[Federal Register Volume 75, Number 216 (Tuesday, November 9, 2010)]
[Rules and Regulations]
[Pages 68862-68910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27641]



[[Page 68861]]

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Part II





Department of Transportation





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Federal Railroad Administration



49 CFR Part 225



Miscellaneous Amendments to the Federal Railroad Administration's 
Accident/Incident Reporting Requirements; Final Rule

  Federal Register / Vol. 75 , No. 216 / Tuesday, November 9, 2010 / 
Rules and Regulations  

[[Page 68862]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

[Docket No. FRA-2006-26173; Notice No. 3]
RIN 2130-AB82


Miscellaneous Amendments to the Federal Railroad Administration's 
Accident/Incident Reporting Requirements

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule revises FRA's existing regulations addressing 
accident/incident reporting in order to clarify ambiguous regulations 
and to enhance the quality of information available for railroad 
casualty analysis. In addition, FRA has revised the FRA Guide for 
Preparing Accident/Incident Reports (FRA Guide), its accident/incident 
recording and reporting forms and its Companion Guide: Guidelines for 
Submitting Accident/Incident Reports by Alternative Methods (Companion 
Guide).

DATES: The final rule is effective Wednesday, June 1, 2011.

FOR FURTHER INFORMATION CONTACT: Arnel B. Rivera, Staff Director, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Safety Analysis, RRS-22, Mail Stop 25, West Building 3rd Floor, Room 
W33-306, 1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 
202-493-1331); or Gahan Christenson, Trial Attorney, U.S. Department of 
Transportation, Federal Railroad Administration, Office of Chief 
Counsel, RCC-10, Mail Stop 10, West Building 3rd Floor, Room W31-204, 
1200 New Jersey Avenue, SE., Washington, DC 20590 (telephone: 202-493-
1381).

SUPPLEMENTARY INFORMATION: 

I. The FRA Guide and the Companion Guide

    In addition to revising its regulations in the Code of Federal 
Regulations, FRA has revised the FRA Guide. The FRA Guide is posted on 
FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety. Hard 
copies of the FRA Guide will be available upon request. Information on 
requesting hard copies of the FRA Guide can be found in Sec.  225.21, 
``Forms,'' of this final rule.
    FRA has also revised its Companion Guide containing instructions 
for electronically submitting monthly reports to FRA. The Companion 
Guide is posted on FRA's Web site at http://safetydata.fra.dot.gov/officeofsafety.

II. Background

A. Statutory Authority for the Accident/Incident Reporting Requirements 
in 49 CFR Part 225 (Part 225)

    FRA's accident/incident reporting requirements \1\ in Part 225, 
both as they exist today and as they are amended by this final rule, 
were issued under the statutory authority of the following three 
statutes: \2\
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    \1\ The discussion under this section (II)(A) concerns the 
statutory authority for the reporting provisions of Part 225 only, 
e.g., 49 CFR 225.11 and 225.21, and does not address the statutory 
authority for the penalty, investigative, or other provisions of 
Part 225.
    \2\ This final rule adds a fourth statute to the statutory 
foundation for the accident/incident reporting requirements in Part 
225: 28 U.S.C. 1746, Unsworn declarations under penalty of perjury. 
Public Law 94-550, sec. 1(a), Oct. 18, 1976, 90 Stat. 2534. Pursuant 
to that statute, the requirement in 49 U.S.C. 20901 that accident 
reports be submitted ``under oath'' (and, therefore, signed and 
notarized) has been converted into one of two alternative 
requirements, the second being submission of a signed, unsworn 
declaration saying that it is being made subject to penalty of 
perjury.
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     49 U.S.C. 20901 (formerly, part of the Accident Reports 
Act);
     49 U.S.C. 20103(a) (formerly, part of the Federal Railroad 
Safety Act of 1970); and
     49 U.S.C. 322(a) (formerly, part of the Department of 
Transportation Act).
    The Accident Reports Act was enacted in 1910,\3\ Public Law 165, 
the Act of May 6, 1910, ch. 208, 36 Stat. 350 (1910). Section 1 of the 
Accident Reports Act required--
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    \3\ Federal requirements that railroads report their accidents 
date back to before 1910, as evidenced by two provisions in the 
Accident Reports Act as originally enacted. The first section of the 
Accident Reports Act contained a proviso that relieved carriers 
``from the duty of reporting accidents in their annual financial and 
operating reports made to the commission[,]'' and Section 6 repealed 
an accident reporting law enacted in 1901, `An Act requiring common 
carriers * * * to make full reports of all accidents to the 
Interstate Commerce Commission.` Approved March third, nineteen 
hundred and one * * *''

every common carrier engaged in interstate or foreign commerce by 
railroad to make to the Interstate Commerce Commission [ICC] * * * a 
monthly report, under oath, of all collisions, derailments, or other 
accidents arising from the operation of such railroad under such 
rules and regulations as may be prescribed by the [ICC,] which 
report shall state the nature and causes thereof and the 
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circumstances connected therewith * * *.

Emphasis added. In addition, Section 5 of the Accident Reports Act 
authorized the ICC ``to prescribe for such common carriers a method and 
form for making the reports hereinbefore provided.'' Together, Sections 
1 and 5 of the Accident Reports Act afforded the ICC authority to 
promulgate regulations to carry out the reporting provisions of the 
Accident Reports Act.
    In 1960, the Accident Reports Act was amended to remove language in 
Section 1 conferring rulemaking authority on the ICC to require 
railroads to (``report * * * under such rules and regulations as may be 
prescribed by the [ICC]'') and to add to Section 5 clearer language 
conferring that rulemaking authority (``The [ICC] is authorized to 
prescribe such rules and regulations and such forms for making the 
reports herein before provided as are necessary to implement and 
effectuate the purpose of this Act.''). Public Law 86-762 (September 
13, 1960), 74 Stat. 903. In 1966, the Department of Transportation Act 
transferred the responsibility for prescribing regulations to carry out 
the Accident Reports Act, as amended, from the ICC to the Secretary of 
Transportation. Sec. 6(e)(1)(K) of Public Law 89-670 (October 15, 
1966), 80 Stat. 939. In addition, the Secretary delegated this 
responsibility to the Administrator of the Federal Railroad 
Administration by regulation. 49 CFR 1.49(c)(11). Later, in 1988, the 
Accident Reports Act was amended so as to expand its applicability from 
``common carriers engaged in interstate commerce by railroad'' to 
include all ``railroads.'' Sec. 15 of Public Law 100-342 (June 22, 
1988), 102 Stat. 633. The same legislation required railroads to 
include in any of their reports that assigned employee error as a cause 
of an accident/incident to include, at the employee's option, a 
statement ``explaining any factors the employee alleges contributed to 
the accident or incident.'' Id. at Sec. 24.
    In 1994, the Accident Reports Act, as amended (then codified at 45 
U.S.C. 38-43a), along with virtually all of the other Federal railroad 
safety laws, was repealed, and its provisions were revised, reenacted 
as positive law, and recodified without substantive change at 49 U.S.C. 
20901-20903, Accidents and Incidents, with its penalty provisions in 49 
U.S.C. chapter 213, Penalties, Public Law 103-272, 108 Stat. 745 (July 
5, 1994). During the 1994 recodification of the rail safety laws, 
Congress repealed, but did not reenact or recodify the text of Section 
5 of the Accident Reports Act, as amended (then codified at 45 U.S.C. 
42), which authorized the Secretary ``to prescribe such rules and 
regulations and such forms for making the reports hereinbefore provided 
as are necessary to implement and effectuate the purposes of [the 
Accident Reports Act].'' Congress concluded that this section was 
``[un]necessary because of

[[Page 68863]]

49 [U.S.C.] 322(a).'' See H.R. Rep. No. 103-180, 502, 584 (1993); 
reprinted in 1994 U.S.C.C.A.N. 1319, 1401. Although Public Law 103-272 
was not intended to change the substance of the laws as recodified, 
this is an example of how its repeal of an ``unnecessary'' law 
apparently changed the statutory basis of a regulation. Of course, 
recodification did not change any law substantively, so in a sense, 
Section 5 of the Accident Reports Act survives to the extent that it is 
legally necessary.
    The preamble to this final rule refers to the current, recodified 
version of what was formerly known as the Accident Reports Act, by its 
section numbers in title 49 of the U.S. Code. Currently, Sec.  20901 
requires, in part, that railroad carriers file with the Secretary of 
Transportation reports on ``all accidents and incidents resulting in 
injury or death to an individual or damage to equipment or a roadbed 
arising from the carrier's operations during the month.''
    The second major statutory authority for the accident/incident 
reporting requirements in Part 225 is 49 U.S.C. 20103, formerly Sec.  
202 of the Federal Railroad Safety Act of 1970 (FRSA). Public Law 91-
458 (October 16, 1970), 84 Stat. 971. Like the Accident Reports Act, 
the FRSA was repealed in 1994, and its provisions were revised, 
reenacted as positive law, and recodified without substantive change 
primarily at 49 U.S.C. chapter 201, with penalty provisions in 49 
U.S.C. chapter 213. As amended, 49 U.S.C. 20103(a) provides, in 
pertinent part, that ``[t]he Secretary of Transportation, as necessary, 
shall prescribe regulations and issue orders for every area of railroad 
safety supplementing laws and regulations in effect on October 16, 
1970.'' The Secretary also delegated this authority to the 
Administrator of FRA. 49 CFR 1.49(m). In 1974, FRA reissued its 
accident reporting regulations under the added authority of the FRSA to 
cover additional railroads and require reporting of occupational 
illnesses. 39 FR 43222, December 11, 1974.
    The third major statutory authority for the accident/incident 
reporting requirements in Part 225 is 49 U.S.C. 322(a), which was 
enacted in 1966, and codified in Sec.  9(e) of the Department of 
Transportation Act. The statutory provision at 49 U.S.C. 322(a) reads 
as follows:

    The Secretary of Transportation may prescribe regulations to 
carry out the duties and powers of the Secretary. An officer of the 
Department of Transportation may prescribe regulations to carry out 
the duties and powers of the officer.

Under 49 U.S.C. 322(a), an officer of the Department of Transportation 
may prescribe regulations to carry out the duties of the officer. 
Section 103(d) of title 49, U.S. Code, provides that the head of the 
FRA is the Administrator, and the Administrator of FRA is an ``officer 
of the Department of Transportation,'' within the meaning of 49 U.S.C. 
322(a). Section 103(g)(1) of title 49, U.S. Code, provides that ``the 
Administrator shall carry out--* * * duties and powers related to 
railroad safety vested in the Secretary by * * * chapters 203-211 of 
this title, and by chapter 213 of this title for carrying out chapters 
203 through 211.'' Consequently, the duty of carrying out 49 U.S.C. 
chapter 209 is clearly one of the ``duties of the officer,'' within the 
meaning of 49 U.S.C. 322(a). Accordingly, the FRA Administrator may 
prescribe regulations to carry out 49 U.S.C. chapter 209.

B. Occupational Safety and Health Act

    Although not a statutory authority for the accident/incident 
reporting requirements of Part 225, the Occupational Safety and Health 
Act (OSH Act), which Congress enacted in 1970, has shaped these 
requirements. Public Law 91-596, codified as amended at 29 U.S.C. 651 
et seq. While the OSH Act gives the Secretary of Labor a broad, general 
authority to regulate working conditions that affect the occupational 
safety and health of employees, it also recognized the existence of 
similar authority in other Federal agencies. Section 4(b)(1) of the OSH 
Act, codified at 29 U.S.C. 653(b)(1), provides that the OSH Act shall 
not apply to working conditions as to which another Federal agency 
exercises statutory authority to prescribe or enforce standards or 
regulations affecting occupational safety or health.
    Because FRA exercises statutory authority to prescribe and enforce 
standards and regulations for all areas of railroad safety under 49 
U.S.C. chapter 201, OSHA's jurisdiction may be preempted by FRA under 
section 4(b)(1) of the OSH Act with regards to certain matters related 
to railroad safety. See Policy Statement asserting FRA jurisdiction 
over matters involving the safety of railroad operations, 43 FR 10584, 
March 14, 1978.
    With respect to employee injury and illness recordkeeping, however, 
OSHA's Occupational Safety and Health Review Commission ruled that the 
railroad industry must comply with OSHA requirements and must afford 
the Secretary of Labor's representatives access to these records. 
Secretary of Labor v. Conrail (OSHRC Docket No. 80-3495, 1982). In 
doing so, the Commission indicated that employee injury and illness 
recordkeeping does not come within the purview of section 4(b)(1) of 
the OSH Act and, therefore, OSHA's jurisdiction has not been displaced 
by FRA's employee injury and illness recordkeeping and reporting 
regulations. Nevertheless, the Commission did state, ``[t]his does not 
mean that railroad industry employers must use the OSHA form, No. 200, 
mentioned in section [29 CFR] 1904.2(a). Section 1904.2(a) allows an 
employer to maintain `an equivalent which is as readable and 
comprehensible [as the OSHA 200 form] to a person not familiar with 
it.' '' \4\ Under OSHA's current regulations, 49 CFR 1904.3 states that 
``[i]f you create records to comply with another government agency's 
injury and illness recordkeeping requirements, OSHA will consider those 
records as meeting OSHA's Part 1904 recordkeeping requirements if OSHA 
accepts the other agency's records under a memorandum of understanding 
with that agency, or if the other agency's records contain the same 
information as this Part 1904 requires you to record.'' Accordingly, 
because FRA's employee injury and illness recordkeeping and reporting 
requirements employ equivalent standards to those promulgated by OSHA, 
OSHA does not require railroad carriers to maintain OSHA records in 
addition to FRA records. Rather, railroad carriers are only required to 
report employee injuries and illnesses to FRA in accordance with FRA's 
regulations. FRA makes all railroad employee injury and illness data 
available to OSHA for use in its complementary program of regulation, 
and provides this data to the Bureau of Labor Statistics (BLS) each 
year for inclusion in the Department of Labor's national occupational 
injury and illness database.
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    \4\ It should be noted that the OSHA 200 form has been 
subsequently renamed as the OSHA 300 form.
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C. Overview of Part 225 and Recent Amendments

    Part 225 contains a series of specific accident/incident recording 
and reporting requirements. The purpose of FRA's accident/incident 
recordkeeping and reporting regulations is ``to provide the Federal 
Railroad Administration with accurate information concerning the 
hazards and risks that exist on the Nation's railroads. FRA needs this 
information to effectively carry out its statutory responsibilities 
under 49 U.S.C. chapters 201-213. FRA also uses this information for 
determining

[[Page 68864]]

comparative trends of railroad safety and to develop hazard elimination 
and risk reduction programs that focus on preventing railroad injuries 
and accidents.'' 49 CFR 225.1. Part 225's central provision requires 
that each railroad subject to Part 225 submit to FRA monthly reports of 
all accidents and incidents that meet FRA's reporting criteria. 49 CFR 
225.11. Railroad accidents/incidents are divided into three groups, 
each of which corresponds to the type of reporting form that a railroad 
must file with FRA: (1) Highway-rail grade crossing accidents/
incidents; (2) rail equipment accidents/incidents; and (3) deaths, 
injuries and occupational illnesses. See 49 CFR 225.19.
    In 1996, FRA published extensive amendments to its accident/
incident reporting regulations. 61 FR 30940, June 18, 1996; 61 FR 
67477, December 23, 1996. This was the first major revision of the 
accident/incident reporting requirements since 1974. The primary 
purpose of the revision was to increase the accuracy, completeness, and 
utility of FRA's accident database and to clarify certain definitions 
and regulatory requirements. Among other things, these amendments 
required railroads to adopt and comply with an Internal Control Plan 
(ICP) to ensure accurate reporting of accidents and incidents.
    In 2003, FRA again published extensive amendments to its accident/
incident reporting regulations (FRA's 2003 Final Rule). 68 FR 10107-
10140, March 3, 2003. The primary purpose of these revisions was to 
conform FRA's accident/incident reporting requirements to OSHA's newly 
revised occupational injury and illness recording and reporting 
requirements. 66 FR 5916-6135, January 19, 2001 (codified at 29 CFR 
Parts 1904 and 1952) (OSHA's 2001 Final Rule). FRA's 2003 Final Rule 
also addressed other issues and provided for an alternative method of 
recording claimed occupational illnesses with the advent of Form FRA F 
6180.107, ``Alternative Record for Illness Claimed to be Work-
Related.''

III. Proceedings to Date

    On September 9, 2008, FRA published a Notice of Proposed Rulemaking 
(NPRM), which proposed miscellaneous amendments to FRA's accident/
incident reporting regulations in order to clarify ambiguous 
regulations and to enhance the quality of information available for 
railroad casualty analysis. See 73 FR 52496. The NPRM also proposed 
revisions to the 2003 FRA Guide and FRA's Accident/Incident recording 
and reporting forms.
    The NPRM further requested comments and suggestions on four issues 
of concern. First, FRA requested comments and suggestions for any 
additional information that might be gathered on Form FRA F 6180.57, 
``Highway-Rail Grade Crossing Accident/Incident Report,'' that would be 
useful in determining how and why highway-rail grade crossing 
accidents/incidents occur. Second, FRA requested comments and 
suggestions on whether FRA should require railroads to complete the 
longitude and latitude blocks on Form FRA F 6180.55a, ``Railroad Injury 
and Illness Summary (Continuation Sheet)'' (blocks 5s and 5t), for 
reportable trespasser casualties only, and on Form FRA F 6180.54, 
``Rail Equipment Accident/Incident Report'' (blocks 50 and 51). Third, 
FRA requested comments and suggestions on whether FRA should change the 
method by which telephonic reports of accidents/incidents, as required 
by Sec.  225.9, are made to FRA. Fourth, FRA requested comments and 
suggestions on whether FRA should require railroads to report to FRA on 
Form FRA F 6180.55a suicides and attempted suicides, otherwise referred 
to as ``suicide data,'' and on concerns regarding State access to such 
reports.
    On September 10, 2008, during the 36th Railroad Safety Advisory 
Committee (RSAC) meeting, RSAC Task No. 2008-02 was presented for 
acceptance. The task offered to the RSAC for consideration was to 
review comments received on FRA's NPRM and would have allowed the RSAC 
to make recommendations for the content of the final rule. The task was 
withdrawn at the meeting without RSAC acceptance.
    Following publication of the NPRM in the Federal Register, FRA held 
a public hearing in Washington, DC on December 18, 2008, and extended 
the comment period for an additional thirty (30) days following the 
hearing. The hearing enabled the exchange of information regarding 
FRA's proposed amendments, and allowed the public to articulate their 
issues and concerns regarding the NPRM, so that such concerns could be 
addressed in the final rule. The hearing was attended by a number of 
railroads, organizations representing railroads, and labor 
organizations. FRA received oral and written testimony at the hearing 
as well as written comments during the extended comment period. A copy 
of the hearing transcript was placed in Docket No. FRA-2006-26173 on 
http://www.regulations.gov. During the initial and extended comment 
period, FRA received comments and heard testimony from the following 
organizations, in addition to comments from individuals, listed in 
alphabetical order:

     American Association for Justice (AAJ);
     Association for American Railroads (AAR);
     American Train Dispatchers Association (ATDA);
     BNSF Railway Company (BNSF);
     Brotherhood of Locomotive Engineers and Trainmen 
(BLET);
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalman (BRS);
     California Public Utilities Commission (CPUC);
     U.S. Department of Labor (DOL);
     Illinois Commerce Commission/Transportation Bureau/Rail 
Safety Section (ICC);
     Kansas City Southern Railway Company (KCS);
     Metro-North Commuter Railroad Company (MNCW);
     National Railroad Passenger Corporation (Amtrak);
     New York State Metropolitan Transportation Authority 
(NYSMT);
     NJ Transit Rail Operations (NJT);
     Norfolk Southern Corporation (NS);
     Southeastern Pennsylvania Transportation Authority 
(SPTA);
     Union Pacific Railroad Company (UP); and
     United Transportation Union (UTU).

    As an initial matter, when developing this final rule, FRA 
carefully considered all of the comments, information, data, and 
proposals submitted to Docket No. FRA-2006-26173 and discussed during 
the hearing. In addition, FRA's extensive knowledge and experience with 
enforcing the existing accident/incident reporting regulations was also 
relied upon when developing this final rule. FRA addresses the comments 
in the Section-by-Section Analysis of this final rule and elsewhere as 
appropriate.
    One such comment to the NPRM stated that FRA should have used an 
RSAC working group for this rulemaking. FRA, however, is not required 
to engage the RSAC in formulating regulations. Here, as discussed 
above, FRA held a hearing and provided two comment periods during which 
interested parties had opportunities to comment on the NPRM.

IV. Section-by-Section Analysis

Technical Amendment

    Throughout the rule text, this final rule updates the agency's 
address and other mailing addresses, when appropriate, to reflect FRA's 
relocation to the new U.S. Department of Transportation headquarters 
building. This revision affects Sec. Sec.  225.7(a), 225.11(b), 
225.12(g)(3), and the introductory paragraph of Sec.  225.21. This 
change is also reflected in the FRA

[[Page 68865]]

Guide, the accident/incident reporting and recording forms, and the 
Companion Guide.


Sec.  225.1  Purpose.

    The final rule removes the preemption language dealing with part 
225 from this section. FRA believes that this language is unnecessary 
because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of 
FRA's regulations. Providing a separate Federal regulatory provision 
concerning the regulation's preemptive effect is duplicative and 
unnecessary.


Sec.  225.3  Applicability.

    In this section, the final rule makes a technical amendment to the 
introductory text of paragraph (b) with respect to that paragraph's 
reference to FRA's required ICP elements. Currently, paragraph (b) 
refers only to ICP elements 1 through 10. The final rule revises the 
paragraph to include element number 11 (added in FRA's 2003 Final 
Rule), which requires railroads to include in their ICPs a statement 
that specifies the name, title, and address of the custodian of the 
railroad's Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related'' records and all supporting documentation, 
as well as the location of such documents. See 68 FR 10107, 10139, 
March 3, 2003.


Sec.  225.5  Definitions.

    The final rule amends paragraph (1) of the definition of 
``Accident/incident'' to clarify the definition and to conform to the 
FRA Guide. In the NPRM, FRA set forth to clarify the definition of 
accident/incident with respect to impacts at highway-rail grade 
crossings. Commenters generally indicated that further clarification 
was necessary regarding under what circumstances sidewalks and pathways 
are considered to be part of a highway-rail grade crossing site.
    In response to these comments, FRA determined that the proposed 
definition required revision. As such, the final rule provides that 
``Accident/incident'' means, in part, any impact between railroad on-
track equipment and a highway user at a highway-rail grade crossing. 
The final rule, elsewhere in Sec.  225.5, defines the term ``highway-
rail grade crossing'' to mean a location where a public highway, road, 
street, or a private roadway, including associated sidewalks, crosses 
one or more railroad tracks at grade, or a location where a pathway 
explicitly authorized by a public authority or a railroad carrier that 
is dedicated for the use of non-vehicular traffic, including 
pedestrians, bicyclists, and others, that is not associated with a 
public highway, road, street, or a private roadway, crosses one or more 
railroad tracks at grade. The definition of ``highway-rail grade 
crossing'' further provides that the term ``sidewalk'' means that 
portion of a street between the curb line, or the lateral line of a 
roadway, and the adjacent property line or, on easements of private 
property, that portion of a street that is paved or improved and 
intended for use by pedestrians. The FRA Guide provides a diagram 
illustrating the definition of the term sidewalk. See FRA Guide, 
Chapter 2. In addition, the final rule provides that the term ``highway 
user'' may include an automobile, bus, truck, motorcycle, bicycle, farm 
vehicle, pedestrian, or any other mode of surface transportation 
motorized and un-motorized.
    FRA does not believe that this clarifying amendment increases the 
burden on railroads because it is consistent with common industry 
practice as well as FRA's long-standing policy. Moreover, even if 
reporting accidents at such pathways was not standard industry 
practice, any increased burden would be nominal. Based on the U.S. DOT 
National Highway-Rail Crossing Inventory, FRA estimates that there are 
approximately 2,000 grade crossings in the United States that are not 
associated with highways, roads, streets, or private roadways and that 
very few highway-rail grade crossing accidents/incidents occur at these 
locations each year. Accordingly, even if this did place a new burden 
on railroads to report accidents/incidents not previously reported, the 
burden would be insignificant in light of the small number of 
additional reports that would be required.
    The final rule also clarifies that sidewalks that may be used to 
cross railroad tracks at grade are considered to be part of (i.e., 
associated with) the highway-rail grade crossing. The definition of 
sidewalk included in the final rule clarifies which sidewalks are 
considered associated with the crossing. FRA does not believe this 
clarification will result in any change to current railroad reporting 
practices. In addition, the definition of the term ``sidewalk'' is 
based on the definition of the term as articulated in the 2009 edition 
of the Federal Highway Administration's Manual on Uniform Traffic 
Control Devices. The FRA Guide includes an illustrative diagram to help 
clarify the meaning of the term ``sidewalk.'' See FRA Guide, Chapter 2.
    A comment to the NPRM suggested that FRA use the term ``road user'' 
rather than the term ``highway user.'' The final rule does not adopt 
this suggestion in order to maintain consistency between the terms 
``highway user'' and ``highway-rail grade crossing.'' A comment also 
sought clarification that there are no exceptions to reporting 
collisions between on-track equipment and highway users. FRA believes 
that the final rule is clear that any impact between a highway user and 
on-track equipment at a highway-rail grade crossing qualifies as a 
highway-rail grade crossing accident/incident and that further 
clarification is not required. A comment also recommended that impacts 
at highway-rail grade crossings be referred to as ``train-vehicle 
collisions,'' rather than ``accidents/incidents.'' The final rule does 
not adopt this suggestion because such an amendment is not consistent 
with the historical use of such terms.
    The final rule also amends paragraph (3) of the definition of 
``Accident/incident'' to conform to the revised language in Sec.  
225.19(d) and to reference, rather than explicitly list, the general 
reporting criteria set forth in Sec.  225.19(d). See Section-by-Section 
Analysis for Sec.  225.19(d).
    In the NPRM, FRA proposed amending the definition of ``Accountable 
injury or illness'' to mean any abnormal condition or disorder of a 
railroad employee that manifests within the work environment and causes 
or requires a railroad employee to be examined or treated by a 
qualified health care professional, but does not meet the general 
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6) 
regardless of whether the condition or disorder is discernably caused 
by an event or exposure in the work environment.
    The final rule amends the definition of ``Accountable injury or 
illness'' to conform to the amended definition of ``injury or 
illness;'' to eliminate redundancy by removing the word ``activity'' 
from the phrase ``by an event, exposure, or activity in the work 
environment'' as the amended definition of ``event or exposure'' in the 
final rule includes activities; to eliminate potential underreporting 
of work-related injuries and illnesses; to ensure that potentially 
reportable injuries and illnesses are documented, tracked, and 
evaluated for reporting and auditing purposes; and to delete the phrase 
``not otherwise reportable'' due to its ambiguity. See Section-by-
Section Analysis for Sec.  225.19(d), ``Primary groups of accidents/
incidents; Death, injury and occupational illness.'' The final rule 
amends the definition of ``Accountable injury or illness'' to mean

[[Page 68866]]

