[Federal Register Volume 61, Number 247 (Monday, December 23, 1996)]
[Rules and Regulations]
[Pages 67477-67491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32420]
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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