opposed to preliminary figures,

would be available to cover the period through June of that year. In

October of each subsequent year, FRA would obtain the latest 12 months

of final BLS figures and calculate the threshold for the upcoming year,

publishing the new figure in the Federal Register prior to its

implementation.

Proposed Equation

Specifically, FRA proposed to use data from the U.S. Department of

Labor, LABSTAT Series Reports for calculating the threshold. The

equation used to adjust the reporting threshold would be based on the

average hourly earnings reported for Class I railroads and an overall

railroad equipment cost index determined by the BLS. The two factors

would be weighted equally.

For the wage component, FRA proposed to use LABSTAT Series Report,

Standard Industrial Classification (SIC) code 4011 for Class I Railroad

Average Hourly Earnings. For the equipment component, FRA proposed to

use LABSTAT Series Report, Producer Price Index (PPI) Series WPU 144

for Railroad Equipment. In the month of October of each year, FRA would

obtain from the BLS, finalized cost data covering the twelve-month

period ending with the month of June. The monthly figures would then be

totaled and divided by twelve to produce annual averages. The wage data

would be reported in terms of dollars earned per hour, while the

equipment cost data would be indexed to a base year of 1982.

As proposed in the NPRM, the procedure for adjusting the reporting

threshold is shown in the formula below. The wage component appears as

a fractional change relative to the prior year, while the equipment

component is a difference of two percentages which must be divided by

100 to present it in a consistent fractional form. After performing the

calculation, the result would be rounded to the nearest $100.

Formula

[GRAPHIC] [TIFF OMITTED] TR18JN96.000

Where:

Wn = New average hourly wage rate ($)

Wp = Prior average hourly wage rate ($)

En = New equipment average PPI value

Ep = Prior equipment average PPI value

The current weightings represent the general assumption that damage

repair costs, at levels at or near the threshold, are split

approximately evenly between labor and materials.

Comments

The few comments received in response to the proposal to amend the

calculation of the monetary accident reporting threshold using publicly

available data were favorable.

Final Rule

The formula to calculate the monetary accident reporting threshold

is adopted as proposed. FRA will gather the necessary data in October

1996 and will issue a notice in the Federal Register announcing the

revised threshold dollar value. The threshold will then become

effective beginning January 1, 1997.

G. Miscellaneous Amendments

This segment of the final rule outlines a number of amendments to

various sections of the rule text.

1. Section 225.3 Applicability

Section 225.3 defines the applicability of the accident reporting

regulations. FRA's delegated regulatory authority under 49 U.S.C. 20101

et seq. (formerly contained in the Federal Railroad Safety Act of 1970

(the ``FRSA'') (45 U.S.C. 431 et seq.)) permits FRA to amend the

current applicability sections of its various regulations so as to

contract the populations of railroads covered by a particular set of

regulations or to expand them to the full extent of that authority.

FRA, as the Secretary's delegate, has had jurisdiction over all

``railroads'' since the FRSA was enacted. In 1988, Congress amended the

older railroad safety laws, including the Accident Reports Act, to

conform their reach to that of the FRSA (while also extending FRA's

safety jurisdiction to certain other fixed guideway systems). There is

a very wide range of operations that could be considered tourist

railroads under the broadest reading of the term ``railroad.''

Beginning in 1992, FRA announced that the Agency intended to exercise

jurisdiction over ``non-insular'' railroads that are not part of the

general railroad system and that Part 225, among certain laws and

regulations, applies to those entities in the same manner as railroads

that are part of the general system. Tourist railroads have written

several letters to members of Congress questioning the basis for FRA's

assertion of jurisdiction. Additionally, in 1992, FRA received a

petition from a scenic railway requesting that regulations be tailored

specifically to the tourist rail industry.

Proposal

In an effort to clarify the proper extent of the exercise of FRA's

jurisdiction,

[[Page 30960]]

FRA announced several principles that would be used as guidelines. FRA

stated that it would exercise jurisdiction over all tourist operations,

whether or not they operate over the general railroad system, except

those that are (1) less than 24 inches in gage and/or (2) insular.

To determine insularity, FRA described criteria that would measure

the likelihood that a railroad's operations might affect a member of

the public. FRA stated that a tourist operation is insular if its

operations were limited to a separate enclave in such a way that there

is no reasonable expectation that the safety of any member of the

public (except a business guest, a licensee of the tourist operation or

an affiliated entity, or a trespasser) would be affected by the

operation. An operation would not be considered insular if one or more

of the following exists on its line: (a) A public highway-rail crossing

that is in use; (b) an at-grade rail crossing that is in use; (c) a

bridge over a public road or waters used for commercial navigation; or

(d) a common corridor with a railroad, i.e., its operations are within

30 feet of those of any railroad. Thus, the mere fact that a tourist

operation was not connected to the general system did not make it

insular under these criteria. While these criteria tend to sort out the

insular theme parks and museums, a need to do case-by- case analysis in

certain close situations still existed.

