[Federal Register Volume 61, Number 227 (Friday, November 22, 1996)]
[Rules and Regulations]
[Pages 59368-59371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-29849]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[FRA Docket No. RAR-4, Notice No. 14]
RIN 2130-AA58


Railroad Accident Reporting

AGENCY: Federal Railroad Administration (FRA, DOI).

ACTION: Final rule; Correcting amendments and partial response to 
petitions for reconsideration.

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SUMMARY: On June 18, 1996, FRA published a final rule amending the 
railroad accident reporting regulations. FRA now makes technical 
corrections to the final rule and responds to certain concerns raised 
in petitions for reconsideration of the final rule, which concerns were 
also raised in requests to stay the effective date of the final rule. 
In this document FRA issues amendments to the final rule addressing 
those concerns. FRA's response to the other concerns raised in 
petitions for reconsideration of the final rule will appear in the near 
future in a separate document published in the Federal Register.

EFFECTIVE DATE: January 1, 1997.

FOR FURTHER INFORMATION CONTACT: Robert L. Finkelstein, Staff Director, 
Office of Safety Analysis, Office of Safety, FRA, 400 Seventh Street, 
SW., Washington, D.C. 20590 (telephone 202-632-3386); or Nancy L. 
Goldman, Trial Attorney, Office of Chief Counsel, FRA, 400 Seventh 
Street, SW., Washington, D.C. 20590 (telephone 202-632-3167).

SUPPLEMENTARY INFORMATION: On June 18, 1996, FRA published a final rule 
amending the railroad accident reporting regulations at 49 CFR part 225 
(61 FR 30940). The final rule aims to minimize underreporting and 
inaccurate reporting of those injuries, illnesses, and accidents 
meeting reportability requirements. On August 19, 1996, and August 29, 
1996, respectively, the Association of American Railroads (AAR) and the 
Union Pacific Railroad Company (UP) filed petitions for reconsideration 
of the final rule raising various concerns and requested in their 
petitions for reconsideration, and by purported petitions for stay not 
recognized by FRA regulations at 49 CFR part 211, that FRA postpone the 
effective date of the final rule (collectively, Petitions). The 
Petitions specifically allege:
      That AAR member railroads will be exposed to substantial 
risk should the rule not be stayed pending FRA's decision on AAR's 
Petition for Reconsideration; and
      That the text of the final rule may allow employees 
access to records and files which the railroads may deem to be 
privileged, confidential, and litigation-sensitive, thus giving 
employee litigants advantages that could expose railroads to 
irreparable injury.

1. Requests To Stay the Effective Date

    As stated above, AAR and UP request in their Petitions that FRA 
stay the effective date of the final rule, asserting that such a stay 
is in the public interest and that other interested parties would not 
be substantially harmed by such a stay since the rule does not address 
``any significant safety risk.'' AAR claims that its member railroads 
will be exposed to substantial risk should the rule not be stayed 
pending FRA's decision on AAR's Petition for Reconsideration. Section 
211.31 of FRA's rules of practice states that FRA must decide to grant 
or deny, in whole or in part, each petition for reconsideration not 
later than four months after receipt by FRA's Docket Clerk (49 CFR 
211.31). In this case, FRA's decision on the petitions for 
reconsideration is due no later than December 19, 1996. AAR and UP 
therefore request an immediate stay of the effective date for a 
reasonable period of time after issuance of FRA's decision on the 
Petitions for Reconsideration in order to assess FRA's decision and 
evaluate how FRA's decision impacts the final rule. In the alternative, 
AAR and UP request postponement of the effective date of the final rule 
from January 1, 1997, to January 1, 1998.

