Railroad Accident Reporting

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA Docket No. RAR-4, Notice No. 14]

RIN 2130-AA58

Railroad Accident Reporting

AGENCY: Federal Railroad Administration (FRA, DOI).

ACTION: Final rule; Correcting amendments and partial response to

petitions for reconsideration.

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SUMMARY: On June 18, 1996, FRA published a final rule amending the

railroad accident reporting regulations. FRA now makes technical

corrections to the final rule and responds to certain concerns raised

in petitions for reconsideration of the final rule, which concerns were

also raised in requests to stay the effective date of the final rule.

In this document FRA issues amendments to the final rule addressing

those concerns. FRA's response to the other concerns raised in

petitions for reconsideration of the final rule will appear in the near

future in a separate document published in the Federal Register.

EFFECTIVE DATE: January 1, 1997.

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

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

SW., Washington, D.C. 20590 (telephone 202-632-3386); or Nancy L.

Goldman, Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh

Street, SW., Washington, D.C. 20590 (telephone 202-632-3167).

SUPPLEMENTARY INFORMATION: On June 18, 1996, FRA published a final rule

amending the railroad accident reporting regulations at 49 CFR part 225

(61 FR 30940). The final rule aims to minimize underreporting and

inaccurate reporting of those injuries, illnesses, and accidents

meeting reportability requirements. On August 19, 1996, and August 29,

1996, respectively, the Association of American Railroads (AAR) and the

Union Pacific Railroad Company (UP) filed petitions for reconsideration

of the final rule raising various concerns and requested in their

petitions for reconsideration, and by purported petitions for stay not

recognized by FRA regulations at 49 CFR part 211, that FRA postpone the

effective date of the final rule (collectively, Petitions). The

Petitions specifically allege:

That AAR member railroads will be exposed to substantial

risk should the rule not be stayed pending FRA's decision on AAR's

Petition for Reconsideration; and

That the text of the final rule may allow employees

access to records and files which the railroads may deem to be

privileged, confidential, and litigation-sensitive, thus giving

employee litigants advantages that could expose railroads to

irreparable injury.

1. Requests To Stay the Effective Date

As stated above, AAR and UP request in their Petitions that FRA

stay the effective date of the final rule, asserting that such a stay

is in the public interest and that other interested parties would not

be substantially harmed by such a stay since the rule does not address

``any significant safety risk.'' AAR claims that its member railroads

will be exposed to substantial risk should the rule not be stayed

pending FRA's decision on AAR's Petition for Reconsideration. Section

211.31 of FRA's rules of practice states that FRA must decide to grant

or deny, in whole or in part, each petition for reconsideration not

later than four months after receipt by FRA's Docket Clerk (49 CFR

211.31). In this case, FRA's decision on the petitions for

reconsideration is due no later than December 19, 1996. AAR and UP

therefore request an immediate stay of the effective date for a

reasonable period of time after issuance of FRA's decision on the

Petitions for Reconsideration in order to assess FRA's decision and

evaluate how FRA's decision impacts the final rule. In the alternative,

AAR and UP request postponement of the effective date of the final rule

from January 1, 1997, to January 1, 1998.

Discussion

After careful consideration and for the reasons set forth in this

document, FRA has decided not to stay the effective date of its final

rule. FRA so informed AAR and UP by letter dated October 10, 1996.

Initially, FRA wishes to emphasize that its rules of practice applying

to rulemakings do not authorize petitions for stay of a final rule. See

49 CFR part 211. Since procedures do not exist with respect to a stay

petition, there exists no regulatory deadline by which to answer such a

petition, and FRA's response to AAR's and UP's purported petitions for

stay (``Petitions for Stay'') did not constitute a final agency action

subject to review. It should also be noted that the filing of a

petition for reconsideration does not stay the effectiveness of a rule

under 49 CFR 211.29. Nevertheless, FRA chose to reply to the

substantive issues in AAR's and UP's ``Petitions for Stay'' in order to

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maintain and foster the collaborative and cooperative partnership

approach to resolving issues important to the industry.

FRA is also confident that railroads were given ample time to

prepare to comply with the final rule, given the amount of time between

its publication (June 18, 1996) and its effective date (January 1,

1997). Those subject to a Federal rule are not entitled to predicate

their actions on the assumption that a petition for reconsideration

will result in substantive changes to the rule. The public interest

would not be served by delaying the effective date of this rule at this

time, based on FRA's review of the grounds set forth in the ``Petitions

for Stay.'' Therefore, if, in responding to pending petitions for

reconsideration of the final rule from AAR, UP, or others, FRA makes

any additions or changes to the final rule, then FRA will allow the

railroads sufficient time and latitude to comply with any revised

provisions. In the meantime, the industry should plan to comply on the

original effective date of January 1, 1997.

