Railroad Accident Reporting

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 219 and 225

[FRA Docket No. RAR-4, Notice No. 16]

RIN 2130-AB13

Railroad Accident Reporting

AGENCY: Federal Railroad Administration (FRA), Department of

Transportation (DOT).

ACTION: Final rule; response to remaining issues in petitions for

reconsideration; and miscellaneous amendments.

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SUMMARY: On June 18, November 22, and November 29, 1996, FRA published

final rules amending the railroad accident reporting regulations at 49

CFR Part 225. 61 FR 30940, 61 FR 59368, 61 FR 60632, respectively.

These final rules aim to minimize underreporting and inaccurate

reporting of those railroad injuries, illnesses, and accidents meeting

FRA reportability requirements; respond to some of the issues raised in

petitions for reconsideration of the final rule published June 18; and

also increase from $6,300 to $6,500 the monetary threshold for

reporting rail equipment accidents/incidents involving property damage

that occur on or after January 1, 1997.

FRA now responds to the remaining issues raised in the petitions

for reconsideration, issues amendments addressing some of those

concerns, and makes minor technical amendments. The primary changes

involve the granting of partial relief to small railroads. In

particular, railroads that operate or own track on the general railroad

system of transportation but that have 15 or fewer employees covered by

the hours of service law and tourist railroads that operate or own

track only off the general system are excepted from the requirements to

record ``accountable'' injuries, illnesses, and rail equipment

accident/incidents and to adopt and comply with a complete Internal

Control Plan. (The excepted railroads must, however, have a harassment

and intimidation policy.) In addition, tourist railroads that operate

or own track only off the general system are excepted from part 225

requirements regarding most ``non-train incidents.''

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, DC 20590 (telephone 202-632-3386); or Nancy L.

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

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

SUPPLEMENTARY INFORMATION: On June 18, November 22, and November 29,

1996, FRA published final rules amending the railroad accident

reporting regulations at 49 CFR Part 225. 61 FR 30940, 61 FR 59368, 61

FR 60632, respectively. In response to the final rule published June

18, 1996, several railroads and railroad associations filed petitions

for reconsideration raising various concerns with its contents and its

implementation date of January 1, 1997.

The final rule published on November 22, 1996, 61 FR 59368,

responded to certain issues raised in the petitions for reconsideration

and amended the requirements in Secs. 225.25(c) and 225.35 regarding

access by railroad employees and FRA representatives, respectively, to

certain railroad accident records and reports. This document responds

to the remaining issues and concerns stated in the petitions for

reconsideration.

A. Summary of Remaining Concerns Raised in the Petitions for

Reconsideration and FRA's Responses to those Concerns

FRA received petitions for reconsideration and requests to change

the effective date of the final rule from the Association of American

Railroads (AAR), The American Short Line Railroad Association (ASLRA),

Union Pacific Railroad Company (UP), CSX Transportation, Inc., Canadian

Pacific Railway, Burlington Northern Santa Fe Corporation (BNSF),

Norfolk Southern Corporation, Consolidated Rail Corporation, Southern

Pacific Lines, the Association of Railway Museums, Inc. (ARM), the

Tourist Railroad Association (TRAIN), Maryland Midway Railway, Inc.,

Delaware Otsego Corporation, The Everett Railroad Company, Crab Orchard

and Egyptian Railroad, Minnesota Commercial Railway Company, Angelina &

Neches River Railroad Company, and the City of Prineville Railway.

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.

If FRA grants a petition for reconsideration, a notice of this decision

must appear in the Federal Register. Id. To provide a fuller

explanation of the issues, this document addresses both grants and

denials of the petitions for reconsideration. Accordingly, a copy of

this document is being mailed to all petitioners.

1. Section 225.33--Internal Control Plans

a. Section 225.33--Implementation of an Internal Control Plan

Section 225.33 mandates that each railroad ``adopt and comply with

a written Internal Control Plan (ICP) [to be] maintained at the office

where the railroad's reporting officer conducts his or her official

business.'' The ICP is to include, at a minimum, ten identified

components as outlined in Sec. 225.33 (a)(1) through (a)(10). Further,

the ICP must be amended, ``as necessary, to reflect any significant

changes to the railroad's internal reporting procedures.'' 49 CFR

225.33(a).

ASLRA and most of its members, as well as ARM and TRAIN, request

relief from implementing an ICP. These

[[Page 67478]]

petitioners mainly assert that the final rule, as written, lacks

flexibility as to what must be contained in the railroad's ICP and how

the ICP must be structured. They also state that the rule fails to take

into account the vast differences between the requirements of large and

small railroads and thus request that they be allowed to develop their

own ICP appropriate to their specific reporting and recordkeeping

needs.

Final Rule

FRA has concluded that an ICP, while helpful to ensure that the

lines of communication between the various railroad departments are

maintained, is not essential in the case of extremely small railroads.

These railroads have very few personnel, and the recording and

reporting of accidents/incidents is usually done by one or two

individuals.

Therefore, the applicability section of the final rule, Sec. 225.3,

is amended by adding Sec. 225.3(b) to except from the ICP requirements

outlined in Sec. 225.33(a) (3)--(10) the following: (i) railroads that

operate or own track on the general railroad system of transportation

that have 15 or fewer employees covered by the hours of service laws

(49 U.S.C. 21101-21107) and (ii) railroads that operate or own track

exclusively off the general railroad system of transportation. See 49

CFR Part 228, App. A for a discussion of covered employees. In

addition, since the introductory text of Sec. 225.33(a) states that

each ICP must contain ``each of the following ten components''

(referring to paragraphs (a) (1) through (10)), the quoted text is

amended by removing the word ``ten,'' to avoid a contradiction between

Secs. 225.3(b) and 225.33(a).

The excepted railroads must, however, adopt and comply with the

intimidation and harassment policies outlined in Sec. 225.33(a) (1) and

(2).

FRA encourages these excepted railroads to review their current

accident reporting process to ensure that they are obtaining complete

and accurate data.

b. Appendix A to Part 225--Civil Penalties Associated with the ICP

The final rule published June 18, 1996, specifies three separate

civil penalties for violation of Sec. 225.33. 61 FR 30973; 49 CFR Part

225, Appendix A. If a railroad fails to adopt an ICP, then the railroad

is subject to the assessment of a civil monetary penalty in the amount

of $2,500 or, if the failure is willful, $5,000. (Appendix A to Part

225, applicable computer code: 225.33(1)). Also each railroad's

reporting error or omission 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. (Appendix A to Part 225,

applicable computer code: 225.33(2)). 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. However, if there is a reporting violation,

but FRA determines that the ICP was in fact followed by the railroad,

then just one violation may be written. Additionally, FRA may assess a

civil monetary penalty against any railroad employee, manager, or

supervisor who willfully causes a violation of any requirement of Part

225, including Sec. 225.33(a) (1) and (2), requiring adherence to the

railroad's intimidation and harassment policy and noninterference with

that policy. (Appendix A to Part 225, applicable computer code:

225.33(3)).

ASLRA and its members oppose the multiple penalties associated with

the ICP and ask that FRA reconsider imposing these fines on small

railroads. The rationale for this objection seemingly stems from the

fact that FRA already may impose a civil penalty on the railroad for

inaccurate reporting. ASLRA states that a separate cumulative civil

penalty for failure to adopt the ICP and failure to comply with the

intimidation and harassment policy in the ICP is not necessary should

FRA grant its request to allow small railroads flexibility in writing

their ICPs.

Final Rule

The penalty provisions contained in 49 CFR 225.33, as specified in

Appendix A to Part 225, are not withdrawn. FRA believes that the

multiple penalties are important and necessary so that railroads take

the ICP seriously and follow the ICP to ensure accurate reporting. FRA

also believes that the availability of a monetary civil penalty is

necessary in order to compel the railroads to correct procedural

deficiencies and weaknesses in their ICPs. FRA may issue these civil

penalties pursuant to 49 U.S.C. 21301, 21302, and 21304.

The General Accounting Office (GAO) studied FRA's railroad injury

and accident reporting data and issued a report in April 1989 (GAO/

RCED-89-109) (hereinafter, ``GAO Audit'') that raised important

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

reporting regulations. GAO found underreporting and inaccurate

reporting of injury and accident data for 1987 by the railroads it

audited. GAO recommended that railroads develop and comply with an ICP

and that FRA use its authority to cite those railroads for inaccurate

reporting arising from noncompliance with an ICP. GAO Audit at 29.

Civil monetary penalties will ensure that railroads are extremely

careful in drafting the ICP and in complying with the ICP. It is also

unlikely that all railroads, given the various pressures and structural

changes in the industry, would adhere to their ICPs consistently and

over an extended period of time without steady pressure from FRA.

c. Section 225.33(a) (1) and (2)--Intimidation and Harassment Policy in

the ICP

Section 225.33(a)(1) of the ICP requires 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.

Section 225.33(a)(2) requires each railroad to disseminate the

policy statement addressing intimidation and harassment to all

employees and supervisors and to all levels of railroad management.

Further, the railroad must have procedures in place to process

complaints that the railroad's intimidation and harassment policy has

been violated, and such procedures also be disseminated to all

employees and management or supervisory personnel. The railroad also

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.

AAR asserts that intimidation and harassment policies outlined in

the ICP are invalid and unlawful because FRA did not give public notice

of such policies and provide the public the opportunity to comment. AAR

states that FRA should provide information supporting its belief that

intimidation and harassment are widespread and further request that FRA

use its civil penalty and disqualification powers to punish the bad

actors and not condemn the entire industry under general rulemaking.

Final Rule

AAR's argument that FRA failed to give notice is without merit. The

Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) sets out

three

[[Page 67479]]

procedural requirements: the notice of the proposed rulemaking; the

opportunity for all interested persons to comment on the proposed rule;

and a concise general statement of the basis and purpose of the rule

ultimately adopted. 5 U.S.C. 553 (b),(c).

Those requirements were served adequately here. The Notice of

Proposed Rulemaking made clear that the principal purpose of the

rulemaking was to enhance the accuracy of accident/incident reporting.

59 FR 42880 (Aug. 19, 1994). While the NPRM did not expressly discuss

intimidation and harassment, the NPRM did include a provision,

Sec. 225.33(a)(6), requiring:

A description of the method by which all pertinent officers and

workers * * * are apprised of their responsibilities, including any

training necessary to make such officers and workers aware of the

duty of the railroad to report the information in question.