Discussion

    After careful consideration and for the reasons set forth in this 
document, FRA has decided not to stay the effective date of its final 
rule. FRA so informed AAR and UP by letter dated October 10, 1996. 
Initially, FRA wishes to emphasize that its rules of practice applying 
to rulemakings do not authorize petitions for stay of a final rule. See 
49 CFR part 211. Since procedures do not exist with respect to a stay 
petition, there exists no regulatory deadline by which to answer such a 
petition, and FRA's response to AAR's and UP's purported petitions for 
stay (``Petitions for Stay'') did not constitute a final agency action 
subject to review. It should also be noted that the filing of a 
petition for reconsideration does not stay the effectiveness of a rule 
under 49 CFR 211.29. Nevertheless, FRA chose to reply to the 
substantive issues in AAR's and UP's ``Petitions for Stay'' in order to

[[Page 59369]]

maintain and foster the collaborative and cooperative partnership 
approach to resolving issues important to the industry.
    FRA is also confident that railroads were given ample time to 
prepare to comply with the final rule, given the amount of time between 
its publication (June 18, 1996) and its effective date (January 1, 
1997). Those subject to a Federal rule are not entitled to predicate 
their actions on the assumption that a petition for reconsideration 
will result in substantive changes to the rule. The public interest 
would not be served by delaying the effective date of this rule at this 
time, based on FRA's review of the grounds set forth in the ``Petitions 
for Stay.'' Therefore, if, in responding to pending petitions for 
reconsideration of the final rule from AAR, UP, or others, FRA makes 
any additions or changes to the final rule, then FRA will allow the 
railroads sufficient time and latitude to comply with any revised 
provisions. In the meantime, the industry should plan to comply on the 
original effective date of January 1, 1997.

2. Section 225.25(c)  Recordkeeping

Current Final Rule Language

    Section 225.25(c) reads as follows:

    Each railroad shall provide the employee, upon request, a copy 
of either the completed Railroad Employee Injury and/or Illness 
Record (Form FRA F 6180.98) or the alternative railroad-designed 
record as described in paragraphs (a) and (b) of this section as 
well as a copy of any other form, record or report filed with FRA or 
held by the railroad pertaining to the employee's injury or illness.

    As noted, the Petitions contend that this section would allow 
railroad employees access to records and files which the railroad may 
deem to be privileged, confidential, and/or litigation-sensitive. AAR 
claims that the portion of Sec. 225.25(c) that would allow employees 
access to ``a copy of any other form, record or report filed with FRA 
or held by the railroad pertaining to the employee's injury or 
illness,'' may give employee litigants advantages that could expose 
railroads to irreparable injury. UP states that by means of 
Sec. 225.25(c), FRA was trying to ``preempt [Federal Employers' 
Liability Act (45 U.S.C. 51 et seq.)] FELA case law, FELA statutory 
language, the Federal Rules of Civil Procedure, and the jurisdiction of 
the judiciary itself.'' Similarly, AAR states that Sec. 225.25(c) 
``purports to overturn the Federal Rules of Civil Procedure and other 
statutory protections by requiring railroads to open their files and 
give privileged documents to potential and actual plaintiff-employees'' 
and that the section was unlawful and in violation of the 
Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) because FRA 
failed to give public notice of this provision and allow opportunity 
for comment. UP further questions how employee access to medical files 
would assist FRA in improving railroad safety.
    AAR states that the adverse effects of the final rule are:
    (1) To interfere irrevocably with full and frank disclosure between 
attorney and client which is critical to the functioning of the 
adversary system, by mandating release of attorney-client 
communications that had been made in the past and would have been made 
in the future with an expectation of confidentiality,
    (2) To undermine irrevocably the protections that are accorded 
accident reports under 49 U.S.C. 20903 in order to avoid their use for 
any adversarial purpose, by mandating release of such reports, and
    (3) To undermine irrevocably the railroads' rights to 
confidentiality of other privileged and litigation-sensitive documents, 
by mandating their release.