``any abnormal condition or disorder of a railroad employee that causes 
or requires the railroad employee to be examined or treated by a 
qualified health care professional, regardless of whether or not it 
meets the general reporting criteria listed in Sec.  225.19(d)(1) 
through (d)(6), and the railroad employee claims that, or the railroad 
otherwise has knowledge that, an event or exposure arising from the 
operation of the railroad is a discernable cause of the abnormal 
condition or disorder.''
    The language proposed in the NPRM specified that an accountable 
injury or illness is one that ``does not meet the general reporting 
criteria.'' The final rule replaced this with ``regardless of whether 
or not it meets the general reporting criteria'' because an injury or 
illness may eventually become reportable or the railroad may not have 
enough information at the time to determine whether the injury or 
illness is reportable. These are clarifications and do not pose any 
change to FRA's accident/incident recording or reporting requirements.
    The purpose of Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record,'' is to create an initial record of, and audit trail 
for, each potentially reportable injury or illness. As such, under the 
previous recording requirements, railroads were required to complete 
the Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness 
Record,'' for each accountable and reportable injury or illness within 
seven (7) working days after first becoming aware of the accountable or 
reportable injury or illness. As a result, under FRA's 2003 Final 
Rule's definition of accountable and reportable injury and illness, a 
railroad had to make an initial determination with regard to the work-
relatedness of an injury or illness within seven working days. Once a 
railroad determined that an employee injury or illness was not work-
related, the railroad was not obligated to create any record or report 
of the casualty.
    In many cases, injuries and illnesses, and/or the signs and 
symptoms thereof, manifest in the work environment without the cause(s) 
being readily apparent. Therefore, a railroad, during its initial seven 
day investigation, may have determined that an injury or illness was 
not work-related when additional investigation and time would have 
shown that the injury or illness was in fact work-related. 
Consequently, FRA is concerned that some railroads are prematurely 
attributing the cause of an injury or illness solely to a non-work-
related event or exposure occurring outside the work environment. FRA 
was similarly concerned that some railroads were not investigating 
pertinent information about employee injuries and illnesses to make an 
accurate work-relatedness determination. As a result, FRA believes that 
some railroads may have under-reported employee injuries and illnesses, 
and, because a Form FRA F 6180.98 was not completed to initially record 
the injury or illness, no audit trail was created. In such 
circumstances, FRA and the railroads were left unaware of the 
potentially reportable or accountable injury. Moreover, by only 
requiring a record for those casualties that were ultimately determined 
to be work-related within the initial seven days period, FRA was 
prevented from later evaluating the reportability of the injury or 
illness in order to determine whether the reporting officer made an 
appropriate reporting decision or whether the railroad complied with 
its duty to investigate the injury or illness.
    In consideration of the comments and FRA's safety mission, the 
final rule contains a revised definition. The definition contained in 
the final rule triggers the railroads' responsibility to create a Form 
FRA F 6180.98 for (i.e., an accountable injury or illness) any abnormal 
condition or disorder of a railroad employee that causes or requires 
the railroad employee to be examined or treated by a qualified health 
care professional regardless of whether or not it meets the general 
reporting criteria in Sec.  225.19(d), and the employee claims that, or 
the railroad otherwise has knowledge that, the injury or illness is 
work-related. Therefore, the definition in the final rule eliminates 
the requirement that a railroad record all injuries or illnesses based 
on manifestation regardless of cause. While railroads are still 
required to complete the Form FRA F 6180.98, ``Railroad Employee Injury 
and/or Illness Record,'' for each accountable and reportable injury or 
illness within seven working days after first becoming aware of the 
accountable or reportable injury or illness, the revised definition of 
accountable injury/illness will alleviate the railroad's need to make a 
final decision with regard to work-relatedness when an employee claims 
or suspects that the injury or illness is in fact work-related and will 
ensure that a record of each potentially reportable injury or illness 
is created. See Section-by-Section Analysis of Sec.  225.25 for 
additional information. This approach helps to ensure that railroads 
record and thoroughly investigate injuries and illnesses where the 
employee claims that an event or exposure in the work environment is a 
discernable cause of the employee's injury or illness but additional 
investigation is necessary. This approach creates an audit trail of 
potentially work-related employee injuries and illnesses, and, because 
the railroad need not make a final determination regarding work 
relatedness within seven days, provides additional time for railroads 
to complete the work-related analysis. Moreover, this approach allows 
FRA to use the audit trail to better understand railroads' reporting 
processes and their application of the applicable regulations.
    FRA received numerous comments addressing the proposed definition 
of ``Accountable injury or illness.'' Because of the language adopted 
in the final rule, a majority of those comments are no longer 
applicable. At the hearing and in the written comments, several 
railroads and organizations representing labor and railroads asserted 
that FRA's reporting requirements must be based upon work-relatedness 
and, therefore, the proposed amendment was outside of FRA's authority. 
While FRA disagrees with this assertion, this issue is no longer 
relevant. FRA has been tasked with and given the authority to prescribe 
regulations that ``promote safety in every area of railroad operations 
and reduce railroad-related accidents and incidents.'' 49 U.S.C. 20102. 
Moreover, FRA has the authority to investigate ``an accident or 
incident resulting in serious injury to an individual or to railroad 
property.'' Id. As such, the proposed changes were well within FRA's 
authority as they were meant to improve FRA's safety data and to allow 
FRA to audit railroad reporting decisions. Finally, although FRA makes 
every effort to maintain consistent reporting requirements with those 
of OSHA, FRA's accident/incident recording requirements are based 
solely on FRA's program needs and purposes, and as such may differ from 
OSHA's requirements to any extent FRA believes is necessary.
    Comments by NJT, UP, and AAR, among others, asserted that the 
proposed amendments could increase the misclassification of data by 
capturing too much information. As an initial matter, these comments 
concerned the language proposed in the NPRM. Regardless, with respect 
to the language in the final rule, railroads should already be 
reviewing all employee claimed or suspected work-related injuries and 
illnesses. FRA is simply requiring that the railroad document these 
suspected work-related injuries.
    Many comments also stated that the proposed changes are not 
connected to

[[Page 68867]]

identifying safety hazards and that the previous reporting scheme did 
not result in underreporting. As explained above, the prior definition 
created an inadequate audit trail. In addition, FRA believes that the 
prior reporting system did result in underreporting due to the 
difficulties related to making a final work-relatedness determination 
within seven days for certain injuries and illnesses. Also, prior to 
this final rule, when a railroad made an initial incorrect or premature 
recording decision that an injury or illness was not recordable, the 
reporting system did not ensure that the railroad would catch the 
problem at a later time. Now, with the clarification that when an 
employee claims that, or railroad otherwise has knowledge that, an 
injury or illness is work-related, a railroad will be required to 
record such injuries and illnesses. In addition, the final rule 
improves the audit trail created by the railroads and better enables 
FRA to review reporting decisions and to identify reporting problems.
    Other comments suggested that the current reporting scheme captures 
all of the necessary data. Specifically, AAR argued that there are 
sufficient tools currently in place, such as the ICP, to identify 
underreporting. UP argued that it is using a reliable review process 
that allows it to identify where additional information is required so 
that it is making accurate reporting decisions. The ICP requires the 
railroad to audit its own reporting and make appropriate changes in its 
reporting system to improve the quality of reporting. In the preamble 
of the June 18, 1996 regulation, FRA challenged the railroads to 
develop a Total Quality Management (TQM) system to have zero defects in 
reporting. The final rule is consistent with the purpose of the ICP, 
which is to have complete and accurate reporting. (49 CFR 
225.33(a)(1)). FRA has found that the current tools do not always 
capture injuries or illnesses where the cause of the injury or illness 
is not readily apparent. The previous ICP did not create an audit trail 
for a situation in which a railroad determined that the injury or 
illness is not work-related, therefore, FRA and the railroads were 
hindered in reviewing and auditing the initial reporting decisions. AAR 
stated in post-hearing comments that disparities in reporting between 
railroads is not a sign of underreporting. However, without making an 
initial record and monitoring injuries and illnesses, it is difficult 
for the railroads or FRA to completely understand or explain the 
disparities in reporting. The changes in the final rule will allow FRA 
to review the railroad's decision making process to better understand 
those disparities and to better understand which safety measures are 
effective in preventing certain types of injuries and illnesses.
    Commenters also argued that the proposed amendments were overly 
burdensome, suggesting that railroads would have to record every minor 
injury or illness, and that they may somehow violate the Americans with 
Disabilities Act (ADA), as railroads would be forced to follow up on 
and collect non-work-related medical information. Again, these comments 
relate to the proposed language in the NPRM, thus, they are not 
entirely applicable to the language adopted in the final rule. The 
final rule simply requires railroads to make a record of each injury or 
illness that the employee suspects or claims, or the railroad otherwise 
has knowledge that, is work-related. And, as noted, railroads should 
already be investigating these potentially work-related injuries and 
illnesses. FRA is simply asking the railroads to document their 
investigation of all potentially work-related injuries and illnesses 
where the employee claims or suspects the casualty is work-related, 
rather than just those that are ultimately determined to be work-
related. During the hearing, in response to allegations that the 
amendment would result in violations of privacy laws, FRA asked that 
the railroads submit additional comments explaining how the amendment 
would force railroads to violate privacy laws. AAR stated that the 
proposed language would force employers to request personal information 
without providing any safety benefit. As explained above, the changes 
in the final rule are aimed at improving safety in the rail industry 
and justify requesting sensitive information, particularly where the 
employee suspects or claims, or the railroad knows, that the injury or 
illness is work-related. Moreover, the definition in this final rule 
does not expand the scope of the injuries or illnesses to be 
investigated under FRA's 2003 Final Rule but simply creates a 
recordkeeping requirement.
    Several commenters stated that the meaning of the terms 
``manifests'' and ``abnormal'' were vague. As an initial matter, the 
final rule does not include the term ``manifests.'' In addition, FRA's 
use of the term ``abnormal'' is clear, and is consistent with OSHA's 
language.
    Finally, several commenters suggested that FRA should review 
railroads' reporting and recording decisions based on whether or not a 
decision is reasonable. AAR stated that employers are in the best 
position to determine whether an injury or illness is work-related. 
Pursuant to Sec.  225.17, ``Doubtful cases,'' FRA cannot delegate its 
authority to decide matters of judgment when facts are in dispute. FRA 
must be able to ensure that its accident/incident data is complete and 
accurate. Consequently, the final reporting decision is FRA's. AAR also 
stated that if OSHA disagrees with an employer's decision, OSHA has the 
burden of proving that the injury or illness was work-related. 
Consistent with OSHA, the FRA Guide explains that, once an employer 
determines that an injury or illness is not reportable ``and FRA 
subsequently issues a citation for failure to report, the Federal 
Government would have the burden of proving that the injury or illness 
was work-related.'' See FRA Guide. To meet its burden, FRA must show 
that it is more likely than not that an event or exposure arising from 
the operation of the railroad was a discernable cause of the injury or 
illness or an event or exposure was a discernable cause of the 
significant aggravation of a pre-existing injury or illness. Except 
with respect to occupational illnesses, FRA's 2003 Final Rule states 
that ``it is the railroad's responsibility to determine whether an 
illness is work-related,'' meaning that ``FRA's role will be to 
determine whether the reporting officer's determination was 
reasonable.'' FRA emphasizes, this language refers to only occupational 
illnesses and FRA retained the ability to present evidence that the 
railroad's decision was in fact not reasonable. 68 FR 10119, March 3, 
2003.
    In the NPRM, FRA proposed amending the definition of ``Accountable 
rail equipment accident/incident'' to mean ``a collision, derailment, 
fire, explosion, act of God, or other event involving the operation of 
railroad on-track equipment (standing or moving) that does not result 
in reportable damages greater than the current reporting threshold to 
railroad on-track equipment, signals, track, track structures, and 
roadbed.'' The final rule defines ``Accountable rail equipment 
accident/incident'' to mean ``(1) any derailment regardless of whether 
or not it causes any damage or (2) any collision, highway-rail grade 
crossing accident/incident, obstruction accident, other impact, fire or 
violent rupture, explosion-detonation, act of God, or other accident/
incident involving the operation of railroad on-track equipment 
(standing or moving) that results in damage to the railroad on-track 
equipment (standing or moving), signals, track, track structures or 
roadbed and that damage impairs the

[[Page 68868]]

functioning or safety of the railroad on-track equipment (standing or 
moving), signals, track, track structures or roadbed.''
    Under the definition contained in FRA's 2003 Final Rule, generally, 
an accountable rail equipment accident/incident meant an incident that 
resulted in damage below the reporting threshold and that, if not 
attended to, would disrupt railroad service. FRA has found through its 
audits and enforcement tools that the term ``disruption of service'' 
has not been consistently understood or uniformly applied throughout 
the railroad industry. Moreover, FRA found that the previous definition 
of accountable rail equipment accident/incident failed to adequately 
capture the accidents and incidents FRA originally intended and 
currently requires to be recorded and/or reported for data analysis and 
safety purposes. Specifically, FRA originally created the Form FRA F 
6180.97 to establish a means by which railroads could record and FRA 
could audit railroad reporting decisions with regard to the reporting 
of railroad accidents/incidents on Form FRA F 6180.54. FRA has expanded 
its use of the Form FRA F 6180.97 to identify safety hazards in yards 
and terminals, which has benefited FRA's safety efforts, as those 
incidents are precursors for reportable accidents and incidents.
    Based upon FRA's thorough review and consideration of the comments 
and FRA's goals of creating an audit trail, applying a uniform and 
simpler standard and capturing data that will allow it to identify and 
eliminate safety hazards, FRA believes that the language adopted in the 
final rule is more appropriate than the language proposed in the NPRM. 
FRA received numerous comments addressing the proposed amendments to 
the definition of ``Accountable rail equipment accident/incident'' and, 
based upon the language adopted in the final rule, a majority of those 
comments are no longer applicable.
    FRA received comments that the proposed definition would create a 
substantial burden on the railroads as it would require them to record 
every minor incident regardless of the amount of damage and the 
connection to safety. The final rule does not require railroads to 
report or record damage that is the result of normal wear and tear. 
Rather, as in FRA's 2003 Final Rule, this final rule only classifies an 
accident/incident as an ``accountable rail equipment accident/
incident'' when it results from a derailment, collision, highway-rail 
grade crossing accident/incident, obstruction accident, other impact, 
fire or violent rupture, explosion-detonation, act of God, or other 
accident/incident involving the operation of railroad on-track 
equipment (standing or moving). FRA intends to use the information 
captured to learn about precursors to reportable accidents/incidents 
and to improve safety. The final rule clarifies that, with the 
exception of derailments, an incident must result in damage and that 
damage must impair the functioning or safety of the railroad on-track 
equipment (standing or moving), signals, track, track structures or 
roadbed. Consequently, FRA is not requiring the railroads to record 
minor incidents that result from normal wear and tear. Consistent with 
FRA's 2003 Final Rule, FRA believes it is necessary to record every 
derailment as such information will provide greater insight into their 
causes and will prevent future reoccurrences, including those that may 
result in hazardous material spills, significant damage, and/or 
casualties. Finally, the definition adopted in the final rule, which 
eliminates the disruption of service criteria, creates a clear 
reporting standard that will allow for easier and more consistent 
enforcement and compliance.
    SEPTA suggested, in one comment, that FRA retain the disruption of 
service criteria. FRA did not implement this suggestion. As discussed 
above, the disruption of service criteria does not capture all of the 
data FRA needs to ensure safety. Moreover, FRA has found that the 
disruption of service criteria has not been uniformly applied. FRA 
believes that the language adopted in the final rule is more 
appropriate and not overly burdensome.
    In addition, several commenters suggested that the proposed 
definition was unclear and that it was unclear what information FRA was 
attempting to capture. FRA believes that the language adopted in this 
final rule, however, is clear and will allow for the uniform 
application of the standard.
    The final rule includes a definition for ``Discernable cause.'' In 
order to clarify the meaning of this term and to ensure consistency 
with OSHA's reporting requirements, the final rule defines 
``Discernable cause'' in Sec.  225.5 to mean, ``a causal factor capable 
of being recognized by the senses or the understanding.'' See also, 
Webster's Third New International Dictionary (1961); Webster's Third 
New International Dictionary, Unabridged (1971). The definition further 
provides that ``[a]n event or exposure arising from the operation of a 
railroad is a discernable cause of (i.e., discernably caused) an injury 
or illness if, considering the circumstances, it is more likely than 
not that the event or exposure is a cause of the injury or illness. The 
event or exposure arising from the operation of a railroad need not be 
a sole, predominant or significant cause of the injury or illness, so 
long as it is a cause (i.e., a contributing factor).''
    FRA's accident/incident reporting regulations concerning railroad 
occupational casualties are maintained, to the extent practicable, in 
general conformity with OSHA's recordkeeping and reporting regulations, 
in order to permit comparability of data on occupational casualties 
between various industries, to allow integration of railroad industry 
data into national statistical databases, and to improve the quality of 
data available for analysis of casualties in railroad accidents/
incidents.\5\ Moreover, maintaining such compatibility allows railroads 
to report occupational casualties only to FRA, rather than to OSHA and 
to FRA. See 29 CFR 1904.3.
---------------------------------------------------------------------------

    \5\ It should be noted that under OSHA's regulations, the term 
``recording'' is used. Under FRA's regulations and the FRA Guide, 
the term ``reporting'' is used. The OSHA system requires recording 
into the OSHA 300 Log whereas FRA has always used the term 
``reporting'' in its regulations and in the FRA Guide because the 
Accident Reports Act of 1910, as amended, requires ``a railroad 
carrier [to] file a report * * * on all accidents and incidents * * 
*'' 49 U.S.C. 20901.
---------------------------------------------------------------------------

    With respect to employee injury and illness recording, OSHA's 2001 
Final Rule, states that ``each employer * * * must record each 
fatality, injury and illness that is work-related; and is a new case; 
and meets one or more of the general recording criteria * * * or the 
application to specific cases.'' 66 FR 5916, 5945, January 19, 2001, 
codified at 29 CFR 1904.4(a). OSHA's 2001 Final Rule goes on to state 
that ``[employers] must consider an injury or illness to be work-
related if an event or exposure in the work environment either caused 
or contributed to the resulting condition or significantly aggravated a 
pre-existing injury or illness,'' and that ``[w]ork-relatedness is 
presumed for injuries and illnesses resulting from events or exposures 
occurring in the work environment, unless an exception in [29 CFR] 
1904.5(b)(2) specifically applies.'' 66 FR 5916, 5946, January 19, 
2001, codified at 29 CFR 1904.5(a).
    After OSHA's 2001 Final Rule was published, the National 
Association of Manufacturers (NAM) filed a legal challenge to the final 
rule, with respect to (among other things) the final rule's presumption 
of work-relatedness. On November 16, 2001, OSHA and NAM entered into a 
settlement agreement to resolve NAM's legal challenge. The parties then 
entered into a revised

[[Page 68869]]

settlement agreement on November 29, 2001. The revised settlement 
agreement was published in the Federal Register at 66 FR 66943, 
December 27, 2001. As part of the NAM-OSHA settlement, the parties 
agreed to the following:

    Section 1904.5(a) states that ``[the employer] must consider an 
injury or illness to be work-related if an event or exposure in the 
work environment either caused or contributed to the resulting 
condition or significantly aggravated a pre-existing condition. Work 
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring in the work environment * * *'' Under 
this language, a case is presumed work-related if, and only if, an 
event or exposure in the work environment is a discernable cause of 
the injury or illness or of a significant aggravation to [sic] pre-
existing condition. The work event or exposure need only be one of 
the discernable causes; it need not be the sole or predominant 
cause.
    Section 1904.5(b)(2) states that a case is not recordable if it 
``involves signs or symptoms that surface at work but result solely 
from a non-work-related event or exposure that occurs outside the 
work environment.'' This language is intended as a restatement of 
the principle expressed in 1904.5(a), described above. Regardless of 
where signs or symptoms surface, a case is recordable only if a work 
event or exposure is a discernable cause of the injury or illness or 
of a significant aggravation to a pre-existing condition.
    Section 1904.5(b)(3) states that if it is not obvious whether 
the precipitating event or exposure occurred in the work environment 
or elsewhere, the employer ``must evaluate the employee's work 
duties and environment to decide whether or not one or more events 
or exposures in the work environment caused or contributed to the 
resulting condition or significantly aggravated a pre-existing 
condition.'' This means that the employer must make a determination 
whether it is more likely than not that work events or exposures 
were a cause of the injury or illness, or a significant aggravation 
to a pre-existing condition. If the employer decides the case is not 
work-related, and OSHA subsequently issues a citation for failure to 
record, the Government would have the burden of proving that the 
injury or illness was work-related.''

    In 2003, FRA revised its accident/incident reporting regulations to 
conform, to the extent practicable, to OSHA's revised requirements. See 
68 FR 10108-10140, March 3, 2003. In doing so, FRA took into account 
the NAM-OSHA settlement agreement, in particular the agreement's 
reference to the term ``discernable,'' to qualify or describe cause. 
FRA included the phrase ``discernable cause'' in its definitions of 
``Accident/incident,'' ``Accountable injury or illness,'' and 
``Occupational illness'' in Sec.  225.5, and added the phrase to its 
reporting requirement for ``Deaths, injuries and occupational 
illnesses'' at Sec.  225.19(d). While FRA did discuss the meaning of 
``discernable cause'' in the preamble of FRA's 2003 Final Rule, see 68 
FR 10108, 10127, March 3, 2003, the agency did not explicitly define 
the term ``Discernable cause'' in the rule text.
    On January 15, 2008, FRA received a letter from the DOL's Office of 
the Solicitor (OSHA Letter) confirming FRA's understanding and 
application of the NAM-OSHA settlement agreement and OSHA's 
recordkeeping requirements with regard to ``work-relatedness,'' in 
addition to providing further clarification on particular points of 
law. In the OSHA Letter, OSHA stated that ```[d]iscernable' is used in 
the ordinary sense; that is, capable of being recognized by the senses 
or the understanding.'' OSHA Letter at 3. OSHA's definition came from 
Webster's Third International Dictionary. The OSHA Letter goes on to 
state that an event or exposure is a discernable cause if, 
``considering the circumstances, it is more likely than not that the 
event or exposure is a cause of the injury or illness.'' Id. FRA 
submitted the OSHA Letter to Docket Number FRA 2006-26173 on December 
10, 2008.
    FRA received several comments from the railroads and other 
organizations regarding the proposed definition of discernable cause. 
Many comments stated that the proposed definition was inconsistent with 
OSHA's reporting requirements. As explained above, FRA adopted a 
definition that is virtually identical to and consistent with OSHA's 
definition to ensure that railroads need to report only to one agency 
and that there is consistent reporting across industries. One comment 
suggested that OSHA requires that the cause be distinguishable from 
other causes, and that FRA's definition is inconsistent. Although OSHA 
requires that an event or exposure be a tangible cause, it does not 
require that the event or exposure be the main or predominate cause of 
the injury or illness. In addition, neither OSHA nor FRA require that 
the railroad calculate the exact amount of cause a particular event or 
exposure played in the subsequent injury or illness, only that it be a 
cause. Moreover, like OSHA, where it is difficult to determine whether 
the event or exposure is a cause, FRA requires that the employer 
consider the circumstances surrounding the event or exposure to 
determine whether it is more likely than not a cause.
    Other comments suggested requiring that the event or exposure in 
the work environment be the predominant or main cause to ease the 
reporting burden and to simplify the reporting scheme. However, this 
suggestion would make the definition inconsistent with OSHA. In the 
OSHA Letter, OSHA stated, with regards to ``causation,'' that ``the 
employer need not weigh the relative contributions of occupational and 
non-occupational factors to the injury or quantify the extent of the 
occupational contributions.'' Id. As such, ``discernable'' in this 
context does not mean obvious. In addition, requiring that the event or 
exposure be the predominant or main cause would exclude certain 
injuries and illnesses, and would be difficult to measure and enforce.
    Some comments requested that medical evidence factor into the 
causation decision. Consistent with OSHA, FRA recognizes that when 
causation is not obvious, that ``consultation with a health care 
professional'' may play a part in the reportability determination. Id. 
However, the final reporting decision is made by a railroad's reporting 
officer and the responsibility cannot be delegated to another 
individual. Railroads also asked what weight FRA gives to medical 
evidence compared to other types of evidence. Again, FRA, like OSHA, 
acknowledges that medical consultation may be a factor the railroad 
reporting officer considers, but the reporting officer may not delegate 
the reporting decision to a health care professional. As stated in the 
definition, ``[i]f it is unclear whether the work event was a cause of 
the injury, the employer must evaluate the employee's work duties and 
environment and decide whether it is more likely than not that work was 
a cause.'' Id. Thus, an employer is responsible for considering all of 
the relevant evidence obtained through its inquiry when making a 
reporting decision. When reviewing the railroad's reporting decision, 
FRA considers various factors when giving weight to a health care 
professional's opinion, including, but not limited to, whether the 
health care professional clearly documented his or her findings, 
whether the conclusion is supported by evidence, and whether the health 
care professional provided a medical assessment or, instead, a 
conclusory statement.
    Finally, commenters asserted that FRA ``always'' takes employees at 
their word and, therefore, railroads are not truly free to consider 
contradictory medical evidence. However, that is not the case. As 
stated in Sec.  225.17, ``Doubtful cases,'' FRA has the authority to 
resolve factual disputes. During its audit, FRA reviews the basis for a 
railroad's reporting decision, in addition to the ``investigatory 
materials,

[[Page 68870]]

including, but not limited to, the following: The initial report filed 
by the affected person, witness statements, transcripts of hearings, 
medical records, time and attendance records, and the purpose of 
payouts made in connection with the accident/incident.'' See FRA Guide, 
Chapter 1. Moreover, FRA conducts additional investigation and consults 
with its own health care professional when appropriate. At the 
conclusion of its investigation, FRA will review the railroad's 
reporting decision and all of the associated evidence to determine 
whether it is more likely than not that an event or exposure arising 
from the operation of the railroad is a discernable cause of the 
injury.
    Commenters suggested using an evidence-based approach to determine 
causation. During his testimony, Dr. M. Hadler commented that 
individuals often have difficultly recognizing what caused their 
injuries and tend to attribute cause to the environment they are in at 
the time their pain becomes unbearable. Consequently, Dr. Hadler 
suggested using a more scientific approach (such as a pain diary) to 
determine causation. Additionally, KCS and UP suggested that FRA use 
the National Institute for Occupational Safety and Health's (NIOSH) 
approach to determine causation. FRA, however, has chosen to adopt 
OSHA's language and method of determining causation so that railroads 
may report injuries and illnesses to only one agency, FRA. If FRA 
adopted the NIOSH approach then railroads would be responsible for 
reporting employee injuries and illnesses separately to both OSHA and 
FRA. FRA collection of employee injuries and illnesses must be 
consistent with OSHA's system to make a reliable national database. 
Failure to be consistent with OSHA would trigger dual reporting 
requirements for railroads (to OSHA and to FRA). UP supported adopting 
the NIOSH approach because it believes that each person shows injuries 
and illnesses differently. Thus, UP and KCS would like an approach that 
considers the unique factors for each person. Under FRA's approach, a 
railroad should conduct an inquiry into any potentially reportable or 
accountable injury or illness. At the conclusion of its investigation, 
the railroad must decide whether, considering the circumstances, it is 
more likely than not that an event or exposure arising from the 
operation of the railroad is a discernable cause of an injury or 
illness. Consequently, under this approach, a railroad may consider the 
various unique factors associated with each employee's potentially 
reportable or accountable injury or illness, including but not limited 
to an employee's medical and work history, in addition to an employee's 
statements regarding his or her injury or illness.
    Commenters also suggested that the definition of discernable cause 
is too broad. Specifically, commenters suggested that the definition 
requires railroads to collect information that is not relevant to 
occupational safety and will result in over-reporting. Again, the 
definition of discernable cause is consistent with FRA's longstanding 
policy and with OSHA's interpretation. As a result, the definition will 
not change railroad reporting responsibilities and, in fact, will ease 
the reporting burden (as railroads have to report to only one agency). 
Like OSHA, FRA does not require that the cause be occupational in 
nature. See also Section-by-Section Analysis for Sec.  225.5, 
``Definitions--Work-related.'' Also, the definition is appropriate as 
it allows FRA to identify injuries and illnesses for which events or 
exposures arising from the operation of the railroad play a role, and 
it is not overly broad as the injuries and illnesses must also meet one 
of the reporting criteria. In addition to the benefits of collecting 
uniform data across industries, FRA is not collecting information 
regarding minor injuries with no safety impact as an event or exposure 
arising from the operation of the railroad must be a discernable cause 
and the injury or illness must be severe enough to meet one of the 
reporting criteria.
    Commenters also stated that the definition of discernable cause is 
vague and fails to provide clear guidance to railroads. Specifically, 
one comment stated that the dictionary definition was uninformative. As 
explained above, the cause need not be the sole or predominant cause, 
rather it must be a contributing factor. If it is not clear whether the 
event or exposure was a discernable cause, the employer must consider 
the surrounding circumstances to determine reportability. FRA believes 
that the definition and standard are clear. Moreover, when a railroad 
is unsure about the reportability of an injury or illness, FRA 
recommends that a railroad make a report or utilize FRA's ``claimed but 
not admitted'' process as described in 49 CFR 225.17(c).
    Commenters suggested that FRA is creating a geographic presumption 
and, therefore, the definition is inconsistent with OSHA. Moreover, 
commenters want to limit the cause to just those injuries that are 
occupational in nature (i.e., related to performing job-related 
activities). See Section-by-Section Analysis for Sec.  225.5, 
``Definitions--Event or exposure arising from the operation of the 
railroad'' and ``Definition Work related.'' For employees, consistent 
with OSHA, the final rule requires that an event or exposure in the 
work environment be a discernable cause of the injury or illness. 
Therefore, FRA is still requiring causation and, as such, an injury or 
illness is not work-related simply because signs or symptoms arise in 
the work environment. For non-employees, FRA requires that an event or 
exposure arising from the operations of the railroad be a discernable 
cause of the casualty, and, as such, FRA did not create a geographic 
presumption. Although the railroads would like to limit reportable 
injuries and illnesses to those caused by events and exposure that are 
uniquely occupational, consistent with OSHA, FRA simply requires for 
employees that an event or exposure arising from the operation of the 
railroad be a discernable cause of the injury or illness. See Section-
by-Section Analysis for Sec.  225.5, ``Definition--Work related.''
    Finally, commenters suggest that employers, and not FRA, are in the 
best position to determine causation. Consistent with OSHA, for 
purposes of Sec.  225.11, FRA is not reviewing a railroad's reporting 
decision to determine whether it was reasonable (except in the case of 
occupational illness (See FRA's 2003 Final Rule)); rather, FRA is 
determining whether an injury or illness is reportable.
    The final rule defines an ``Event or exposure'' as an ``incident, 
activity, or occurrence.'' FRA included the definition to clarify that 
event or exposure is a term that is to be broadly interpreted and to 
eliminate redundant language in the rule text.
    Many of the comments that FRA received suggested that normal body 
movements such as walking or sneezing do not constitute an event or 
exposure. However, consistent with OSHA, FRA considers ``normal body 
movements'' to be events within the definition. See OSHA Letter at 3. 
Such normal body movement cases are only reportable if they arise from 
the operation of the railroad and cause or contribute to the injury or 
illness. See Section-by-Section Analysis for Sec.  225.5, 
``Definition--Work related'' and ``Definition--Discernable cause.'' 
Consistent with OSHA's requirements, FRA does not require that the 
event or exposure be an ``obvious cause'' of the injury or illness, or 
be occupational in nature and, therefore, normal body movements may 
result in reportable injuries or illnesses.