59 FR 42897 (Aug. 19, 1994).

Witnesses testifying in the proceeding addressed intimidation and

harassment because, to the degree such tactics succeed, they have an

obvious effect on the accuracy of reported data. That testimony clearly

relates to the purposes of proposed Sec. 225.33(a)(6) because it may be

fruitless for a worker to be aware of his or her responsibilities if he

or she is afraid to carry them out. FRA responded in the final rule by

acting to protect the accuracy and completeness of the data reported to

it and said so clearly in the final rule.

Both intimidation and harassment were discussed at the rulemaking

hearings and at the public regulatory conference. Labor representatives

stated that intimidation and harassment of railroad employees exist and

that they manifest themselves in many different ways. First, due to the

railroads' desire to reduce the number of reportable injuries and

illnesses, many railroad employees are reluctant to seek needed medical

attention for fear of possible discipline or retaliation by their

employer. Second, many employees who are injured on the job fail to

report their injury to the railroad within the prescribed time period

because, at the time the injury was incurred, they believed it was

minor or insignificant. If and when the injury worsens, the employee is

reluctant to report the injury because he or she may be subject to

investigation or discipline, or both, for reporting late. Third, other

employees request medical treatment that would render the injury or

illness nonreportable to FRA, such as requesting that they be given

nonprescription medication, because of intimidation or harassment by

the employer. (Transcript (Tr.) November 2, 1994 at 154-156; Tr.

January 30, 1995 at 159, 161, 164, and 171. All accident reporting

hearing transcripts are referenced as ``Tr.'' with the date of the

hearing.)

As is plainly evident, these comments expressly raise the employee

intimidation and harassment issue. Petitioners were represented at the

hearings in which testimony on these subjects was offered and had ample

opportunity to present evidence and reasoning of their own on these

subjects. Given the record in this proceeding, the logic was compelling

for FRA to act to prevent the frustration of the educational and

training purposes of Sec. 225.33(a)(6) and of the overall purpose of

obtaining complete and accurate data. The final rule's requirement for

an intimidation and harassment policy in the ICP is a ``logical

outgrowth'' of discussions and oral and written comments presented to

FRA. See AFL-CIO v. Donovan, 244 U.S. App. D.C. 255, 757 F.2d 330, 338

(D.C. Cir. 1985) (quoting United Steelworkers v. Marshall, 208 U.S.

App. D.C. 60, 647 F.2d 1189, 1221 (D.C. Cir. 1980). That FRA enunciated

the intimidation and harassment policy in the final rule is consistent

with the tenor of these discussions and comments at the proposal stage

and further indicates that FRA treated the notice and comment process

seriously.

d. Request To Adopt AAR's Proposed Performance Standard in Lieu of the

ICP Requirement in Sec. 225.33

Throughout the rulemaking process, AAR and its member railroads

suggested that FRA adopt a performance standard for determining and

measuring a railroad's compliance with reporting requirements instead

of the ICP mandated by FRA. 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.

AAR and its members repeatedly claim that the 1989 GAO audit report

on accident/incident reporting is outdated and that, therefore, the GAO

findings should not have been considered for this rulemaking. AAR also

asserts that FRA failed to give a reasoned explanation for its

rejection of AAR's proposed performance standard, and that the APA

requires FRA to do more than unquestioningly accept FRA's consultant's

conclusions criticizing AAR's proposal. AAR thus requests elimination

of the ICP and adoption of AAR's proposed performance standard.

Final Rule

FRA rejects use of AAR's proposed performance standard and retains

the mandatory requirement that railroads adopt and comply with an ICP

as delineated in Sec. 225.33. At base, AAR's complaint is that FRA did

not adopt the standard AAR prefers. The record, however, demonstrates

the superiority of the standard adopted for the purposes of this rule.

For a performance standard to be meaningful, it must be specific about

outcomes to be produced. FRA's ICP does this without imposing a

detailed standard plan on everyone. Moreover, the requirements related

to the ICP are performance standards, simply meaningful ones that the

railroads dislike.

In FRA's initial review of the AAR's performance standard, FRA had

general doubts about the standard. In addition, FRA had already noticed

the problem of the dilution of the denominator and questioned whether

the standard would, in fact, achieve a 99-percent compliance rate.

Concerned about these problems, FRA hired an independent statistical

firm to review AAR's proposed performance standard. See firm's report,

appended to final rule published June 18, 1996, 61 FR 30973-30976.

FRA's independent evaluation of this firm's analysis and of AAR's

proposal shows that AAR's performance standard will not improve the

accuracy of the safety data.

Among other things, AAR's proposed standard would draw no

distinction between a failure to report a minor accident and a failure

to report a major one or to report it accurately. Under that proposal,

so long as a railroad met the standard of accuracy in reporting the

number of accidents and incidents it had, the railroad could

inaccurately report the seriousness of its accidents and incidents with

impunity. That could introduce very serious distortions into FRA's

safety data, potentially making them far less accurate than they now

are. FRA concluded that AAR's proposed performance standard would erode

the integrity of FRA's safety data.

Mr. Thomas Guins, Senior Program Manager, Engineering Economics, in

the Research & Test Department of AAR, provided a statement attached to

the AAR's petition for reconsideration which, among other things,

evaluates FRA's rejection of AAR's proposed performance standard. Mr.

Guins notes that FRA's consultant's objection to the sample-inclusion

process is justified. Mr. Guins offers a remedy where he suggests use

of a denominator that

[[Page 67480]]

would change from year to year based upon the previous year's

nonreportable cases. Guins at 3-4. The failure to include a denominator

is a serious omission. Furthermore, the base year Mr. Guins uses in his

example, 1995, could never be tested for the development of a

denominator the following year. The more that Mr. Guins tries to fix

the performance standard as proposed, the more complex it gets. This is

directly contrary to Mr. Guins' characterization of AAR's performance

standard as ``uncomplicated.'' Guins at 7.

AAR also states that FRA's consultant raised an invalid objection

in that the sampling plan achieves only a 97-percent compliance rate.

AAR's proposed performance standard was based on a 99-percent

compliance rate. However, AAR admits that its plan would not provide

the 99-percent compliance level. AAR Petition at 20. The important

consideration is that a random sample of a large population has a

statistical error in predicting the actual number of defects in the

group from which the sample is taken; the answer could be plus or minus

two percent. When the desired outcome is 99 percent, by definition the

actual outcome could be below 99 percent. Mr. Guins' ``uncomplicated

performance standard'' gets more complex as he changes the sampling

plan to alter the shape of the Operating Characteristic Curve.

In the preamble to the June 18 final rule, FRA stated that even if

AAR's proposed performance standard were to deal with some of FRA's

criticisms of it, the performance standard would still fail to meet the

main objective of the ICP--to improve the accuracy of the submitted

accident and injury reports. AAR's response to this is its admission

that the accuracy of the reports would still be in question. But, for

the sake of simplicity and to prove that its proposed performance

standard would work, AAR is willing to forgo the accuracy of the

submitted reports. AAR Petition at 21-22. AAR's approach does not

resolve the problem identified in the initial GAO report, i.e., how to

improve the accuracy of submitted reports. Throughout the rulemaking

hearings, public regulatory conference, and in written testimony, there

was no statement by AAR and member railroads that an independent audit

was conducted by any railroad to determine that proper and accurate

accident and incident reporting was being performed, nor did any

railroad state that even an internal audit was performed to determine

whether or not the GAO audit was in fact outdated. Based on subsequent

instances of inaccurate reporting identified during FRA inspection

activity, the GAO audit, and the absence of compelling evidence that

GAO erred, FRA concludes that the GAO audit is not outdated as claimed

by AAR and that it truly reflects that inaccurate reporting remains a

problem in the industry or could easily recur in the future.

AAR also claimed that most of its members already had some sort of

ICP in place (Tr. January 30, 1995 at 100-101, 104-105). Yet, when FRA

asked these members to produce these plans, not a single railroad could

produce an ICP. Some railroads stated that they had memoranda or loose

instructions, or both, that were similar to an ICP, but these also were

not available for FRA review. Consequently, in order to assist the

industry, FRA developed criteria for a model ICP which ultimately

incorporated many of AAR's recommendations.

FRA does agree with the statements of AAR and its member railroads,

that these railroads have ICPs in the form of memoranda and directives

which would satisfy most of the mandated ICP requirements in

Sec. 225.33. That is one more reason why AAR's insistence on the use of

a different performance standard, which would also require development

of an ICP, is unpersuasive, since the AAR performance standard audit

would consume considerable FRA inspector resources and would most

likely use additional railroad resources without improving the accuracy

of FRA's accident/incident data.

e. Section 225.33(a)(9)--Annual Railroad Audit

Section 225.33(a)(9) requires each railroad to provide 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.

AAR claims this provision has not been justified and that FRA never

responded to the railroads' concerns about this provision's rejection

of the self-critical analysis privilege. AAR cites a law review article

(96 Harv. L. Rev. 1083)(1983)), which notes that railroads regularly

investigate accidents involving their employees. After these internal

investigations are completed, outsiders may seek discovery of the

resulting analyses and, as a result, a privilege of self-critical

analysis has developed to shield certain self-analyses from discovery.

AAR analogizes this privilege to the self-audit requirement of the ICP,

i.e., that since each railroad must conduct at a minimum, one yearly

audit, the results of this audit should be privileged and not subject

to FRA review.

Final Rule

AAR's argument is without merit. The self-critical analysis

privilege is not recognized by many courts and, if recognized, it is in

the context of tort litigation, not administrative law. FRA believes

that it is necessary that railroads perform the required audit as a

means to ensure that the ICP delivers the desired outcome, i.e.,

accurate reporting through effective communication amongst the various

railroad departments, and no public purpose would be served by

affording railroads a ``self-critical analysis'' privilege. The audit

allows railroads to identify problem areas and make the appropriate

changes or corrections to their internal control procedures.

2. Definition of ``Establishment'' in Sec. 225.5 and Scope of the

Posting Requirement in Sec. 225.25(h)

Section 225.5 defines an ``establishment'' as ``a single physical

location where workers report to work, where business is conducted or

where services or operations are performed, for example, an operating

division, general office, and major installation, such as a locomotive

or car repair or construction facility.''

AAR and individual railroads state the importance of limiting the

definition of an ``establishment'' to the examples FRA used above and

to omit from the definition the terminology ``where workers report to

work.'' They state that the current definition is unlawful because

railroads will be vulnerable to ``second guessing'' by FRA inspectors

as to its meaning.