As a matter of clarification, FRA proposed to conform Part 225 to

its policy on exercise of jurisdiction so that Part 225 would apply to

non-general system, non-insular tourist operations confined to an

installation that is not part of the general system (i.e., it is a

stand-alone with no freight traffic but has one or more features that

preclude its being considered insular).

Comments

The Association of Railway Museums, Inc. (ARM), the Tourist

Railroad Association, and the Illinois Railway Museum, strongly opposed

this proposal. In general, these commenters made the following

assertions:

(a) Any requirements imposed on railway museum operations should

also be imposed on amusement park railroads.

(b) The non-accident information requirements would be extremely

costly and burdensome, and the imposition of the proposed requirements

would be contrary to the Regulatory Flexibility Act and the Swift Rail

Development Act.

(c) The insular/non-insular railroad criteria proposed by FRA to

determine which non-general system passenger railroads would be subject

to regulations is irrational and arbitrary. Regulatory burdens are

focused on an insignificant sector of non-general system passenger

railroads since large amusement park rail operations that haul millions

of passengers a year would be excluded from the regulations.

(d) FRA's practice of subjecting museum and tourist railroads to

multiple rulemaking proceedings is extremely burdensome. These

commenters urged FRA to deal with museum and tourist railroad issues in

a separate, single proceeding.

Final Rule

Section 225.3 Applicability

Tourist railroad commenters had no objections to the proposed

accident reporting requirements, but did oppose the non-accident

information requirements due to the costs and burdens of collecting

what they believed to be information of little value and use to FRA.

These commenters further stated that any requirements imposed on the

tourist/museum railroads should likewise be imposed on amusement park

railroads. These commenters, in essence, are stating that since FRA

does not require the amusement park railroads to be subject to Part

225, nor should FRA require the tourist, excursion, scenic, and museum

railroads to be subject to the requirements of Part 225. FRA does not

believe that exclusion of part of one industry (insular amusement park

railroads) compels the exclusion of other parts of an industry (non-

insular tourist and museum railroads). The accident reporting

regulations set forth in Part 225 have always applied to non-general

system, non-insular railroad operations, e.g., a tourist railroad that

confines its operations to an installation that is not part of the

general system. Exclusion of insular amusement park railroads is not

irrational given state and local regulation of these entities as

amusements.

Consequently, Sec. 225.3 states that Part 225 will apply to all

railroads except (a) A railroad that operates freight trains only on

track inside an installation which is not part of the general railroad

system of transportation or that owns no track except for track that is

inside an installation that is not part of the general railroad system

of transportation; (b) rail mass transit operations in an urban area

that are not connected with the general railroad system of

transportation; and (c) a railroad that exclusively hauls passengers

inside an installation that is insular or that owns no track except for

track used exclusively for the hauling of passengers inside an

installation that is insular.

An operation will not be considered insular if one or more of the

following exists on its line: (1) A public highway-rail grade crossing

that is in use; (2) an at-grade rail crossing that is in use; (3) a

bridge over a public road or waters used for commercial navigation; or

(4) a common corridor with a railroad, i.e., its operations are within

30 feet of those of any railroad.

FRA appreciates the concerns of small tourist operations that

reviewing applicability of individual parts of the Code of Federal

Regulations (CFR) in individual proceedings involves some burden on

commenters. In order to foster broader and better coordinated dialogue

with small rail passenger operations, FRA has established, within the

Railroad Safety Advisory Committee (RSAC), a Tourist and Historic

Railroads Working Group. This Working Group will review applicability

of current and future regulations to these entities.

As discussed previously, legislation before Congress (the

``Department of Transportation Regulatory Reform Act of 1996'') would

amend 49 U.S.C. 20901(a) to eliminate the requirement that railroads

file notarized monthly accident/incident reports with FRA. The

amendment would allow the Secretary to specify the frequency with which

reports must be filed; provide discretion to set different reporting

requirements for different classes of railroads; and facilitate

electronic filing and a corresponding reduction in paper filings. This

amendment would particularly benefit the tourist, excursion, scenic and

museum rail industries which may have no events to report for a

particular month.