[[Page 68871]]

    The final rule amends and restructures the definition of ``Event or 
exposure arising from the operation of a railroad'' to clarify its 
meaning. The term ``event or exposure arising from the operation of a 
railroad'' and its definition were added in FRA's 2003 Final Rule to 
more narrowly tailor what types of accidents/incidents were considered 
to ``arise from the operation of a railroad'' and were, therefore, 
potentially reportable. 68 FR 10108, 10115-16, March 3, 2003.
    FRA's 2003 Final Rule's definition consisted of three-tiers that 
addressed the different classifications of persons on and off railroad 
property. The first tier defined ``event or exposure arising from the 
operation of a railroad'' broadly ``with respect to any person on 
property owned, leased, or maintained by the railroad, an activity of 
the railroad that is related to its rail transportation business or an 
exposure related to the activity.'' The final rule revises this first 
tier of the definition by changing ``any person'' to ``a person who is 
not an employee of the railroad.'' This amendment is consistent with 
the intent of FRA's 2003 Final Rule:

    FRA developed a compromise position, proposing that railroads 
not be required to report deaths or injuries to persons who are not 
railroad employees that occur while off railroad property unless 
they result from a train accident, a train incident, a highway-rail 
grade crossing accident/incident, or a release of a hazardous 
material or other dangerous commodity related to the railroad's rail 
transportation business.


68 FR 10108, 10109, March 3, 2003. The revision clarifies that the 
definition was intended to apply only to persons who are not railroad 
employees. The final rule also removes the phrase ``an activity of the 
railroad'' such that tier one of the definition concerns an event or 
exposure that is related to the performance of the railroad's rail 
transportation business. The final rule also removes the reference to 
``activity'' since the definition of ``event or exposure'' in the final 
rule includes ``activity.'' The final rule also revises the language 
proposed in the NPRM to clarify that the newly consolidated tier one 
subpart (i) deals with a person who is not an employee and is on 
railroad property, rather than an event or exposure occurring on 
property. FRA believes this clarifying language is consistent with the 
intent of FRA's 2003 Final Rule. As this change is consistent with 
current industry reporting practices and the language in the FRA's 2003 
Final Rule, the amendment to the final rule should have no impact on 
reporting practices and, in fact, is more consistent with current 
practices than the language proposed in the NPRM.
    The second tier also defined ``event or exposure arising from the 
operation of a railroad'' broadly, but ``with respect to an employee of 
the railroad (whether on or off property owned, leased or maintained by 
the railroad), an activity of the railroad that is related to the 
performance of its rail transportation business or an exposure related 
to that activity.'' The final rule clarifies this paragraph by revising 
the definition to state ``with respect to a person who is an employee 
of a railroad, an event or exposure that is work-related.'' This 
amendment removes the phrase ``an activity of the railroad,'' since the 
definition of ``event or exposure'' in the final rule includes 
``activity.'' The final rule also removes the phrase ``(whether on or 
off property owned, leased, or maintained by the railroad)'' and the 
phrase ``that is related to the performance of the railroad's rail 
transportation business * * *'' because the term ``work-related'' 
encompasses both of those requirements.
    The third tier defined ``Event or exposure arising from the 
operation of a railroad'' narrowly with respect to a person who is 
neither on the railroad's property nor an employee of the railroad, to 
include only certain enumerated events or exposures, i.e., a train 
accident, a train incident, or a highway-rail crossing accident/
incident involving the railroad; or a release of hazardous material 
from a railcar in the railroad's possession or a release of another 
dangerous commodity if the release is related to the railroad's rail 
transportation business. 68 FR 10108, 10116, March 3, 2003. The final 
rule revises the language proposed in the NPRM to clarify that the new 
consolidated tier one subpart (ii) deals with a person who is not an 
employee and is not on railroad property, rather than an event or 
exposure not occurring on property. FRA believes this clarifying 
language is consistent with the intent of FRA's 2003 Final Rule. As 
this change is consistent with current industry reporting practices and 
the language in FRA's 2003 Final Rule, the amendment to this final rule 
should have no impact on reporting practices and, in fact, is more 
consistent with current industry practices than the language proposed 
in the NPRM.
    The final rule consolidates tier one, tier two, and tier three of 
the definition into two tiers so that tier one is applicable to non-
employees and tier two is applicable to employees. The amendments and 
restructuring are clarifying measures and do not change the meaning of 
the definition. The definition continues to mean, consistent with FRA's 
2003 Final Rule, ``that a railroad would not have to report to FRA the 
death of or injury to an employee of a contractor to the railroad who 
is off railroad property (or deaths or injuries to any person who is 
not a railroad employee) unless the death or injury results from a 
train accident, train incident, or highway-rail grade crossing accident 
involving the railroad; or from a release of a hazardous material or 
some other dangerous commodity in the course of the railroad's rail 
transportation business. In addition, FRA would require railroads to 
report work related illnesses only of railroad employees and under no 
circumstances the illness of employees of a railroad contractor.'' 68 
FR 10108, 10116, March 3, 2003.
    The final rule amends the language proposed in the NPRM in the 
first tier by clarifying that a person who is not an employee is 
considered to be on railroad property when they are on property that 
the railroad operates over (e.g., operating rights), in addition to 
property owned, leased, or maintained by the railroad. FRA does not 
believe that this clarifying amendment increases the burden on 
railroads because it is consistent with common industry practice as 
well as FRA's long-standing policy. Any burden created by this 
amendment would be nominal, as a majority of these incidents would have 
been captured elsewhere under the prior definition.
    The final rule also amends the language proposed in the NPRM in the 
first tier (ii)(A) by removing ``highway-rail grade crossing accident 
or incident'' from the list of accidents/incidents considered to be 
``events or exposures arising from the operation of the railroad'' when 
a non-employee is off railroad property. FRA is removing highway-rail 
grade crossing accident or incident from the list of off property 
accidents/incidents because it is repetitive, as those types of 
accidents and incidents are already captured under train accident and 
train incident. FRA also added the term ``non-train incident.'' Non-
train incident is defined as an ``event that results in a reportable 
casualty, but does not involve the movement of on-track equipment nor 
cause reportable damage above the threshold established for train 
accidents.'' See Sec.  225.5, ``Definitions--Non train incident.'' FRA 
included ``non-train incident'' to make the definition consistent with 
FRA's 2003 Final Rule and the 2003 FRA Guide. In the 2003 FRA Guide, 
non-train incidents were included in the list of accidents/incidents. 
This amendment

[[Page 68872]]

simply clarifies that FRA wants to retain the non-train incidents 
events captured under the prior rule and it was inadvertently removed 
in the NPRM. FRA does not believe that this clarifying amendment 
increases the burden on railroads because it is consistent with the 
FRA's 2003 Final Rule, the 2003 FRA Guide, common industry practice, as 
well as FRA's long-standing policy.
    Amtrak's comments suggested that FRA's definition creates a 
geographic presumption of work-relatedness. However, for an injury or 
illness to be reportable, an event or exposure arising from the 
operation of the railroad must be a discernable cause. As such, it is 
not enough that the signs or symptoms of an injury or illness arose in 
the work environment. See Section-by-Section Analysis for Sec.  225.5, 
``Definition--Work related.''
    The final rule makes a technical amendment to the definition of 
``General reporting criteria'' to include criteria number [225.19(d)] 
(6), ``Illness or injury that meets the application of any of the 
[enumerated] specific case criteria,'' which was inadvertently omitted 
in FRA's 2003 Final Rule.
    The final rule also revises the definition of ``Highway-rail grade 
crossing'' to mean a location where a public highway, road, street, or 
a private roadway, including associated sidewalks, crosses one or more 
railroad tracks at grade, or a location where a pathway explicitly 
authorized by a public authority or railroad carrier that is dedicated 
for the use of non-vehicular traffic, including pedestrians, 
bicyclists, and others, that is not associated with a public highway, 
road, or street, or a private roadway, crosses one or more railroad 
tracks at grade. The definition further provides that the term 
``sidewalk'' means that portion of a street between the curb line, or 
the lateral line of a roadway, and the adjacent property line or, on 
easements of private property, that portion of a street that is paved 
or improved and intended for use by pedestrians.
    Although this revision was not expressly addressed in the NPRM, it 
is consistent with FRA's long-standing practice as well as the Railroad 
Safety Improvement Act of 2008 (the ``RSIA''). Specifically, sections 2 
and 204 of the RSIA define ``crossing'' to include such pathway 
crossings. Furthermore, section 209 of the RSIA requires that FRA audit 
railroads to ensure that all grade crossing collisions and fatalities 
are properly reported. Thus, FRA's audits must review railroad records 
to ensure that crossings, including such pathway crossing accidents/
incidents, are reported. The final rule's definition makes FRA's 
regulations consistent with the RSIA's requirements and enables 
accurate auditing and reporting. Moreover, FRA proposed revisions to 
the definition of ``Accident/Incident'' with respect to impacts at 
highway-rail grade crossings, and received comments on the proposal. 
FRA's responses to those comments are discussed above.
    The final rule defines ``Injury or illness'' to mean an ``abnormal 
condition or disorder,'' (this is consistent with OSHA's definition at 
29 CFR 1904.46). FRA is adding the definition to provide examples of 
injuries and illnesses and to clarify that pain is an injury or illness 
when it is sufficiently severe to meet the general reporting criteria 
listed in Sec.  225.19(d)(1) through (d)(6). See OSHA's Final Rule, 66 
FR 5916, 6080, January 19, 2001. The final rule also amends the 
definition to clarify that a musculoskeletal disorder (MSD) is an 
injury or illness. See OSHA's Final Rule, 66 FR 5916, 6017, January 19, 
2001 and 68 FR 38601, 38602, June 30, 2003. The addition of the 
definition is not a substantive change to FRA's current accident/
incident recording and reporting requirements. Rather, the final rule 
added the definition in an effort to eliminate confusion as to what 
constitutes an injury or illness. FRA also wishes to emphasize that 
injuries and illnesses are reportable only if they are new cases 
discernably caused or significantly aggravated by an event or exposure 
arising from the operation of a railroad, that meet one or more of the 
general reporting criteria.
    In response to the NPRM, FRA received comments that asserted that 
the proposed definition was not consistent with OSHA because pain and 
MSDs are not injuries or illnesses. However, in the OSHA Letter, OSHA 
confirmed FRA's understanding that ``pain is an injury or illness * * * 
when it is sufficiently severe to meet the general reporting criteria'' 
and that the MSDs are injuries and illnesses as they constitute 
``abnormal conditions.'' OSHA Letter at 4.
    Commenters also stated that the proposed definition is overly broad 
and would require the railroads to report minor injuries and illnesses. 
Because the injury or illness must still meet the general reporting 
criteria, FRA will not be capturing minor injuries and illnesses. 
Moreover, these amendments are clarifications and do not alter the 
railroads' current responsibilities. FRA uses all of this information, 
including information about MSDs and lower back pain, to identify 
health and safety risks arising from railroad operations.
    Other commenters suggested that the experience of pain in the work 
environment should not be considered an injury as the person might 
simply be experiencing pain as the result of an injury or illness that 
was caused by an event or exposure not arising from the operation of 
the railroad. UP argued, for example, that a person may experience pain 
simply as a result of age or psychological reasons. The final rule does 
not require railroads to report injuries or illnesses that are not 
caused by an event or exposure in the work environment. Thus, signs or 
symptoms of a prior injury or illness that simply manifest within the 
work environment or on property owned, leased, operated over or 
maintained by railroad, are not reportable. Pain is only reportable 
when an event or exposure arising from the operation of the railroad is 
a discernable cause of that pain or significantly aggravated that pain 
and it meets the general reporting criteria.
    Several commenters stated that the term ``abnormal condition'' is 
not clear. This terminology is consistent with OSHA's requirements. 
Moreover, FRA believes that the term is, in fact, clear and requires 
railroads to report adverse medical conditions caused by events or 
exposures arising from the operation of the railroad. This definition, 
in addition to the examples, provides sufficient guidance for railroads 
to properly identify reportable injuries and illnesses. UP stated that 
the definition was vague and unclear, and, as a result, UP suggested a 
definition based upon diagnostic criteria. An injury or illness that is 
simply the result of events or exposures outside of the work 
environment is not reportable. Thus, an injury that is simply the 
result of the aging process is not reportable. Moreover, an injury or 
illness must be caused by an event or exposure arising from the 
operation of the railroad. Thus, if an event or exposure arising from 
the operation of the railroad significantly aggravated a preexisting 
condition or if the person is more susceptible to an injury or illness 
discernably caused by an event or exposure arising from the operation 
of the railroad due to age, then the injury or illness is reportable. 
As the workforce ages, FRA is interested in learning more about the 
impact on these demographics and work place safety. As such, FRA 
believes that the definition contained in the final rule is 
appropriate.
    The final rule amends the definition of ``New case'' to apply to 
all persons rather than only to employees. Correspondingly, the final 
rule replaces the phrase ``in the work environment'' with ``arising 
from the operation of a railroad,'' because the term ``work 
environment'' applies only to

[[Page 68873]]

employees. This revision is consistent with the statutory requirement 
that railroads report to FRA ``all accidents and incidents resulting in 
injury or death to an individual * * * arising from the carrier's 
operations during the month,'' not just accidents and incidents 
resulting in injury or death to railroad employees. See 49 U.S.C. 
20901. FRA believes that this amendment does not affect the reporting 
requirements. The final rule also includes the descriptor 
``discernably'' before the word ``caused'' in order to maintain 
consistency within part 225.
    Commenters to the NPRM stated that the amendments to the definition 
of ``New case'' inappropriately expanded the definition to apply to all 
persons and, in so doing, would create significant costs and reporting 
burdens. While the amendments do expand ``New case'' to address persons 
beyond employees, the changes are meant to make the definition 
consistent with the statutory requirement that railroads report 
casualties to all persons. 49 U.S.C. 20901. Moreover, expanding the 
term ``New case'' to address casualties to non-employees should not 
create significant additional burdens as the revision is meant to 
provide guidance to the railroads about when a new record or report 
must be created and when the railroads should only update a previously 
created record or report for an ``existing case.'' As such, railroads 
need only make a new record or report when it is a ``new case'' and may 
simply update a record or report for an ``existing case.''
    The final rule also amends the definition of ``Qualified health 
care professional'' by removing the otolaryngologist example (which had 
stated: ``[f]or 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.''). The final rule removes this example in order to 
clarify that physicians are not limited by their specialty and may 
diagnosis conditions while operating within the scope of their license, 
registration, or certification. As such, as a licensed physician, an 
otolaryngologist may diagnose conditions other than those related to 
the ear, nose, and throat. A comment to the NPRM stated that the 
example should not be removed, that doctors should not be able to 
diagnosis conditions outside of their specialty, and that the example 
should be amended from referencing ``repetitive motion injuries'' to 
``work-related musculoskeletal disorders.'' As noted, the final rule 
clarifies that physicians may diagnose conditions outside of their 
specialty while operating within the scope of their license, 
registration, or certification. This position is consistent with the 
current rule; however, the otolaryngologist example created confusion 
(which is why it was removed).
    The final rule revises the definition of ``Railroad.'' Currently, 
part 225 defines ``railroad'' as ``a person providing railroad 
transportation.'' In order to attain better consistency with Congress' 
1994 revisions to 49 U.S.C. 20102, the final rule defines ``railroad'' 
to mean ``a railroad carrier,'' and adds a definition to Sec.  225.5 
for ``railroad carrier'' to mean a ``person providing railroad 
transportation.'' Congress added the term ``Railroad carrier'' to 49 
U.S.C. 20102 in 1994 (Pub. L. 103-272, 108 Stat 745), as part of a 
larger effort ``[t]o restate the laws related to transportation in one 
comprehensive title'' and ``attain uniformity [of language] within the 
title.'' See House Report No. 103-180 at 3, reprinted in 1994 
U.S.C.C.A.N. 818, 820. Specifically, Congress defined ``railroad 
carrier'' at 49 U.S.C. 20102 (2) as a ``person providing railroad 
transportation,'' in order to ``distinguish between railroad 
transportation and the entity providing railroad transportation.'' See 
House Report No. 103-180 at 79, reprinted in 1994 U.S.C.C.A.N. 818, 
898. FRA's definition of ``railroad transportation'' remains unchanged.
    The final rule adds a definition for ``Significant aggravation of a 
pre-existing injury or illness.'' This definition is consistent with 
both OSHA's definition as set forth at 29 CFR 1904.5(b)(4) and the 
current version (effective May 1, 2003) of the FRA Guide. FRA has added 
this definition to Sec.  225.5 for clarification and ease of reference.
    The final rule further clarifies that the provisions concerning 
days away from work and restricted duty only relate to railroad 
employees. This clarifying amendment was made in response to a comment 
requesting additional clarification about whether these provisions 
apply to ``any person.'' This amendment is consistent with the 
reporting criteria found in Sec.  225.19 and will not create any 
additional burden on the railroads.
    Commenters stated that the definition for ``Significant aggravation 
of a pre-existing injury or illness'' is not consistent with the OSHA 
definition. Specifically, Amtrak argued that FRA's definition is 
different than OSHA's because it contains the term ``discernable 
cause.'' However, FRA included this language for clarity and the 
definition is, in fact, consistent with OSHA's language. Pursuant to 
the OSHA-NAM Agreement, a case ``is presumed work-related if, and only 
if, an event or exposure in the work environment is a discernable cause 
of the injury or illness or of a significant aggravation to [sic] 
preexisting condition.''
    Amtrak further argued that FRA's removal of ``occupational'' 
preceding the phrase ``event or exposure'' is also inconsistent with 
OSHA. This revision is consistent with the statutory requirement that 
railroads report to FRA ``all accidents and incidents resulting in 
injury or death to an individual arising from the carrier's operations 
during the month,'' not just accidents and incidents resulting in 
injury or death to railroad employees. See 49 U.S.C. 20901. While OSHA 
only captures information relating to employees, FRA collects and uses 
information for various classifications of persons. As such, FRA 
requires railroads to submit information relating to non-employee 
injuries and illnesses that arise from the operation of the railroad.
    The final rule also adds a definition for ``Suicide data.'' 
Consistent with FRA's decision to remove suicide and attempted suicide 
from its current Sec.  225.15 reporting exceptions (see Section-by-
Section Analysis for 225.15, ``Accidents/Incident not to be 
reported''), and to begin collecting suicide related data, FRA is 
adding to Sec.  225.5 a definition for ``Suicide data.'' In the NPRM, 
FRA proposed that ``Suicide data'' mean data regarding the death of an 
individual due to that individual's commission of suicide as determined 
by a coroner or other public authority; or injury to an individual due 
to that individual's attempted commission of suicide as determined by a 
public authority.
    The final rule revises the definition of ``Suicide data'' to mean 
``data regarding the death of an individual due to the individual's 
commission of suicide as determined by a coroner, public police officer 
or other public authority; or injury to an individual due to that 
individual's attempted commission of suicide as determined by a public 
police officer or other public authority.'' The FRA Guide explains that 
a ``public authority'' is a Federal, State or local government entity, 
such as a public health department, that has the legal authority to 
declare a fatality a suicide or a casualty to a person as an attempted 
suicide. Moreover, the FRA Guide provides for what documentation a 
railroad is required to have to show that a person committed suicide or 
attempted to commit suicide. See

[[Page 68874]]

Section-by-Section Analysis for Sec.  225.41, ``Suicide data.''
    FRA emphasizes that only the information about the death of, or 
injury to, the individual who committed the suicidal act is considered 
to be suicide data. Thus, information about the death of, or injury to, 
any other person caused by another person's commission of a suicidal 
act is not suicide data. FRA will not report suicide data to OSHA. FRA 
will not include suicide data (as defined in Sec.  225.5) in its 
periodic summaries of data on the number of injuries and illnesses 
associated with railroad operations. FRA will maintain suicide data in 
a database that is not publicly accessible. Accordingly, suicide data 
will not be available on FRA's Web site for individual reports or 
downloads, however, suicide data will be available to the public in 
aggregate format on FRA's Web site and via requests under the Freedom 
of Information Act. See Sec.  225.41, ``Suicide data.'' FRA inspectors 
and State agencies participating in investigative activities under part 
212 will have access to the individual records and reports. See Sec.  
225.31. States also can obtain individual reports directly from the 
railroads pursuant to Sec.  225.1.
    Commenters requested that FRA clarify what is considered a public 
authority. As explained above, a ``public authority'' is a Federal, 
State or local government entity, such as a public health department, 
that has the legal authority to declare a fatality a suicide or a 
casualty to a person an attempted suicide. MTA asked whether public 
authority would include ``a railroad police department or other State 
or local police department.'' FRA does not consider a railroad police 
officer a public authority within the meaning of those terms. Another 
commenter suggested using the phrase ``appropriately qualified public 
authority'' to define public authority. FRA believes that the revised 
definition provides sufficient clarity as to what is considered a 
public authority.
    Commenters also suggested that collecting this information (e.g., a 
coroner's report) is time consuming and that FRA should consider this 
fact when requiring that a railroad complete the relevant forms within 
a specific period of time. FRA acknowledges that it may take additional 
time to confirm cause of death. As explained, FRA needs this 
information to prevent future casualties and to improve rail safety. 
However, after acquiring knowledge that a reportable injury or illness 
occurred, a railroad must create a Form FRA F 6180.55a for reportable 
injury and illness within thirty days after the expiration of the month 
during which the accidents/incidents occurred. As such, a railroad may 
submit the report as a fatality if a final determination with regard to 
cause of death has not yet been reached and, at a later time, update 
and amend the record or report once the railroad is able to confirm 
cause of death. If a railroad is unable to confirm whether an 
individual committed suicide at the end of the investigative period, 
the deceased should be listed as the applicable type person (e.g., 
trespasser, non-trespasser). FRA allows railroads to accept verbal 
confirmation of an attempted suicide or suicide from a public 
authority, so long as the railroad documents in writing the specifics 
of the conversation and creates the required audit trail, as explained 
in the FRA Guide, rather than requiring written confirmation from the 
public police officer, coroner or other public authority. See Section-
by-Section Analysis for Sec.  225.41, ``Suicide data.''
    The final rule revises the definition of ``Work environment'' to 
explain that the work environment means the establishment and other 
locations where one or more railroad employees are working or are 
present as a condition of employment. This revision provides additional 
clarity and better conforms FRA's definition with OSHA's definition at 
29 CFR 1904.5(b)(1).
    The final rule revises the definition of ``Work-related'' by 
removing the words ``incident, activity, or the like'' and replacing 
them with ``event or exposure'' because the definition of ``event or 
exposure'' in this section encompasses those terms. The definition 
explains that an injury or illness is presumed work-related if an event 
or exposure in the work environment is a discernable cause of the 
resulting condition or a discernable cause of a significant aggravation 
to a pre-existing injury or illness. The causal event need not be 
peculiarly occupational in nature so long as it occurs in the work 
environment, and is a discernable cause (i.e., contributory factor). 
Further, the final rule states that if an injury or illness is within 
the presumption, the employer can rebut the work-relatedness only by 
showing that the case falls within an exception listed in 49 CFR 
225.15. This presumption is consistent with the NAM-OSHA settlement 
agreement, 66 FR 66943, December 27, 2001, and with OSHA's regulations 
which require that ``[employers] must consider an injury or illness to 
be work-related if an event or exposure in the work environment either 
caused or contributed to the resulting condition or significantly 
aggravated a pre-existing condition.'' 29 CFR 1904.5(a). That 
regulation goes on to explain that ``[w]ork-relatedness is presumed for 
injuries and illnesses resulting from events or exposures occurring in 
the work environment, unless an exception in [29 CFR] 1904.5(b) 
specifically applies.'' Id. at 29 CFR 1904.5(b)(2), OSHA also sets 
forth nine exceptions to its injury and illness reporting requirements. 
The final rule sets forth all FRA accident/incident reporting 
exceptions in Sec.  225.15. See Section-by-Section Analysis for Sec.  
225.15, ``Accidents/Incident not to be reported.''
    In addition, in cases where it is not obvious whether a 
precipitating event or exposure occurred in the work environment, the 
employer must evaluate the employee's work duties and environment to 
decide whether it is more likely than not that an event or exposure in 
the work environment contributed to the employee's injury or illness. 
FRA's requirement is consistent with the NAM-OSHA settlement agreement 
and OSHA's regulations at 29 CFR 1904.5(b)(3), in which OSHA addresses 
how an employer should handle a case if it is not obvious whether the 
precipitating event or exposure occurred in the work environment, 
stating ``in these situations, [the employer] must evaluate the 
employee's work duties and environment to decide whether or not one or 
more events or exposures in the work environment either caused or 
contributed to the resulting condition or significantly aggravated a 
pre-existing condition.''
    FRA also wishes to clarify that an event or exposure that occurs in 
the work environment need not have a clear connection to a specific 
work activity, condition, or substance that is peculiar to the railroad 
transportation business in order be an ``event or exposure arising from 
the operation of a railroad.'' Examples of events or exposures arising 
from the operation of a railroad include an employee tripping for no 
apparent reason while walking across a level floor; an employee being 
sexually assaulted by a co-worker; or an employee being injured by an 
act of violence perpetrated by one co-worker against a third party. See 
OSHA's 2001 Rule, 66 FR 5916, 5946, January 19, 2001. In such cases, 
the employee's job-related tasks and exposures did not create or 
contribute to the risk that an injury or illness would occur. Id. 
Rather, these activities are events or exposures arising from the 
operation of a railroad because they occurred in the work environment. 
Likewise, normal body movements (e.g., walking, climbing a staircase, 
bending, sneezing) engaged in

[[Page 68875]]

by an employee at the time of injury are also events arising from the 
operation of a railroad, even if the body movement is not related to 
the employee's job-related tasks. See 66 FR 5916, 5957-5958, January 
19, 2001. Correspondingly, events or exposures involving contractors or 
volunteers, that occur on property owned, leased, operated over or 
maintained by the railroad, also arise from the operation of a 
railroad, even if they do not have a clear connection to a specific 
work activity, condition, or substance that is peculiar to the railroad 
transportation business.
    UP contests the work-relatedness presumption. However, the final 
rule specifically adopts a presumption of work-relatedness that is 
identical to OSHA's presumption to provide uniformity in reporting 
requirements between OSHA and FRA and amongst railroads. Moreover, this 
allows railroads to report to one agency, FRA. In addition, uniform 
reporting requirements allow for comparing safety trends across 
industries and among railroads.
    UP also suggests that a method/evidence-based approach should be 
employed. UP proposes that an injury or illness is considered work-
related if ``1. The medical findings of disease or injury are 
compatible with the effects of a disease-producing agent or an injury 
producing event to which the worker has been exposed; 2. Sufficient 
exposure is present in the worker's occupational environment to have 
caused the disease; and 3. The weight of the evidence supports the 
disease as having occupational rather than non-occupational origin.'' 
Alternatively, BNSF suggested using the NIOSH approach when causation 
is not obvious. As explained above, under part 225, the railroad must 
decide whether, considering the circumstances, it is more likely than 
not that an event or exposure arising from the operation of the 
railroad is a discernable cause of an injury or illness. If an event or 
exposure is a discernable cause, then the injury or illness is presumed 
to be work-related. Under this approach, a railroad may consider the 
various unique factors associated with each employee's potentially 
work-related injury or illness, including, but not limited to, an 
employee's medical and work history, in addition to an employee's 
statements regarding his or her injury or illness.
    Other commenters stated that the definition creates a geographic 
presumption because experiencing pain in the work environment is 
sufficient to make an injury or illness work-related and reportable. 
Contrary to this assertion, the final rule does not create a 
``geographic presumption,'' as the event or exposure arising from the 
operation of the railroad must be a cause of the injury or illness; 
and, therefore, the manifestation of a sign or symptom in the work 
environment, by itself, does not make an injury work-related. 
Similarly, comments stated that the definition is so broad that 
everything is work-related. Again, an injury or illness is not work-
related unless an event or exposure arising from the work environment 
is a discernable cause, and it meets one of the general reporting 
criteria. Moreover, FRA's definition of work-relatedness is consistent 
with OSHA's definition and enables OSHA and FRA to compare safety 
trends across industries.
    Commenters stated that FRA should collect information about only 
injuries and illnesses caused by ``occupational'' events or exposures. 
UP claimed that, when railroads are required to report injuries or 
illnesses that result from non-occupational events, that data will not 
improve railroad safety. Commenters also stated that FRA is not 
collecting data about the hazards and risks actually associated with 
the railroad industry. For employee injuries and illnesses, OSHA does 
not require that the event or exposure be occupational in nature. 
Again, adopting OSHA's approach allows the railroads to report to one 
agency, FRA, and, so long as FRA maintains reporting requirements 
consistent with those of OSHA, FRA's regulations also allow for 
comparing safety trends between industries. Finally, FRA uses the 
information regarding injuries and illnesses that are not solely 
occupational in nature to improve safety and to more fully understand 
injuries and illnesses in the work environment.