Large railroads also criticized the description in Sec. 225.25(h)

of the requirement to post injury and illness lists at and for each

``establishment.'' Here, the ``establishment'' where posting is

required is one that has been in continual operation for a minimum of

90 calendar days. Since large railroads could have numerous locations

where employees report to work or where business is conducted, these

railroads believe that the burden associated with posting injury and

illness data monthly at numerous small establishments would be great

and not justified by any safety benefit.

[[Page 67481]]

Final Rule

Clarification of Definition of ``Establishment''

Requests to limit the definition of an ``establishment'' to only

those examples in the definition are denied. However, the definition of

``establishment'' in Sec. 225.5 is amended for clarification purposes.

As amended,

Establishment means a single physical location where workers

report to work, where railroad business is conducted, or where

services or operations are performed. Examples are: a division

office, general office, repair or maintenance facility, major

switching yard or terminal. For employees who are engaged in

dispersed operations, such as signal or track maintenance workers,

an ``establishment'' is typically a location where work assignments

are initially made and oversight responsibility exists, e.g., the

establishment where the signal supervisor or roadmaster is located.

Clarification of ``Establishment'' for Purposes of Posting the List of

Reportable Injuries and Illnesses

FRA is also amending Sec. 225.25(h) in order to clarify its scope

and assist the industry in comprehending the scope of what types of

facilities qualify as an ``establishment'' for purposes of posting the

list of reportable injuries and illnesses.

FRA realizes that it is not practical for railroads to physically

post the list of injuries and illnesses at and for all of the diverse

locations and centers where employees may report for assignments on a

monthly basis. Many of these facilities are only utilized for limited

periods of time, do not have a permanent staff assigned to them, or are

simply locations where workers go to pick up, or meet, an assignment.

At a minimum, listings must be posted at locations where railroad

employees who suffered reportable injures or illnesses could reasonably

expect to report sometime during a 12-month period and have the

opportunity to observe the posted list containing their reportable

injuries or illnesses. FRA does expect to find the required posting of

the reportable injuries and illnesses at and for each establishment on

bulletin boards or bulletin book locations where the railroad posts

company policies, e.g., the policy statement concerning harassment and

intimidation as required by the ICP; notices of changes to its

operating, general, or safety rules; and where informational notices,

such as job advertisements or local special instructions, are posted;

near or adjacent to postings required by other government agencies,

such as the federal minimum wage notice; or where the time-clock for

the establishment is located.

The establishment at which the list of reportable injuries and

illnesses is posted may be a higher organizational facility, such as an

operating division headquarters; a major classification yard or

terminal headquarters; a major equipment maintenance or repair

installation, e.g., a locomotive or rail car repair or construction

facility; a railroad signal and maintenance-of-way division

headquarters; or a central location where track or signal maintenance

employees are assigned as a headquarters or where they receive work

assignments. These examples include facilities that are generally major

facilities of a permanent nature.

There are endless examples of the types of locations that may

qualify as an establishment for purposes of Sec. 225.25(h). Some

illustrations: for a railroad without divisions or diverse departmental

headquarters, an ``establishment'' may be the system headquarters or

general office which is accessible to all employees; for train service

employees and crews, an ``establishment'' is a home terminal (as

commonly defined in collective bargaining agreements), but is not a

layover terminal, outlying support yard, or their away-from-home

terminal; for employees who are engaged in dispersed operations, such

as signal or track maintenance workers, the ``establishment'' is the

location where these employees regularly report for work assignments;

for railroad system track or signal maintenance or construction work

groups, who perform duties at various locations throughout a railroad

system, the ``establishment'' may be at the transient group's mobile

headquarters or it may be the location where job assignments and

postings are made (if the location is reasonably accessible to

employees).

An ``establishment,'' for purposes of Sec. 225.25(h), would not

include remote locations where temporary construction or maintenance

work is in progress; outlying support or switching yards; or tie-up

points for road switch trains or work trains away from a home terminal.

3. Section 225.25(h)--Monthly Posting of Reportable Injuries and

Illnesses

As previously discussed under the definition of ``establishment,''

Sec. 225.25(h) requires that each railroad post at each railroad

establishment a list of all injuries and illnesses reported for that

establishment in a conspicuous location, within 30 days after

expiration of the month during which the injuries/illnesses occurred,

if the establishment has been in continual operation for a minimum of

90 calendar days. If the establishment has not been in continual

operation for a minimum of 90 calendar days, the listing of all

injuries and occupational illnesses reported to FRA as having occurred

at the establishment shall be posted, within 30 days after the

expiration of the month during which the injuries and illnesses

occurred, at the next higher organizational level establishment.

Most railroads assert that there is no safety justification for

this provision and that this requirement is therefore not necessary.

Many state that posting the list will reveal the identity of the

individuals involved, thereby invading their privacy rights. Some

railroads request that they should be allowed to ``electronically''

post this information. ASLRA states that the monthly posting

requirement is superfluous and that the added paperwork burden is

significant.

Final Rule

The requirement to post the monthly list of reportable injuries and

illnesses at and for each defined establishment poses a minimal burden,

even for small railroads, which have few incidents which will fall into

this category. Although some railroads requested that they be allowed

to post this list ``electronically,'' many more railroads claimed that

they did not have the means or capability to post this information

electronically at and for each establishment.

Since the monthly list of reportable injuries and illnesses does

not include the name of the injured or ill employee and since the list

will improve the accuracy of FRA's injury and illness data base,

thereby improving FRA's ability to shape the federal railroad safety

program so as to prevent and mitigate future injuries and illnesses,

the argument that privacy rights of the employee are invaded is without

merit. However, FRA is revising Sec. 225.25(h), by adding

Sec. 225.25(h)(15), to address any possible concerns with privacy

rights of the employee. Paragraph (15) provides that the railroad is

permitted to not post information on a reported injury or illness, if

the employee who incurred the injury or illness makes a request in

writing to the railroad's reporting officer that his or her particular

injury or illness not be posted.

Some railroads reported to FRA that they have multiple locations

qualifying as an establishment that are in continual operation for a

minimum of 90 calendar days. These railroads requested some sort of

relief in Sec. 225.25(h)(12), which requires the signature of the

preparer on

[[Page 67482]]

the monthly list of reportable injuries and illnesses.

In order to minimize the burden of requiring the preparer's

signature on each and every list for the railroad, FRA amends

Sec. 225.25(h)(12) so as to provide railroads with an alternative to

signing each establishment's monthly list. A railroad is provided the

option of not having the preparer's signature on the posted list of

reportable injuries and illnesses at any location away from the

reporting office. However, if the railroad chooses this option, then a

complete duplicate copy of the list of reportable injuries and

illnesses, by establishment, must be available for review at the

preparer's office. This duplicate copy must have a cover letter or

memorandum indicating the month to which the reportable injuries and

illnesses apply, and must have the name, title, and signature of the

preparing official. The preparer must mail or send by facsimile each

establishment's list of reportable injuries and illnesses in the time

frame prescribed in Sec. 225.25(h). This option will help alleviate the

time burden associated with signing each establishment's list while

ensuring that the preparer of all the lists accounts for the

information contained in the lists by providing his or her signature on

the cover memorandum. This list must contain all the information

required under Sec. 225.25(h) (1) through (14).

4. Miscellaneous Other Concerns of Tourist and Museum Railroads

Section 225.3 describes those railroads that must conform to and

comply with Part 225. Specifically, Sec. 225.3 states that Part 225

applies to all railroads except--

(a) A railroad that operates freight trains only on track inside

an installation which is not part of the general railroad system of

transportation or that owns no track except for track that is inside

an installation that is not part of the general railroad system of

transportation and used for freight operations.

(b) Rail mass transit operations in an urban area that are not

connected with the general railroad system of transportation.

(c) A railroad that exclusively hauls passengers inside an

installation that is insular or that owns no track except for track

used exclusively for the hauling of passengers inside an

installation that is insular. An operation is not considered insular

if one or more of the following exists on its line:

(1) A public highway-rail grade crossing that is in use;

(2) An at-grade rail crossing that is in use;

(3) A bridge over a public road or waters used for commercial

navigation; or

(4) A common corridor with a railroad, i.e., its operations are

within 30 feet of those of any railroad.

In general, ARM and TRAIN request that the accident reporting

regulations should apply only to those railroads that are part of the

general railroad system of transportation. Further, they request a

separate rulemaking to define the limits of FRA authority over non-

insular operations and within that limit, establish regulations that

are directed at substantive safety concerns, not paperwork requirements

like those found in Part 225.

TRAIN questions, in general, FRA's legal authority to regulate non-

general system railroads. TRAIN cites to case law and concludes that

``before there can be any regulation of any private entity there must

be, at a minimum, some impact that entity has or is having on

interstate commerce. For the most part, that is not the case here,''

``here'' implying the tourist railroad industry. TRAIN Petition at 7.

Further, TRAIN states that the safety record of its operations does

not justify increased FRA regulations and that FRA did not comply with

the provisions of the Regulatory Flexibility Act (RFA) because the

costs of implementing the regulations far outweigh any safety benefits.

TRAIN also disputes the estimated time burden and claims that the

regulatory impact analysis reflects an unclear understanding of the

requirements of the RFA.

ARM alleges that FRA has excepted amusement park railroads per se

from Part 225 and that this exception is without merit because there is

no rational basis for differing treatment between museum or tourist

railroads, on the one hand, and amusement park railroads, on the other.

ARM claims that amusement park railroads actually pose a greater safety

risk and that FRA does not even know whether amusement park railroads

are dangerous.

In general, TRAIN, ARM, and various small railroad petitioners

request elimination of all ``nonreporting'' requirements. For example,

in addition to ICP requirement discussed earlier in Section 1.a. of

this summary and the requirements to record ``accountables,'' to be

discussed in Section 5 of this summary, these petitioners seek to be

excepted from the following requirements for the following stated

reasons: (i) the requirement in Sec. 225.25(h) to post monthly a list

of all reportable injuries and illnesses at and for each establishment

since such reportable injuries and illnesses and accidents/incidents

are extremely rare for this industry; and (ii) the requirement to

report the number of miles operated (Item #7 on Form FRA F 6180.99--the

``Batch Control Form for Magnetic Media'') since the apparent purpose

of this information is to allow comparisons to be made with numbers of

accidents and, since there are so few accidents amongst the historic

and tourist railroads, the information would be meaningless.

Final Rule

Initially, FRA wants to make it clear that the accident reporting

regulations set forth in Part 225 have always applied to non-general

system, non-insular railroad operations, e.g., a tourist railroad that

has a public highway-rail grade crossing and that confines its

operations to an installation that is not part of the general system.