2. Section 225.5 Definitions

Section 225.5 lists definitions applicable to part 225. FRA

proposed that Sec. 225.5 be reorganized so that definitions would

appear in alphabetical order and without paragraph designations.

Definitions proposed for revision included: ``accident/incident,''

``employee human factor,'' ``medical treatment,'' ``occupational

illness,'' and ``railroad.'' New terms proposed for addition to the

list of definitions included: ``day away from work,'' ``day of

restricted work activity,'' ``establishment,'' ``first aid treatment,''

``FRA representative,'' ``nonreportable injury or illness,''

``nonreportable rail equipment accident/incident,'' ``non-train

incident,'' ``person,'' ``qualified health care professional,'' ``train

accident,'' ``train

[[Page 30961]]

incident,'' ``volunteer,'' ``work environment,'' ``worker on duty,''

and ``work related.'' Finally, FRA proposed deletion of the definitions

of ``lost workdays'' and ``restriction of work or motion.''

As discussed previously in this preamble, the proposed term

``recordable'' is replaced with the term ``accountable'' for purposes

of defining those injuries/illnesses and rail equipment accidents/

incidents which are not reportable to FRA but which are required to be

recorded on the appropriate injury/illness and rail equipment accident/

incident record.

Also note that ``railroad'' has been redefined to mean a person

providing railroad transportation. The old definition for ``railroad''

has been reassigned to the term ``railroad transportation.'' Further,

the definition of ``accident/incident'' is redefined in the final rule

to conform to the amendment of Sec. 225.19(d).

Train Accident

Proposed Rule

A ``train accident'' was defined as any collision, derailment,

fire, explosion, act of God, or other event involving operation of

railroad on-track equipment (standing or moving) that results in

reportable damages greater than the current reporting threshold to

railroad on-track equipment, signals, track, track structures, and

roadbed.

Comments

No comments received.

Final Rule

Adopted as proposed.

Train Incident

Proposed Rule

A ``train incident'' was defined as an event involving the movement

of on-track equipment that results in a reportable casualty but does

not cause reportable damage above the threshold established for train

accidents.

Comments

No comments received.

Final Rule

Adopted as proposed.

Employee Human Factor

Proposed Rule

In the definition of ``employee human factor,'' the proposed rule

removed reference to ``cause code 506'' because it was obsolete and

replaced it with the term ``train accident cause codes pertaining to

non-railroad employees.''

Comments

No comments received.

Final Rule

The definition of ``railroad employee human factor'' removes

reference to ``cause code 506'' and is amended so as to capture the

classifications for a ``Worker on Duty-- Employee,'' ``Employee not on

Duty,'' ``Worker on Duty-- Contractor,'' and ``Worker on Duty--

Volunteer.''

Medical Treatment

Proposed Rule

``Medical treatment'' was defined to include any medical care or

treatment beyond ``first aid'' regardless of who provided such

treatment. The definition would not include diagnostic procedures, such

as X-rays or drawing blood samples.

Comments

Several commenters believed the proposed change to the definition

of ``medical treatment'' would create confusion. Commenters questioned

whether employees who sought their own treatment, such as purchasing a

sling for a strained arm, would qualify as ``medical treatment.'' They

also questioned whether the definition would include the scenario where

an employee chooses to take leftover prescribed medication to treat his

or her injury or illness. Railroad representatives stated that the

determination of appropriate treatment and the administration of

reportable medical attention should be performed solely by licensed

physicians and medical professionals working under the direction of

physicians. These commenters urged FRA to retain the current definition

of ``medical treatment'' to reduce the probability of confusion and

possible abuse by employees who may jeopardize their treatment.

Final Rule

The definition of ``medical treatment'' is adopted as proposed with

minor modification. FRA's definition of ``medical treatment'' is

intended to remove the association between the type of treatment

rendered and the person who provided the treatment. If a physician

treats an injury using first aid measures, the treatment is

nonreportable even though a highly skilled medical person administered

the care. Conversely, someone with medical skills less than those of a

physician (M.D.) may provide medical treatment for a condition.

Generally, injuries that are self-treated would not satisfy the

reporting requirements since the employee would not normally have the

credentials of a ``qualified health care professional.'' However, an

employee engaged in self-treatment may later have complications making

the treatment ``reportable.'' For example, an employee may drill or

puncture a finger nail at the work site so as to remove pressure from

the blood that has pooled beneath the nail (a nonreportable injury at

this point). If the nail should later become infected requiring

treatment by a ``qualified health care professional,'' then the

railroad must report the injury.