Discussion and Amended Final Rule

    AAR's assertion that FRA failed to give notice and an opportunity 
to comment on the provision in Sec. 225.25(c) is without merit. In the 
railroad accident reporting Notice of Proposed Rulemaking (NPRM), 
published in the Federal Register on August 19, 1994 (59 FR 42880), FRA 
proposed in Sec. 225.39(b) that each railroad provide the worker whose 
injury or illness is reported on the Railroad Worker Injury and Illness 
Log, with a copy of such log within seven calendar days of completing 
the log. The preamble to the NPRM explained FRA's concern with the fact 
that the injured or ill employee did not have the opportunity to review 
and verify the information the railroad submitted on accident/illness 
reports prior to submission of such reports to FRA.
    The preamble to the final rule further explained the agency's 
rationale for issuing these regulations. FRA believes that to the 
extent it concerns documents required by FRA to be maintained or 
submitted, the requirement in Sec. 225.25(c) is necessary in order to 
provide the injured or ill employee a means by which to review and 
verify the reporting status of his or her injury or illness. By 
providing this requested information, the employee would have the 
opportunity to assess why, or why not, a particular event was, or was 
not, reported to FRA. By including the employee in this process, the 
overall integrity of FRA's data base would improve. The accuracy of 
railroad accident and injury data is essential to improving the safety 
of railroad employees and the railroad industry as a whole. Further, a 
reliable and accurate railroad injury and accident reporting data base 
is critical to formulating effective rail safety policies and 
regulations.
    In writing the final rule, however, FRA never intended to negate 
the well-established litigation privileges with respect to the type of 
documents railroad employee litigants may obtain from the railroads. 
The final rule better defines the types of documents to which employees 
may obtain access, and is a logical outgrowth of the proposed 
regulation.
    FRA is amending Sec. 225.25(c) to clarify that railroads are 
required to grant a railroad employee access only to forms or reports 
required to be maintained or filed under Part 225 pertaining to that 
employee's own work-related injury or illness. Thus, the amended final 
rule cannot be read to provide employees access to any other documents 
in the railroad's files; nor can the revised language be interpreted to 
deny employees access to such documents. Such access would be an issue 
between the employee and the railroad. The accident reports statute (49 
U.S.C. 20102, 20901-20903, 21302, 21304, 21311) does not preclude 
disclosure of such documents; instead that statute precludes the 
``use'' of such documents in lawsuits for damages of certain accident 
reports. This distinction between the public availability of accident/
incident reports and their use in litigation is clearly made in 
Sec. 225.7 of both the current and amended final rule.

3. Section 225.35  Access to Records and Reports

Current Final Rule Language

    AAR's petition for reconsideration asserts that the following 
portion of Sec. 225.35 is unlawful because FRA failed to give public 
notice of this provision and allow opportunity for comment and that the 
provision would allow FRA and ``other authorized representatives'' 
access to any document or record without regard to any claim of 
privilege:

    Each railroad subject to this part shall have at least one 
location, and shall identify each location, where any representative 
of the Federal Railroad Administration or of a State agency 
participating in investigative and surveillance activities under 
part 212 of this chapter or any other authorized representative, has 
centralized access to a copy of any record and report (including 
relevant claims and medical records) required under this part, for 
examination and

[[Page 59370]]

photocopying in a reasonable manner during normal business hours.

Discussion

    AAR's assertion that FRA failed to give notice and an opportunity 
to comment on this provision in Sec. 225.35 is without merit. In the 
accident reporting NPRM, FRA proposed in Sec. 225.41 that all reports, 
logs, plans, and records related to (a) rail equipment accidents/
incidents, including collisions and derailments; (b) highway-rail grade 
crossing accidents/incidents; (c) deaths, injuries, and illnesses, 
including claims and medical records; as well as all records and 
reports identified in Sec. 225.25, must be made available, upon 
request, to any FRA representatives, or any representative of a State 
participating in investigative and surveillance activities under the 
Federal railroad safety laws and regulations, for examination and 
photocopying in a reasonable manner during normal business hours. The 
final rule provision in Sec. 225.35 adds ``any authorized 
representative'' to the list of persons who may obtain access to 
railroad documents only to distinguish ``FRA inspectors'' from ``FRA 
management staff'' who may sometimes accompany FRA inspectors and 
specialists during routine inspections.
    As stated in the preamble to the NPRM and the final rule, FRA 
believes that Sec. 225.35 would alleviate the problems and reluctance 
that FRA inspectors frequently encounter from the railroads when 
examining and photocopying claims department records, particularly 
railroad employee medical records.