Further, FRA has legal authority to issue rules, as necessary, under

its general rulemaking authority at 49 U.S.C. 20103. FRA's conclusion

that the accident reporting rules are ``necessary'' for railroad safety

is based upon a careful analysis of applicable law and policy

considerations, and fully complies with the requirements of 49 U.S.C.

20103(a) and the APA.

Partial Relief From Part 225 Reporting and Recordkeeping Requirements

FRA recognizes that small tourist operations are concerned with the

burdens, both in terms of time and expense, that are associated with

full implementation of the final rule. Based on additional analysis,

FRA concludes that it can grant some relief to certain small operations

without compromising the accuracy of its accident reporting data base.

Consequently, FRA amends Sec. 225.3, by adding Sec. 225.3(d), to except

all railroads that operate exclusively off the general system

(including off-the-general-system museum and tourist railroads) from

all Part 225 requirements to report or record injuries and illnesses

incurred by any classification of person, as defined on the ``Railroad

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

result from a ``non-train incident,'' unless the non-train incident

involves in-service on-track railroad equipment. See definition of

``non-train incident'' in Sec. 225.5.

Railroads that are subject to Part 225 in the first place and that

operate exclusively off the general system must, however, continue to

comply with Part 225 requirements regarding reporting and recording

injuries and illnesses incurred by all classifications of persons that

are incurred as a result of a ``train accident,'' ``train incident,''

or a small subset of ``non-train incidents'' that involve railroad

equipment in operation but not moving.

[[Page 67483]]

Example 1: a visitor or an employee of a non-insular, off-the-

general-system museum railroad falls off a railroad car that is on

fixed display in the museum building and breaks his or her ankle. This

injury is classified as an injury from a ``non-train incident'' with

equipment not in railroad service and would, therefore, not be reported

to FRA.

Example 2: a volunteer, while collecting tickets on a railroad car

for an excursion ride on a non-insular, off-the-general-system tourist

railroad, cuts his or her leg. This injury requires stitches even

though the car is not moving. This injury is classified as an injury

from a ``non-train incident'' with equipment that is in railroad

service and would, therefore, be reported to FRA.

Tourist Railroads Required To Post Monthly List of Reportable Injuries

and Illnesses for Each Establishment

Apart from railroads already excepted from Part 225 as a whole by

Sec. 225.3 (e.g., (i) plant railroads whose operations are confined to

their industrial installation and (ii) insular, off-the-general-system

tourist railroads), FRA does not believe that any railroad should be

excepted from the requirement to post the monthly list of reportable

injuries and illnesses at and for each establishment (Sec. 225.25(h)).

The requirements of Sec. 225.25(h) are discussed previously in great

detail in this preamble under the definition of ``establishment.''

As explained in the preamble to the June 18 final rule, FRA wanted

railroad employees to have some opportunity to be involved in the

reporting process and to provide employees the chance to get a one-year

picture of reportable injuries and illnesses for the establishment

where they report to work. FRA is convinced that posting of this

monthly list of injuries and illnesses will improve the overall quality

of illness and injury data. Further, since small railroads and the

historic and museum rail industry stated they had few reportable

injuries and illnesses to report anyway, the burden to list such

reportable injuries and illnesses for each establishment will be

negligible.

``Batch Control Form for Magnetic Media'' (Form FRA F 6180.99)

As to the tourist and museum railroads' concern with reporting the

``number of miles operated'' on the ``Batch Control Form for Magnetic

Media'' (Form FRA F 6180.99), FRA reiterates that the Batch Control

Form is used only for those railroads who opt to report using magnetic

media or electronic submission. The information contained on the Batch

Control Form verifies the completeness and accuracy of the submittals.

Moreover, the data on the Batch Control Form is not used in any of

FRA's analyses or statistics.

TRAIN's Constitutional Argument

Turning to TRAIN's argument that FRA lacks the legal authority to

regulate non-general system, non-insular railroads, TRAIN alleges that

FRA's regulation of such railroads is in excess of its delegated

statutory authority under the Constitution. For the reasons briefly

stated in this preamble, FRA believes that non-general system, non-

insular railroads are ``railroad carriers'' covered by the federal

railroad safety statutes under which the accident reporting rules were

promulgated and that to regulate non-general system, non-insular

railroads is permissible under the United States Constitution. FRA will

not address the relevant statutory language, legislative history, or

delegations since they are never raised by TRAIN, but will focus solely

on the TRAIN's Constitutional argument, that because of Constitutional

limits on the commerce powers of the Congress, FRA lacks the authority

under the Constitution to regulate non-general system, non-insular

railroads. TRAIN Petition at 3.

The Commerce Clause of the United States Constitution provides:

``The Congress shall have Power * * * To regulate Commerce with foreign

Nations, and among the several States, and with the Indian Tribes. * *

*'' U.S. Const. Art. I, Sec. 8, cl. 3. Supreme Court decisions have

broadened the notion of interstate commerce to include those actions,

however local, which merely affect interstate commerce. The Court has

interpreted the Commerce Clause to include those entities whose

activities are strictly local but who are members of a class that

affect interstate commerce (Katzenbach v. McClung, 379 U.S. 294 (1964))

or who are members of a class Congress seeks to regulate (Perez v.

United States, 402 U.S. 146 (1970)). Moreover, in Wickard v. Filburn,

317 U.S. 110 (1942), and in United States v. Darby, 312 U.S. 100

(1940), the Court said that Congress could reach those entities who are

representative of many others similarly situated even if their

individual activities do not particularly affect interstate commerce.

Recent estimates show that American tourist railroads transport

some five million passengers each year. Some such railroads are

interstate lines; many are not. Some tourist railroads share trackage

rights with other passenger or freight railroads, while others are

stand-alone railroads with their own track. Some of them provide

excursions over scores, if not hundreds, of miles; others operate only

a few miles. Some travel at relatively high speeds, while others lumber

along at very leisurely rates. All comprise that class of railroad, the

tourist railroad, whose purpose is to provide recreational train trips

and whose very name (``tourist'') indicates that railroads in this

class hope to attract passengers from far and near, including those

from other states. Accordingly, FRA is authorized to regulate non-

general system, non-insular railroads, including those that do not

particularly affect interstate commerce, because they are members of a

class of railroads that affect interstate commerce or are

representative of other similarly situated railroads.

To support the position that FRA is empowered to regulate non-

general system, non-insular railroads, FRA cites a case on point,

Historic Reader Foundation, Inc., Reader Industries, Inc., and Reader

Railroad v. Skinner, Civ. No. 91-1109 (W.D. Ark. Jan. 16, 1992)

(Reader). In that case, the plaintiffs asserted that Congress did not

intend to empower the FRA with the authority to regulate an intrastate

tourist railroad. Like many tourist railroads generally, the Reader

Railroad was a standard gage railroad line that provided excursion

service for passengers. The railroad consisted of the track right-of-

way, concession pavilion and building, maintenance terminal, and

railroad machinery and equipment. Equipment included two steam

locomotives, three antiquated passenger cars, and one caboose. The

Reader offered round-trip excursions over 3.2 miles of track, and had

about one mile of side tracks. The route crossed one public highway. A

switch that allowed interchange with the Missouri Pacific Railroad and

provided a connection with the national railroad system was dismantled,

i.e., the Reader was a non-general system, non-insular railroad. Some

of the Reader's passengers came from outside of Arkansas, and Reader

published an advertisement brochure which was distributed both locally

as well as outside of Arkansas. Reader purchased supplies from outside

of the State in order to operate the railroad, including lubricating

oil, nuts, bolts, and paint.

The District Court held that FRA was empowered to monitor such

operations to ensure the safety of the public and that Reader was

subject to regulation by FRA. In support of this holding the Court

noted,

[i]t has long been settled that Congress' authority under the

Commerce Clause extends to intrastate economic activities that

affect interstate commerce. Garcia v. San

[[Page 67484]]

Antonio Metro. Transit Auth., 469 U.S. 528, 537 (1984); Hodel v.

Virginia Surface Mining & Recl. Assn, 452 U.S. 264, 276-277 (1981);

Heart of Atlanta Motel, Inc. v. United States, 370 U.S. 241, 258

(1964) * * *.

Reader, p. 3. In sum, the Court found that the Reader Railroad affected

interstate commerce. Similarly, FRA is still empowered to regulate non-

general-system, non-insular railroads as a class, since like the

Reader, they affect interstate commerce.

To rebut this position, TRAIN relies primarily on the holding in

United States v. Lopez, __ U.S. __ (1995), 115 S.Ct. 1624 (1995), 131

L.Ed 2d 626 (1995) to support the proposition that FRA lacks

Constitutional authority to regulate non-general system railroad

operations. TRAIN Petition at 4. In Lopez, a local student, from a

local high school, carried a concealed handgun into his high school and

was subsequently charged with violating the Gun-Free School Zones Act

of 1990 (the Act), which forbade ``any individual knowingly to possess

a firearm at a place that [he] knows * * * is a school zone.'' 18

U.S.C. 922(q)(1)(A). TRAIN argues that the Court used a stricter

standard in its reasoning to determine whether the Act exceeded

Congress' commerce authority, that Congress may regulate under its

commerce power ``those activities having a substantial relation

[emphasis added] to interstate commerce, NLRB v. Jones & Laughlin Steel

Corp, 301 U.S. 1 at 37 (1937).'' TRAIN Petition at 6. Based upon this

stricter standard of the enterprise having to have a substantial

effect, rather than just an effect, on interstate commerce, TRAIN

argues, the Supreme Court concluded in Lopez that the Act exceeded

Congress' Commerce Clause authority. The Court reasoned that Section

922(q) was ``a criminal statute that by its terms had nothing to do

with ``commerce'' or any sort of any economic enterprise * * *. 115

S.Ct. 1630-1631.

Even if ``substantial effect'' rather than ``effect'' is the

appropriate standard, the facts in Lopez are easily distinguished from

the facts whereby FRA regulates, as authorized by the federal railroad

safety statutes, non-general system, non-insular railroads. First, non-

general system, non-insular railroads are generally commercial

enterprises, unlike a school playground, which is not an economic

enterprise. Second, the statute in question in Lopez was a criminal

law, an area traditionally left to the province of local and State

governments. Here, the relevant statutes are civil and deal with a

subject, railroad safety, that has traditionally been covered by

federal law. Third and most importantly, non-general system, non-

insular railroads can, if not regulated, substantially affect

interstate commerce. FRA's criteria for insularity indicate the ways in

which non-insular railroads substantially affect interstate commerce.