2. Section 225.25(c) Recordkeeping

Current Final Rule Language

Section 225.25(c) reads as follows:

Each railroad shall provide the employee, upon request, a copy

of either the completed Railroad Employee Injury and/or Illness

Record (Form FRA F 6180.98) or the alternative railroad-designed

record as described in paragraphs (a) and (b) of this section as

well as a copy of any other form, record or report filed with FRA or

held by the railroad pertaining to the employee's injury or illness.

As noted, the Petitions contend that this section would allow

railroad employees access to records and files which the railroad may

deem to be privileged, confidential, and/or litigation-sensitive. AAR

claims that the portion of Sec. 225.25(c) that would allow employees

access to ``a copy of any other form, record or report filed with FRA

or held by the railroad pertaining to the employee's injury or

illness,'' may give employee litigants advantages that could expose

railroads to irreparable injury. UP states that by means of

Sec. 225.25(c), FRA was trying to ``preempt [Federal Employers'

Liability Act (45 U.S.C. 51 et seq.)] FELA case law, FELA statutory

language, the Federal Rules of Civil Procedure, and the jurisdiction of

the judiciary itself.'' Similarly, AAR states that Sec. 225.25(c)

``purports to overturn the Federal Rules of Civil Procedure and other

statutory protections by requiring railroads to open their files and

give privileged documents to potential and actual plaintiff-employees''

and that the section was unlawful and in violation of the

Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) because FRA

failed to give public notice of this provision and allow opportunity

for comment. UP further questions how employee access to medical files

would assist FRA in improving railroad safety.

AAR states that the adverse effects of the final rule are:

(1) To interfere irrevocably with full and frank disclosure between

attorney and client which is critical to the functioning of the

adversary system, by mandating release of attorney-client

communications that had been made in the past and would have been made

in the future with an expectation of confidentiality,

(2) To undermine irrevocably the protections that are accorded

accident reports under 49 U.S.C. 20903 in order to avoid their use for

any adversarial purpose, by mandating release of such reports, and

(3) To undermine irrevocably the railroads' rights to

confidentiality of other privileged and litigation-sensitive documents,

by mandating their release.

Discussion and Amended Final Rule

AAR's assertion that FRA failed to give notice and an opportunity

to comment on the provision in Sec. 225.25(c) is without merit. In the

railroad accident reporting Notice of Proposed Rulemaking (NPRM),

published in the Federal Register on August 19, 1994 (59 FR 42880), FRA

proposed in Sec. 225.39(b) that each railroad provide the worker whose

injury or illness is reported on the Railroad Worker Injury and Illness

Log, with a copy of such log within seven calendar days of completing

the log. The preamble to the NPRM explained FRA's concern with the fact

that the injured or ill employee did not have the opportunity to review

and verify the information the railroad submitted on accident/illness

reports prior to submission of such reports to FRA.

The preamble to the final rule further explained the agency's

rationale for issuing these regulations. FRA believes that to the

extent it concerns documents required by FRA to be maintained or

submitted, the requirement in Sec. 225.25(c) 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. By

providing this requested information, the employee would have the

opportunity to assess why, or why not, a particular event was, or was

not, reported to FRA. By including the employee in this process, the

overall integrity of FRA's data base would improve. The accuracy of

railroad accident and injury data is essential to improving the safety

of railroad employees and the railroad industry as a whole. Further, a

reliable and accurate railroad injury and accident reporting data base

is critical to formulating effective rail safety policies and

regulations.

In writing the final rule, however, FRA never intended to negate

the well-established litigation privileges with respect to the type of

documents railroad employee litigants may obtain from the railroads.

The final rule better defines the types of documents to which employees

may obtain access, and is a logical outgrowth of the proposed

regulation.

FRA is amending Sec. 225.25(c) to clarify that railroads are

required to grant a railroad employee access only to forms or reports

required to be maintained or filed under Part 225 pertaining to that

employee's own work-related injury or illness. Thus, the amended final

rule cannot be read to provide employees access to any other documents

in the railroad's files; nor can the revised language be interpreted to

deny employees access to such documents. Such access would be an issue

between the employee and the railroad. The accident reports statute (49

U.S.C. 20102, 20901-20903, 21302, 21304, 21311) does not preclude

disclosure of such documents; instead that statute precludes the

``use'' of such documents in lawsuits for damages of certain accident

reports. This distinction between the public availability of accident/

incident reports and their use in litigation is clearly made in

Sec. 225.7 of both the current and amended final rule.