Sec.  225.6 Consolidated Reporting

    The final rule adds Sec.  225.6, which provides an option for 
consolidated railroad accident/incident reporting for certain 
integrated railroad systems.
    Section 20901 of title 49 of the United States Code requires that 
each ``railroad carrier'' submit to FRA a monthly report of its 
accidents/incidents. A ``railroad carrier'' is defined by 49 U.S.C. 
20102 as a ``person providing railroad transportation, except that, 
upon petition by a group of commonly controlled railroad carriers that 
the Secretary determines is operating within the United States as a 
single, integrated rail system, the Secretary may by order treat the 
group of railroad carriers as a single railroad carrier for purposes of 
one or more provisions of part A, subtitle V of this title and 
implementing regulations and order, subject to any appropriate 
conditions that the Secretary may impose.'' ``Person,'' as defined by 1 
U.S.C. 1, ``include[s] corporations, companies, associations, firms, 
partnerships, societies, and joint stock companies, as well as 
individuals.''
    The final rule provides that a parent corporation may request in 
writing that FRA treat its commonly controlled railroad carriers, which 
operate as a single, seamless, integrated United States rail system, as 
a single railroad carrier for purposes of part 225 compliance. The 
written request must provide a list of the subsidiary railroads 
controlled by the parent corporation and an explanation as to how the 
subsidiary railroads operate as a single, seamless, integrated United 
States railroad system. If FRA grants such a request, the parent 
corporation must enter into a written agreement with FRA specifying 
which subsidiaries are included in its railroad system, consenting to 
assume responsibility for compliance with part 225 for all named 
subsidiaries making up the system, and consenting to guarantee any 
liabilities owed to the United States government that are incurred by 
its named subsidiaries for violating part 225. Any change in the 
subsidiaries making up such a railroad system will require immediate 
notification to FRA and the execution of an amended agreement. In 
addition, executed agreements will be published in the docket.
    FRA's final rule is consistent with the Surface Transportation 
Board's (STB) decision in Ex Parte No. 634 (Proposal to Require 
Consolidated Reporting by Commonly Controlled Railroads) (November 7, 
2001). In this decision, STB required that each group of railroads that 
operate as a single, integrated United States rail system whose 
cumulative operating revenues meet the Class I threshold, submit 
consolidated annual financial reports that combine the operations of 
all their commonly controlled railroads that operate as an integrated 
rail system within the United States.
    Commenters to the NPRM suggested that this revision will dilute 
reporting, and make it more difficult to compare trends and to identify 
problems. However, FRA believes that this revision will, in fact, 
enable the agency to gather more meaningful and accurate data. One 
comment also sought additional clarification on who can use 
consolidated reporting. Again, as discussed, a parent corporation may 
request consolidated reporting where its commonly controlled railroad 
carriers operate as a single, seamless, integrated

[[Page 68876]]

United States rail system. In addition, the STB decision, referenced 
above, provides further clarification.

Sec.  225.9 Telephonic Reports of Certain Accidents/Incidents and Other 
Events

    The final rule amends the accident/incident telephonic reporting 
requirements related to fatalities that occur at highway-rail grade 
crossings as a result of train accidents or train incidents. FRA had 
required railroads to report immediately to the National Response 
Center (NRC), via telephone, ``a fatality at a highway-rail grade 
crossing as a result of a train accident or train incident.'' 49 CFR 
225.9(a)(2)(iii). FRA has found that confusion exists as to the 
applicability of this requirement when death does not occur at the 
scene of the accident/incident, but occurs several hours or days later, 
after the fatally injured person is taken to the hospital for 
treatment.
    As a result, the final rule revises the telephonic reporting 
requirement for highway-rail grade crossing fatalities to require 
telephonic reporting only if death occurs within 24 hours of the 
accident/incident. This revision is consistent with the Department of 
Transportation, Office of Inspector General's November 28, 2005 
recommendation (Report No. MH-2006-016), which recommended that FRA 
amend Sec.  225.9 to clarify the reporting requirements and to include 
criteria requiring railroads to report to NRC any death at a highway-
rail grade crossing, only if death occurs within 24 hours of the 
accident/incident.
    The final rule also makes a technical amendment to paragraph 
(a)(2)(iv) by adding the words ``or more'' after $150,000, to clarify 
that the telephonic reporting requirement is triggered when a train 
accident results in damage of $150,000 or more to railroad and non-
railroad property.
    In the NPRM, FRA requested comments and suggestions on four issues 
of concern. One of these issues was Sec.  225.9 telephonic reporting. 
Specifically, the NPRM noted that FRA was considering changing the 
method by which telephonic reports of accidents/incidents, as required 
by Sec.  225.9, are made. Under FRA's current regulations, railroads 
are required to telephonically report certain accidents/incidents to 
the NRC, who in turn provides notification of the accidents/incidents 
to FRA. The NPRM indicated that FRA was reviewing whether it would be 
preferable for railroads to report these accidents/incidents directly 
to FRA via electronic transmission, and invited comments and 
suggestions on the issue.
    FRA received comments that were generally in favor of reporting 
such accidents/incidents directly to FRA via electronic transmission. 
One comment suggested that certain data should be collected, including 
railroad contact information closely associated with the accident/
incident, train equipment identification, and hazardous materials 
identification. Another comment suggested that railroads should 
immediately report any type of railroad related fatality, including 
trespasser fatalities and suicides. After reviewing the issue and the 
comments, no changes are being made relating to direct reporting 
because FRA does not currently have the infrastructure to adequately 
address such reporting. However, FRA will take these comments into 
consideration in any further evaluation concerning direct reporting.
    A commenter suggested that the immediate notification of such 
fatalities is not necessary because such data is captured in the 
monthly report submitted to FRA. FRA believes, however, that immediate 
reporting is necessary so that FRA has the opportunity to physically 
investigate the accident/incident before the scene is cleared. Such 
reporting ultimately results in the creation of more accurate data. A 
comment to the NPRM also suggested that a railroad cannot easily 
determine whether there has been a fatality if the individual does not 
die at the scene of the accident/incident. FRA believes that railroads 
must take reasonable steps to learn whether a fatality occurred within 
24 hours of the highway-rail grade crossing accident/incident. Under 
the current regulation at Sec.  225.9, there is no such time limit. As 
such, the final rule lessens the burden on the railroads to follow-up 
on such accidents/incidents under Sec.  225.9 by only requiring 
railroads to report if a fatality occurs within 24 hours. As discussed, 
this final rule is consistent with the Department of Transportation, 
Office of Inspector General's November 28, 2005 recommendation (Report 
No. MH-2006-016). A comment to the NPRM also suggested that such 
reports be made electronically, rather than telephonically, to allow 
for greater efficiency and accuracy. FRA does not currently have the 
infrastructure to accommodate this suggestion. FRA does, however, 
currently receive electronic updates after the initial report to the 
NRC, which ensures that FRA has all of the relevant information. 
Lastly, a comment to the NPRM suggested that ``horrible injuries'' 
should also be reported under Sec.  225.9. The final rule does not 
adopt this suggestion because the phrase ``horrible injuries'' is 
vague, would be difficult to enforce, and FRA Form F 6180.55a captures 
information relating to the nature of the injury.
    The final rule also revises the Telephonic Reporting Chart 
contained in the FRA Guide, Appendix M in order to make it consistent 
with the final rule text as the chart contained in the 2003 Final Rule 
was not consistent with the regulatory text. These amendments are 
clarifying in nature, and will impose no additional burden on 
railroads. See FRA Guide for additional information.

Sec.  225.11 Reporting of Accidents/Incidents

    In this section, the final rule lists each primary accident/
incident group described in Sec.  225.19 (i.e., Highway-rail grade 
crossing; Rail equipment; and Death, injury and occupational illness) 
by subsection. By identifying each group of accidents/incidents with a 
different subsection, FRA will be better able to access data and 
differentiate among data elements. For example, currently, if FRA 
issues a violation against a railroad for alleged non-compliance with 
Sec.  225.11, FRA's case tracking database captures this as a violation 
of Sec.  225.11. With such limited information, FRA is unable to easily 
identify what type of reporting non-compliance is alleged (e.g., 
failure to report a highway-rail grade crossing accident/incident; 
failure to report a rail equipment accident/incident or failure to 
report an accident/incident involving a death, injury or occupational 
illness). This final rule provides FRA with better and more useful 
data, while also providing quicker access to such data.
    The final rule also updates this section to reflect the revised 
provisions in Sec.  225.37 regarding filing accident/incident reports 
with FRA via optical media (CD-ROM) and electronically via the 
Internet.

Sec.  225.15 Accidents/Incidents Not To Be Reported

    In this section, Sec.  225.15 is revised to include a comprehensive 
list of injury/illness and rail equipment accident/incident reporting 
exceptions (formerly listed partially in Sec.  225.15 and in the 2003 
FRA Guide). As discussed in the Section-by-Section Analysis of Sec.  
225.5, ``Definitions'' with respect to the definition of ``Work-
relatedness,'' OSHA's regulations require that ``[employers] must 
consider an injury or illness to be work-related if an event or 
exposure in the work environment either caused or contributed to the 
resulting condition or significantly aggravated a pre-existing 
condition.'' 29

[[Page 68877]]

CFR 1904.5(a). OSHA's regulation goes on to explain that ``[w]ork-
relatedness is presumed for injuries and illnesses resulting from 
events or exposures occurring in the work environment, unless an 
exception in [29 CFR] 1904.5(b) specifically applies.'' 29 CFR 
1904.5(a). FRA established certain reporting exceptions in Sec.  225.15 
in FRA's 2003 Final Rule and also adopted OSHA's reporting exceptions 
in the 2003 FRA Guide.
    FRA's list of exceptions in this final rule includes both the FRA 
created exceptions and the exceptions set forth by OSHA at 29 CFR 
1904.5(b) as adopted by FRA. FRA reviewed the applicability of each 
injury and illness reporting exception as related to the class of 
injured person, and incorporates this information into the final rule 
text.
    In making this revision, FRA leaves paragraph (a) substantively 
unchanged.
    In paragraph (b), FRA addresses reporting exceptions for Worker on 
Duty--Employee (Class A) injuries and illnesses. Paragraph (b) retains 
the current paragraph (b)(1) reporting exception relating to injuries 
and illnesses occurring in living quarters. The final rule also adds 
additional reporting exceptions applicable to Worker on Duty--Employee 
(Class A) (paragraphs (b)(2) through (b)(3)). The final rule also 
revises the NPRM language to clarify that these exceptions do not 
affect a railroad's obligation to evaluate and report those injuries 
and illnesses as another class of persons (i.e., Employee not on duty 
(Class B); Passenger on Trains (Class C); Nontrespassers-On Railroad 
Property (Class D); Trespassers (Class E)), rather than as only 
Employee Not On Duty (Class B). For example, an employer who is present 
in the work environment as a member of the general public and is 
injured may qualify as a Class C or Class D person, rather than as a 
Class B person. This is a clarifying amendment; therefore, it should 
not alter railroads' reporting responsibilities and is consistent with 
the exceptions contained in FRA's 2003 Final Rule and 2003 FRA Guide.
    Paragraph (c) contains reporting exceptions applicable to all 
employees (whether on or off duty). With respect to the reporting 
exception listed in paragraph (c)(3), FRA wishes to clarify that an 
injury or illness that is solely the result of an employee eating, 
drinking, or preparing food or drink for personal consumption is not 
reportable. It does not matter if the employee bought the food on the 
employer's premises or brought the food into work. For example, if the 
employee is injured by choking on a sandwich while in the employer's 
establishment, the case would not be considered work-related. If, 
however, the employee is made ill by ingesting food contaminated by 
workplace contaminants (such as lead), or gets food poisoning from food 
supplied by the employer, the case would be considered reportable if 
the case meets the general reporting criteria set forth at Sec.  
225.19(d)(1)-(d)(6). With respect to the reporting exception listed in 
paragraph (c)(5), self-inflicted casualties do not need to be reported 
except that, for FRA reporting purposes, a railroad will still be 
responsible for reporting or recording self-inflicted casualties that 
are determined to be suicides and attempted suicides that qualify as 
accountable or reportable. FRA will not be providing suicide data to 
DOL.
    In paragraph (d), FRA addresses the applicability of the reporting 
exceptions listed in paragraph (b) and (c) to contractors and 
volunteers. The reporting exceptions for employee injuries and 
illnesses apply equally to volunteer injuries and illnesses and to 
contractor injuries (contractor illnesses are not reportable to FRA). 
Because an injury to a contractor, or injury to or illness of a 
volunteer, must occur on property owned, leased, operated over or 
maintained by the railroad (rather than in the work environment), any 
reference to the term ``work environment'' in paragraph (b) is 
construed to mean, for the purposes of paragraph (d) only, on property 
owned, leased, operated over, or maintained by the railroad. The 
application of the exceptions as stated in paragraph (d) do not reflect 
any change to FRA's provisions, but is included to clarify the 
applicability of the reporting exceptions to contractors and 
volunteers. Consistent with the changes made to the definition of 
``event or exposure arising from the operation of the railroad,'' 
paragraph (d) was amended to include the term ``operated over.'' FRA 
does not believe that this clarifying amendment increases the burden on 
railroads because it is consistent with common industry practice as 
well as FRA's long-standing policy.
    Lastly, paragraph (e) addresses reporting exceptions for rail 
equipment accidents/incidents which were included in the 2003 FRA 
Guide.
    The agency believes that the incorporation of these exceptions into 
the rule will provide a better understanding of FRA's employee injury 
and illness reporting requirements. Again, the reporting exceptions do 
not affect a railroad's obligation to maintain records of accidents/
incidents as required by Sec.  225.25 (Form FRA F 6180.98, ``Railroad 
Employee Injury and/or Illness Record,'' and Form FRA F 6180.97, 
``Initial Rail Equipment Accident/Incident Record''), as applicable.
    The final rule also eliminates from the reporting exceptions 
suicides and attempted suicides. In doing so, FRA is requiring that 
casualties due to suicides and attempted suicides, that arise from the 
operation of the railroad and meet the general reporting criteria 
listed in Sec.  225.19(d)(1) through (d)(6), be reported to the agency 
on Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet),'' as a new category of data called ``suicide 
data.'' In addition, casualties due to suicides and attempted suicides 
that arise from the operation of the railroad and meet the general 
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6) should 
be included on Form FRA F 6180.55, ``Railroad Injury and Illness 
Summary,'' in Field 18, Reported Casualties. Under this system, a 
reportable injury caused as a result of a suicidal act is reported to 
FRA regardless of the need for other reporting of the event (i.e., the 
suicide resulted in a reportable train accident or highway-rail grade 
crossing collision). FRA will not report such suicide data cases to 
DOL. FRA will also not include suicide data (as defined in Sec.  225.5) 
in its periodic summaries of data on the number of injuries and 
illnesses associated with railroad operations. Instead, FRA will 
maintain such suicide data in a database that is not publicly 
accessible. Accordingly, suicide data will not be available on FRA's 
Web site for individual reports or downloads. Suicide data will, 
however, be available to the public in aggregate format on FRA's Web 
site and via requests under the Freedom of Information Act (FOIA). For 
additional information about FOIA requests, see FRA's Web site at 
http://www.fra.dot.gov/us/foia. Suicide data will be available to FRA's 
inspectors and other authorized representatives, including State 
agencies participating in investigative surveillance activities under 
part 212. See Section-by-Section Analysis for Sec.  225.41, ``Suicide 
data.'' States will also be able to obtain individual reports directly 
from the railroads pursuant to Sec.  225.1. See Sec.  225.1, ``Suicide 
data;'' see also Section-by-Section Analysis for Sec.  225.1, ``Suicide 
data.''
    In addition, casualties due to suicides and attempted suicides that 
arise from the operation of the railroad and meet the general reporting 
criteria listed in Sec.  225.19(d)(1) through (d)(6) shall also be 
included in Field 18, Reported Casualties, on Forms FRA F 6180.55,

[[Page 68878]]

``Railroad Injury and Illness Summary.'' This will allow FRA to verify 
the number of forms submitted with the count listed on the form. The 
railroad should report the person by the ``type of person'' regardless 
of the fact that it is suicide data. As such, if a trespasser commits 
suicide on the railroad, the railroad should report it as a trespasser 
fatality. See FRA Guide, Chapter 3.
    Suicide data counts will also be included in casualty counts on 
Forms FRA F 6180.57, ``Highway-Rail Grade Crossing Accident/Incident 
Report,'' and FRA F 6180.54, ``Rail Equipment Accident/Incident 
Report,'' so that the number of casualties reported to FRA on Form FRA 
F 6180.55a, ``Railroad Injury and Illness Summary (Continuation 
Sheet),'' for the month is consistent with the number of casualties 
reported to FRA on each of these accident/incident reporting forms. In 
addition, suicide data counts will also be included in casualty counts 
on Form FRA F 6180.97, ``Initial Rail Equipment Accident/Incident 
Record.'' See Sec.  225.41, ``Suicide data;'' see also Section-by-
Section Analysis for Sec.  225.5, ``Definitions,'' and the FRA Guide, 
for additional information.
    UP requested that highway-rail grade crossing accident/incidents 
that result from suicides or attempted suicides not be included on the 
Form FRA F 6180.57. As explained above, the final rule requires the 
inclusion of this information on the Form FRA F 6180.57 so that the 
number of casualties is consistent with the number of casualties on 
Form FRA F 6180.55a and on the Form FRA F 6180.54 that might also be 
required for the same incident. In addition, FRA only excludes the 
individuals who committed or attempted suicide and, therefore, 
casualties to others involved in the same incident as a result of the 
suicidal act may be reportable. Moreover, a Form FRA F 6180.57 must be 
created for any impact regardless of cause or intent. The Form FRA F 
6180.57 does not require any Personal Identifying Information (PII) 
and, as such, FRA is not as concerned about making the individual forms 
available to the public. See FRA Guide.
    FRA believes that it is important to collect data on suicides. 
Death by suicide is a national problem as indicated by the fact that 
more than 30,000 Americans die by suicide each year. Currently, there 
are no reliable reports about how many of these deaths occur on 
railroad property. The CPUC indicates that more than 55 percent of 
pedestrian railroad fatalities in California are attributed to suicide, 
and according to the American Association of Suicidology, railroads 
that have tracked probable suicides on the rail system report that 
suicides are responsible for 39 percent of pedestrian fatalities. 
Additionally, a March 3, 2005, Chicago Tribune article, ``Suicide is 
Top Cause of Train Track Deaths; State Looks for Ways to Prevent 
Fatalities,'' indicates that, in 2004, there were 30 probable suicide 
deaths and an additional three attempts involving trains in Chicago 
alone, and that suicide was the leading cause of rail-related 
fatalities in Illinois for 2004, which led Illinois to implement a 
systematic tracking program of such incidents on rail property. This 
information illustrates that there are a large number of fatalities 
occurring on railroad property without any national initiative to 
collect data that might be used to address these events.
    Since it appears that suicides contribute significantly to the 
total number of fatalities that are occurring on railroad tracks, it is 
appropriate to report and collect data about suicides in addition to 
the other causes of death in the industry. By requiring that the 
information be reported as suicide data, these fatalities will not be 
included in the normally reported fatality data. This new data may help 
FRA, organizations promoting safety on and around railroad property, 
and suicide prevention agencies assess the problem and develop programs 
to decrease the incidence of suicides by train.
    FRA notes that the collection of suicide data will also aid the 
Federal Transit Administration (FTA) in its collection and analysis of 
commuter railroad accidents, since FRA provides certain commuter 
railroad safety data to FTA. FTA relies on FRA to provide to it data on 
the types of accidents occurring on commuter rail, their primary 
causes, and the consequences, in terms of fatalities (which for FTA 
includes suicides under 49 CFR part 659), injuries and property damage. 
The data FRA provides to FTA, however, is somewhat incomplete, in that 
FRA cannot provide suicide data to FTA. Consequently, FTA, which uses 
this information to better inform their assessments of safety plans and 
hazard analysis performed by commuter rail grantees applying for FTA 
grants, must work with an incomplete data set.
    Comments suggested that the collection of suicide data would create 
a duty on the part of the railroad to those individuals attempting to 
commit suicide as the railroads would now be aware of potential suicide 
hotspots. However, prior to this Final Rule, railroads were exempt from 
reporting suicides and attempted suicides. In order to exclude suicides 
and attempted suicides, railroads were required to prove cause of death 
by obtaining relevant documents to prove that a casualty was an 
attempted suicide or suicide. Consequently, railroads should already 
have knowledge of where suicides and attempted suicides are taking 
place. Therefore, the final rule does not create a new duty for the 
railroads, rather it simply requires them to compile the data. 
Ultimately, by collecting this information, FRA and other government 
agencies will be able to decrease the number of suicides and attempted 
suicides occurring on the railroad.
    Amtrak stated in its comments that persons entering railroad 
property to commit suicide are considered trespassers and the suicide 
is considered a superseding event. As such, Amtrak claims that an event 
or exposure arising from the operation of the railroad is not a cause. 
Consistent with OSHA, FRA maintains a no fault reporting system. As 
such, it does not matter whether the person caused their own injury so 
long as the event or exposure arising from the operation of the 
railroad is a discernable cause and it meets the general reporting 
criteria. And, the collection of this data will help to decrease the 
number of suicides and attempted suicides that occur each year. 
Moreover, FRA will not be providing this information to DOL.
    Commenters suggested that the collection of suicide data will not 
improve safety. As stated above, FRA believes that there are many 
benefits to collecting this information. Specifically, FRA will be able 
to determine where and how many suicides are occurring on the railroad. 
Suicides will be segregated from other fatalities, avoiding an over 
count of fatalities associated with railroad operations, and data will 
be gathered systematically so that others may use the data to design 
interventions.
    In order for FRA to capture suicide data, the final rule requires 
railroads to indicate suicide or attempted suicide on Forms FRA F 
6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet);'' 
FRA F 6180.54, ``Rail Equipment Accident/Incident Report;'' and FRA F 
6180.57, ``Highway-Rail Grade Crossing Accident/Incident Report;'' as 
follows:
    (1) Form FRA F 6180.55a--The final rule requires that an ``X,'' 
representative of ``suicide or attempted suicide,'' be placed in 
``Special Cause Code'' block 5r, when applicable. The final rule also 
changes the title of block 5m from ``Result'' to ``Tools.'' This change 
is a correction to the current form and is

[[Page 68879]]

necessary to maintain consistency with types of Circumstance Codes in 
Appendix F of the FRA Guide.
    (2) Form FRA F 6180.54--The final rule adds four Miscellaneous 
Cause Codes for use in block 38 as follows: (i) Code M309 ``Suicide 
(Highway-Rail Grade Crossing Accident);'' (ii) Code M310 ``Attempted 
Suicide (Highway-Rail Grade Crossing Accident);'' (iii) Code M509 
``Suicide (Other Misc.);'' and (iv) Code M510 ``Attempted Suicide 
(Other Misc.).'' These codes are added to Appendix C, ``Train Accident 
Cause Codes'' to refer to ``Suicide or Attempted Suicide'' for use in 
``Primary Cause Code'' block 38. The final rule also requires railroads 
to include suicides and attempted suicides in the casualty counts in 
blocks 46, 47, and 48, as applicable.
    (3) Form FRA F 6180.57--The final rule adds a code for ``Suicide or 
Attempted Suicide'' to block 41 (the final rule also changes, among 
other things, the title of block 41 from ``Driver'' to ``Highway 
User.''). In addition, the final rule requires railroads to include 
suicides and attempted suicides, when appropriate, in the casualty 
counts in block numbers 46, 49, and 52. See FRA Guide for additional 
information.
    In addition, when appropriate, the final rule requires railroads to 
indicate whether a suicide or an attempted suicide was a cause of an 
injury or illness or an accident or incident in the applicable 
narrative or description section on the following forms: FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record'' and FRA F 6180.97, 
``Initial Rail Equipment Accident/Incident Record.'' While employee 
suicides or attempted suicides are rare, FRA is still interested in 
capturing that information in order to learn more about suicides and 
attempted suicides in the work environment.
    Commenters inquired as to whether the NPRM's proposed cause codes 
were sufficient to capture the facts surrounding suicides and attempted 
suicides. FRA believes that the codes and instructions listed above are 
sufficient at this time to identify key information. FRA welcomes the 
inclusion of additional information regarding such accidents/incidents 
in the applicable form's narrative section (e.g., that the person is 
homeless).
    FRA notes that it is also concerned that suicides are being 
reported as trespasser fatalities, because some railroads have not 
always made a reasonable inquiry in their efforts to determine the 
cause of death. In fact, FRA has found that a number of reported 
trespasser fatalities are actually suicides. Accordingly, FRA revises 
Chapter 6 of the FRA Guide to clarify that, in order to fulfill its 
responsibilities to maintain accuracy in reporting, a railroad must try 
to obtain verbal or written confirmation of a trespasser's cause of 
death by contacting the coroner, public police officer or other public 
authority by telephone and, if unsuccessful in obtaining the needed 
information by telephone, must follow-up in writing. The railroad must 
continue its efforts to obtain this information for a period of six 
months following the month in which the fatality occurred. The railroad 
must keep a record of its efforts to obtain such confirmation. This 
record and any documentation related to the case obtained by the 
railroad must be available for review and copying by an FRA 
representative under the same criteria as set forth in Sec.  225.35(b). 
If a railroad cannot obtain confirmation of the cause of death by the 
end of the six month period, the railroad shall report the fatality as 
a trespasser fatality.
    FRA also revises Chapter 6 of the FRA Guide to clarify what 
documentation is required to prove that an individual committed suicide 
or attempted to commit suicide. FRA understands that railroads often 
have difficulty obtaining copies of death certificates and/or have to 
wait until the death certificate becomes publicly available. As such, 
as explained in the FRA Guide, railroads may accept verbal confirmation 
of a suicide or attempted suicide from a coroner, public police 
officer, or other public authority. When receiving verbal confirmation 
of a suicide or attempted suicide, a railroad must create an audit 
trail of that confirmation so that FRA can independently verify and 
confirm the determination. As part of this audit trail, for example, 
the railroad must document the date and time of verbal confirmation in 
addition to the name, title, address, and telephone number of the 
person who determined the cause of death or injury.
    Commenters stated that this information is too difficult to obtain, 
and that public authorities will often not cooperate with the 
railroads. Similarly, SEPTA suggested that the law prevents them from 
obtaining the written confirmation necessary to prove that a person 
committed suicide or attempted to commit suicide. However, railroads 
have been able to obtain this information under the requirements in the 
2003 Final Rule and, therefore, FRA expects that they will continue to 
be able to do so. In addition, FRA hopes that allowing verbal 
confirmation will ease the railroad's burden. Finally, when 
investigating a trespasser fatality, if a railroad cannot obtain the 
required information after making a documented, good faith effort for 
six months, then the railroad may discontinue its investigation and 
report the casualty as a trespasser fatality.
    Commenters also stated that the follow-up requirements are too 
burdensome. SEPTA suggested that railroads should only have to follow-
up for 3 months, rather than 6 months. Moreover, other comments 
suggested that only one document request and one follow-up request 
should be necessary. However, based on past comments, railroads have 
asserted that public authorities require additional time to conclude 
that a fatality is a suicide. Therefore, FRA believes that the extended 
investigation period is necessary. Once a railroad obtains a 
determination, they may terminate their investigation. The FRA Guide 
indicates that a railroad must follow-up in writing only if a public 
authority cannot be reached by telephone, and then must continue such 
efforts for six months or until they have received confirmation. FRA 
does not mandate how the continued efforts be conducted, in writing or 
by telephone, so long as those efforts are documented. Consequently, 
after attempting to reach the public authority once by phone and in 
writing, a railroad may select the means by which they continue their 
investigation. Again, if a railroad cannot obtain the required 
information after making a documented, good faith effort for six 
months, then the railroad may discontinue its investigation and report 
the casualty as a trespasser fatality. Finally, FRA believes that these 
efforts are necessary based on the past apparent over-reporting of 
trespasser casualties that were in fact suicides.

Sec.  225.17 Doubtful Cases

    In this section, the final rule amended part 225 by re-designating 
the ``Alcohol or Drug Involvement'' provisions, currently contained in 
Sec.  225.17(d), to a newly added Sec.  225.18. FRA has observed that 
the inclusion of the two unrelated topics in one section has led to 
confusion. This revision is intended to reduce possible confusion and 
does not substantively change FRA's current accident/incident reporting 
requirements.

Sec.  225.18 Alcohol or Drug Involvement

    As stated above, the final rule adds a new section, Sec.  228.18, 
re-designating the Alcohol and Drug provisions currently contained in 
Sec.  225.17(d) to a new section, Sec.  225.18, for purposes of clarity 
only. The final rule also makes the following technical amendments:

[[Page 68880]]

changing the word ``title'' to ``chapter,'' to reference the correct 
term; inserting ``49 CFR'' in front of Sec.  219.209, for clarity; and 
changing the word ``paragraph'' to ``section,'' to accommodate the 
proposed re-designation of Sec.  225.17(d) to Sec.  225.18 (a)-(d).
    Commenters suggested that contractors and subcontractors be 
included in Sec.  225.18. The final rule does not adopt this suggestion 
because it is outside of the scope of the proposed rulemaking. 
Specifically, the NPRM did not propose any substantive changes, rather 
the sections were simply divided into two sections for purposes of 
clarity, and several technical amendments were made.