See 49 CFR 225.3. For example, if the tracks of the non-general system

railroad cross a public road that is in use, the operation of the

railroad substantially affects interstate commerce in that a commercial

truck using the road could collide with one of the trains that operate

over the grade crossing. To give another illustration, if the tracks of

the non-general system railroad cross a river used for commercial

navigation, a derailment of one of the railroad's trains while it was

traversing the river could easily interfere with the free flow of barge

or other commercial traffic on the river. Accordingly, FRA believes

that TRAIN's Constitutional challenge to the validity of FRA's

authority to regulate non-general system, non-insular railroads is

without merit.

ARM's Concerns About Amusement Park Railroads Excepted From Part 225

ARM, an association of railroad museums, complains that FRA has

excluded amusement park railroads from Part 225 requirements without

sufficient reason. FRA addressed this issue at some length in the

preamble to the June 18 final rule. See 61 FR 30959-30960. Of course,

FRA's exclusion is not of amusement park railroads as such, but of

railroads with less than 24-inch track gage, which FRA considers

miniature or imitation railroads, and of insular tourist and museum

railroads that operate (or own track) exclusively off the general

system, regardless whether they operate in an amusement park. See 61 FR

30960 (June 18, 1996) and Sec. 225.3. Again, the excluded railroads are

excepted on the basis of their track gage or their insularity. ``[A]

tourist operation is insular if its operations were limited to a

separate enclave in such a way that there is no reasonable expectation

that the safety of any member of the public (except a business guest, a

licensee of the tourist operation or an affiliated entity, or a

trespasser) would be affected by the operation.'' 61 FR 30960 (June 18,

1996). FRA recognizes, however, that in practice, when the insularity

test is applied, many amusement park railroads are excluded. As

indicated in the preamble, insular amusement park railroads are

excepted on the additional basis of State and local regulation of these

entities as amusements. Id.

5. Section 225.25 (a) Through (g)--Recording of ``Accountables''

Section 225.25(f) requires each railroad to log each reportable and

each accountable rail equipment accident/incident as well as each

reportable and each accountable injury or illness not later than seven

working days after receiving information or acquiring knowledge that

such an injury or illness or rail equipment accident/incident has

occurred.

Section 225.5 defines an ``accountable injury or illness'' 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 or requires 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.''

Likewise, an ``accountable rail equipment accident/ incident'' is

defined in Sec. 225.5 as ``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. * * *''

ASLRA and its members and the tourist and museum railroads request

that the requirements to record accountable injuries, illnesses, and

rail equipment accidents/incidents be eliminated because the

information to be gained concerning these nonreportable events is not

sufficient to outweigh the greatly increased recordkeeping and

administrative burden. They also claim that the injuries or illnesses

and rail equipment accidents/incidents that are not reportable to FRA

are relatively minor and insignificant and are simply not the kind of

data that can be expected to contribute in any meaningful way to

improve rail safety. TRAIN, ARM, and various small railroad petitioners

opposed the requirement in Sec. 225.25(d) to maintain the ``Initial

Rail Equipment Accident/Incident Record,'' indicating that too few such

accountable incidents occurred to warrant completion of this record by

this segment of the industry.

Final Rule

FRA amends the final rule by granting an exception to the

``accountable'' recordkeeping requirements in Sec. 225.25(a) through

(g) for (i) railroads

[[Page 67485]]

that operate or own track on the general railroad system of

transportation that have 15 or fewer employees covered by 49 U.S.C.

21101-21107 (hours of service) and (ii) railroads that operate or own

track exclusively off the general system. (These railroads are referred

to as ``excepted railroads.'') This exception appears in the

``Applicability'' section of the rule, Sec. 225.3(c). Railroads

operating or owning track exclusively off the general system maintain

routine records of casualties under the State workers compensation

system, and such records may be obtained by FRA pursuant to statutory

authority. Railroads operating or owning track on the general system

(both tourist or historical and shortline freight railroads) that have

15 or fewer employees covered by 49 U.S.C. 21101-21107 currently have

to make some type of record of injuries and illnesses in order to

determine whether or not the injury or illness is reportable to FRA.

Thus, these records should be adequate in lieu of a formal log pursuant

to Sec. 225.25(a) through(g).

Note, however, that the excepted railroads must continue to comply

with the requirements in Sec. 225.25(a) through (g) regarding

reportable events. These railroads must complete and maintain the

Railroad Employee Injury or Illness Record (Form FRA F 6180.98) as

required under Sec. 225.25(a), or the alternative railroad-designed

record as described in Sec. 225.25(b), of all reportable injuries and

illnesses of its employees that arise from the operation of the

railroad for each railroad establishment where such employees report to

work.

Likewise, the excepted railroads must continue to comply with the

requirement in Sec. 225.25(d) to complete and maintain the Initial Rail

Equipment Accident/Incident Record (Form FRA F 6180.97) or an

alternative railroad-designed record, as described in Sec. 225.25(e),

of all reportable collisions, derailments, fires, explosions, acts of

God, or other events involving the operation of railroad on-track

equipment, signals, track, or track equipment (standing or moving) that

result in damages to railroad on-track equipment, signals, tracks,

track structures, or roadbed for each railroad establishment where

workers report to work.

Consequently, the excepted railroads shall enter each reportable

injury and illness and each reportable rail equipment accident/incident

on the appropriate record, as required by Sec. 225.25(a) through (e),

as early as practicable but no later than seven working days after

receiving information or acquiring knowledge that an injury or illness

or rail equipment accident/incident has occurred. See Sec. 225.25(f).

6. Requested Delay in Effective Date Due to Extensive Reprogramming of

Computer Systems

AAR and most individual railroads request that the effective date

of the rule, which is January 1, 1997, be delayed or changed to January

1, 1998. These petitioners claim that the data processing changes due

to new circumstance codes and the addition of new blocks for

information on the various forms will require at least six months to

complete. FRA understands the six months to run approximately from the

date that AAR's petition for reconsideration was received by FRA, i.e.,

August 19, 1996. ASLRA requested that, due to the extensive amendments

to the accident reporting regulations, FRA push the effective date back

a year to January 1, 1998, and to phase or stagger implementation of

the rule, with an implementation date of January 1, 1998 for Class I

railroads; an implementation date of April 1, 1998 for Class II

railroads; and an implementation date of July 1, 1998 for Class III

railroads.

Some railroads state that the new circumstance codes and special

study blocks will not improve safety data and that the new codes will

make it impossible to make historical comparisons with the old

occurrence codes.

Final Decision

FRA believes that reprogramming efforts can be accomplished in time

to meet the January 1, 1997 implementation date. Therefore, the

industry should plan to comply with the final rule on the original

effective date of January 1, 1997. Railroads were also encouraged to

comply by the original effective date in FRA's October 10, 1996, letter

to AAR and in FRA's November 22, 1996, Federal Register document (61 FR

59368). In that document, FRA denied requests to stay the effective

date of the final rule.

Railroads should have begun software reprogramming efforts shortly

after publication of the final rule on June 18, 1996, in order to meet

the original effective date. However, in order to assist the industry,

FRA published a notice in the Federal Register on November 22, 1996 (61

FR 59485) which notified all concerned parties that FRA is in the

process of preparing custom software for reporting railroad accidents

and incidents. This software will be available to all reporting

railroads at no cost on January 1, 1997, and will facilitate production

of all the monthly reports and records required under the accident

reporting regulations, as amended in 61 FR 30940 (June 18, 1996), 61 FR

59368 (November 22, 1996), 61 FR 60632 (November 29, 1996), and the

present document. FRA will also have an electronic bulletin board for

submission of reports.

In the NPRM, FRA expressed its concern to get more information

about the circumstances of the injury which could not be described

adequately by the data field ``occurrence code.'' The current FRA form

(Form FRA F 6180.55(a)--Railroad Injury and Illness Summary

(Continuation Sheet)), valid from 1975 to 1996) used the occurrence

code to describe what the injured person was doing at the time of the

injury. Instead of using the detailed occurrence codes, FRA found that

a large portion of the injury records used the various

``miscellaneous'' occurrence codes to describe what the employee was

doing at the time the injury was incurred. This made injury analysis

and cost-benefit analysis very difficult because of incomplete

information. In the NPRM, FRA proposed revisions to Form FRA F

6180.55(a) that contained both the old occurrence codes and the new

``circumstance codes.'' Initially FRA decided to keep both sets of

codes to allow historical comparisons. However, throughout the

rulemaking, AAR members objected to having both sets of codes as being

redundant and an additional burden. Now AAR members complain that use

of only the new circumstance codes is unacceptable because historical

comparisons will be lost.

FRA made a conscious decision to retain the circumstance codes and

to delete the occurrence codes, because of the burden claimed by AAR

members. FRA is equally concerned that its decision to use only the new

circumstance codes may cause some loss of historical information, but

the occurrence codes were not providing the necessary information.

Thus, FRA will develop a ``bridging system'' to convert the new

circumstance codes to the old occurrence codes. FRA sought and will

continue to seek the advice and assistance of labor and the industry in

this effort. The new data base structure that FRA developed will still

have a data field to store the ``bridged'' occurrence code in the same

physical location as the old data base structure. This will allow

analysis of the changes and provide historical comparisons.

Although railroads have had since June 18, 1996 to make changes to

their computer software to accommodate the

[[Page 67486]]

changes in the forms required by FRA, some railroads have requested

additional time for computer programming. For many of the reasons

suggested already, FRA believes that if railroads had begun their

programming efforts shortly after the rule was published, then there

would have been sufficient time to accommodate the programming.

FRA is willing to make some accommodation for railroads that

generate their own monthly reports using their own custom computer

software. Railroads may continue to report using the ``old forms'' for

the first three months of 1997. However, the new forms must be used for

the April 1997 submissions. Railroads must refile the first three

months (January through March 1997) of reports using the new forms by

July 31, 1997. Failure to refile the forms would be treated as if no

reports were filed at all with FRA and that may be subject to

enforcement actions.

7. Definition of ``Qualified Health Care Professional''

Section 225.5 defines a ``qualified health care professional''

(QHCP) as ``a health care professional operating within the scope of

his or her license, registration, or certification. For example, an

otolaryngologist is qualified to diagnose a case of noise-induced

hearing loss and identify potential causal factors, but may not be

qualified to diagnose a case of repetitive motion injuries.''