3. Section 225.35 Access to Records and Reports

Current Final Rule Language

AAR's petition for reconsideration asserts that the following

portion of Sec. 225.35 is unlawful because FRA failed to give public

notice of this provision and allow opportunity for comment and that the

provision would allow FRA and ``other authorized representatives''

access to any document or record without regard to any claim of

privilege:

Each railroad subject to this part shall have at least one

location, and shall identify each location, where any representative

of the Federal Railroad Administration or of a State agency

participating in investigative and surveillance activities under

part 212 of this chapter or any other authorized representative, has

centralized access to a copy of any record and report (including

relevant claims and medical records) required under this part, for

examination and

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photocopying in a reasonable manner during normal business hours.

Discussion

AAR's assertion that FRA failed to give notice and an opportunity

to comment on this provision in Sec. 225.35 is without merit. In the

accident reporting NPRM, FRA proposed in Sec. 225.41 that all reports,

logs, plans, and records related to (a) rail equipment accidents/

incidents, including collisions and derailments; (b) highway-rail grade

crossing accidents/incidents; (c) deaths, injuries, and illnesses,

including claims and medical records; as well as all records and

reports identified in Sec. 225.25, must be made available, upon

request, to any FRA representatives, or any representative of a State

participating in investigative and surveillance activities under the

Federal railroad safety laws and regulations, for examination and

photocopying in a reasonable manner during normal business hours. The

final rule provision in Sec. 225.35 adds ``any authorized

representative'' to the list of persons who may obtain access to

railroad documents only to distinguish ``FRA inspectors'' from ``FRA

management staff'' who may sometimes accompany FRA inspectors and

specialists during routine inspections.

As stated in the preamble to the NPRM and the final rule, FRA

believes that Sec. 225.35 would alleviate the problems and reluctance

that FRA inspectors frequently encounter from the railroads when

examining and photocopying claims department records, particularly

railroad employee medical records.

Amended Final Rule

FRA grants, in part, AAR's request for reconsideration as to that

portion of Sec. 225.35 that would allow FRA and any other authorized

representative access to ``any record and report (including relevant

claims and medical records) required'' under the accident reporting

regulations. FRA agrees that Sec. 225.35 was inadvertently drafted in

an overly broad manner and that it may be misinterpreted to require

railroads to release all medical and claim-related records to FRA upon

request without regard to any claim of privilege. FRA did not intend

unlimited access to all documents contained in an employee's file or to

deny railroads the opportunity to assert a privilege with respect to a

particular document. There are instances, however, where FRA may deem

it necessary to obtain a document in the railroad's possession or under

the control of the railroad that may contain information relevant to

aid its investigation into the cause of a railroad accident or incident

or an employee's injury or illness. FRA has authority under 49 U.S.C.

20107 and 20902 to request and obtain such documents.

When confronted with such a request, railroads usually cooperate

and provide FRA with the requested relevant documents. In rare

instances, a railroad may assert that the requested documentation is

privileged and may deny access to such records. Should the railroad

assert such a legal privilege with respect to particular records,

failure to provide FRA access to such records will not constitute a

violation of this section. However, if the railroad refuses to release

information that FRA deems relevant to its investigation, then FRA may

consider it necessary to issue a subpoena for the production of

documents in order to carry out its duty to enforce the federal

railroad safety laws. If the railroad should then fail to produce any

of the requested documents in the possession or under the control of

the railroad for examination and photocopying, FRA may seek enforcement

of the subpoena in federal district court. See 49 U.S.C. 20107 and

20902, delegated from the Secretary of Transportation by regulations of

the Office of the Secretary at 49 CFR l.49(m), and the authority of 49

CFR 209.7(a) and 225.31(b). Of course, a railroad could raise its claim

of privilege in any action to enforce a subpoena. Alternatively, should

a railroad claim a legal privilege concerning such a document, the

railroad could submit the document to FRA with a request for

confidential treatment under 49 CFR 209.11.

Thus, Sec. 225.35 is revised to clarify that FRA and other

authorized representatives must have centralized access to records or

reports required to be maintained or filed under part 225 and must have

access to relevant claims and medical records and that should the

railroad assert a legal privilege with respect to certain claims and

medical records, failure to provide FRA access to such records would

not violate this section. However, FRA may nevertheless use its

subpoena power to obtain such records, and the railroad could contest

that subpoena if it so chooses.