Amended Final Rule

    FRA grants, in part, AAR's request for reconsideration as to that 
portion of Sec. 225.35 that would allow FRA and any other authorized 
representative access to ``any record and report (including relevant 
claims and medical records) required'' under the accident reporting 
regulations. FRA agrees that Sec. 225.35 was inadvertently drafted in 
an overly broad manner and that it may be misinterpreted to require 
railroads to release all medical and claim-related records to FRA upon 
request without regard to any claim of privilege. FRA did not intend 
unlimited access to all documents contained in an employee's file or to 
deny railroads the opportunity to assert a privilege with respect to a 
particular document. There are instances, however, where FRA may deem 
it necessary to obtain a document in the railroad's possession or under 
the control of the railroad that may contain information relevant to 
aid its investigation into the cause of a railroad accident or incident 
or an employee's injury or illness. FRA has authority under 49 U.S.C. 
20107 and 20902 to request and obtain such documents.
    When confronted with such a request, railroads usually cooperate 
and provide FRA with the requested relevant documents. In rare 
instances, a railroad may assert that the requested documentation is 
privileged and may deny access to such records. Should the railroad 
assert such a legal privilege with respect to particular records, 
failure to provide FRA access to such records will not constitute a 
violation of this section. However, if the railroad refuses to release 
information that FRA deems relevant to its investigation, then FRA may 
consider it necessary to issue a subpoena for the production of 
documents in order to carry out its duty to enforce the federal 
railroad safety laws. If the railroad should then fail to produce any 
of the requested documents in the possession or under the control of 
the railroad for examination and photocopying, FRA may seek enforcement 
of the subpoena in federal district court. See 49 U.S.C. 20107 and 
20902, delegated from the Secretary of Transportation by regulations of 
the Office of the Secretary at 49 CFR l.49(m), and the authority of 49 
CFR 209.7(a) and 225.31(b). Of course, a railroad could raise its claim 
of privilege in any action to enforce a subpoena. Alternatively, should 
a railroad claim a legal privilege concerning such a document, the 
railroad could submit the document to FRA with a request for 
confidential treatment under 49 CFR 209.11.
    Thus, Sec. 225.35 is revised to clarify that FRA and other 
authorized representatives must have centralized access to records or 
reports required to be maintained or filed under part 225 and must have 
access to relevant claims and medical records and that should the 
railroad assert a legal privilege with respect to certain claims and 
medical records, failure to provide FRA access to such records would 
not violate this section. However, FRA may nevertheless use its 
subpoena power to obtain such records, and the railroad could contest 
that subpoena if it so chooses.

4. Technical Corrections

    In the list of definitions in Sec. 225.5, the definition for 
``Accountable injury or illness,'' which appears on page 30968, column 
one, of the Federal Register issue of June 18, 1996, should read as a 
separate paragraph. The definition for ``Day of restricted work 
activity'' on page 30968, column two, of the Federal Register issue of 
June 18, 1996, erroneously makes reference to the fact that 
``restricted'' is defined below. Thus, the parenthetical phrase ``(as 
defined below)'' is removed from the definition.
    Section 225.33(a)(10)(ii) erroneously makes reference to paragraphs 
``(a)(10)(i)(C)(D) (iii) and (iv)'' of that section. Section 
225.33(a)(10)(ii) now reads as follows: ``A current organization chart 
satisfies paragraphs (a)(10)(i) (B), (C), and (D) of this section.''