Sec.  225.19 Primary Groups of Accidents/Incidents

    In this section, the final rule revises paragraph (d) to clarify 
the agency's existing reporting requirements for death, injury, and 
occupational illness and to further conform those requirements to 
OSHA's recordkeeping and reporting regulations.
    As discussed, FRA's accident/incident reporting regulations that 
concern railroad occupational casualties are maintained, to the extent 
practicable, in general conformity with OSHA's recordkeeping and 
reporting regulations in order to enable data comparisons on 
occupational casualties between various industries, to allow 
integration of railroad industry data into national statistical 
databases, and to improve the quality of data available for analysis of 
casualties in railroad accidents/incidents. See Section-by-Section 
Analysis for Sec.  225.5, ``Definitions'' with respect to ``Discernable 
cause.'' Moreover, maintaining such compatibility allows railroads to 
only have to report occupational casualties to FRA, rather than to both 
OSHA and FRA. See 29 CFR 1904.3.
    With respect to employee injury and illness recording, OSHA's 
regulations require that ``each employer * * * must record each 
fatality, injury and illness that is work-related; and is a new case; 
and meets one or more of the general recording criteria * * * or the 
application to specific cases.'' 29 CFR 1904.4(a).
    By rewording paragraph (d) to more closely model OSHA's wording, 
the final rule better conforms its reporting requirements to that of 
OSHA. The final rule also clarifies that only new cases are reportable 
(the current regulation requires that the injury or illness must be a 
new case or a significant aggravation of a pre-existing injury or 
illness). The final rule, therefore, requires, that, to be reportable, 
a significant aggravation of a pre-existing case must be a ``new case'' 
(i.e., a case in which either the employee has not previously 
experienced a reported injury or illness of the same type that affects 
the same part of the body, or the employee previously experienced a 
reported injury or illness of the same type that affected the same part 
of the body but had recovered completely (all signs and symptoms had 
disappeared) from the previous injury or illness and an event or 
exposure in the work environment caused the signs or symptoms to 
reappear).
    The final rule also revises paragraph (d) by amending the general 
reporting criteria, specifically paragraph (d)(2), which currently 
states, ``injury to any person that results in medical treatment,'' to 
include ``significant injury to any person'' and ``loss of 
consciousness to any person.'' Failure to include these classes of 
injuries as reportable for ``any person,'' rather than just railroad 
employees, in the general criteria in the agency's 2003 Final Rule (68 
FR 10107, March 3, 2003) has resulted in FRA not capturing data for 
non-employees with respect to significant injuries.
    Amtrak expressed concern that extending the reporting criteria to 
non-employees would impose a significant burden on the passenger 
railroads. As an initial matter, significant injuries are limited to a 
small number of injuries (e.g., fractured or cracked bone or punctured 
eardrum), which must be diagnosed by a qualified physician, further 
narrowing the number of probable cases. In addition, significant 
injuries are generally serious, and are the type of injuries the 
railroads should already be investigating, and will generally meet the 
other general reporting criteria (i.e. someone with a broken bone will 
most likely receive medical treatment). As such, these changes should 
not substantially increase the investigative duties of the railroad or 
the number of cases they are reporting. With respect to loss of 
consciousness cases, railroads will not be required to report cases 
where the passenger's loss of consciousness is not due to an event or 
exposure arising from the operation of the railroad. For these reasons, 
FRA does not believe that the additional reporting criteria for non-
employees will significantly increase the number of reportable cases.
    In addition, the final rule amends paragraph (d)(6)(E) (previously 
(d)(6)(v)) to remove the word ``independently'' for purposes of 
clarity. As explained in the Section-by-Section Analysis, MSD's are 
injuries and illnesses under the rule and are subject to the same 
recording criteria that apply to other injuries and illnesses.
    Lastly, the final rule amends paragraph (d)(6) to include covered 
data cases. The addition of covered data cases to Sec.  225.19(d) is a 
technical amendment and intended to correct the inadvertent omission of 
the criteria in the current rule text. The addition does not alter 
FRA's reporting criteria or its policy on covered data as stated in 
Sec.  225.39.

Sec.  225.21 Forms

    In this section, the final rule amends paragraph (j) in relation to 
the use of Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related.'' Specifically, the final rule makes the 
use of the Form FRA F 6180.107, in place of Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record,'' optional, rather 
than mandatory, and amends and redesignates the instructions for the 
use of the form currently set forth at Sec.  225.21(j) to Sec.  
225.25(i), under the section entitled ``Recordkeeping.'' See Section-
by-Section Analysis for Sec.  225.25, ``Recordkeeping,'' for additional 
information and a discussion of the relevant comments.
    The final rule also amends this section by adding a paragraph (k) 
to address the newly created Form FRA F 6180.150, ``Highway User Injury 
Inquiry Form.'' See FRA Guide. Form FRA F 6180.150 shall be used by the 
railroads in determining whether a highway user suffered a reportable 
injury or illness in addition complying with part 225's accident/
incident requirements. A copy of the Form FRA F 6180.150 shall be sent 
to each potentially injured highway user, or their representative, 
involved in a highway-rail grade crossing accident/incident along with 
a cover letter and a prepaid/preaddressed return envelope. See FRA 
Guide, Chapter 10 for complete instructions. A railroad shall not send 
a Form FRA F 6180.150 to a highway user, or a highway user's 
representative, who has died as a result of the accident/incident. The 
railroad shall complete Part I of Form FRA F 6180.150 and send the form 
with the completed Part I to the highway user, or their representative. 
See FRA Guide for complete instructions. Moreover, the cover letter 
shall be drafted in accordance with the instructions contained in the 
FRA Guide. See FRA Guide, Chapter 10.

Sec.  225.25 Recordkeeping

    In this section, the final rule eliminates from paragraph (a) the 
words ``that arise from the operation of the

[[Page 68881]]

railroad,'' in order to maintain conformity with the definition of 
``accountable injury or illness.'' See Section-by-Section Analysis for 
Sec.  225.5, ``Definitions,'' for additional information. Moreover, 
such language is redundant with respect to reportablility, as Sec.  
225.19(d) clearly indicates an injury or illness is only reportable if 
an event or exposure arising from the operation of a railroad is a 
discernable cause of the resulting condition or a discernable cause of 
a significant aggravation to a pre-existing injury or illness.
    The final rule also revises the criteria for using Form FRA F 
6180.107, ``Alternative Record for Illnesses Claimed to be Work-
Related,'' and sets forth all of the information that must be included 
in an alternative railroad-designed record that may be used in lieu of 
the form.
    Prior to FRA's most recent amendments to part 225 in 2003, FRA 
required that all accountable and reportable injuries and illnesses be 
recorded on Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record,'' or an equivalent record containing the same 
information. The subset of those cases that qualified for reporting 
were then reported to FRA on Form FRA F 6180.55a, ``Railroad Injury and 
Illness Summary (Continuation Sheet).'' If the case was not reported, 
the railroad was required to state, on Form FRA F 6180.98, ``Railroad 
Employee Injury and/or Illness Record,'' or the equivalent record, the 
reason the injury or illness was not reportable. According to the final 
rule preamble, 68 FR 10107, 10118, March 3, 2003:

    Although this system has generally worked well, problems have 
arisen with respect to accounting of claimed occupational illnesses. 
As further explained below, railroads are subject to tort-based 
liability for illnesses and injuries that arise as a result of 
conditions in the workplace. By their nature, many occupational 
illnesses, particularly repetitive stress cases, may arise either 
from exposures outside the workplace, inside the workplace, or a 
combination of the two. Accordingly, issues of work-relatedness 
become very prominent. Railroads evaluate claims of this nature 
using medical and ergonomic experts, often relying upon job analysis 
studies as well as focusing on the individual claims.
    With respect to accounting and reportability under part 225, 
railroad representatives asserted their concern that mere 
allegations (e.g., receipt of a complaint in a tort suit naming a 
large number of plaintiffs) not give rise to a duty to report. They 
added that many such claims are settled for what amounts to nuisance 
values, often with no admission of liability on the part of the 
railroad, so even the payment of compensation is not clear evidence 
that the railroad viewed the claim of work-relatedness as valid.
    Although sympathetic to these concerns, FRA was disappointed in 
the quality of data provided in the past related to occupational 
illness. Indeed, in recent years the number of such events reported 
to FRA has been extremely small. FRA has an obligation to verify, 
insofar as possible, whether the railroad's judgments rest on a 
reasonable basis, and discharging that responsibility requires that 
there be a reasonable audit trail to verify on what basis the 
railroad's decisions were made.

    As a result, FRA established, at Sec.  225.25(i)(1), a separate 
category of claimed occupational illnesses to be recorded on a new 
form, Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed 
to be Work-Related.'' This category is comprised of: Illnesses for 
which there is insufficient information to determine whether the 
illness is work-related; illnesses for which the railroad has made a 
preliminary determination that the illness was not work-related; and 
illnesses for which the railroad has made a final determination that 
the illness is not work-related.
    For any case later determined to be reportable, under Sec.  
225.25(i)(2), the railroad has been required to remove the designation 
``illness claimed to be work-related'' and transfer the record to the 
reporting officer for retention and reporting in the normal manner. In 
the event the railroad determined the case was not reportable, Sec.  
225.25(i)(3) requires that the railroad record an explanation in 
``narrative'' block 19 of Form FRA F 6180.107, ``Alternative Record for 
Illnesses Claimed to be Work-Related,'' describing the reason(s) the 
railroad made that determination, making reference to the ``most 
authoritative'' information relied upon.
    FRA believed that this system of accounting for contested illnesses 
would focus responsibility for reporting decisions and provide an 
appropriate audit trail. In addition, FRA thought that it would result 
in a body of information that could be used for research into the 
causes of prevalent illnesses, particularly in the case of 
musculoskeletal disorders. See 68 FR 10107, 10118, March 3, 2003. 
Unfortunately, this has not been the case.
    Rather than use the Form FRA F 6180.107 ``Alternative Record for 
Illnesses Claimed to be Work-Related,'' to record only those illnesses 
described above, FRA found that railroads were frequently recording all 
occupational illnesses on Form FRA F 6180.107 as a matter of practice, 
even before evaluating the sufficiency of information provided and/or 
work-relatedness. Furthermore, FRA found that railroads were allowing 
these records to remain unevaluated for several months or more without 
updating or reviewing them for work-relatedness. Moreover, FRA found 
that railroads were not creating the Form FRA F 6180.107 record within 
seven working days after receiving information or acquiring knowledge 
that an employee asserted an occupational illness, as required by the 
FRA Guide. Consequently, this system of accounting did not focus 
responsibility for reporting decisions, did not provide an appropriate 
audit trail, did not result in a body of information that can be used 
in the future for research into the causes of prevalent illnesses, and 
was not helpful in correcting the under-reporting of occupational 
illnesses to FRA.
    In order to correct this problem, the final rule refines the 
circumstances and procedures related to the recording of claimed 
occupational illnesses on Form FRA F 6180.107. Specifically, the final 
rule allows the use of the form to record only those claimed 
occupational illnesses for which the railroad carrier has not received, 
from the employee or their representative, information sufficient to 
determine whether the occupational illness is work-related. The final 
rule also includes, among other things, requirements that railroads: 
enter each illness claimed to be work-related on the record no later 
than seven working days after receiving information or acquiring 
knowledge that an employee is claiming they have incurred an 
occupational illness; make a good faith effort to obtain information 
necessary on occupational illness cases to make a reporting decision by 
December 1 of the next calendar year; document the receipt of new or 
additional case information in ``narrative'' block 19 of Form FRA F 
6180.107 within fifteen calendar days of receipt, compared to the seven 
days proposed in the NPRM, and re-evaluate the case in light of the new 
information within forty-five calendar days of receipt of the 
information, compared to the thirty days proposed in the NPRM; complete 
a Form FRA F 6180.98 for any claimed occupational illness case 
determined to be accountable or reportable within seven calendar days 
of making such determination; retain the record in accordance with the 
provisions set forth in Sec.  225.27 and report the illness in 
accordance with the regular reporting requirements; and provide 
complete narratives on Form FRA F 6180.107 for those cases the railroad 
determines are not reportable. The final rule also specifically defines

[[Page 68882]]

what data elements an alternative railroad-designed Form FRA F 6180.107 
must contain.
    Commenters suggested that there is no evidence of underreporting of 
occupational illnesses and, therefore, the narrowing of the use of the 
Form FRA F 6180.107 would impose a significant burden on the railroads. 
As explained above, FRA has found that the railroads have routinely 
used the Form FRA F 6180.107 to record all occupational illnesses and 
have failed to review additional evidence for lengthy periods of time, 
and that use of the form has resulted in the under-reporting of 
occupational illnesses. FRA believes that it is necessary to limit the 
use of the form to situations where the cause has not yet been 
determined, to avoid abuse of the form, to create an up-to-date audit 
trail, to continue to provide additional time to investigate causation 
based on the unique nature of occupational illnesses and to ensure that 
additional evidence is considered within a reasonable period of time.
    Many of the commenters critiqued the requirement that railroads 
update the forms and review additional information within a certain 
period of time. Several railroads also requested additional time to 
review new evidence and to update the forms. During the hearing on the 
NPRM, FRA requested that the railroads provide FRA with a timeframe 
that they believe is appropriate to update the forms and review 
additional evidence. AAR suggested that the current reporting timeline, 
which requires the railroad to update the form by December 1 of the 
following year, is appropriate. However, AAR also felt that 365 
calendar days would be appropriate. In its comments, AAR failed to 
explain why such a lengthy period of time would be necessary. As 
explained above, railroads have used the Form FRA F 6180.107 to avoid 
reporting occupational illness by failing to reconsider additional 
information and to fully investigate the occupational illness. As such, 
FRA does not believe railroads need 365 days to simply update a form 
and to consider new evidence. Upon review, the final rule lengthens the 
amount of time that the railroads have to review new evidence and to 
update the Form FRA F 6180.107 from 30 days to 45 days. Moreover, the 
Form FRA F 6180.107 is an optional form that the railroads may use for 
occupational illnesses where they have not yet determined the cause of 
the injury or illness.
    AAR also submitted comments suggesting that the railroads should 
not be required to seek out information on claimed occupational 
illnesses. Specifically, AAR asserted that there is usually litigation 
surrounding these types of injuries and, as such, it is difficult to 
fully investigate the illnesses. Moreover, AAR claims that it will be 
difficult for FRA to determine whether the railroads made a good faith 
effort to determine causation. As an initial matter, the railroads' 
concerns about litigation should not prevent them from making 
reasonable inquires in addition to updating the Federally required 
forms as they receive and review new information. However, FRA 
specifically created the Form FRA F 6180.107 as an alternative form to 
provide the railroads with additional time to investigate these 
illnesses because of the unique nature of occupational illnesses and 
the external delays caused by litigation. Railroads should document 
their efforts, record new information, and evaluate that new 
information as required so that FRA can determine whether they are 
making a good faith effort. Again, the additional requirements are 
necessary based upon the railroads' past use of the Form FRA F 6180.107 
to document all occupational illnesses without making an initial causal 
determination, even in cases when work-relatedness was obvious, and 
then failing to update the form when they acquired new information 
within a reasonable time period.
    The final rule amends the requirement at Sec.  225.25(b)(6) so that 
the alternative railroad-designed record for Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record,'' requires the input 
of the ``Employee identification number'' only (eliminating for privacy 
reasons the employee social security number option). The final rule 
makes the same amendment to the alternative railroad-designed record 
for Form FRA F 6180.107, ``Alternative Records for Illnesses Claimed to 
be Work-Related.'' The final rule also makes corresponding changes for 
Forms FRA F 6180.98 and 6180.107. See FRA Guide.
    The final rule replaces the term ``log entry'' at Sec.  225.25 
(b)(28) with ``record'' and ``report'' at Sec.  225.25 (e)(28) with 
``record.'' Both of these sections refer to ``records,'' specifically 
alternative railroad-designed Form FRA F 6180.98, ``Railroad Employee 
Injury and/or Illness Record'' and Form FRA F 6180.97, ``Initial Rail 
Equipment Accident/Incident Record,'' respectively. This amendment is 
technical, and is not intended to effect any substantive change.
    The final rule also amends the requirements for alternative 
railroad-designed records by amending Sec.  225.25(b)(28) and (e)(28), 
and the newly created (j)(25), to reflect that the date required is the 
initial date the form was signed/completed. FRA finds it necessary to 
make this change because certain railroads do not retain the initial 
date a record was completed, but only the date of the most recent 
update to the record. Consequently, FRA is unable to discern if the 
railroad entered each reportable and accountable injury and illness and 
each reportable and accountable rail equipment accident/incident on the 
appropriate record, as required by Sec.  225.25(a) through (e), no 
later than seven working days after receiving information or acquiring 
knowledge that an injury or illness or rail equipment accident/incident 
has occurred, as required by Sec.  225.25(f). FRA believes that 
specifying the date will resolve any confusion regarding the 
requirement. The final rule creates a similar requirement for the 
alternative railroad-designed Form FRA F 6180.107, ``Alternative Record 
for Illnesses Claimed to be Work-Related,'' and Forms FRA F 6180.98, 
6180.97, and 6180.107. See Section-by-Section Analysis for Appendix H, 
``Forms.''

Sec.  225.27 Retention of records

    In this section, the final rule adds a five-year record retention 
requirement for Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related'' and Form FRA F 6180.150, ``Highway User 
Injury Inquiry Form.'' The 2003 Final Rule did not set forth a 
retention period for the Form FRA F 6180.107 and the Form FRA F 
6180.150 is a newly created form. Five years is the same retention 
period as that of Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record,'' and is appropriate for accurate recordkeeping and 
auditing purposes. In addition, the final rule makes a technical change 
by restructuring the format of paragraph (a) in order to provide 
additional clarity.
    The final rule also adds a requirement that, in the event a 
railroad opts to submit their monthly Form FRA F 6180.55, ``Railroad 
Injury and Illness Summary'' via optical media or electronically via 
the Internet, rather than in hard copy, the railroad shall retain the 
original completed hard copy for a period of five years after the 
calendar year to which it relates. If the railroad opts to submit the 
report to FRA via the Internet, the final rule requires the railroad to 
also retain a hard copy print out of FRA's electronic notice 
acknowledging receipt of the submission for a period of five years 
after the calendar year to which the report acknowledged relates. These

[[Page 68883]]

requirements are made in light of the new electronic submission options 
in Sec.  225.37, ``Optical media transfer and electronic submission,'' 
of this final rule.
    The final rule also adds system standards for the electronic 
retention, by railroads, of accident/incident records. Historically, 
railroads have retained these records in hard copy form. Railroads may 
maintain these records electronically, so long as the integrity of the 
records are maintained. In order to ensure such integrity, the final 
rule adds minimum system requirements for the electronic retention of 
accident/incident records. These system standards do not become 
effective until after October 31, 2011. The final rule establishes this 
delayed effective date, with respect to this requirement only, to 
provide railroads with sufficient time to bring any electronic 
retention systems into compliance.
    A commenter stated that railroads do not receive receipts from FRA 
acknowledging receipt of their electronic reports. FRA is reviewing 
this issue to ensure that railroads receive such receipts when 
electronic reports are properly submitted. A commenter also stated that 
the electronic records retention requirements are redundant and 
burdensome because railroads will have to retain every minor change, 
and will also result in a high cost to the railroads to both report and 
store such reports. However, FRA needs to track the development of 
these forms for purposes of accurate auditing. In addition, the ability 
to electronically submit forms should ease any possible burden. 
Moreover, railroads are already required to store many of these 
records. And, with respect to the Form FRA F 6180.55, the final rule 
only seeks an extra 36 months of records (with one report per month, 
for 36 months). This burden is further eased by the fact that the 
electronic retention system standards do not go into effect until after 
October 31, 2011. In addition, railroads are not required to retain 
records electronically.

Sec.  225.33 Internal Control Plan

    In this section, the final rule clarifies the current ambiguity of 
element number 11 of the internal control plan to allow railroads to 
have multiple named custodians and locations of completed Forms FRA F 
6180.107, ``Alternative Records for Illnesses Claimed to be Work-
Related,'' or the alternate railroad-designed forms and supporting 
documentation. FRA recognizes that railroads do not necessarily keep 
completed Claimed Occupational Illness Records in a centralized 
location, and that different individuals may be responsible for keeping 
the records. By amending the regulation, railroads will be able to 
accurately indicate who the custodians are and where the custodians and 
records are located.
    In addition, FRA notes that it published a Notice of Interpretation 
in the Federal Register on March 30, 2009, informing interested parties 
of its application and enforcement of the harassment or intimidation 
provisions contained in 49 CFR part 225, specifically relating to 
situations in which a supervisor or other railroad official accompanies 
an injured employee into an examination room. See 74 FR 14091. FRA 
includes that Interpretation here for interested parties, as follows:

A. General Principle

    Harassment and intimidation occur in violation of Sec.  
225.33(a)(1) when a railroad supervisor accompanies an injured 
employee into an examination room, unless one or more of the 
exceptions listed in section II(B) of this notice exists.

B. Exceptions

    FRA recognizes that there are limited circumstances in which it 
is appropriate, and indeed preferable, for a supervisor to accompany 
an injured employee into an examination room. Thus, FRA believes 
that limited exceptions to the general principle articulated in 
section II(A) of this notice are necessary. Consequently, FRA 
recognizes the following limited exceptions:
    (1) The injured employee issues a voluntary invitation to the 
supervisor to accompany him or her in the examination room. The 
injured employee must issue this invitation freely, without 
coercion, duress, or intimidation. For example, an injured employee 
may seek the attendance of a supervisor where the supervisor is a 
friend. This exception does not encompass invitations issued by 
third parties, including physicians, unless the invitations are made 
pursuant to the request of the injured employee.
    (2) The injured employee is unconscious or otherwise unable to 
effectively communicate material information to the physician and 
the supervisor's input is needed to provide such material 
information to the physician. In these circumstances, the supervisor 
is assisting the injured employee in providing information to the 
physician so that the injured employee may receive appropriate and 
responsive medical treatment.

    A commenter requested that the final rule ``include safety'' in 
this section. However, the intended meaning of this comment is unclear. 
Regardless, safety is a critical component of Sec.  225.33, along with 
all of FRA's regulations.

Sec.  225.37 Optical Media Transfer and Electronic Submission

    The final rule updates the title of this section, to reflect 
changes in technology, to read, ``Optical media transfer and electronic 
submission.'' In 1994, at the request of many railroads, FRA designed a 
method for railroads to submit their monthly accident/incident reports 
to FRA using computer technologies. At the time, high speed Internet 
access was not available in many locations. Most Internet users used 
voice grade phone lines to access the Internet. Transferring high 
volumes of data was difficult and often led to data transmission errors 
(missing records or errors in characters received in transmission). The 
other technology used for sending data was a nine-track magnetic tape 
or 3\1/2\ inch ``floppy disk.'' Both the 9-track tape and floppy disk 
use a magnetic surface to record data. Due to the probability of errors 
in both data transmission and magnetic media, FRA required a Batch 
Control Sheet (Form FRA F 6180.99) to verify a complete and accurate 
receipt of all data.
    The current state of computer technology has changed significantly. 
High-speed Internet access is almost ubiquitous, via cable, DSL, and 
satellite. Transmission using phone lines and wireless (using cell 
phone technology) has also improved. Optical media (CD-ROM) is very 
reliable and the data is ``burned'' into the disk. Optical media has 
replaced magnetic media for most data transfer (USB flash drives are 
not intended for this type of data exchange). In amending the current 
regulation, FRA has taken into account the current computer 
technologies by eliminating the requirement for a Batch Control Sheet, 
and substituted ``magnetic media'' with ``optical media.'' Further, FRA 
allows for document transmission using the .jpg and .pdf formats.
    The final rule also makes two changes related to Form FRA F 
6180.55, ``Railroad Injury and Illness Summary.'' FRA believes that 
both of these changes will reduce railroad burdens related to 
completing and submitting this form. The final rule replaces the oath 
and notarization requirement of Form FRA F 6180.55, ``Railroad Injury 
and Illness Summary,'' with a requirement that the signature be signed 
under penalty of perjury in accordance with 28 U.S.C. 1746. Section 
20901 of Title 49 of the United States Code requires a railroad to file 
an Accident/Incident report ``under oath'' no later than 30 days after 
the end of each month. To fulfill this requirement, FRA currently 
requires a railroad reporting officer to make a sworn statement, under 
oath, before a notary public each month attesting to the accuracy of 
that month's submission. The question has arisen as to whether an un-
sworn, un-notarized statement is adequate to fulfill the

[[Page 68884]]

section 20901 oath requirement. In 1976, Congress addressed the use of 
``unsworn declarations under penalty of perjury,'' in lieu of a sworn 
affidavit. Section 1746 of Title 28 of the United States Code, entitled 
``Unsworn declarations under penalty of perjury,'' provides that 
``wherever, under any law of the United States or under any rule, 
regulation, order, or requirement made pursuant to law, any matter is 
required or permitted to be supported, evidenced, established, or 
proved by the sworn declaration, verification, certificate, statement, 
oath, or affidavit, in writing of the person making the same (other 
than a deposition, or an oath of office, or an oath required to be 
taken before a specified official other than a notary public), such 
matter may, with like force and effect, be supported, evidenced, 
established, or proved by the unsworn declaration, certificate, 
verification, or statement, in writing of such person which is 
subscribed by him, as true under penalty of perjury, and dated * * *'' 
and provides examples of the form the declaration, certificate, 
verification, or statement must take. Consequently, the oath 
requirement of section 20901 can be met via an unsworn, un-notarized 
statement, so long as the statement meets the requirements set forth in 
28 U.S.C. 1746.
    The final rule also updates the regulatory text to include 
provisions allowing railroads to make their monthly reporting 
submissions (Form FRA F 6180.54, ``Rail Equipment Accident/Incident 
Report''; Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet)''; and Form FRA F 6180.57, ``Highway-Rail Grade 
Crossing Accident/Incident Report'') to FRA via optical media (CD-ROM) 
or electronically via the Internet. Batch control forms (Form FRA F 
6180.99) are no longer required for submission. Form FRA F 6180.55 
``Railroad Injury and Illness Summary'' reports and Form FRA F 6180.81 
``Employee Human Factor Attachment'' reports may also be submitted 
through these means. However, the Form FRA F 6180.55 must be submitted 
as an image of the completed and signed hard copy and must be in a .pdf 
or .jpg file format only, and the Form FRA F 6180.81 must also be in a 
.pdf or .jpg file format. If a railroad opts to submit their completed 
Form FRA F 6180.55 to FRA via optical media or electronically via the 
Internet, the railroad must maintain the original completed and signed 
Form FRA F 6180.55 for at least five years after the calendar year to 
which the report relates, in accordance with Sec.  225.27(c) of this 
final rule. FRA will provide to the railroad an electronic notice 
acknowledging the agency's receipt of Form FRA F 6180.55 reports which 
are filed electronically via the Internet. Railroads must also maintain 
a hard copy of this acknowledgment notice for at least five years after 
the calendar year to which the report acknowledged relates, in 
accordance with Sec.  225.27(c) of this final rule. The final rule also 
removes the language in paragraph (e), and replaces it with a statement 
requiring that railroads choosing to use the optical media transfer 
option, or the electronic submission via Internet option, must use one 
of the approved formats specified in the FRA Companion Guide. FRA will 
reject submissions that do not adhere to the required formats, which 
may result in the issuance of one or more civil penalty assessments 
against a railroad for failing to provide timely submissions of 
required reports as required by Sec.  225.11. The previous requirements 
of paragraph (e) are no longer necessary because they addressed issues 
relating to magnetic media.

Sec.  225.41 Suicide Data

    In this section, the final rule adds Sec.  225.41 ``Suicide Data,'' 
to detail FRA's intended use of suicide data. See Section-by-Section 
Analysis for Sec.  225.15, ``Accidents/incidents not to be reported'' 
for additional information.\6\
---------------------------------------------------------------------------

    \6\ The discussion in this section with regard to States access 
to reports and reports relates only to those records and reports 
containing suicide data.
---------------------------------------------------------------------------

    In the NPRM, FRA requested comments and suggestions regarding 
States' access to records containing ``suicide data.'' FRA is concerned 
about the public use and dissemination of this data due to its 
sensitive nature, but also wants States to have access to such 
information for safety and enforcement purposes. Under the 2003 Final 
Rule, States could obtain reports directly from railroads pursuant to 
Sec.  225.1. In addition, State agencies participating in investigative 
activities under part 212 could obtain records and reports from the 
railroads and FRA.
    The final rule does not amend Sec.  225.1 as it relates to State 
access; as such, States may still obtain reports directly from a 
railroad. All of the reports that the States may access contain no 
Personal Identifying Information (PII) and, therefore, FRA is not 
concerned about their availability and use. In addition, the final rule 
does not amend State access pursuant to part 212, as that access is 
subject to an FRA agreement, see Sec.  212.105, and allows States to 
assist FRA with its safety mission. State agencies participating in 
investigative activities under part 212 will have access to relevant 
claims and medical records in addition to Federal records and reports 
pursuant to Sec.  225.35(b), which do contain PII. State access to 
these documents is limited to their role in investigative activities 
and is for the purpose of improving safety; therefore, the final rule 
does not limit State access pursuant to part 212. Once a State obtains 
copies of documents pursuant to part 212 or Sec.  225.1, their 
disclosure and use are governed by the State's privacy laws. Again, FRA 
wants to limit the distribution and use of the individual records and 
reports due to the sensitive nature of the information, and has limited 
the general public's access to the extent reasonably practicable by 
limiting its availability online through FRA.
    Commenters stated that States wanted access to these reports to 
ensure the accuracy of their own databases and for other safety 
purposes. FRA believes that the States should have access to the 
``Suicide data'' in addition to the individual reports, pursuant to 
part 212 and Sec.  225.1, so that they may take steps to understand and 
prevent suicides occurring on the railroad. As stated above, pursuant 
to Sec.  225.1, States only have access to certain reports (e.g., Forms 
FRA F 6180.54, FRA F 6180.57 and FRA F 6180.55a) and do not have access 
to any records (e.g., Forms FRA F 6180.98 and FRA F 6180.97). Forms FRA 
F 6180.54, FRA F 6180.57, and FRA F 6180.55a do not contain PII and the 
FRA Guide contains instructions requiring railroads to not include any 
PII in the narrative section. As such, FRA is not concerned about 
allowing the railroads to provide those records to the States pursuant 
to Sec.  225.1.
    As discussed above, State agencies participating in investigative 
activities under part 212 can obtain records and reports from the 
railroads and FRA. In this case, State agencies will have access to 
documents containing PII. Once the State agencies' obtain these 
documents, their disclosure will be subject to State privacy laws 
rather than FOIA requests. While FRA wants to limit the general 
public's access to these documents and their dissemination due to their 
sensitive nature, FRA believes that States will be able to use this 
information to improve safety and that FRA has limited the availability 
of this information to the extent reasonably practicable.
    ICC suggested that FRA create a secure Web site so that more 
information may be made available. At this time, FRA does not plan on 
creating such a Web site. Instead, FRA is making

[[Page 68885]]

all of the relevant information available in the aggregate for the 
general public.

Appendix A to Part 225--Schedule of Civil Penalties.

    Appendix A to part 225 contains a schedule of civil penalties for 
use in connection with this part. The final rule revises the schedule 
of civil penalties to reflect revisions made to part 225. Because such 
penalty schedules are statements of agency policy, notice and comment 
are not required prior to their issuance. See 5 U.S.C. 553(b)(3)(A). 
Although the schedules are statements of agency policy, the NPRM 
provided interested parties with an opportunity to comment. However, no 
such comments were submitted.

