[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