# Railroad Accident Reporting

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URL: https://www.frixlaw.com/law-library/documents/fr%3A96-14943

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** June 18, 1996
- **Citation:** 61 FR 30940

## Text

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
equi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A96-14943. Public record. Not legal advice.