FRA Guide

    Generally, FRA makes the following revisions to the FRA Guide: An 
improved table of contents; clarifying instructions on Forms FRA F 
6180.57, 6180.54, and 6180.150 that have fields requesting an U.S. DOT 
Grade Crossing Identification Number includes and is referencing the 
U.S. DOT Grade Crossing Inventory Number; an updated e-mail and U.S. 
postal mail address for the monthly accident/incident reporting 
submissions; the addition of a subject index; the reorganization of the 
chapter contents for ease of use; the inclusion of necessary updates; 
the inclusion of new and revised ``Questions and Answers'' and 
``Scenarios'' taken from the FRA Safety Data Web page (http://safetydata.fra.dot.gov/officeofsafety) and from OSHA's Web page (http://www.osha.gov/comp-links.html) to clarify reporting issues; the 
inclusion of the prior and the current reporting threshold to reflect 
changes made in part 225; the inclusion of Web addresses for access to 
the most up-to-date contact information and data contained in the 
appendices; and the elimination of redundant language by replacing 
verbatim reiterations of part 225 rule text where appropriate (for ease 
of reference the FRA Guide includes the full regulatory text of part 
225 in a newly created Appendix K).
    FRA also makes a technical amendment throughout the FRA Guide by 
changing the term ``Gap'' to ``Passenger Station Platform Gap'' because 
it best captures the intended meaning. See FRA Guide.
    More specific changes include:

Chapter 1, ``Overview of Accident/Incident Reporting and Recordkeeping 
Requirements.''

    FRA revises the paragraph titled, ``Telephonic Reports of Certain 
Accidents/Incidents,'' in accordance with the amendments set forth in 
Sec.  225.9, and includes the telephonic reporting requirements set 
forth in 49 CFR parts 229, ``Railroad Locomotive Safety Standards;'' 
part 233, ``Signal Systems Reporting Requirements;'' part 234, ``Grade 
Crossing Signal System Safety;'' and part 219, ``Control of Alcohol and 
Drug Use.'' Such incorporation is for informational purposes only, and 
places no new reporting requirements on railroads. By including these 
requirements in the FRA Guide, FRA hopes to better disseminate its 
telephonic reporting requirements, and to improve railroad compliance 
by providing a single reference location for determining when accident/
incident telephonic notification is required.
    FRA also revises the section entitled ``Close of Calendar Year'' by 
clarifying the requirements for submitting late and amended reports, 
revising the time frame in which FRA will accept additional late and 
amended accident/incident reports, and changing from optional to 
mandatory the filing of amended reports for certain accidents/
incidents.
    FRA publishes final accident/incident counts following the 
conclusion of a reporting year. Submission of the December report 
concludes the reporting year. However, railroads are still required to 
provide to FRA late reports of unreported accidents/incidents and 
amended reports that correct or update earlier submissions.
    Previously, the FRA Guide (Chapter 1--Page 12 through 13) specified 
three cutoff dates for filing late and amended accident/incident 
reports following the completion of the reporting year:
    (1) April 15 of the next calendar year;
    (2) December 1 of the following year: and
    (3) Five years after the end of the calendar year to which the 
accident/incident report relates.
    FRA found the reporting scheme to be confusing and outdated with 
the advent of improved technology. Moreover, improvements in database 
management strategies allow for contemporaneous viewing of reporting 
accident/incident statistics and have eliminated the need to impose 
artificial deadlines for keeping files open or for FRA to publish 
interim reports. As such, FRA removes references to the cutoff date of 
April 15th of the next calendar year for accepting late reports and 
amendments. Accordingly, FRA will receive and process any and all late 
and amended reports for a period of five years following the calendar 
year to which an amended or late report relates. This accommodation 
does not relieve a railroad of its obligation to promptly file a late 
or amended report upon becoming aware of an omission, mistake or 
otherwise, in accordance with Sec.  225.13 and the late and amended 
reporting guidance set forth in the FRA Guide. FRA will continue to 
publish its Annual Report of Railroad Safety Statistics. Because the 
accident/incident databases will remain open for updating for a period 
of five years, the statistics published in the Annual Report will be 
subject to change. The authoritative source for rail safety statistics 
will now be the Office of Safety's Web site: http://
safetydata.fra.dot.gov/OfficeofSafety.
    To clarify, these revisions do not change the following late and 
amended reporting requirements, which are currently set forth in the 
FRA Guide:
    (1) Railroads must file amended reports with FRA through December 1 
of the year following the year in which the accident/incident was 
initially reported.
    (2) Railroads must file late reports with FRA for five years 
(following the end of the calendar year to which the accident/incident 
relates) for all unreported accident/incidents.
    FRA does, however, revise the reporting requirements with respect 
to certain specified accidents/incidents. Previously, the FRA Guide 
stated that railroads ``should'' continue to file amended reports after 
December 1 of the following year (i.e., for five years after the end of 
the calendar year to which they relate) for the changes listed below. 
These revisions make such amended reporting mandatory. Accordingly, 
railroads shall continue to file amended reports for five years after 
the end of the calendar year to which they relate for the following 
changes:
    (1) Railroad Injury and Illness Summary (Continuation Sheet) (Form 
FRA F 6180.55a): Change from Injury to Fatality (only if the injured 
person dies within 180 days from the date of the injury);
    (2) Highway-Rail Grade Crossing Accident/Incident Report (Form FRA 
F 6180.57): Change from Injury to Fatality, change in Grade Crossing 
ID, change in the Rail Equipment Involved; and
    (3) Rail Equipment Accident/Incident Report (Form FRA F 6180.54): 
Change from Injury to Fatality, change in Grade Crossing ID, Rail 
Equipment Involved, Primary Cause Code, Contributing Cause Code, Type 
of Territory, Number of Cars Releasing or Evacuation.
    These revisions further provide that railroads shall continue to 
file amended reports for five years after the end of the calendar year 
to which they relate for the additional changes listed below:

[[Page 68886]]

    (1) Railroad Injury and Illness Summary (Continuation Sheet) (Form 
FRA F 6180.55a): A significant change in the number of reportable days 
away from work or days restricted; a significant change is at least a 
10% variance in the number of actual reportable days away from work or 
days restricted compared to the number of days already reported.
    (2) Railroad Equipment Accident/Incident Report (Form FRA F 
6180.54): A significant change in the damage costs for reportable rail 
equipment accidents/incidents; a significant change is a 10% variance 
between the damage amount reported to FRA and the current cost figures.
    In light of these changes, FRA is revising the timeframe imposed 
for using the M505 code on the Form FRA F 6180.54. See FRA Guide, 
Chapter 7.

Chapter 2, ``Definitions.''

    In the NPRM, FRA added an example to the definition of Worker on 
Duty-Employee (Class A) characterizing an employee on his lunch break 
as on duty. In response to the example, AAR submitted comments stating 
that an employee on an unpaid break should not be considered a Worker 
on Duty-Employee (Class A) because they are not performing work at that 
time. AAR stated that there was no justification for this change at 
this time. FRA removes this example in the final rule to avoid any 
confusion. In general, an employee on a break, whether paid or unpaid, 
is considered an Employee Not On Duty (Class B). However, if an 
employee is performing work-related activities (i.e., lining a switch) 
during his or her break then the employee is a Worker on Duty-Employee 
(Class A). Thus, an employer should consider an employee's actual 
activities during his or her break to determine whether the employee is 
on or off duty.
    FRA adds certain definitions for clarification and ease of 
reference, and removes definitions that reiterate definitions set forth 
in Sec.  225.5. FRA adds a definition for ``Temporary Barricaded 
Crossing'' to mean ``a highway-rail grade crossing that is temporarily 
closed to highway users by using temporary methods to block highway 
traffic such as barrels. A temporary barricaded crossing does not 
constitute a `closed' crossing.'' FRA also adds a definition for 
``Closed Crossing'' to mean a location where a crossing has been 
physically removed or where rail operations, pathway or highway traffic 
is not possible (this does not include crossings that are temporarily 
closed for repairs to the track structure, crossing surface, or roadway 
approaches). Examples of ``closed crossings'' are locations where the 
crossing has been permanently barricaded and crossing surface material 
removed; where the railroad tracks have been cut or barricaded or 
physically removed; where a connecting turnout has been removed; or 
where rail operations are not possible because the railroad tracks are 
paved over, etc. Crossings along such inactive railroad lines are 
closed. FRA adds these definitions to the FRA Guide to eliminate 
confusion about the meaning of a ``closed'' versus ``barricaded'' 
crossing, and to revise the definition of ``closed crossing'' to be 
consistent with the definition used in the Grade Crossing Inventory 
System (GCIS). The GCIS is a mandatory system used by States, 
railroads, and the Federal government to profile crossings and 
determine which crossings need improved warning systems for highway 
users. FRA and other users regularly compare information from the 
Highway-Rail Crossing Accident/Incident Reports (Form FRA F 6180.57) to 
the GCIS. Clearly defining ``closed crossing'' and ``temporary 
barricaded crossing,'' and making the GCIS and FRA definitions 
consistent, will reduce confusion and aid in grade crossing accident/
incident reporting accuracy.
    FRA clarifies in the definition of Highway-Rail Grade Crossing 
Accident/Incident that all crossing locations within industry and rail 
yards, ports, and dock areas are considered highway-rail crossings 
within the meaning of highway-rail grade crossing. This clarifying 
amendment does not expand the railroads' reporting requirements or 
create an additional burden as the amendment is consistent with the 
2003 FRA Guide, FRA's longstanding policy, and industry practices. The 
purpose of the amendment is to place the entire definition in one 
location for ease of reference.
    FRA adds a definition for ``Passenger Station Platform Gap'' to 
mean, ``the horizontal space between the edge of the passenger boarding 
platform and the edge of the rail car door threshold plate, and the 
vertical difference from the top of the passenger boarding platform and 
the top of the rail car threshold.'' This definition, with a minor 
variation, was recommended by the RSAC General Passenger Safety Task 
Force to the full RSAC on October 25, 2007, along with the Cause Code 
Recommendations for platform gap related injuries (see discussion for 
Appendix F of the FRA Guide). The full RSAC agreed to the 
recommendations on October 25, 2007. The NPRM proposed adding a 
definition for ``Gap,'' as opposed to ``Passenger Station Platform 
Gap.'' A comment to the NPRM suggested that FRA use the phrase 
``Platform Gap,'' rather than ``Gap.'' The final rule uses the term 
``Passenger Station Platform Gap'' because it best captures the 
intended meaning. A comment to the NPRM also suggested that the 
definition itself is too narrow, and not consistent with the common 
definition of the term. However, as discussed, the definition in the 
final rule is consistent with the RSAC recommendations, and the 
definition facilitates the tracking of accidents/incidents that occur 
on high level platforms.
    FRA also adds a definition for ``Passenger Station Platform Gap 
Incident'' to mean ``an event involving a person who, while involved in 
the process of boarding or alighting a passenger train at a rail car 
door threshold plate at a high level passenger boarding platform (i.e., 
a platform that is 48'' or more above the top of the rail), has one or 
more body parts enter the area between the car body and the edge of the 
platform. The following are examples of a Passenger Station Platform 
Gap Incident:

--While boarding or alighting a passenger train at a high level 
passenger boarding platform, a person misjudges the passenger station 
platform gap, resulting in the person's leg entering the passenger 
station platform gap.
--While boarding or alighting a passenger train at a high level 
passenger boarding platform, a person is struck by a closing door, 
resulting in the person's leg entering the passenger station platform 
gap.

    The following are not examples of a Passenger Station Platform Gap 
Incident:

--While boarding or alighting a passenger train at a high level 
passenger boarding platform, a person misjudges the gap and falls into 
the vestibule or platform, without a body part entering the gap.
--While walking on a passenger station at a high level passenger 
boarding platform, a person slips on the platform, at a location other 
than the rail car door threshold, resulting in the person's leg 
entering the gap.

    The definition and examples of ``Passenger Station Platform Gap 
Incident'' were recommended by the RSAC General Passenger Safety Task 
Force to the full RSAC on October 25, 2007, along with Cause Code 
Recommendations for platform gap related injuries (see discussion for 
Appendix F of the FRA Guide). The full RSAC agreed to these 
recommendations on October 25, 2007. The final rule

[[Page 68887]]

adopts these recommendations with slight variation.
    FRA also revises the definition of ``Locomotive'' to support 
changes necessary to include EMU and DMU cars on FRA Form F 6180.54, 
``Rail-Equipment Accident/Incident Report.'' In the current FRA Guide 
(May 1, 2003), a cab car is defined as a locomotive. However, there is 
no definition for EMU and DMU cars, which created confusion because 
these cars provide power to the consist and can, therefore, also be 
classified as locomotives.
    FRA adds a definition for ``Vehicle'' to include automobiles, 
buses, trucks, motorcycles, bicycles, farm vehicles, and all other 
modes of surface transportation, motorized and nonmotorized.

Chapter 3, Form FRA F 6180.55, ``Railroad Injury and Illness Summary.''

    FRA revises the instructions for the use of this form consistent 
with the changes in this final rule. See Section-by-Section Analysis 
for Sec.  225.27, ``Retention of records,'' Sec.  225.37, ``Magnetic 
media transfer and submission,'' Sec.  225.15, ``Accidents/incidents 
not to be reported,'' Sec.  225.41, ``Suicide data,'' and the FRA 
Guide, Appendix H, ``Forms'' for additional information.
    The final rule also revises the Form FRA F 6180.55 to clarify that 
by signing the form the reporting officer is attesting that all of the 
information on the form is true and correct. See FRA Guide, Appendix H, 
``Forms'' for additional information.
    In addition, FRA is clarifying that casualties due to suicides and 
attempted suicides, for which an event or exposure arising from the 
operation of the railroad is a discernable cause and meets the general 
reporting criteria, shall also be included in Field 18, Reported 
Casualties, on Forms FRA F 6180.55, ``Railroad Injury and Illness 
Summary.'' This will allow FRA to verify against the number of forms 
submitted with the actual count. The railroad should report the person 
by the ``type of person.'' As such, if a trespasser commits suicide, 
the railroad shall report it as a trespasser fatality. See FRA Guide, 
Chapter 3.

Chapter 4, Form FRA F 6180.98, ``Railroad Employee Injury and/or 
Illness Record.''

    FRA revises the instructions for the use of this form consistent 
with the changes in this final rule. See Section-by-Section Analysis 
for Sec.  225.5, ``Definitions'' definition for Accountable Injury or 
Illness; Sec.  225.25, ``Recordkeeping,'' Sec.  225.15, ``Accidents/
incidents not to be reported;'' Sec.  225.41, ``Suicide data;'' and the 
FRA Guide, Appendix H, ``Forms'' for additional information.
    FRA is clarifying that railroads must create a Form FRA F 6180.98 
for employee casualties due to suicides and attempted suicides, that 
are accountable or reportable. Moreover, FRA instructs the railroad to 
indicate in the narrative section that the casualty resulted from the 
person's suicidal act.

Chapter 5, Form FRA F 6180.97, ``Initial Rail Equipment Accident/
Incident Record.''

    FRA revises the instructions for the use of this form consistent 
with the changes in this final rule. See Section-by-Section Analysis 
for Sec.  225.5, ``Definitions;'' Sec.  225.25, ``Recordkeeping;'' 
Sec.  225.15, ``Accidents/incidents not to be reported;'' Sec.  225.41, 
``Suicide data;'' and the FRA Guide, Appendix H, ``Forms'' for 
additional information.
    FRA revised the Questions and Answers in Chapter 4 of the FRA Guide 
to reflect the changes to the definition of accountable rail equipment 
accident/incident. FRA removed the Q2/A2 from the FRA Guide as it dealt 
with the disruption of service criteria from the 2003 Final Rule.
    In addition, FRA is clarifying that casualties due to suicides and 
attempted suicides, for which an event or exposure arising from the 
operation of the railroad is a discernable cause and that meet the 
general reporting criteria shall also be included in the Field 30, 
Casualties, on Forms FRA F 6180.97. Also, FRA is also including 
instructions that when an accountable or reportable rail equipment 
accident/incident is caused by a suicide or attempted suicide, the 
railroad shall indicate that fact in Field 31, Narrative Description.

Chapter 6, Form FRA F 6180.55a, ``Railroad Injury and Illness Summary 
(Continuation Sheet).''

    FRA revises the instructions for the use of this form consistent 
with the changes in this final rule. FRA also adds instructions that, 
if an injury is due to a passenger station platform gap incident, the 
railroad must use in block 5n (``Cause''), ``Probable Reason for 
Injury/Illness Circumstance Codes,'' code number 18--Slipped, fell, 
stumbled due to Passenger Station Platform Gap--regardless of whether 
other codes may also be applicable. See Section-by-Section Analysis for 
Sec.  225.5, ``Definitions;'' Sec.  225.15, ``Accidents/Incident not to 
be reported;'' Sec.  225.19 ``Primary Groups of Accidents/Incidents'' 
and the FRA Guide, Appendix H, ``Forms'' for additional information.
    FRA also revised Chapter 6 to make it consistent with the Notice of 
Interpretation it published in the Federal Register on March 30, 2009, 
informing interested parties of its application and enforcement of the 
harassment or intimidation provisions contained in 49 CFR part 225, 
specifically relating to situations in which a supervisor or other 
railroad official accompanies an injured employee into an examination 
room. See 74 FR 14091; see also Section-by-Section Analysis for Sec.  
225.33, ``Internal Control Plan.''
    FRA also revises Chapter 6 to instruct railroads that they must 
presume that a highway user who is involved in a highway-rail grade 
crossing accident/incident and is transported from the scene of a 
highway-rail grade crossing accident/incident to a medical facility via 
ambulance or other form of medical conveyance did, more likely than 
not, sustain an FRA reportable injury (i.e., an injury meeting the 
general reporting criteria set forth at Sec.  225.19(d)(1) through 
(d)(6)). Absent evidence to rebut the presumption, the railroad must 
report the injury to FRA on Form FRA F 6180.55a, and include the 
casualty on Form FRA F 6180.57. If the railroad later discovers that 
the highway user did not sustain a reportable injury, the railroad must 
notify FRA in accordance with the late reporting instructions set forth 
at Sec.  225.13. FRA has found that railroads are under-reporting 
highway-rail grade crossing accidents/incidents related to injures to 
persons other than railroad employees due to the railroads' limited 
access to injured highway users' medical records, especially in light 
of privacy protections related to health information provided by the 
Health Insurance Portability and Accountability Act of 1996 (HIPAA), 
Public Law 104-191.
    FRA emphasizes, however, that this presumption does not relieve 
railroads of their duty to make reasonable inquiry to determine the 
nature and severity of highway-rail grade crossing injuries and to 
accurately report such injuries. In general, FRA has found that some 
railroads often do not make such reasonable inquiry into potentially 
reportable injuries of non-employees. Accordingly, the NPRM required a 
railroad to fulfill its reasonable inquiry responsibilities in 
determining the nature and severity of highway-rail grade crossing 
injuries and to accurately report such injuries, by contacting the 
injured individual or their representative by phone and, if 
unsuccessful in obtaining the needed

[[Page 68888]]

information, in writing. Moreover, the NPRM required that a railroad 
keep a record of its efforts to make such contact and that this record 
and documentation of any information obtained be available for review 
and copying by an FRA representative under the same criteria as set 
forth in Sec.  225.35(b).
    In light of comments received regarding the burden and 
effectiveness of contacting potentially injured highway users, the 
final rule revises the language in the NPRM and requires that the 
railroad fulfill its inquiry responsibilities by contacting any highway 
user potentially injured in a highway-rail grade crossing accident/
incident, or the highway user's representative(s), in writing and, if 
unsuccessful in obtaining the needed information, by telephone. If a 
highway user died as a result of the highway-rail grade crossing 
accident/incident, a railroad shall not send this form to any person. 
Moreover, the final rule specifies that the written correspondence 
should contain the newly created Form FRA F 6180.150, ``Highway User 
Injury Inquiry Form,'' a cover letter drafted in accordance with the 
instructions contained in the FRA Guide, and a return envelope that is 
prepaid and preaddressed. A railroad shall keep a record of its efforts 
to contact a highway user, and this record and documentation of any 
information obtained shall be available for review and copying by an 
FRA representative under the same criteria as set forth in Sec.  
225.35(b).
    Form FRA F 6180.150 shall be completed in accordance with the 
instructions contained in the FRA Guide in Chapter 10, dealing with 
highway-rail grade crossing accidents/incidents. FRA has found that, 
when railroads do actually conduct an investigation into injuries to 
highway users, they will solicit medical records and other documents 
containing PII. This approach has resulted in a lack of response from 
individuals who do not want to divulge personal information and are 
unsure about the purpose of the request. This has resulted in the 
underreporting or inaccurate reporting of highway-rail grade crossing 
injuries. While a railroad may request this information, in order to 
make a reporting decision, a railroad is not required to obtain that 
type of documentation, although it can provide additional insight into 
the nature and severity of an injury or illness. As such, Form FRA F 
6180.150 is meant to be minimally invasive and requires only that 
information which a railroad needs in order to determine whether the 
person suffered a reportable injury. This requirement does not prevent 
a railroad from conducting additional investigation, but is meant to 
ensure that the railroad performs an investigation into the nature and 
severity of highway-rail grade crossing injuries, in a less invasive 
manner. However, a railroad shall not require a highway user to present 
medical documentation or other supportive information in order to 
report the casualty.
    A railroad shall complete Part I of Form FRA F 6180.150 with 
information regarding the highway-rail grade crossing accident/
incident, in accordance with the instructions provided in FRA Guide. 
The railroad shall hand deliver or send by first class mail the letter 
within a reasonable time period following the date of the highway-rail 
grade crossing accident/incident. The letter shall also contain a 
prepaid, pre-addressed return envelope, and a copy of the Form FRA F 
6180.150 with Part I completed, along with the required cover letter. 
Highway users are not required to complete Form FRA F 6180.150. 
Consequently, FRA acknowledges that there will be situations in which a 
highway user cannot be reached even though a railroad contacts the 
person in writing and by telephone. Other times, a highway user will 
refuse to provide any information even though a railroad clearly 
explains the Federal reporting requirements and the reason for 
soliciting information. In those cases, a railroad is still responsible 
for deciding whether, considering all of the circumstances, the highway 
user suffered a reportable injury (or, whether the presumption 
discussed above, applies). The railroad must reconsider that 
determination if new or additional information is later acquired. 
Moreover, if a highway user completes Part II, or provides additional 
information during a telephone call, the railroad will be responsible 
for determining whether, based on the circumstances, the person 
suffered a reportable injury or illness and for using that information 
in complying with FRA reporting and recording requirements.
    The final rule adds a draft of Form FRA F 6180.150, ``Highway User 
Injury Inquiry Form,'' to Appendix H and a sample cover letter in 
Appendix N. See FRA Guide. The instructions added to the final rule for 
completing Form FRA F 6180.150 require the railroad to complete Part I 
of the form. See FRA Guide, Chapter 10. Form FRA F 6180.150 was 
submitted to OMB for approval with the final rule and is still pending 
OMB approval; therefore, the railroads cannot use the form until it has 
been approved. FRA expects that, prior to the delayed six month 
effective date, the form with be approved. Following approval, the 
final form will be available at http://safetydata.fra.dot.gov/officeofsafety.
    The cover letter that accompanies Form FRA F 6180.150 shall be 
drafted in accordance with the instructions contained in the FRA Guide, 
Chapter 10. FRA has included a sample cover letter in the FRA Guide for 
use by the railroads. See FRA Guide, Appendix N. Specifically, the 
cover letter shall clearly explain the Federal reporting requirements 
imposed on the railroads, address only Federal reporting requirements 
and not the railroad's claims process, explain that the form is 
voluntary, and provide clear instructions on how to complete the form. 
The cover letter may ask the highway user to provide additional 
information, but the cover letter shall not mandate that the individual 
provide certain information in order for a railroad to comply with 
Federal reporting requirements. See FRA Guide, Chapter 10 for a 
complete list of instructions.
    With regard to the cover letter, the instructions contained in the 
final rule require that the letter contain the following:
     An explanation of why the railroad is contacting the 
highway user;
     An explanation of part 225's accident/incident reporting 
requirements;
     An explanation of how the form and any response will be 
used for part 225's accident/incident reporting requirements;
     An explanation that the highway user is not required to 
respond and that a response is voluntary;
     An opportunity to correct incorrect information in Part I;
     Identify and provide contact information for a person at 
the railroad who can answer questions with regard to the form;
     Provide instructions on how to complete Part II; and,
     An explanation of how any medical records, if requested, 
personal identifying information or information will be handled.
    The cover letter and Form FRA F 6180.150 are meant to be tools that 
allow the railroad to gather information and comply with part 225's 
accident/incident reporting and recording requirements. As such, a 
railroad shall not require the highway user to provide any medical or 
personal information in order to report a casualty. Moreover, the cover 
letter and any communication for the purposes of part 225 shall remain

[[Page 68889]]

separate from and not reference the railroad's claims process in order 
to avoid confusion.
    As an initial matter, FRA received comments regarding the language 
proposed in the NPRM; however, as the language in the final rule simply 
elaborates on and provides additional directions on how to conduct an 
inquiry into a potentially reportable injury, a majority of the 
comments are still relevant.
    Commenters suggested that the requirements proposed in the NPRM 
were overly burdensome and would not be effective as individuals 
generally do not want to share personal information. As the 
requirements contained in the final rule are consistent with those 
proposed in the NPRM, the comments are still applicable. FRA is 
concerned that these injuries and fatalities are not being reported or 
investigated; as such, the changes are meant to ensure that both of 
these things occur. Moreover, the presumption of reportablity created 
in the final rule is meant to simplify the process. Also, a railroad is 
allowed to terminate its investigation after calling and mailing the 
individual as required by this final rule. The inquiry requirement does 
not impose a timeframe on the follow-up the railroad is required to 
perform, except that the railroad must initiate its investigation 
within a reasonable time after the date of the highway-rail grade 
crossing accident. FRA created the Form FRA F 6180.150 and the sample 
cover letter in an effort to open the communication process with 
potentially injured highway users to ensure that railroads and FRA are 
gathering accurate information. Finally, the final rule requires the 
railroads to contact the highway user by mail prior to contacting the 
person by phone because FRA believes that this will be a less 
intimidating approach.
    In addition, UP stated in its comments that the additional 
requirements would force them to intrude on the private lives of the 
general public and could increase issues with pending litigation. As an 
initial matter, private litigation matters should not prevent the 
railroads from reporting information about casualties and investigating 
the potential causes of accidents/incidents arising out of the 
operation of the railroad. Also, the railroads should already be 
investigating these casualties. FRA's creation of the presumption is 
meant to alleviate some burden upon the railroad where they follow-up 
but cannot eventually obtain the necessary information. While the new 
requirement does mandate that a railroad follow-up with injured 
persons, a railroad is simply required to send a letter to and possibly 
call the highway user in an effort to obtain information in order to 
complete a Federal form. As explained above, the Form FRA F 6180.150 
and the cover letter, explaining the purpose of the railroad's inquiry, 
is meant to encourage the sharing of information and to be less 
intimidating.
    Commenters also suggested that this requirement would not improve 
safety. FRA uses information about reportable injuries to understand 
the severity of accidents and incidents occurring due to the operation 
of the railroad. When the railroads fail to report injuries and 
illnesses, this prevents FRA from fully understanding the impact and 
severity of such accidents and incidents.
    Amtrak submitted comments stating that, due to their large number 
of passengers, the burden of these additional requirements will be 
extreme. As an initial matter, the duty to investigate highway-rail 
grade crossing incidents and trespasser fatalities, which are discussed 
below, do not generally apply to passengers (or individuals legally on 
railroad property). While railroads are required to conduct a 
reasonable inquiry into any potentially reportable injury or illness, 
FRA is particularly concerned with, and the additional requirements 
apply to, only highway users potentially injured in a highway-rail 
grade crossing accident/incident and trespasser fatalities. See FRA 
Guide.
    Next, FRA is also concerned that suicides are being reported as 
trespasser fatalities. Often this occurs because railroads do not 
always make reasonable inquiry in their efforts to determine the cause 
of death. In fact, FRA has found that a number of reported trespasser 
fatalities are actually suicides. Accordingly, FRA revised Chapter 6 to 
clarify that, in order to fulfill its responsibilities in determining 
the nature of a trespasser fatality and to accurately report such a 
fatality, a railroad must try to obtain documentation indicating the 
cause of death by contacting the coroner, public police officer, or 
other public authority by telephone and, if unsuccessful, in writing. 
The railroad must continue its efforts to obtain this documentation for 
a period of six months following the month in which the fatality 
occurred. The railroad must keep a record of its efforts to obtain such 
documentation. This record and any documentation obtained must be 
available for review and copying by an FRA representative under the 
same criteria as set forth in Sec.  225.35(b).
    Commenters further suggested that there are already sufficient 
steps in place requiring the railroads to fully investigate fatalities 
and to obtain relevant information. As stated above, FRA has found that 
the railroads often report fatalities as trespasser fatalities when 
they are in fact suicides. To understand and prevent deaths arising 
from the operation of the railroad and suicides occurring on the 
railroad, FRA needs to have accurate and complete information. As such, 
FRA believes that the additional requirements are necessary. See 
Section-by-Section Analysis for Sec.  225.41, ``Suicide data'' for 
additional discussion of the comments and requirements.
    Other comments suggested that the six-month follow-up requirement 
is too burdensome. FRA has found that it often takes time for public 
authorities to complete their investigations and declare a cause of 
death. Therefore, FRA believes that the six-month requirement will 
provide the railroads with sufficient time to obtain this information. 
One railroad suggested that the railroads should only have to follow-up 
with one document request within an initial three-month period from the 
date of the incident. Again, FRA has found that it often takes more 
time to obtain this information and that follow-up by different means 
is more effective. In addition, once a railroad has obtained 
confirmation of the cause of death, they may terminate their 
investigation.
    Several commenters suggested that the railroads do not have the 
legal authority to obtain the required documentation. As stated above, 
the railroads have historically been able to obtain this information. 
If a railroad cannot obtain this information and properly documents its 
efforts, then the railroad has fulfilled its obligations under part 
225. However, if a railroad cannot confirm cause of death, the railroad 
will still be responsible for reporting the casualty as a trespasser 
fatality. Finally, FRA believes that allowing the railroads to accept 
verbal confirmation of the cause of death, which they must document, 
will ease any potential burden. See the Section-by-Section Analysis for 
Sec.  225.15, ``Accidents/incidents not to be reported.''
    In addition, FRA revises the FRA Guide to clarify who can declare a 
casualty as an attempted suicide or suicide. As discussed above, the 
final rule revises the definition of ``Suicide data'' to mean ``data 
regarding the death of an individual due to the individual's commission 
of suicide as determined by a coroner, public police officer or other 
public authority; or injury to an individual due to that individual's

[[Page 68890]]

attempted commission of suicide as determined by a public police 
officer or public authority.'' The FRA Guide explains that a ``public 
authority'' is a Federal, State or local government entity, such as a 
public health department, that has the legal authority to declare a 
fatality a suicide or an injury to a person an attempted suicide.
    Lastly, FRA revises Chapter 6 to instruct railroads that they must 
complete the longitude and latitude fields in blocks 5s and 5t on the 
Form FRA F 6180.55a for any reportable casualty to a trespasser. This 
requirement may be satisfied by either using global positioning system 
(GPS) equipment to determine the actual longitude and latitude, or by 
using a free online technology to determine an estimated longitude and 
latitude. See FRA Guide for additional information.