4. Technical Corrections

In the list of definitions in Sec. 225.5, the definition for

``Accountable injury or illness,'' which appears on page 30968, column

one, of the Federal Register issue of June 18, 1996, should read as a

separate paragraph. The definition for ``Day of restricted work

activity'' on page 30968, column two, of the Federal Register issue of

June 18, 1996, erroneously makes reference to the fact that

``restricted'' is defined below. Thus, the parenthetical phrase ``(as

defined below)'' is removed from the definition.

Section 225.33(a)(10)(ii) erroneously makes reference to paragraphs

``(a)(10)(i)(C)(D) (iii) and (iv)'' of that section. Section

225.33(a)(10)(ii) now reads as follows: ``A current organization chart

satisfies paragraphs (a)(10)(i) (B), (C), and (D) of this section.''

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

The amendments to the final rule have been evaluated in accordance

with existing regulatory policies and procedures and are considered to

be a nonsignificant regulatory action under DOT policies and procedures

(44 FR 11034; February 26, 1979). The amendments to the final rule also

have been reviewed under Executive Order 12866 and are also considered

``nonsignificant'' under that Order.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)

requires a review of rules to assess their impact on small entities,

unless the Secretary certifies that the rule will not have a

significant economic impact on a substantial number of small entities.

The technical corrections to the final rule have no economic

impact. The amendments to the final rule will have no new direct or

indirect economic impact on small units of government, business, or

other organizations. The amendments only clarify the well-established

legal privileges with respect to the types of documents to which

railroad employees, FRA inspectors, and other authorized

representatives may obtain access from railroads. The clarifications

actually provide regulatory relief to railroads and, as such, do not

require any revision to the Regulatory Impact Analysis (RIA) produced

for the final rule. No revision to the RIA is necessary because the

burden was calculated based on FRA's original intentions of these

requirements, which are now reflected in the amendments to the final

rule.

Paperwork Reduction Act

There are no new information collection requirements associated

with these amendments. Therefore, no estimate of a public reporting

burden is required.

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Environmental Impact

The amendments will not have any identifiable environmental impact.

Federalism Implications

The amendments to the final rule will not have a substantial effect

on the States, on the relationship between the national government and

the States, or on the distribution of power and responsibilities among

the various levels of government. Thus, in accordance with Executive

Order 12612, preparation of a Federalism Assessment is not warranted.

List of Subjects in 49 CFR Part 225

Railroad accident reporting rules, Railroad safety.

The Final Rule

In consideration of the foregoing, FRA amends part 225, title 49,

Code of Federal Regulations to read as follows:

PART 225--[AMENDED]

1. The authority citation for part 225 is revised to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20901, 20902, 21302, 21311;

49 U.S.C. 103; 49 CFR 1.49(c), (g), and (m).

Sec. 225.5 Definitions. [Corrected]

2. In Sec. 225.5, In the definition for ``Day of restricted work

activity,'' the parenthetical phrase ``(as defined below)'' in the

second and third lines of that definition is removed.

3. Section Sec. 225.25(c) is revised to read as follows:

Sec. 225.25 Recordkeeping.

* * * * *

(c) Each railroad shall provide the employee, upon request, a copy

of either the completed Railroad Employee Injury and/or Illness Record

(Form FRA F 6180.98) or the alternative railroad-designed record as

described in paragraphs (a) and (b) of this section as well as a copy

of forms or reports required to be maintained or filed under this part

pertaining to that employee's own work-related injury or illness.

* * * * *

Sec. 225.33 Internal Control Plans. [Corrected]

4. In Sec. 225.33(a)(10)(ii), the reference to ``(a)(10)(i)(C)(D)

(iii) and (iv)'' is revised to read ``(a)(10)(i) (B), (C), and (D)''.

5. Section 225.35 is amended by removing the parenthetical phrase

``(including relevant claims and medical records)'' in the first

sentence and by adding after the first sentence the following:

Sec. 225.35 Access to records and reports.

* * * * *

Each railroad subject to this part shall also provide to any

representative of the Federal Railroad Administration or of a State

agency participating in investigative or and surveillance activities

under part 212 of this chapter or any other authorized representative

access to relevant medical and claims records for examination and

photocopying in a reasonable manner during normal business hours. * * *

6. Section 225.35 is amended by adding two sentences to the end of

that section to read as follows:

Sec. 225.35 Access to records and reports.

* * * Should a railroad assert a legal privilege with respect to

certain claims and medical records, failure to provide FRA access to

such records would not constitute a violation of this section. FRA

retains the right to issue a subpoena to obtain such records under 49

U.S.C. Secs. 20107 and 20902 and Secs. 209.7(a) and 225.31(b) of this

title, and the railroad may contest that subpoena.

Issued in Washington, D.C., on November 13, 1996.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 96-29849 Filed 11-21-96; 8:45 am]

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