Regulatory Impact

Executive Order 12866 and DOT Regulatory Policies and Procedures

    The amendments to the final rule have been evaluated in accordance 
with existing regulatory policies and procedures and are considered to 
be a nonsignificant regulatory action under DOT policies and procedures 
(44 FR 11034; February 26, 1979). The amendments to the final rule also 
have been reviewed under Executive Order 12866 and are also considered 
``nonsignificant'' under that Order.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires a review of rules to assess their impact on small entities, 
unless the Secretary certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    The technical corrections to the final rule have no economic 
impact. The amendments to the final rule will have no new direct or 
indirect economic impact on small units of government, business, or 
other organizations. The amendments only clarify the well-established 
legal privileges with respect to the types of documents to which 
railroad employees, FRA inspectors, and other authorized 
representatives may obtain access from railroads. The clarifications 
actually provide regulatory relief to railroads and, as such, do not 
require any revision to the Regulatory Impact Analysis (RIA) produced 
for the final rule. No revision to the RIA is necessary because the 
burden was calculated based on FRA's original intentions of these 
requirements, which are now reflected in the amendments to the final 
rule.

Paperwork Reduction Act

    There are no new information collection requirements associated 
with these amendments. Therefore, no estimate of a public reporting 
burden is required.

[[Page 59371]]

Environmental Impact

    The amendments will not have any identifiable environmental impact.

Federalism Implications

    The amendments to the final rule will not have a substantial effect 
on the States, on the relationship between the national government and 
the States, or on the distribution of power and responsibilities among 
the various levels of government. Thus, in accordance with Executive 
Order 12612, preparation of a Federalism Assessment is not warranted.

List of Subjects in 49 CFR Part 225

    Railroad accident reporting rules, Railroad safety.

The Final Rule

    In consideration of the foregoing, FRA amends part 225, title 49, 
Code of Federal Regulations to read as follows:

PART 225--[AMENDED]

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

    Authority: 49 U.S.C. 20103, 20107, 20901, 20902, 21302, 21311; 
49 U.S.C. 103; 49 CFR 1.49(c), (g), and (m).


Sec. 225.5  Definitions. [Corrected]

    2. In Sec. 225.5, In the definition for ``Day of restricted work 
activity,'' the parenthetical phrase ``(as defined below)'' in the 
second and third lines of that definition is removed.
    3. Section Sec. 225.25(c) is revised to read as follows:


Sec. 225.25  Recordkeeping.

* * * * *
    (c) Each railroad shall provide the employee, upon request, a copy 
of either the completed Railroad Employee Injury and/or Illness Record 
(Form FRA F 6180.98) or the alternative railroad-designed record as 
described in paragraphs (a) and (b) of this section as well as a copy 
of forms or reports required to be maintained or filed under this part 
pertaining to that employee's own work-related injury or illness.
* * * * *


Sec. 225.33  Internal Control Plans. [Corrected]

    4. In Sec. 225.33(a)(10)(ii), the reference to ``(a)(10)(i)(C)(D) 
(iii) and (iv)'' is revised to read ``(a)(10)(i) (B), (C), and (D)''.
    5. Section 225.35 is amended by removing the parenthetical phrase 
``(including relevant claims and medical records)'' in the first 
sentence and by adding after the first sentence the following:


Sec. 225.35  Access to records and reports.

* * * * *
    Each railroad subject to this part shall also provide to any 
representative of the Federal Railroad Administration or of a State 
agency participating in investigative or and surveillance activities 
under part 212 of this chapter or any other authorized representative 
access to relevant medical and claims records for examination and 
photocopying in a reasonable manner during normal business hours. * * *
    6. Section 225.35 is amended by adding two sentences to the end of 
that section to read as follows:


Sec. 225.35  Access to records and reports.

    * * * Should a railroad assert a legal privilege with respect to 
certain claims and medical records, failure to provide FRA access to 
such records would not constitute a violation of this section. FRA 
retains the right to issue a subpoena to obtain such records under 49 
U.S.C. Secs. 20107 and 20902 and Secs. 209.7(a) and 225.31(b) of this 
title, and the railroad may contest that subpoena.

    Issued in Washington, D.C., on November 13, 1996.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 96-29849 Filed 11-21-96; 8:45 am]
BILLING CODE 4910-06-P