AAR and individual railroads state that FRA has failed to give an

explanation for maintaining its definition of a ``qualified health care

professional.'' These railroads were troubled by the proposed

definition, believing that railroad employees should be diagnosed and

treated only by licensed physicians or by personnel under a licensed

physician's direction.

Final Rule

Requests to limit the definition of a ``qualified health care

professional'' to licensed physicians are denied. As stated in the

preamble to the final rule, many reportable injuries and illnesses can

be treated by a QHCP who is not a physician (one who holds an M.D.).

Likewise, a physician (M.D.) may perform first aid treatment. Given the

possibilities, FRA believed that limiting the definition of QHCP to

encompass only physicians would result in underreporting of injuries

and illnesses that require more than first aid treatment. Thus, the

definition of a QHCP is retained; however, additional examples of a

QHCP are added to the definition to assist the industry in

comprehending the scope of what types of individuals qualify as QHCPs.

In particular, the definition of a QHCP is amended to state that ``[i]n

addition to physicians, the term `qualified health care professional'

includes members of other occupations associated with patient care and

treatment * * * .'' Examples include chiropractors, podiatrists,

physician's assistants, psychologists, and dentists.

8. Executive Order 12866

AAR asserts that FRA has not based the final rule on Executive

Order (EO) 12866 in that FRA ignored its own analysis of the GAO audit;

that FRA stated during the rulemaking process that the accident/

incident data base is already accurate; that the E.O. directs agencies

to use performance standards; that the benefits of the final rule do

not justify the costs and burdens associated with its implementation;

and finally, that FRA failed to restrict promulgation of rules to those

``made necessary by compelling public need, such as, material failures

of private markets to protect or improve the health and safety of the

public.''

FRA Response

FRA complied with E.O. 12866. The final rule was considered

``nonsignificant'' under the E.O. FRA stated in the preamble to the

final rule published in June 18, 1996, that the qualitative benefits as

a result of the final rule, i.e., the collection of consistent and

uniform data and the value of well focused regulatory decisions and

properly targeted compliance activities, far exceed the costs

associated with the rule. 61 FR 30965-30966.

The Federal Government, private organizations, and individuals make

decisions on the basis of the ``perceived risks.'' The statistics

produced by the requirements of this rule are used to communicate the

risks involved (i) in transporting goods and services, and passengers

on rail, (ii) with working on a railroad, and (iii) with living or

commuting near rail lines or crossings. Thus, these statistics are used

to form ``perceptions'' of related risks. With increased accuracy of

accident and injury data, effective risk-based decisions can be made by

FRA. FRA intends to increase the accuracy of these statistics and to

provide the public the most accurate information through issuance of

the final rules on railroad accident reporting. Hence, FRA has found

promulgation of this rule to be necessary in order to continue

protecting the public's health and safety.

As discussed in the preamble to the final rule published on June

18, 1996, and in this preamble, FRA noted that the industry conducted

no independent audits to determine the accuracy of railroad reporting.

61 FR 30965. Nor did any railroad do an independent internal audit to

determine whether or not the GAO audit was in fact outdated. Id. FRA's

reasoning for rejection of AAR's proposed performance standard has been

previously discussed in this preamble.

Below is a discussion of AAR's economics-related criticisms.

9. Regulatory Impact Analysis

AAR provided numerous criticisms concerning FRA's regulatory impact

analysis (RIA) for the railroad accident reporting final rule.

Initially, FRA wishes to emphasize that Executive Order 12866 does not

create any rights and that FRA's RIA and its response to AAR's

criticisms of the RIA do not constitute a final agency action subject

to review. Nevertheless, FRA chooses to expound on many of AAR's

invalid criticisms.

AAR states that FRA's RIA ``does not even attempt to assess the

serious damage to a railroad's treasury resulting from the rule's

attempt to favor railroad adversaries in litigation.'' AAR Petition at

28. There was no attempt to favor any private litigants, and the

portion of the rule on which AAR based its concern has already been

addressed. 61 FR 59368 (Nov. 22, 1996).

AAR also noted that ``the Analysis fails to account for the

significant costs that arise from FRA's new definition of `accountable'

equipment accidents (section 225.5).'' AAR Petition at 28, footnote 22.

FRA's definition of ``accountable'' in Sec. 225.5 clearly notes

that although these rail equipment accidents/incidents are not

reportable to FRA, there should be physical damage such that the

equipment requires removal from the track or repair before any railroad

operation over the track can continue. Thus, an ``accountable'' rail

equipment accident/incident, if not tended to, would disrupt railroad

service. 61 FR 30968. FRA's RIA for the final rule noted that railroads

claimed that they currently collect this information in order to

determine whether a rail equipment accident/incident is reportable to

FRA. Therefore, this is, or should be, a practice of the industry prior

to this rulemaking. If railroads do not collect such information, then

it would be very difficult to determine whether an accident/incident is

[[Page 67487]]

reportable. FRA needs such records to ensure that all of the rail

equipment accidents/incidents that meet reportability requirements are

in fact reported to FRA. Further, FRA granted the railroads' request

that they be allowed the option to design their own ``Initial Rail

Equipment Accident/Incident Record'' (Form FRA F 6180.97) and

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

6180.98). See Sec. 225.25 (b) and (e).

Mr. Guins notes that ``[b]ecause of the additional, extensive

detail FRA adds to its ICP mandate over and above railroads' existing

plans, one Class 1 road has estimated the one-time cost to comply with

the ICP section of this rule will require a minimum of 217 hours to

write the plan. (Tr. October 5, 1994, at 99).'' Guins at 9. When this

comment was made at the October 5th public hearing, FRA also requested

details on how these estimates were developed. FRA again requested

further details on such estimates at the Portland, Oregon hearing held

on November 2, 1994 (Tr. November 2, 1994, at 98). However, the

railroad providing these comments never submitted any details on this

calculation. If the railroad industry and its representative

organizations are going to provide such criticisms of FRA analyses,

then they should respond to such requests for details on how such

industry estimates are calculated. FRA's RIA provides sufficient detail

in its estimates and calculations so that readers can recreate the

final numbers. The industry should extend the same courtesy to FRA.

Mr. Guins also notes that AAR estimates the cost to create an ICP

meeting FRA requirements for the Class I railroads at $54,684, compared

to FRA's figured cost of $14,500. Guins at 9. This is not correct.

FRA's estimate for the Class I railroads is actually $21,940. FRA

estimated $14,850 for the ICP, and $7,440 for the ``Procedure to

Process Complaints'' which is part of the ICP. RIA at 13 and Exhibit 4.

Thus, the estimates provided by Mr. Guins for the development of an ICP

are severely inflated.

AAR and its member railroads claimed that they already had an ICP

for accident/incident reporting. Some claimed that it was not formal,

but instead consisted of a series of memoranda and directives held by

the railroad's reporting officer. Mr. Guins' response begs the

question: what is the quality of the railroad's ICP? Beyond the

requirements to develop the intimidation and harassment policy, the ICP

requires the railroads to have an effective communication system

between the various offices and the reporting officer; a system to

audit the process annually; and an organization chart. Mr. Guins notes

that one railroad would require a minimum of 217 hours to write an ICP.

Guins at 9. That is almost 5\1/2\ weeks of effort for that which the

railroads said they already had or would have to do in order to be in

compliance with the AAR's proposed performance standard. If the member

railroads already have a system in place to accomplish this, why would

it take more than a week to consolidate the information into one

document?

Mr. Guins also addresses software programming costs associated with

the special study blocks (SSB). Guins at 9-10. Nearly all the reporting

forms were modified, and any railroad that uses a computer to store

accident/incident data, will have to modify its data bases, even

without the SSBs. FRA estimates that railroads need to add only two

additional fields for storing the SSBs in the rail equipment and

highway-rail accident/incident data bases. The annual storage costs for

these data elements are less than ten cents. To illustrate this cost,

FRA provides the following: BNSF had 1478 rail equipment and highway-

rail accident/incident reports in 1995. This equates to 59,120

characters of storage for the SSBs. Current costs for a two-gigabyte

(2,000,000,000) disk drive is approximately $300. The cost of storing

the additional information for BNSF for calendar year 1995 would have

been $0.09.

With any change in a computer data base there must be a

corresponding change in computer software. If the only change was the

addition of the SSBs, then some of the estimates for reprogramming the

system would be accurate. However, reprogramming the computer systems

would still be required because of various changes to other required

forms. Adding two fixed-length character fields that have no editing

requirements for the SSBs will barely affect the cost of the

reprogramming effort.

Mr. Guins also finds fault with FRA's estimate of $15,000 per Class

I railroad for modifications to railroad software programming related

to the changes in the various FRA forms. Guins at 11. AAR's estimates

vary between $80,000 and $125,000. FRA believes that these estimates

for reprogramming are unfounded. For three of the four monthly forms,

the changes are minor. FRA acknowledges that one form, the ``Railroad

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

6180.55a), will require a major change. However, this is not a complex

form. As discussed earlier, FRA has developed a complete software

system for railroads to use at no charge to the railroad. This software

is far more extensive in features than the software railroads were

going to develop. Given current software technology, it is difficult to

imagine the estimated expense and time that large railroads are

alleging it would take to accomplish these changes. FRA's software will

include ``lookup'' tables (with ``wildcard'' searches); edits and

cross-field edits; multiform cross- references; ``help'' screens; a

built-in facsimile (FAX) transfer; a bulletin board for electronic

transfer; backup and recovery utilities; and a report generator. It

even includes the FRA Guide for Preparing Accidents/Incidents Reports,

by section, when the help key is activated.

In general, AAR criticizes FRA cost-burden estimates associated

with the amendments to the final rule. In response, FRA points out that

it only estimates the costs for the amendments to the rule and not the

total burden for performing a function. This is noted in the RIA's

``Assumptions'' section. RIA at 5. Thus, when the industry is already

performing a function, whether it is customary practice or an FRA

requirement, and there is a regulatory change that causes this impact

to go up or down, then FRA credits or debits only the change in the

burden.

Mr. Guins further finds fault with FRA's data-entry costs savings

associated with electronic submission of reports where he states that

``this rule is not needed to permit electronic reporting, at least not

to the extent proposed. It is my understanding that at least one

railroad is currently reporting accident data electronically to the

FRA.'' Guins at 12. The final rule, for the first time, permits the

option of submitting the reports and updates and amendments to the

reports by way of magnetic media, or by means of electronic submission

over telephone lines or other means, in lieu of submitting the required

information on paper. FRA's benefits for this option are based on cost

estimates for data entry that will be electronically submitted by those

railroads opting to submit data electronically for other reasons. In

other words, the benefit, i.e., the reduction in data entry costs,

assumes that any railroad that chooses to submit data electronically

will do so for its own reasons, and thus will make the decision on its

own without a government mandate. If FRA were to mandate that railroads

submit data via magnetic media, then almost all of the costs would be

added to the total costs, and all of the estimated benefits would be

added to the total benefits.