Chapter 7, Form FRA F 6180.54, ``Rail Equipment Accident/Incident 
Report.''

    FRA revises the instructions for the use of this form consistent 
with the changes in this final rule. FRA also adds instructions to 
Chapter 7 requiring that, if an accident is caused by a bond wire 
attachment issue (see Appendix C ``Train Accident Cause Codes''), 
information on the methods and locations of those attachments be 
provided in the narrative block 52. See Section-by-Section Analysis for 
Sec. Sec.  225.5, 225.15, 225.19 and Revisions to the FRA Guide, 
Appendix H.
    FRA also revises Chapter 7 to instruct railroads that they must 
complete the longitude and latitude in blocks 50 and 51. This 
requirement may be satisfied by either using GPS equipment to determine 
the actual longitude and latitude or by using a free online technology 
to determine an estimated longitude and latitude. See FRA Guide for 
additional information.
    The ICC's comments suggested adding additional fields on the Form 
FRA F 6180.54. FRA did not adopt these recommendations at this time, as 
the information is captured elsewhere or can be easily obtained at a 
later time. ICC suggested a field requesting whether the train was 
equipped with a digital or other recording device and whether the 
information was retrieved. FRA believes that this field is unnecessary 
as the train number provides sufficient information, and this 
information can be obtained at a later time. In addition, ICC 
recommended requesting whether the grade crossing had a recording 
device and whether the information was retrieved. FRA believes that 
sufficient information is already being captured on Forms FRA F 6180.54 
and FRA F 6180.57, in addition to the U.S. DOT Grade Crossing 
Inventory. ICC also suggested including a field asking whether the 
train movement was recorded and whether that information was retrieved. 
Again, this additional field is not necessary as PTC becomes mandatory. 
In addition, ICC wanted a field asking whether the train movement was 
recorded by GPS and was the information reported by a wireless device. 
Again, FRA believes that this information can easily be obtained at a 
later time and does not believe an additional field is necessary. In 
addition, this change may be done at a later time.
    The final rule revises the requirements for the Primary Cause Code 
with regard to cause code M505 and the railroads' responsibility to 
update this code. The final rule eliminates the April 15 deadline as it 
no longer serves a purpose with the updated technology and to be 
consistent with the changes made in FRA Guide at Chapter 1. See FRA 
Guide, Chapter 1. Consequently, the railroad will be required to submit 
an amended report pursuant to Sec.  225.13 once it has closed its 
investigation and determined the cause of the accident/incident. This 
duty is consistent as the railroad's responsibility under the 2003 FRA 
Guide, as railroads were previously required to submit an amended 
report once it determined the cause of accident/incident.
    The final rule also adds clarifying instructions on Form FRA F 
6180.54, which provide that fields requesting a U.S. DOT Grade Crossing 
Identification Number are referring to the U.S. DOT Grade Crossing 
Inventory Number.

Chapter 10--Form FRA F 6180.57--``Highway-Rail Grade Crossing Accident/
Incident Report.''

    As an initial matter, the final rule revises the title of Chapter 
10 to Forms FRA F 6180.57--Highway-Rail Grade Crossing Accident/
Incident Report & FRA F 6180.150--Highway User Injury Inquiry Form. 
This change was made in light of the newly created Form FRA F 6180.150 
and the instructions which are contained in FRA Guide at Chapter 10.
    The final rule revises the instructions for the use of this form 
consistent with the changes in this final rule. See Section-by-Section 
Analysis for Sec.  225.15, ``Accidents/Incident not to be reported'' 
and the FRA Guide, Appendix H, ``Forms'' for additional information.
    The final rule revises Chapter 10 to instruct railroads that they 
shall presume that a highway user who is involved in a highway-rail 
grade crossing accident/incident and is transported from the scene of a 
highway-rail grade crossing accident/incident to a medical facility via 
ambulance or other form of medical conveyance, did, more likely than 
not, sustain an FRA reportable injury (i.e., an injury meeting the 
general reporting criteria set forth at Sec.  225.19(d)(1) through 
(d)(6)). Absent evidence to rebut this presumption, the railroad must 
report the injury to FRA on Form FRA F 6180.55a, ``Railroad Injury and 
Illness Summary (Continuation Sheet)'' and must include the casualty on 
Form FRA F 6180.57. This presumption does relieve the railroad of its 
responsibility to an inquiry into the nature and severity of the 
highway user's injuries.
    In order to fulfill its responsibilities in determining the nature 
and severity of a highway-rail grade crossing injury and to accurately 
report such injury, a railroad must try to contact potentially injured 
highway users involved in a highway-rail grade crossing accident/
incident, or their representatives, in writing and, if unsuccessful, 
obtain the needed information, by telephone. There is no requirement to 
contact a representative of a highway user who has died as a result of 
the accident. The written communication must include a Form FRA F 
6180.150, cover letter and prepaid/preaddressed return envelope. Form 
FRA F 6180.150 and the cover letter must be completed, drafted and sent 
in compliance with the instructions contained in Sec.  225.21 and FRA 
Guide at Chapter 10. A highway user is not required to respond to a 
railroad's written or verbal requests for additional information with 
regard to potential injuries. However, railroads are required to use 
any response in complying with part 225's accident/incident reporting 
and recording requirements. See FRA Guide, Chapter 6 of this Final Rule 
for a complete discussion of the requirements and relevant comments.
    Form FRA F 6180.150 was submitted to OMB for approval with the 
final rule and is still pending OMB approval; therefore, the railroads 
cannot use the form until it has been approved. FRA expects that prior 
to the delayed six-month effective date, the form will be approved. 
Following approval, the final form will be available at http://safetydata.fra.dot.gov/officeofsafety.
    The railroad must keep a record of its efforts to make such contact 
including, but not limited to, retaining a copy of the dated Form FRA F 
6180.150 that was sent to the highway user and the accompanying cover 
letter, documenting the date, time and content of the follow-up call, 
and retaining any response from the highway user. This record and 
documentation of any information obtained must be available

[[Page 68891]]

for review and copying by an FRA representative under the same criteria 
as set forth in Sec.  225.35(b). For additional information see 
Section-by-Section Analysis for Sec.  225.15 and the FRA Guide, 
Subsection F, Form FRA F 6180.55a.
    A comment to the NPRM suggested that block 41 on Form FRA F 6180.57 
be expanded from ``Driver'' to ``Highway User.'' As discussed below, 
the final rule does make this change. Another comment to the NPRM 
suggests that block 44 on Form FRA F 6180.57 be changed from ``Driver'' 
to ``Highway User'' so as to include non-motorist accidents. The final 
rule does not adopt this suggestion because this information is 
captured in block 46. In addition, additional instruction is included 
in the FRA Guide to clarify that block 44 only concerns motor vehicle 
operators.
    The final rule adds instructions pertaining to the narrative 
section on Form FRA F 6180.57 stating ``Do not record personal 
identifiers, e.g., names, Social Security Numbers, payroll 
identification.'' This change is consistent with the instructions for 
Forms FRA F 6180.55a and FRA F 6180.54.
    The final rule also adds clarifying instructions on Form FRA F 
6180.57 the field requesting an U.S. DOT Grade Crossing Identification 
Number means and is referencing to the U.S. DOT Grade Crossing 
Inventory Number.

Chapter 13, pertaining to Form FRA F 6180.107, ``Alternative Record for 
Illness Claimed to be Work-Related.''

    FRA revised the instructions for the use of the form consistent 
with the changes adopted in the final rule. See Section-by-Section 
Analysis for Sec.  225.21, ``Forms,'' Sec.  225.25, ``Recordkeeping,'' 
Sec.  225.27, ``Record Retention,'' Sec.  225.33, ``Internal Control 
Plan'' and the FRA Guide, Appendix H, ``Forms'' for additional 
information.
    The final rule revises Q1 in the Question and Answer box as the 
form no longer has a data element for an employee's social security 
number. Rather, employee social security number has been replaced with 
a field requesting the employee's identification number. This 
clarifying amendment is meant to make the Q1 accurate and consistent 
with the changes to the form.

Appendix A, ``Railroad Codes.''

    The FRA Guide updates the railroad codes. In addition, the final 
rule adds a web address where there is an up-to-date list of railroad 
codes.

Appendix B, ``State Codes.''

    The FRA Guide updates the State codes by adding the abbreviation 
for Hawaii. This is a correction of an inadvertent admission and is 
consistent with the change to Form FRA F 6180.56.

Appendix C, ``Train Accident Cause Codes.''

    The FRA Guide revises the following Train Accident Cause Codes:
     T224 ``Rail defect originating from bond wire 
attachment.'' FRA added Train Accident Cause Code T224 in response to 
the National Transportation Safety Board's (NTSB) 2005 recommendation 
that FRA provide a train accident cause code for derailments caused by 
bond wire attachments. This recommendation arose from the NTSB's 
investigation of the derailment of northbound National Railroad 
Passenger Corporation (Amtrak) train No. 58 while operating on Canadian 
National (CN) track near Flora, Mississippi, on April 6, 2004. The 
derailment resulted in one fatality, 35 injuries (that were reportable 
to FRA), and damage costs of approximately $7 million. The NTSB 
recommended that FRA include in the FRA Guide a train accident cause 
code for derailments caused by rail cracks originating from bond wire 
attachments, and that information on the methods and locations of those 
attachments be provided in the narrative section of the accident/
incident report (NTSB Recommendation Number RAR-05/02);
     S104 ``Radio controlled switch not locked effectively.'' 
FRA amends Train Accident Cause Code S104 by adding ``(equipment 
failure)'' to the code's description. The description of Cause Code 
S104 as amended reads, ``Radio controlled switch not locked effectively 
(equipment failure).'' FRA incorporated this change in order to clarify 
that S104 pertains to equipment failure, not human error.
     H707 ``Radio controlled switch not locked effectively.'' 
FRA amends Train Accident Cause Code H707 by adding ``(human error)'' 
to the code's description. The description for Cause Code H707 denotes 
``Radio controlled switch not locked effectively (human error).'' FRA 
incorporated this change in order to clarify that H707 pertains to 
human error, not equipment failure.
     M 309 ``Grade Crossing Suicide''; M310 ``Grade Crossing 
Attempted Suicide''; M509 ``Suicide Resulting in Train Accident''; and 
M510 ``Attempted Suicide Resulting in Train Accident'' for use in block 
38 of Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report.'' 
See Section-by-Section Analysis for Sec.  225.15, ``Accidents/incidents 
not to be reported'' and the FRA Guide, Appendix H, ``Forms'' for 
additional information.

Appendix F, ``Circumstance Codes.''

    FRA adds the following ``Probable Reason for Injury/Illness 
Circumstance Codes,'' (Probable Reason Circumstance Code) under the 
subtitle ``Remotely controlled locomotive(s) environment'' to the 
Remote Control Locomotive Switching Operations Fatality Analysis Codes 
(RCL SOFA Codes) to the May 1, 2003, guide as amended:
     R1 Object fouling track, related to using RCL
     R2 Outside caused (e.g., assaulted/attacked), related to 
using RCL
     R3 Lack of communication, related to using RCL
     R4 Slack adjustment during switching operation, related to 
using RCL
     R5 Insufficient training, related to using RCL
     R6 Failure to provide adequate space between equipment 
during switching operation, related to using RCL
     R7 Close or no clearance, related to using RCL
     R8 Act of God, related to using RCL
     U1 Object fouling track, unrelated to using RCL
     U2 Outside caused (e.g., assaulted/attacked), unrelated to 
using RCL
     U3 Lack of communication, unrelated to using RCL
     U4 Slack adjustment during switching operation, unrelated 
to using RCL
     U5 Insufficient training, unrelated to using RCL
     U6 Failure to provide adequate space between equipment 
during switching operations unrelated to using RCL
     U7 Close or no clearance, unrelated to using RCL
     U8 Act of God, unrelated to using RCL
    In the final regulation to 49 CFR part 225, 68 FR 10107, March 3, 
2003, new codes and form changes were made to accommodate the recording 
events when remote control locomotive operations (RCL) were involved.
    A special task group of railroad safety officers representing labor 
and industry and FRA members was created in the RSAC Accident/Incident 
Working Group to discuss the coding of RCL. The results of the special 
task group would be presented to the entire working group for approval. 
The concern of the reporting officers was to prevent any major changes 
to the then current forms or databases. In part, this rested on their

[[Page 68892]]

information technology offices' internal charges for making major 
programming changes. The FRA team was tasked with finding a way to 
include RCL involved accidents and incidents on the following three 
forms: Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report''; 
Form FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report''; 
and Form FRA F 6180.55a, ``Railroad Injury/Illness Summary 
(Continuation Sheet),'' without changing the database structures.
    FRA found a way to capture RCL-related incidents on both the Form 
FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' and Form 
FRA F 6180.57, ``Highway-Rail Crossing Accident/Incident Report'' 
without expanding the database or making a major change on the form or 
the respective database. Capturing this information on Form FRA F 
6180.55a, ``Railroad Injury and Illness (Continuation Sheet),'' 
remained problematic due to the small number of data fields and limited 
amount of data collected for each reportable event. FRA developed a 
solution by expanding the number of Probable Causes in the Circumstance 
Codes. The method chosen by FRA, and accepted by the RSAC Working 
Group, was to take each code for Probable Reason Circumstance Codes and 
create two additional codes, one for RCL-related to the event and 
another for RCL involved but unrelated to the event. Therefore, the 
probable reason of ``Equipment,'' code 04 had two additional codes: 
``Equipment, related to using RCL,'' code 24, and ``Equipment, 
unrelated to using RCL,'' code 44. This technique, although clumsy, 
satisfied railroad safety reporting officers, rail labor officials, and 
FRA.
    Codes 21 through 59 in Probable Reason for the ``Remotely 
Controlled Locomotive(s) Environment'' was approved by the full RSAC 
Working Group for Accident/Incident Reporting. At a later RSAC Working 
Group Meeting in New Orleans, LA, a new discussion started about the 
Probable Reason Circumstance Codes. This discussion centered on 
Switching Operations Fatality Analysis (SOFA). SOFA events were 
claiming 40 to 50 percent of all fatalities of railroad workers. The 
Working Group decided to include new codes to insure that fatal and 
non-fatal SOFA events were culled from other injuries. A small task 
group was formed, and worked one evening to develop the eight new 
codes. The full Working Group approved these SOFA codes the next day. 
However, there was an oversight by the Working Group in the process. 
There should have been two additional sets of codes for SOFA RCL events 
(related to RCL and unrelated to RCL). This oversight was not 
discovered until October 2003, well after the publication and effective 
date of the revised regulation.
    All of the parties to the Full Working Group agreed that any 
omission in capturing SOFA related injuries was a serious problem. FRA 
developed 16 additional codes to correspond to the previous eight 
codes. The new codes R1 through R8 and U1 through U8 were promulgated 
in December 2003, and were subsequently added to the FRA Guide to 
remedy the immediate concern. While the initial publication of these 
SOFA codes was not subject to a notice and comment period, FRA invited 
comments on the addition of these SOFA codes but did not receive any 
comments on this change.
    FRA is also adding new Circumstance Codes to Appendix F of the FRA 
Guide for use on Form FRA F 6180.55a, ``Railroad Injury and Illness 
Summary (Continuation Sheet),'' to better identify injuries that occur 
in or due to passenger station platform gap. FRA believes that the 
collection of this information will allow the agency to assess the 
magnitude of these types of injuries, identify locations where 
passenger station platform gap related injuries frequently occur, and 
ultimately aid FRA in efforts to reduce such injuries.
    The RSAC General Passenger Safety Task Force reported to the full 
RSAC on October 25, 2007, its Cause Code Recommendations for passenger 
station platform gap related injuries as follows:
    (1) To the ``Physical Act Circumstance Codes'' add codes for:
     Passenger Train-Boarding; and
     Passenger Train-Alighting.

Also revise the ``Physical Act Circumstance Codes'' to clarify that 
codes 63 (stepping up) and 64 (stepping over) are to be used for 
boarding/alighting at high level platforms.
    (2) To Part III of the ``Location Circumstance Codes'' add codes 
for:
     Rail Car Door Threshold Plate to Edge of Passenger Station 
Platform Gap;
     Area Between Coupled Cars and Platform;
     Area Along Car body, other than Threshold Plate and 
Platform Edge;
     Car in Vestibule; and
     On Platform--Other.

Also change Location Circumstance Code C2--``On Platform'' to ``On 
Platform Station.''
    (3) To the ``Event Circumstance Codes'' add a code for:
     Slipped, fell, stumbled due to Passenger Station Platform 
Gap.
    (4) To Part I of the ``Location Circumstance Codes'' add a code 
for:
     Other than Platform.

Also change the Location Circumstance Code ``P--Passenger Terminal'' to 
``P--Passenger Station on Platform''.
    (5) To the ``Tools, Machinery, Appliances, Structures, Surfaces, 
(etc.) Circumstance Codes'' add codes for:
     Door, End or Side--Passenger Train; and
     Door, Trap.

The full RSAC agreed to these recommendations on October 25, 2007.
    Subsequently, FRA's Safety Knowledge Management Division's database 
experts reviewed the RSAC approved coding scheme in an effort to 
prevent redundant codes, develop ease in coding for reporting officers 
and clerks not familiar with all the nuances in gap incidents, and to 
develop a system to easily cull passenger station platform gap 
incidents from the casualty database. Based on this review, FRA is 
adding the following new codes to Appendix F--Circumstance Codes as 
follows:
    (1) To the ``Physical Act Circumstance Codes'' FRA proposes to add 
code:
     80--Stepping across (passenger cars).
    (2) To Part III of the ``Location Circumstance Codes'' FRA proposes 
to add codes:
     G1--Rail Car Door Threshold Plate to Edge of Platform--
Gap;
     G2--Area Between Coupled Cars and Platform;
     G3--Area Along Car body, other than Threshold Plate and 
Platform Edge; and
     G4--Car in Vestibule.
    (3) To the ``Probable Reason for Injury/Illness Circumstance 
Codes'' FRA proposes to add code:
     18--Slipped, fell, stumbled due to Passenger Station 
Platform Gap.
    (4) To the ``Tools, Machinery, Appliances, Structures, Surfaces, 
(etc.) Circumstance Codes'' FRA proposes to add codes:
     1G--Door, End or Side--Passenger Train; and
     2G--Door, Trap--Passenger Train.

The instructions for coding passenger station platform gap incidents 
are included in the FRA Guide.

Appendix G, ``FRA Regional Offices and Headquarters.''

    The FRA Guide updates these entries and includes the web address 
where the most current contact information can be obtained.

Appendix H, ``Forms.''

    FRA is revising its forms, as follows:

[[Page 68893]]

    (1) Form FRA F 6180.97 and Form FRA F 6180.98. FRA is revising 
block 36 on Form FRA F 6180.97 ``Date'' to state ``Date Initially 
Signed/Completed''; and block 44 on Form FRA F 6180.98 ``Date'' to 
state ``Date Initially Signed/Completed'' to clarify that the block 
must contain the initial date the form was completed. FRA finds it 
necessary to make such change because certain railroads do not retain 
the initial date a record was completed, but only the date of the most 
recent update to the record. Consequently, FRA is unable to discern if 
the railroad entered each reportable and accountable injury and illness 
and each reportable and accountable rail equipment accident/incident on 
the appropriate record, as required by Sec.  225.25 (a)-(e), no later 
than seven working days after receiving information or acquiring 
knowledge that an injury or illness or rail equipment accident/incident 
has occurred, as required by Sec.  225.25(f). FRA believes that 
specifying the date which is required to be maintained on the record 
will resolve any confusion regarding the requirement.
    (2) Form FRA F 6180.97. FRA is renaming block 12, ``Division'' to 
``Subdivision'' and requiring railroads to provide train accident 
location by providing subdivision data in this block as a means of 
improving railroad safety in the area of train accidents. If the 
railroad is not so divided, enter the word ``system.'' If subdivision 
data is not applicable, the railroad must enter terminal/yard name. 
This change also applies to alternative railroad-designed Form FRA 
6180.97. This change is consistent with the ``Division'' to 
``Subdivision'' change on Form FRA F 6180.54. See paragraph N(6) of 
this appendix, ``Form FRA F 6180.54'' for additional information.
    FRA is also clarifying that, in situations of joint operations, 
block 26, ``Equipment Damage (in dollars)'', refers to the aggregate 
amount of equipment damage incurred for all railroads involved, and 
that Block 27, ``Track, Signal, Way & Structure Damage (in dollars)'' 
refers to the aggregate amount of track, signal, way and structure 
damage incurred for all track owners. This revision does not change 
existing reporting requirements, and does not represent an additional 
reporting burden, because both railroads should already be exchanging 
relevant cost data to determine if the accident was FRA reportable.
    (3) Form FRA F 6180.98. FRA is replacing the ``Social Security 
Number'' requirement in block 6 with a requirement for ``Employee 
Identification Number.'' FRA is making this change in response to 
privacy concerns. This chapter will include instructions addressing 
FRA's requirement that (by amending the definition for ``Accountable 
Injury or Illness'') railroads complete a Form FRA F 6180.98, 
``Railroad Employee Injury and/or Illness Record'' for any abnormal 
condition or disorder of a railroad employee that causes or requires 
the railroad employee to be examined or treated by a qualified health 
care professional regardless of whether or not it meets the general 
reporting criteria listed in Sec.  225.19(d)(1) through (6), and that 
the railroad employee claims that, or the railroad otherwise has 
knowledge that, an event or exposure arising from the operation of the 
railroad is a discernable cause of the abnormal condition or disorder.
    (4) Form FRA F 6180.55. FRA has eliminated the notary requirement 
on Form FRA F 6180.55 block 10, and replaced it with a requirement that 
the report be signed under penalty of perjury. The NPRM proposed that 
the signature read, as follows:
    (1) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and correct. 
Executed on (date).
    (Signature).''
    (2) If executed without (i.e., outside of) the United States: ``I 
declare (or certify, verify, or state) under penalty of perjury under 
the laws of the United States of America that the foregoing is true and 
correct. Executed on (date).
    (Signature).''

To make clear the signee is attesting to the accuracy of all of the 
information on the form, the final rule revised the language, as 
follows:
    (1) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the information on this form is 
true and correct. Executed on (date).
    (Signature).''
    (2) If executed without (i.e., outside of) the United States: ``I 
declare (or certify, verify, or state) under penalty of perjury under 
the laws of the United States of America that the information on this 
form is true and correct. Executed on (date).
    (Signature).''

FRA is able to replace the oath requirement, mandated by 49 U.S.C. 
20901, with a signature under penalty of perjury under 28 U.S.C. 1746. 
See Section-by-Section Analysis for Sec.  225.37, ``Magnetic media 
transfer and electronic submission,'' for additional information.
    (5) Form FRA F 6180.55a. FRA requires railroads to place an ``X'' 
representative of ``suicide'' or ``attempted suicide'' in block 5r when 
reporting a suicide or attempted suicide. FRA also adds instructions 
that, if an injury is due to a passenger station platform gap incident, 
the railroad must use in block 5n (``Cause''), ``Probable Reason for 
Injury/Illness Circumstance Codes'' code number 18--Slipped, fell, 
stumbled due to Passenger Station Platform Gap, regardless of whether 
other codes may also be applicable. See Section-by-Section analysis for 
Sec.  225.15, ``Accidents/incidents not to be reported,'' for 
additional information. FRA also changes the title of block 5m from 
``Result'' to ``Tools'' to remain consistent with the wording in 
Appendix F.
    In addition, in the NPRM, FRA requested comments and suggestions on 
whether FRA should require railroads to complete the longitude and 
latitude blocks on Form FRA F 6180.55a, ``Railroad Injury and Illness 
Summary (Continuation Sheet)'' (blocks 5s and 5t) for reportable 
trespasser casualties, and on Form FRA F 6180.54, ``Rail Equipment 
Accident/Incident Report'' (blocks 50 and 51). Currently, completion of 
longitude and latitude data on both of these forms is optional.
    Because railroads do not report longitude and latitude to FRA, FRA 
cannot currently geo-locate reportable trespasser casualties. In 
addition, although FRA can geo-locate reportable accidents/incidents 
based on the information available in the Form FRA F 6180.54, it is 
time consuming. The final rule provides FRA with the ability to 
determine the precise location of accidents and trespasser injuries. 
For example, FRA will be able to determine the exact location of 
releases of hazardous materials or leakages of diesel fuel. Having the 
location information for all train accidents will allow FRA to develop 
better inspection planning, identify locations of hazardous materials 
contamination affecting the health and/or environment, and provide to 
the Transportation Security Administration another tool for security 
planning. Traditionally, FRA and the railroad industry have relied on 
the railroad milepost system to reference location, and, in many cases, 
such location data is accurate for short-term issues. However, the 
railroad milepost system is not reliable. Over the long-term, railroads 
change mileposts during mergers and reorganizations. Also, mileposts 
can be inaccurate when a railroad is able to build a shorter link, or 
when a railroad does not remove old mileposts when replacement 
mileposts,

[[Page 68894]]

which have a different starting location, are installed.
    Several commenters generally supported the collection of this type 
of information. One commenter, while not opposed to the collection of 
such data, was concerned about the resulting costs and indicated that 
the requirement should be phased-in so railroads had time to acquire 
the technology to comply with the regulation. This commenter also 
indicated that FRA should consider providing funding for GPS equipment, 
and that longitude and latitude should only be required for certain 
types of incidents. Commenters who were opposed to the mandatory 
inclusion of longitude and latitude generally argued that the cost to 
obtain GPS technology was too costly, that the technology was 
unreliable, that the industry was not ready for such a change, and that 
the regulation would not improve data collection or railroad safety.
    After considering the comments received, this final rule requires 
the mandatory completion of the longitude and latitude blocks on Form 
FRA F 6180.55a (blocks 5s and 5t) for any reportable casualty to a 
trespasser, and on Form FRA F 6180.54 (blocks 50 and 51). In order to 
defray potential costs, the longitude and latitude coordinates may be 
either actual or estimated. Obtaining actual coordinates requires GPS 
technology in the field, but obtaining estimated coordinates only 
requires internet access. For example, this requirement may be 
satisfied by providing either: The actual longitude and latitude, as 
determined at the time of the accident/incident, or injury using GPS 
technology; or an estimated longitude and latitude, as determined by 
using a Web site, such as Google maps or the FRA's free Web site 
(http://fragis.frasafety.net/GISFRASafety/default.aspx). Moreover, as 
discussed previously, the final rule is effective Wednesday, June 1, 
2011. As such, railroads do have a significant period of time to come 
into compliance. Regardless, the latitude/longitude requirement has 
been an optional field on both forms, and while it will be mandatory on 
the Form FRA F 6180.54 for all reportable rail equipment accidents/
incidents, with respect to the FRA Form F 6180.55a, it will only be a 
requirement for reportable casualties to trespassers.
    FRA believes that the majority of railroads already have the 
capability to determine actual longitude and latitude for such events 
on-site. Moreover, within the next six years, about one half of the 
general rail system will be equipped with Positive Train Control 
(``PTC'').\7\ While such PTC systems will vary widely in complexity and 
sophistication, such systems will provide railroads with longitude and 
latitude coordinates for specific track locations. For those railroads 
that do not currently have the equipment necessary to obtain longitude 
and latitude coordinates, the final rule permits the use of estimated 
coordinates which can be freely obtained on the internet. For example, 
railroads may estimate longitude and latitude via publicly accessible 
Web sites at no charge (e.g., http://www.gorissen.info/Pierre/maps/googleMapLocation.php or http://itouchmap.com/latlong.html).
---------------------------------------------------------------------------

    \7\ PTC refers to technology that is capable of preventing 
certain train collisions, derailments, and unauthorized train 
movements.
---------------------------------------------------------------------------