Medical treatment does not include preventive emotional trauma

counseling provided by the railroad's employee counseling and

assistance officer unless the participating worker has been diagnosed

as having a mental disorder that was significantly caused or aggravated

by an accident/incident and this condition requires a regimen of

treatment to correct. Further, the railroad's employee counseling and

assistance officer rendering counseling to an employee diagnosed with

such a mental disorder meets the definition of a ``qualified health

care professional'' as discussed later in this preamble.

Occupational Illness

Proposed Rule

In the definition of ``occupational illness,'' FRA proposed that

the reference to ``his or her railroad employment'' be replaced with

the phrase ``worker's railroad employment.''

Comments

No comments received.

Final Rule

The definition of ''occupational illness'' is amended so as to

include and capture occupational illnesses of the classifications of

``Worker on Duty--Employee,'' ``Worker on Duty--Contractor,'' and

``Worker on Duty--Volunteer.''

Railroad and Railroad Transportation

Proposed Rule

``Railroad'' was defined as it is in 49 U.S.C. 20102(1) (formerly

contained in the Federal Railroad Safety Act of 1970 (45 U.S.C.

431(e)).

Comments

No comments received.

Final Rule

The proposed definition for ``railroad'' is correctly reassigned to

the term ``railroad transportation.'' Note that ``railroad'' is

redefined to mean a person providing railroad transportation, which

[[Page 30962]]

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

Day Away From Work

Proposed Rule

``Day away from work'' was defined as any day subsequent to the day

of the injury or diagnosis of occupational illness that a railroad

worker does not report to work for reasons associated with his or her

condition.

Comments

No comments received.

Final Rule

Adopted as proposed.

Day of Restricted Work Activity

Proposed Rule

A ``day of restricted work activity'' was defined as any day that a

worker is restricted in his or her job following the day of the injury

or diagnosis of occupational illness.

Comments

No comments received.

Final Rule

Adopted as proposed.

Establishment

Proposed Rule

``Establishment'' was defined as a physical location where workers

report to work, where business is conducted or where services or

operations are performed.

Comments

Some commenters proposed that ``establishment'' should be defined

as one single, central location. Others suggested that ``each railroad

establishment'' should be consistently interpreted to require posting

of reports at ``designated assembly points where employees report for

work.'' These commenters stated that such posting would not place an

undue administrative burden on the railroad as railroads are already

required under most collective bargaining agreements to regularly post

and/or distribute job bulletins, awards and certain notices. They

further stated each railroad should be required to identify

``establishments'' where pertinent records are maintained.

Some commenters stated that each railroad should be authorized to

designate the ``establishments'' for which it would tabulate injury and

illness data and at which ``establishments'' records would be

maintained. They further commented that the railroad would provide FRA

with a list of establishments it has designated and would inform FRA of

periodic changes to its list.

Final Rule

The definition of ``establishment'' is adopted as proposed. In

order to provide compatible counts for the railroad industry that

duplicate those being reported by all other industries to the

Department of Labor, FRA needs a total count of the number of railroad

``establishments'' that exist in the country. Thus, the block

soliciting information on ``Establishments Included in this Report''

appears on the ``Annual Railroad Report of Employee Hours and

Casualties, by State'' (Form FRA F 6180.56) as block ``4.'' In the

NPRM, FRA proposed that railroads must maintain certain records ``at

and for'' each establishment. The final rule, in Secs. 225.25 and

225.27, states that records must be maintained for each establishment,

but that centralization of recordkeeping may be performed at any

location(s), as long as prescribed accessibility requirements are met.

Refer to Sec. 225.35 for a discussion of ``access to records and

reports.''

First Aid Treatment

Proposed Rule

``First aid treatment'' was defined as being limited to simple

procedures used to treat minor conditions, such as abrasions, cuts,

bruises, or splinters. First aid treatment is typically confined to a

single treatment and does not require special skills or procedures.

Comments

Commenters requested that FRA clarify the definition of ``first aid

treatment'' in order to reduce or eliminate confusion as to what

actually constituted such treatment.

Final Rule

The definition of ``first aid treatment'' is adopted as proposed.

FRA believes this definition is adequate and the examples of first aid

treatments found in the FRA Guide are sufficient to assist the

reporting officer in identifying which treatments are reportable and

which are nonreportable. FRA intends to review the examples in the FRA

Guide to determine if any additional examples and/or guidance

pertaining to ``first aid treatment'' and ``medical treatment'' would

be beneficial to the railroad reporting officer.

FRA Representative

Proposed Rule

``FRA representative'' was defined to include the Associate

Administrator for Safety, FRA; the Associate Administrator's delegate

(including a qualified State ins

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