[[Page 67488]]

In addition, when FRA first estimated this savings, it did not even

take into account its own efforts to create and provide software for

the industry. As stated previously in this preamble, FRA has contracted

to develop a personal computer (PC) based software program for smaller

railroads to use for collecting and reporting accident and injury

statistics to FRA. This software, Accident/Incident Report Generator

(AIRG), will produce all the monthly reports and records required by

the final rule and will be ready for general use as of January 1, 1997.

FRA will provide this software free of charge to any railroad choosing

the magnetic media/electronic transfer option. Therefore, the savings

from reduced data entry for FRA will probably be larger and realized

sooner than estimated in the final rule's RIA. This cost is also FRA's

and not the Class I railroads'.

Mr. Guins also criticizes FRA's estimated savings from the

reduction in FRA Operating Practices Inspector's time where he states

``[t]he Analysis provides no insight as how this savings was calculated

nor what activities currently performed by the inspectors will no

longer be required.'' Guins at 13. The final rule requires ICPs, and

FRA inspectors have access to review the railroad's ICP. 49 CFR 225.35.

FRA's RIA notes that the savings associated with development of an ICP

are based on an estimated savings of about five percent of the time

inspectors now spend on Part 225 audits. RIA at 27 and Exhibit 11.

Access to a written ICP will provide FRA inspectors with a road map of

where to look for information and will save these inspectors

considerable time in deciphering the unwritten ways of how each

railroad functions in the accident reporting arena. FRA additionally

provided a detailed exhibit in the RIA detailing the calculation of

this benefit. RIA at Exhibit 11.

FRA's experience with Part 225 audits and assessments more than

confirms the need for ICPs. It also confirms that FRA inspectors will

save time conducting future audits because of better and quicker access

to needed information.

10. Necessity of the Rule; Other Miscellaneous Criticisms

AAR asserts that the final rule is ``unlawful because there has

been no threshold finding--and none can be made--that a significant

risk justifies the rule.'' AAR Petition at 29. Further, AAR contends

that FRA has authority to issue only those rules that are ``necessary''

to railroad safety, i.e., necessary to require a finding that a

significant risk to safe operations exists. Id. AAR claims that FRA has

not made any threshold finding that a significant risk exists. AAR

Petition at 30-31. AAR specifically cites the following FRA findings

and statements to support this conclusion:

(1) The industry is already ``performing at high safety levels''

(60 Fed. Reg. 59637) and the rule has ``minimal safety

implications'' (61 Fed. Reg. 23441).

(2) The last four years (1992-95) have been the safest in

railroad history. [No citation is offered by AAR].

(3) The 1989 GAO report to which FRA's rule responds is based on

accident data that is almost a decade old and ``most of the missing

accident reports [found by GAO] were `fender-benders' and * * * the

unreported injuries were minor.'' (59 Fed. Reg. 42881). The report

did not involve ``major occurrences, either in terms of injuries or

accidents.'' (Tr. January 30, 1995 at 77-78.)

(4) Even though the GAO criticisms were not significant, FRA did

act to improve reporting [by issuing the proposed rule (59 FR

42881)]. * * *

(5) FRA reported in 1994 that, based on its own review of all

major railroads and a sampling of smaller roads, railroads ``have

generally improved their internal control procedures and their

accident/incident reporting.'' (59 Fed. Reg. 42882).

(6) The result is a reporting system already in place with an

``accurate data base'' [Tr. January 30, 1995 at 78] that produces

reports that ``fairly reflect the true pattern of accident

causation'' [Statement of FRA Administrator before the Subcommittee

on Surface Transportation of the Senate Committee on Commerce,

Science, and Transportation, June 14, 1994 at 4].

(7) GAO recommended that railroads have internal control

procedures for reporting. [I]n 1994, * * * FRA [stated that it]

found that all Class I's and 95 percent of other railroads utilize

an internal control plan (FRA 1994 Regulatory Impact Analysis at

10).

AAR Petition at 31-32.

Finally, AAR states that FRA never acknowledged the railroads'

recommendation that the final rule include language that an employee's

failure to provide employers sufficient access to medical information,

that is reasonably necessary for the railroads to make reportability

decisions, be made a defense to the assessment of a civil penalty for

failing to report the injury or illness. AAR Petition at 16-17.

FRA Response

FRA has discussed many of the foregoing criticisms earlier in this

preamble. FRA offers and reiterates that the 1989 GAO report

specifically found problems with the quality of railroads' accident/

incident and injury/illness reports and with the fact that many

accidents and injuries were not being reported to FRA. FRA

investigations since that time have disclosed additional problems on

individual railroads, and recurrence of those problems should be

expected absent effective countermeasures. FRA needs the best available

safety data so that it can integrate accident and injury data to target

problem areas and locations. Moreover, railroads may utilize these same

safety data to better define where its resources, both monetary and

personnel, should be distributed.

The limitation on FRA's power to issue rules is found in its

general rulemaking authority at 49 U.S.C. 20103. This section limits

FRA to issue rules that are ``necessary,'' considering relevant safety

information. Complete and accurate safety data are necessary for

effective safety regulations. That is so obvious, that it is puzzling

why anyone would question it. Executive Order 12866 provided that costs

and benefits of a rule shall be understood to include both quantifiable

costs and qualitative measures of costs that are difficult to quantify,

but nevertheless essential to consider. FRA's rule maximizes net

benefits and imposes the least burden on the industry.

It has always been FRA's policy to forgo assessing a civil penalty

in instances where an employee fails to cooperate with railroad

management to provide requested medical documentation to assist the

railroad in rendering its decision on the reportability of the injury

or illness. This policy is also elucidated in the FRA Guide for

Preparing Accidents/Incidents Reports.

11. Data Elements on FRA Accident/Incident Forms

UP's petition highlighted two issues of particular concern. First,

UP sees no reason behind the ``narrative'' block of information, block

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

Sheet)'' (Form FRA F 6180.55a). UP claims that ``FRA will not be able

to perform any analysis using the narrative information, and neither

will the carriers. The requirement merely requires unnecessary manual

intervention in the reporting process and reams of additional paper.''

UP Petition at 8.

UP also sees no reason for the special study blocks (SSBs), two

entries on block ``49'' on the ``Rail Equipment Accident/ Incident

Report'' (Form FRA F 6180.54). UP fails ``to see how any meaningful

data can be reported on only two lines. Moreover, even if usable data

would be drawn from the block, it would not be of assistance for

current safety issues.'' Id. UP asserts that instead of the SSBs, FRA

should request special study data ``from individual railroads outside

of the formal accident/

[[Page 67489]]

incident reporting system, as FRA does today.'' Id.

ASLRA's petition has attached to it Exhibit A, which contains a

short statement from Mr. Dean McAllister, Director of Safety and

Quality with Rail Management & Consulting Corporation. Most of Mr.

McAllister's issues have already been addressed in this preamble.

However, he recommends that the ``Highway-Rail Grade Crossing Accident/

Incident Report'' (Form FRA F 6180.57) should provide space for a

sketch of the crossing. ``Unless a sketch area is provided, it will be

necessary for us to fill out two forms as this information is required

by ourselves and insurance underwriters.'' McAllister at 2.

FRA Response

In response to UP, the block for a narrative on the ``Rail

Equipment Accident/Incident Report'' (Form FRA F 6180.54) has been on

this form since 1975. The information in the ``narrative'' block is

keyed in and becomes part of FRA's data base. The narrative is printed,

and FRA conducts ``key word'' searches on the narrative to select

records for subsequent analysis. For example, a key word search could

be ``diesel fuel.'' It should also be noted that the new narrative

block on ``Railroad Injury and Illness Summary (Continuation Sheet)''

(Form FRA F 6180.55a) and on the ``Highway-Rail Grade Crossing

Accident/Incident Report'' (Form FRA F 6180.57) are required to be

completed only when the codes on the forms do not adequately describe

the injury or accident, respectively. 61 FR 30948,30952 (June 18,

1996). The information on the narratives should not be summary, but

should contain specific detail on the accident or injury so as to

provide FRA and railroads using these fields better information.

The SSBs on the ``Rail Equipment Accident/Incident Report'' (Form

FRA F 6180.54) and on the ``Highway-Rail Grade Crossing Accident/

Incident Report'' (Form FRA F 6180.57) will provide FRA with valuable

information. To this end, FRA has redesigned its data bases such that

all the new information requests are found at the end or bottom of the

existing records, so as to minimize the reprogramming of existing

programs. Railroads that use computers already have to redesign their

data bases to accommodate the new data elements. Further, railroads may

want to collect injury and accident information utilizing the SSBs. The

40 characters of data also could be in a series of codes. This much is

certain: it is easier to include the SSBs now, when the data bases have

to be redesigned, than in the future, as a separate item.

As to Mr. McAllister's request to include a sketch on the

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

6180.57), he asserts that inclusion of a sketch would reduce the number

of forms he is obligated to complete for insurance underwriters. First,

this request was never made during the proposal stage of the

rulemaking, although this form and others were discussed in detail in

the NPRM and public hearings. Second, storing pictorial data on a

computer would be very expensive and would prohibit individuals without

advanced software from retrieving the information. Finally, expanding

the current form would be a major expense to railroads both in terms of

paperwork burden and in retraining of personnel, both of which Mr.

McAllister complained about in his statement.

B. Technical Amendments

Section 225.19(c) is amended to reflect that the reporting

threshold for calendar year 1991-1996 is $6,300 and for calendar year

1997 is $6,500. This revision was inadvertently omitted from the final

rule published November 22, 1996,and is necessary to provide a proper

cross-reference for the definition of ``Train accident'' in FRA's

alcohol and drug regulations (49 CFR 219.5). 61 FR 60632, 60634. In

addition, the definition of ``Reporting threshold'' in 49 CFR 219.5 is

revised to reflect that the primary source of the reporting threshold

is Sec. 225.19(e), rather than Sec. 225.19(c). 61 FR 60634 (Nov. 29,

1996).

Further, paragraph (4) of the definition of ``Accident/ incident''

is corrected by removing the words ``of a railroad employee'' from the

phrase ``Occupational illness of a railroad employee.'' 49 CFR 225.5.

This change eliminates an inadvertent inconsistency between that

paragraph and the definition of ``Occupational illness'' in the same

section, which includes ``any person who falls under the definition for

the classifications of Worker on Duty--Employee, Worker on Duty--

Contractor, and Worker on Duty--Volunteer * * *.'' Finally, a pronoun

reference in Sec. 225.27(a) is corrected.

C. 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; Feb. 26, 1979). The amendments to the final rule also

have been reviewed under Executive Order 12866 and are also considered

``nonsignificant'' under that Order.

The amendments to the final rule will decrease some of the impacts

from that in the final rules published on June 18, November 22, and

November 29, 1996. 61 FR 30940, 61 FR 59368, 61 FR 60632, respectively.

This is especially true for the paperwork related burdens on some small

entities. In addition, FRA's decision to produce its own personal

computer (PC)-based software and provide it free of charge to any

railroad will effectively increase the quantity of accident/incident

reporting that will be performed through electronic means. Thus, the

savings, that FRA expects to receive from a decrease in its dataentry

costs, are also expected to increase above the original estimates that

FRA provided in its Regulatory Impact Analysis for the final rule

published on June 18, 1996.

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 amendments to Part 225 in this document will effectively reduce

the impact on some small entities. Railroads that operate off the

general railroad system of transportation have been excepted from some

requirements. Thus, the economic impact on tourist or excursion

railroads that do not operate on the general system is reduced from

that expected from the final rules published on June 18, November 22,

and November 29, 1996. 61 FR 30940, 61 FR 59368, 61 FR 60632,

respectively. In addition, railroads that operate on the general system

that have 15 or fewer employees covered by the hours of service law,

have also been excepted from some requirements. This will reduce the

expected burden on a large number of small entities.

FRA has concluded that the amendments to the final rule will

decrease the economic impact from that estimated in the final rules

published on June 18, November 22, and November 29, 1996. 61 FR 30940,

61 FR 59368, 61 FR 60632, respectively. Therefore, the amendments to

the final rule in this document will have a positive economic impact on

these small entities since the final rule, as amended in this document,

effectively excepts a large number of

[[Page 67490]]

small entities from some paperwork requirements.

Paperwork Reduction Act

The information collection requirements contained in the June 18,

1996 final rule, entitled Railroad Accident Reporting (61 FR 30940),

were approved by the Office of Management and Budget (OMB) under the

Paperwork Reduction Act of 1995 (Pub. L. 104-13) under control number

2130-0500 and are enforceable as approved. The approval will expire on

August 31, 1999. Four of the several rules to amend 49 CFR Part 225

published together in this issue of the Federal Register, contain

amendments to the approved information collections, while one adds a

new information collection requirement. These revisions are subject to

review by OMB under the Paperwork Reduction Act of 1995.

Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44

U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day

notice in the Federal Register concerning each collection of

information. To comply with this requirement, FRA is contemporaneously

publishing a notice in the Federal Register. A description of the

information collection requirements is shown in this notice along with

an estimate of the annual reporting and recordkeeping burden. Should

any respondents have comments on these information collection

requirements, they should respond to the addresses located in that

notice.

FRA is not authorized to impose a penalty on persons for violating

information collection requirements which do not display a current OMB

control number, if required. FRA intends to obtain current OMB control

numbers for any new or revised information collection requirements

resulting from this rulemaking action. Once OMB approval is received,

the OMB control number will be announced by separate notice in the

Federal Register.

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

49 CFR Part 219

Alcohol abuse, Drug abuse, Railroad safety.

49 CFR Part 225

Railroad safety, Reporting and recordkeeping requirements.

The Final Rule

In consideration of the foregoing, FRA amends Parts 219 and 225,

Title 49, Code of Federal Regulations to read as follows:

PART 219--[AMENDED]

1. The authority citation for Part 219 continues to read as

follows:

Authority: 49 U.S.C. 20103, 20107, 20111, 20112, 20113, 20140,

21301, 21304; and 49 CFR 1.49(m).

2. In Sec. 219.5, the definition of Reporting threshold is amended

by removing ``Sec. 225.19(c)'' in the first sentence and by adding, in

its place, ``Sec. 225.19(e)''.

PART 225--[AMENDED]

1. The authority citation for Part 225 continues 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).

2. Section 225.3 is amended by redesignating the introductory text

as paragraph (a) introductory text and revising it to read as set forth

below: by redesignating paragraphs (a), (b), and (c) introductory text

as paragraphs (a) (1), (2), and (3), respectively; by redesignating

paragraphs (c) (1), (2), (3), and (4) as paragraphs (a)(3) (i), (ii),

(iii), nad (iv), respectively; and by adding new paragraphs (b), (c),

and (d) to read as follows:

Sec. 225.3 Applicability.

(a) Except as provided in paragraphs (b), (c), and (d), this part

applies to all railroads except--

* * * * *

(b) The Internal Control Plan requirements in Sec. 225.33(a)(3)

through (10) do not apply to--

(1) Railroads that operate or own track on the general railroad

system of transportation that have 15 or fewer employees covered by the

hours of service law (49 U.S.C. 21101-21107) and

(2) Railroads that operate or own track exclusively off the general

system.

(c) The recordkeeping requirements regarding accountable injuries

and illnesses and accountable rail equipment accidents/incidents found

in Sec. 225.25(a) through (g) do not apply to--

(1) Railroads that operate or own track on the general railroad

system of transportation that have 15 or fewer employees covered by the

hours of service law (49 U.S.C. 21101-21107) and

(2) Railroads that operate or own track exclusively off the general

system.

(d) All requirements in this part to record or report an injury or

illness incurred by any classification of person that results from a

non-train incident do not apply to railroads that operate or own track

exclusively off the general railroad system of transportation, unless

the non-train incident involves in- service on-track equipment.

3. Section 225.5 is amended by revising paragraph (4) in the

definition of Accident/incident, by revising the definition of

Establishment, and by adding one sentence to the end of the definition

of Qualified health care professional to read as follows:

Sec. 225.5 Definitions.

* * * * *

Accident/incident means:

* * * * *

(4) Occupational illness.

* * * * *

Establishment means a single physical location where workers report

to work, where railroad business is conducted, or where services or

operations are performed. Examples are: a division office, general

office, repair or maintenance facility, major switching yard or

terminal. For employees who are engaged in dispersed operations, such

as signal or track maintenance workers, an ``establishment'' is

typically a location where work assignments are initially made and

oversight responsibility exists, e.g., the establishment where the

signal supervisor or roadmaster is located.

* * * * *

Qualified health care professional * * * In addition to licensed

physicians, the term ``qualified health care professional'' includes

members of other occupations associated with patient care and treatment

such as chiropractors, podiatrists, physician's assistants,

psychologists, and dentists.

* * * * *

Sec. 225.19 [Amended]

4. Section 225.19(c) is amended by adding after the phrase ``that

result in damages greater than the current reporting threshold'' the

following: ``(i.e., $6,300 for calendar years 1991 through 1996 and

$6,500 for calendar year 1997)''.

5. The introductory text of Sec. 225.25(h) is amended by removing

the first and

[[Page 67491]]

second sentences and adding, in their place, the following:

Sec. 225.25 Recordkeeping.

* * * * *

(h) Except as provided in paragraph(h)(15) of this section, a

listing of all injuries and occupational illnesses reported to FRA as

having occurred at an establishment shall be posted in a conspicuous

location at that establishment, within 30 days after the expiration of

the month during which the injuries and illnesses occurred, if the

establishment has been in continual operation for a minimum of 90

calendar days. If the establishment has not been in continual operation

for a minimum of 90 calendar days, the listing of all injuries and

occupational illnesses reported to FRA as having occurred at the

establishment shall be posted, within 30 days after the expiration of

the month during which the injuries and illnesses occurred, in a

conspicuous location at the next higher organizational level

establishment, such as one of the following: an operating division

headquarters; a major classification yard or terminal headquarters; a

major equipment maintenance or repair installation, e.g., a locomotive

or rail car repair or construction facility; a railroad signal and

maintenance-of-way division headquarters; or a central location where

track or signal maintenance employees are assigned as a headquarters or

receive work assignments. These examples include facilities that are

generally major facilities of a permanent nature where the railroad

generally posts or disseminates company informational notices and

policies, e.g., the policy statement in the internal control plan

required by Sec. 225.33 concerning harassment and intimidation. At a

minimum, ``establishment'' posting is required and shall include

locations where a railroad reasonably expects its employees to report

during a 12-month period and to have the opportunity to observe the

posted list containing any reportable injuries or illnesses they have

suffered during the applicable period. * * *

* * * * *

6. The introductory text of Sec. 225.25(h) is further amended by

removing the last sentence and adding, in its place, the following:

Sec. 225.25 Recordkeeping.

* * * * *

(h) * * * The listing shall contain, at a minimum, the information

specified in paragraphs(h)(1) through (14) of this section.

* * * * *

7. In Sec. 225.25, paragraphs(h)(12) and (13) are revised and new

paragraph(h)(15) is added to read as follows:

Sec. 225.25 Recordkeeping.

* * * * *

(h) * * *

(12) Preparer's name, title, telephone number with area code, and

signature (or, in lieu of signing each establishment's list of

reportable injuries and illnesses, the railroad's preparer of this

monthly list may sign a cover sheet or memorandum which contains a list

of each railroad establishment for which a monthly list of reportable

injuries and illnesses has been prepared. This cover memorandum shall

be signed by the preparer and shall have attached to it a duplicate

copy of each establishment's list of monthly reportable injuries and

illnesses. The preparer of the monthly lists of reportable injuries and

illnesses shall mail or send by facsimile each establishment's list to

the establishment in the time frame prescribed in paragraph (h) of this

section.); and

(13) Date the record was completed.

* * * * *

(15) The railroad is permitted not to post information on an injury

or illness only if the employee who incurred the injury or illness

makes a request in writing to the railroad's reporting officer that his

or her particular injury or illness not be posted.

Sec. 225.27 [Amended]

8. The second sentence of Sec. 225.27(a) is amended by removing the

words ``they relate'' and adding, in their place, ``it relates''.

Sec. 225.33 [Amended]

9. The third sentence of the introductory text of Sec. 225.33(a) is

amended by removing the word ``ten''.

Issued in Washington, D.C., on December 16, 1996.

Jolene M. Molitoris,

Federal Railroad Administrator.

[FR Doc. 96-32420 Filed 12-20-96; 8:45 am]

BILLING CODE 4910-06-P