    A comment to the NPRM stated that this revision may create a duty 
for railroads towards trespassers that somehow impacts States' rights. 
This revision does not create any such duty, and railroads are already 
required to collect information on trespassers--this revision simply 
adds a level of detail to increase the value of the information. See 
Section-by-Section Analysis Sec.  225.41, ``Suicide data,'' for 
additional information. A comment suggested that longitude/latitude 
should be collected and stored in decimal degrees. The final rule does 
not adopt this suggestion because the FRA Guide provides recording 
instructions that are sufficient for FRA's needs. A comment suggested 
that additional fields be added for the city name, station name, 
railroad division, and milepost to help determine where the incident 
occurred. The final rule does not adopt this suggestion because such 
information is not necessary as the longitude/latitude will be 
captured. A comment suggested that additional fields be added for 
weather, visibility, gender, and railroad yard name. The final rule 
does not adopt these suggestions because they are outside of the scope 
of this rulemaking, and weather and visibility information are 
currently captured by the Form FRA F 6180.54. Comments stated that some 
GPS equipment would not get reception in all areas, and that GPS is 
unreliable because satellite networks can fail. However, FRA believes 
that, in general, GPS does get reception in most areas and that 
satellites generally do not have failures. Regardless, railroads may 
use free online technology to provide estimated longitude/latitude in 
the event that there is no GPS reception. A comment stated that GPS 
will not provide any additional information that is not otherwise 
available, and thus would not improve safety. As stated, FRA does not 
currently obtain sufficient information to geo-locate trespassers. In 
addition, although FRA can geo-locate reportable accidents/incidents 
based on information available in the Form FRA F 6180.54, it is time 
consuming, and thus the requirement of longitude/latitude on that form 
streamlines the data collection process. Furthermore, longitude/
latitude information enables FRA to obtain specific location 
information in order to pinpoint areas of concern.
    (6) Form FRA F 6180.54. FRA is revising block 30 by changing the 
name of the block from ``Methods of Operation'' to ``Type of 
Territory.'' The block will have five coding blocks. Each of the five 
coding blocks printed in block 30 will be labeled for exclusive use in 
accordance with codes listed in Appendix J. The coding blocks are 
representative of the following information: The first block 
(mandatory) will indicate the type of territory (signaled or non-
signaled); the second block (mandatory) will indicate the authority for 
movement; and the third, fourth, and fifth blocks (optional) will 
indicate additional information through the use of supplemental codes.
    FRA is making this change because in the past few years, with the 
advancement of PTC, there has been a growing requirement for FRA to 
definitively identify signalized versus ``dark'' territory.
    The revisions should make completing the block less burdensome and 
allow for the identification of territory in a manner compatible with 
the railroads' internal railroad coding system. These changes are 
consistent with suggestions by railroads and the AAR that such coding 
be made easier and that the FRA Guide provide clearer instruction. They 
also take into consideration railroad concerns about expense associated 
with having to revise the form and expressed the desire for FRA to 
retain the current form and redesign the coding system but not change 
the database structure or the record size. See FRA Guide, Appendix J, 
``Type of Territory Codes'' for additional information.
    FRA is renaming block 12, ``Division'' to ``Subdivision'' and 
requiring railroads to provide train accident location by subdivision 
data (block 12) on Form FRA F 6180.54 as a means of improving railroad 
safety in the area of train accidents. If the railroad is not so 
divided, enter the word ``system.'' If subdivision data is not 
applicable, the railroad must enter terminal/yard name.
    FRA also revises this form to require latitude and longitude. This 
revision is

[[Page 68895]]

discussed in detail in FRA Guide, Chapter 6, Form FRA F 6180.55a.
    FRA is adding to block 49, ``Special Study Block'' descriptive 
references ``a.'' to line one and ``b.'' to line two for ease of 
reference. FRA requires railroads to indicate in block ``Special Study 
Block'' 49a the type of track an accident/incident occurred on, by 
using the codes ``CWR'' for continuous welded rail or ``OTH'' for 
other. FRA notes that the special study block was created to allow for 
the collection of specific accident information as the need arises. See 
61 FR 30940, June 18, 1996. The primary purpose of these revisions to 
the rule is to increase the accuracy, completeness, and utility of 
FRA's accident database and the clarity of the definitions and 
requirements. In light of recent track-related accidents/incidents, FRA 
finds it necessary to gather and analyze data of this nature. The 
collection and analysis of this data is consistent with 49 CFR part 213 
regarding joint bar inspection and reporting.
    To account for suicides and attempted suicides on Form FRA F 
6180.54, FRA adds four Miscellaneous Cause Codes to Appendix C for use 
in block 38, Primary Cause Code: M309 ``Suicide (Highway-Rail Grade 
Crossing)''; M310 ``Attempted Suicide (Highway-Rail Grade Crossing)''; 
M509 ``Suicide (Other Misc.)''; and M510 ``Attempted Suicide (Other 
Misc.)'' to Appendix C, ``Train Accident Cause Codes'' to indicate 
``Suicide or Attempted Suicide.'' Additionally, FRA requires railroads 
to include suicides and attempted suicides in the casualty counts in 
boxes 46, 47, and 48, as applicable, and to maintain consistent 
casualty counts between the different reporting forms.
    FRA, for all highway-rail grade crossing fatalities, requires 
railroads to include a description in narrative block 52 of the 
circumstances of the accident.
    FRA also requires that, if an accident is caused by a bond wire 
attachment issue (see proposed Appendix C ``Train Accident Cause 
Codes''), information on the methods and locations of those attachments 
be provided in the narrative block 52.
    (7) Forms FRA F 6180.54 and FRA F 6180.57. The final rule revises 
the ``Type of Equipment'' block--block 25 on Form FRA F 6180.54 and 
block 24 on Form FRA F 6180.57--as follows:
     Code ``2'' was changed from ``Passenger Train'' to 
``Passenger Train--Pulling;''
     Code ``3'' was changed from ``Commuter Train'' to 
``Commuter Train--Pulling;''
     New code ``B'' reads ``Passenger Train--Pushing;''
     New code ``C'' reads ``Commuter Train--Pushing;''
     New Code ``D'' reads ``EMU Train;'' and
     New Code ``E'' reads ``DMU Train.''
    These amendments allow for the delineation of additional types of 
equipment in FRA's database, specifically, locomotives pushing or 
pulling, and EMU and DMU trains. The need for such information comes in 
light of the 2005 passenger train accident, in which an impact with a 
deliberately placed obstruction caused a derailment with two consequent 
secondary collisions in Glendale, California, in which a number of 
individuals were killed or injured. Subsequent to that event, FRA was 
asked to conduct analysis regarding the relative safety of trains with 
passenger-occupied cars in the lead. Under its prior reporting 
criteria, FRA could not determine from the database if the passenger or 
commuter equipment being used was in ``pull'' or ``push'' mode at the 
time of an accident/incident (i.e., whether the locomotive unit 
providing power was in the front or back of the train). In addition, 
because EMU and DMU trains neither push nor pull as all of the cars 
provide power to the train, FRA needed a code to accurately describe 
that circumstance as well.
    (8) FRA Form FRA F 6180.57. The final rule revises block 16, 
``Position,'' to read as follows: (1) Stalled or stuck on crossing 
(currently ``Stalled on Crossing''); (2) Stopped on crossing; (3) 
Moving over crossing; (4) Trapped on crossing by traffic (currently 
``Trapped''); and (5) Blocked on crossing by gates. In doing so, FRA 
clarifies the difference between choices (1) and (4). FRA has found 
that under the prior options railroads did not necessarily understand 
that prior option (4) ``Trapped'' means trapped by traffic. The final 
rule also adds a fifth option, (5) ``Blocked on crossing by gates,'' to 
capture those situations where a highway user is prevented from leaving 
the crossing because the highway user is blocked-in by the crossing 
gates.
    The final rule also revises block 34 by changing the title from 
``Whistle Ban'' to ``Roadway Conditions'' and by including the 
following options: (A) Dry; (B) Wet; (C) Snow/Slush; (D) Ice; (E) Sand, 
Mud, Dirt, Oil, Gravel; and (F) Water (Standing, Moving). Block 34 
captures the roadway conditions at the time of the highway-rail grade 
crossing accident/incident. This information is needed because data 
provided to FRA regarding ``Weather Conditions'' in block 23 does not 
necessarily speak to road conditions. For example, while the weather 
may be clear at the time of a highway-rail grade crossing accident/
incident, the roadway may be wet, covered with snow, or icy. This 
revision provides FRA with vital information useful in assessing the 
risks and causes of highway-rail grade crossing accident/incidents. In 
addition, FRA no longer needs to capture Whistle Ban/Quiet Zone 
information in Form FRA F 6180.57, as this information is provided to 
FRA in Quiet Zone Notices of Establishment. See FRA 49 CFR part 222.
    The final rule revises the title of block numbers 38, ``Drivers 
Age;'' 39, ``Driver's Gender;'' 40, ``Driver Drove Behind or in Front 
of Train and Struck or was Struck by Second Train;'' and 41, 
``Driver,'' by replacing the term ``Driver'' or ``Driver's'' with 
``Highway User'' or ``Highway User's'', as applicable. In addition, the 
final rule revises block numbers 40 (in block title) and 41 (in block's 
response options) by replacing the term ``drove'' with ``went.'' Such 
changes clarify that railroads should provide the information for all 
highway users involved in a highway-rail grade crossing accident/
incident, rather than just for drivers.
    The final rule revises block 41 by adding the following descriptive 
options: ``Went around/thru temporary barricade'' and ``Suicide/
Attempted suicide.'' The final rule also revises the ``Drove around or 
thru the gate'' descriptor to two separate descriptive choices: ``Went 
around the gate''; and ``Went thru the gate.'' If ``Went around/thru 
temporary barricade'' is selected in block 41 due to the temporary 
closure of the crossing, the circumstance of the closure (e.g., the 
roadway was closed for repair of crossing surface; maintenance/testing 
of automated warning devises; etc.) should be explained in narrative in 
block 54. Additionally, such a narrative should explain how the closure 
was accomplished (e.g., roadway closed to traffic with jersey barriers 
(concrete traffic barriers) on both approaches; roadway closed with 
construction barrels on easterly approach; etc.). In the event of a 
suicide or attempted suicide, option 8, ``Suicide/Attempted suicide'' 
must be indicated in block 41, regardless of whether other choices may 
also be applicable. The final rule requires the inclusion of the 
suicide or attempted suicide in the casualty counts in block numbers 
46, 49, and 52, as applicable, to maintain consistent casualty counts 
between the different reporting forms.
    The final rule revises the title of block 48, ``Total Number of 
Highway-Rail Crossing Users'' to read ``Total Number of Vehicle 
Occupants (including driver).'' Collection of this data allows

[[Page 68896]]

FRA to cross-check ``Casualties to:'' block 46 with the number of 
vehicle occupants in block 48. FRA has found that this information is 
an important tool in analyzing reports and ensuring continuity and 
compliance in reporting. In accordance with Chapter 2 of the FRA Guide, 
vehicles include automobiles, buses, trucks, motorcycles, bicycles, 
farm vehicles, and all other modes of surface transportation, 
motorized, and unmotorized.
    The final rule requires, in ``Special Study Block'' 53a, that 
railroads indicate whether the highway-rail crossing accident/incident 
was recorded by a locomotive video recorder and, if so, whether 
information gathered in viewing the recording was used by the railroad 
to complete the FRA Highway-Rail Grade Crossing Accident/Incident 
Report. To facilitate the collection of this information, FRA includes 
instructions in the FRA Guide and places two sets of ``yes or no'' 
options in block 53a; one for ``video taken'' and one for ``video 
used.'' This information provides FRA with knowledge of the 
availability of video footage for particular accidents/incidents; how 
often and to what degree railroads are collecting and reviewing video 
footage of these accidents/incidents; and make available to FRA an 
additional tool to study the causes and circumstances of these 
accident/incidents. Whether or not video footage was captured and 
reviewed for a particular accident/incident may also serve as an 
indicator as to the accuracy of the railroad's accident/incident 
report. For additional information on requirements related to 
locomotive event recorders, see 49 CFR 229.135, ``Event Recorders.''
    The final rule includes instructions that railroads should limit 
the use of the ``unknown'' option in block 36, ``Crossing Warning 
Interconnected with Highway Signals'' and block 37, ``Crossing 
Illuminated by Street Lights or Special Lights.'' FRA has found that 
numerous completed Form FRA F 6180.57 forms are submitted to the agency 
with ``unknown,'' marked in block numbers 36 and/or 37. Railroads have 
an obligation to submit accurate reports to FRA and may not simply mark 
``unknown'' without investigating the matter. As such, block 36 
requires that a railroad must only enter option 3, ``unknown,'' after 
having first consulted with the signal department of the railroad 
responsible for track maintenance in an effort to obtain the 
information. In Block 37, the railroad must only enter option 3, 
``unknown'' after the railroad has first made a diligent effort to 
discern the relevant lighting conditions in an effort to obtain the 
information, but still cannot make a determination. These limitations 
will increase the quality and accuracy of data the agency gathers 
related to highway-rail grade crossing accidents/incidents by requiring 
railroads to make an effort to gather the information.
    In the NPRM, FRA requested comments and suggestions for any 
additional information that might be gathered on Form FRA F 6180.57, 
that would be useful in determining how and why highway-rail grade 
crossing accidents/incidents occur. This final rule makes several 
revisions to the FRA Guide specifically regarding Form FRA F 6180.57 
based on the comments received, in addition to other changes proposed 
in the NPRM.
    Specifically, the final rule revises the FRA Guide to clarify that 
block 41's ``other'' designation should be selected for drivers who 
were shoved onto the track and who were then in a collision, so that 
the accident/incident may be described in the narrative section. The 
final rule also revises the FRA Guide regarding block 14 in order to 
clarify that the inclusion of a vehicle speed of 0 mph when the form 
elsewhere indicates that the vehicle was moving over the crossing or 
around the gate is prohibited. The final rule also revises the FRA 
Guide by designating block 39 (``Highway user's Gender'') as a 
mandatory field, unless the gender is unknown as a result of the 
accident/incident being a hit and run. The final rule also revises the 
FRA Guide by designating block 38 (Highway user's Age) as a mandatory 
field, unless the highway user's age is unknown as a result of the 
accident/incident being a hit and run. In addition, the final rule 
revises the FRA Guide by clarifying that block 6 seeks the time of the 
accident/incident in the local time of the location where the accident/
incident occurred (the time in the headquarters should not be used).
    One commenter asserted that some of the publicly-submitted comments 
regarding Form FRA F 6180.57 were improper because they were new and 
should be pursued in a separate rulemaking. However, interested parties 
had opportunities to address such comments during the hearing and in 
the second comment period. In addition, the interested parties were on 
notice that FRA was interested in receiving suggested changes to Form 
FRA F 6180.57. The revisions to the FRA Guide regarding Form FRA F 
6180.57 are a logical outgrowth of this notice. A commenter also 
requested that no additional fields be added to the form because any 
such additions would be unduly burdensome. However, the final rule does 
not add additional fields, and only clarifies the available selections 
for existing fields.
    FRA received the following other comments regarding proposed Form 
FRA F 6180.57 revisions that are not adopted in this final rule:
     A commenter requested that FRA revise block 32 by adding a 
field to indicate whether there was a stop/yield sign at the highway-
rail grade crossing, to determine whether such signs are effective. 
This final rule does not adopt this suggestion because this data can be 
captured in the U.S. DOT National Highway-Rail Crossing Inventory.
     A commenter requested that FRA eliminate the ``Watchman'' 
code in block 32 because it is rarely used. The final rule does not 
adopt this suggestion because the ``Watchman'' code provides valuable 
safety data.
     A commenter requested that FRA revise block 32 by adding a 
field to show whether the crossing warning was a pedestrian or 
vehicular warning device. The final rule does not adopt this suggestion 
because block 32 sufficiently captures data relating to the type of 
crossing warning.
     A commenter requested that Form FRA F 6180.57 be revised 
to collect ``near miss'' information. The final rule does not adopt 
this suggestion because it would be very difficult to obtain such 
information and it is overly burdensome.
     A commenter requested that Form FRA F 6180.57 require 
railroad carriers to submit up-to-date crossing information because the 
inventory is out of date. The final rule does not adopt this suggestion 
because Sec.  204 of the Railroad Safety Improvement Act of 2008, once 
implemented, imposes a mandatory inventory updating scheme for both 
States and railroads.
     A commenter requested that Form FRA F 6180.57 capture 
whether trains involved in highway-rail grade crossing accidents/
incidents had retroreflective sheeting. The final rule does not adopt 
this suggestion because, in general, all trains will be required to 
have such retroreflective sheeting, capturing the data is overly 
burdensome, and it would be difficult to enforce.
     A commenter requested that Form FRA F 6180.57 be 
reconciled with the U.S. DOT Crossing Inventory Form, so that 
discrepancies between the forms would be flagged. The final rule does 
not adopt this suggestion because it is not germane to the substance of 
Form FRA F 6180.57, and FRA can check for mismatches in certain data 
fields between the Form FRA F 6180.57 and the U.S. DOT Crossing 
Inventory Form.

[[Page 68897]]

     A commenter requested that Form FRA F 6180.57 capture the 
relevant police report number for reported accidents/incidents as well 
as the police department information. The final rule does not adopt 
this suggestion because it does not contribute material safety 
information to the Form, is overly burdensome, and is not supported by 
the November 28, 2005, report by the Department of Transportation's 
Office of Inspector General, entitled, ``Audit of Oversight of Highway-
Rail Grade Crossing Accident Reporting, Investigations, and Safety 
Regulations,'' Report No. MH-2006-016.
     A commenter requested that Form FRA F 6180.57 require a 
narrative when ``other'' is checked in a data field and when there is a 
collision resulting in a fatality. The final rule does not make any 
revisions to Form FRA F 6180.57 in response to this suggestion because 
the narrative is already mandatory in such cases.
     A commenter requested that Form FRA F 6180.57 capture the 
total tonnage of trains involved in collisions. The final rule does not 
adopt this suggestion because such data does not contribute additional 
material safety information as the U.S. DOT Crossing Inventory Form 
captures the number of trains that use the track.
     A commenter requested that Form FRA F 6180.57 capture 
whether the train or the automatic warning device at the crossing had 
an event recorder. The final rule does not adopt this suggestion 
because such data does not contribute material safety information to 
the Form.
     A commenter requested that Form FRA F 6180.57 capture 
annual track density and total train tonnage. The final rule does not 
adopt these suggestions because such data does not contribute material 
safety information to the Form.
     A commenter requested that Form FRA F 6180.57 capture the 
relevant posted speed limit. The final rule does not adopt this 
suggestion because such data can be captured in the U.S. DOT National 
Highway-Rail Crossing Inventory.
     A commenter requested that Form FRA F 6180.57 capture, 
with respect to collisions that occur at a private crossing, whether 
the crossing was located within the limits of a railroad yard and 
whether the collision involved an on-duty railroad employee or 
contractor. The final rule does not adopt this suggestion because such 
data does not contribute material safety information to the Form, there 
are few such accidents, and such information may be captured by the 
Form FRA F 6180.55a if the accident resulted in an injury or a 
fatality.
     A commenter requested that Form FRA F 6180.57 capture data 
regarding the quality and ``rideability'' of the surface of the 
highway-rail grade crossing at the time of the collision. The final 
rule does not adopt this suggestion because it is subjective, difficult 
data to capture, and overly burdensome.
     A commenter requested that Form FRA F 6180.57 capture data 
regarding whether a sidewalk was available for non-motorized vehicles, 
the type of sidewalk, and whether the person used the sidewalk. The 
final rule does not adopt this suggestion because it is overly 
burdensome.
     Lastly, a commenter requested that Form FRA F 6180.57 
capture whether a traffic violation was issued. The final rule does not 
adopt this suggestion because such data does not contribute material 
safety information to the Form.
    FRA received another comment taking the position that some comments 
regarding Form FRA F 6180.57 are not proper because they are new and 
should be pursued in a separate rulemaking. The final rule does adopt 
some of the comments, as discussed above. Interested parties had an 
opportunity to respond during the hearing and in the second comment 
period. In addition, the interested parties were on notice that FRA was 
interested in receiving suggested changes to Form FRA F 6180.57. 
Revisions to Form FRA F 6180.57 and the FRA Guide are a logical 
outgrowth of this notice.
    FRA notes that the final rule makes many of the Form FRA F 6180.57 
revisions in response to a November 28, 2005, report by the Department 
of Transportation's Office of Inspector General, entitled, ``Audit of 
Oversight of Highway-Rail Grade Crossing Accident Reporting, 
Investigations, and Safety Regulations, Report No. MH-2006-016.
    (9) Form FRA F 6180.107. FRA revises block 6 on Form FRA F 
6180.107, ``Employee Number or Social Security Number'' to ``Employee 
Identification Number'' to address privacy concerns.
    FRA revises block 23 on Form FRA F 6180.107 ``Date the Log Entry 
was Completed (mm/dd/yy)'' to state ``Date initially signed/
completed.'' FRA made this change to clarify that the block must 
contain the initial date the form was completed. FRA finds it necessary 
to make such change because the agency has found certain railroads do 
not retain the initial date a record was completed, but only the date 
of the most recent update to the record. FRA is making this revision to 
ensure that it can discern if the railroad entered each claimed 
occupational illness on the appropriate record no later than seven 
calendar days after receiving information or acquiring knowledge that 
an injury or illness or rail equipment accident/incident has occurred, 
as required in Sec.  225.25(i)(2). FRA believes that by specifying the 
date required to be maintained on the record, any confusion regarding 
the requirement will be resolved.
    The final rule revises Questions and Answers section at the bottom 
of the form as the form no longer has a data element for an employee's 
social security number. Rather, employee social security number has 
been replaced with field requesting the employee's identification 
number. This is a clarifying amendment is meant to make the Questions 
and Answers section accurate and consistent with the changes to the 
form.
    (10) Form FRA F 6180.150. In the final rule, FRA included a draft 
of this form dealing with following up with potentially injured highway 
user involved in a highway-rail grade crossing accident/incident. See 
FRA Guide, Chapters 10 and 6 of this final rule for further discussion. 
Form FRA F 6180.150 was submitted to OMB for approval with the final 
rule and is still pending OMB approval; therefore, the railroads cannot 
use the form until it has been approved. FRA expects that prior to the 
delayed six month effective date, the form will be approved.
    (11) Form FRA F 6180.56. The final rule amends Block 6, State, by 
adding Hawaii to the list of States. Hawaii was mistakenly omitted. 
This is a technical amendment and should not create additional 
reporting requirements for the railroads.

Appendix I, ``Model Internal Control Plans, Including Model Statement 
of Policy against Harassment and Intimidation and Model Complaint 
Procedures.''

    The FRA Guide reorders the ICP components in Appendix I's sample 
Internal Control Plan (ICP) to more closely model the listing of 
components as set forth in Sec.  225.33.

Appendix J, ``Type of Territory Codes.''

    FRA adds an Appendix J to the FRA Guide, which provides Type of 
Territory Codes and instructions for the use of those codes when 
completing block 30, ``Type of Territory,'' on Form FRA F 6180.54, 
``Rail Equipment Accident/Incident Report.'' The codes represent type 
of territory (i.e., signaled territory versus non-signaled territory); 
the authority for movement (i.e., signal indication; mandatory 
directive; other than main track--Rule 105); and additional 
miscellaneous supplemental codes. See FRA Guide, Appendix H,

[[Page 68898]]

``Forms'' in this final rule for additional information.

Appendix K, ``Electronic Submission of Reports to FRA.''

    The FRA Guide adds Appendix K to specifically provide electronic 
submission instructions and guidance.

Appendix L, ``49 CFR part 225.''

    The FRA Guide includes in Appendix L the full regulatory text of 
part 225.

Appendix M, ``Telephonic Reporting Chart.''

    The FRA Guide revises the Telephonic Reporting Chart to correct an 
error. This clarification is intended to bring the chart into 
compliance with the rule text. Specifically, this change simply 
instructs the user to look at other reasons why telephone notification 
may be required regardless of whether the answer to the question--``Was 
the fatality to Railroad Employee, Contractor on Railroad Property, 
Passenger, Highway User due to collision with railroad rolling 
stock?''--is ``No.''

Appendix N, ``Form FRA F 6180.150, ``Highway User Injury Inquiry 
Form,'' Sample Cover Letter.''

    The final rule included a sample cover letter that the railroads 
could use to comply with the requirement that they send a Form FRA F 
6180.150 and a cover letter to each potentially injured highway user 
involved in a highway-rail grade crossing accident/incident. The cover 
letter must be drafted and comply with the requirements outlined in 
Sec.  225.21 and the FRA Guide at Chapter 10.
    With regard to the cover letter, the instructions contained in the 
final rule require that the letter contain the following:
     An explanation of why the railroad is contacting the 
highway user;
     An explanation of part 225 accident/incident reporting 
requirements;
     An explanation of how the form and any response will be 
used for part 225 reporting requirements;
     An explanation that the highway user is not required to 
respond;
     An opportunity to correct incorrect information in Part I;
     Identify and provide contact information for a person at 
the railroad who can answer questions with regard to the form;
     Provide instructions on how to complete Part II; and,
     An explanation of how any medical records or information 
will be handled.


The cover letter and Form FRA F 6180.150 are meant to be tools that 
allow the railroad to gather information and comply with part 225 
accident/incident reporting and recording requirements. As such, the 
railroad the cover letter should not require the highway user to 
provide any medical or personal information in order to report a 
casualty. Moreover, the cover letter and any communication for the 
purposes of part 225 should not reference claims process.

V. Regulatory Impact and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule has been evaluated in accordance with existing policies 
and procedures, and determined to be non-significant under both 
Executive Order 12866 and DOT policies and procedures. 44 FR 11034, 
February 26, 1979. FRA has prepared and placed in the docket a 
regulatory evaluation addressing the economic impact of this final 
rule. Document inspection and copying facilities are available at U.S. 
Department of Transportation, Docket Operations, West Building Ground 
Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. 
Docket material is also available for inspection on the Internet at 
http://www.regulations.gov. Photocopies may also be obtained by 
submitting a written request to the FRA Docket Clerk at the Office of 
Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 
1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to 
Docket No. FRA-2006-26173.
    The changes in this final rule would serve to simplify accident/
incident reporting for railroads, ensure that railroad worker casualty 
statistics conform to the same criteria as statistics from other 
Federal agencies, and improve the quality of data available for 
analysis of railroad accidents and incidents.
    The amendments to part 225 will increase the accuracy, precision, 
completeness of railroad accidents/incident records and reports, and 
correspondingly, FRA's and the railroad industry's information base 
related to accidents and incidents. This increased awareness will not 
only aid FRA in assessing and managing risk, but aid railroads, their 
employees, and other interested parties in recognizing and correcting 
dangerous conditions and practices in order to maintain a safe and 
healthy environment for railroad workers and the public. Moreover, FRA 
anticipates that requirements related to the collection of longitude 
and latitude data for trespasser accidents/incidents on Form FRA 
F6180.55a, ``Railroad Injury and Illness Summary (Continuation Sheet)'' 
will reduce trespasser casualties. In addition to the final revisions 
to its regulations contained in this notice, FRA is revising the FRA 
Guide for Preparing Accident/Incident Reports, certain accident/
incident recording and reporting forms, and the FRA Companion Guide: 
Guidelines for Submitting Accident/Incident Reports by Alternative 
Methods.
    When quantifiable, FRA estimated costs and benefits for the twenty-
year period immediately following implementation of this final rule. 
FRA estimated total, present discounted costs to equal approximately 
$5.5 million using a 3 percent discount rate and $3.9 million using a 7 
percent discount rate. Total, present discounted benefits are estimated 
to equal approximately $51 million at a 3 percent discount rate and 
$32.2 million at a 7 percent discount rate.
    The net present discounted benefits of the impacts quantified in 
this analysis equal approximately $45.5 million at a discount rate of 3 
percent and $28.3 million at a discount rate of 7 percent.
    FRA expects that the benefits flowing from this final rulemaking 
will surpass any additional costs imposed by the regulation. Most 
significant are benefits arising from the final rule's requirement that 
longitude and latitude blocks on Form FRA F6180.55a be completed for 
trespassers. This requirement will ultimately result in fewer 
trespasser injuries and fatalities. Additional benefits will arise from 
consolidated reporting provisions, the easing of telephonic reporting 
requirements, and accident/incident reporting simplification. Lastly, 
FRA anticipates substantial but presently unquantifiable benefits 
flowing from more precise and complete accident/incident reporting 
data. Not only does the analysis of reported data provide information 
as to the cause of an accident/incident, this data can help determine 
trends, assess hazards, and assist in the development of effective 
countermeasures that may then be implemented to prevent similar 
accidents and incidents from occurring in the future. More precise and 
complete data will also help to identify where safety-oriented programs 
should be focused and aid railroads and FRA in setting priorities among 
inspection and safety improvement efforts. Accordingly, FRA is 
confident that such benefits, combined with those that were quantified, 
will more than justify

[[Page 68899]]

incurring the costs associated with implementation of the final rule.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
conduct a regulatory flexibility analysis unless it determines and 
certifies that a rule is not expected to have a significant impact on a 
substantial number of small entities. Pursuant to the Regulatory 
Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator 
certifies that this final rule will not have a significant economic 
impact on a substantial number of small entities. Although a 
substantial number of small railroads will be affected by the rule, 
none of these entities will be significantly impacted. At the NPRM 
stage, FRA certified that the proposal would not result in a 
significant economic impact on a substantial number of small entities 
and requested comment on such certification as well all other aspects 
of the NPRM. Although many comments were received in response to the 
NPRM, no comments directly addressed the certification. In developing 
the final rule, FRA considered all comments received in response to the 
NPRM.
    ``Small entity'' is defined in 5 U.S.C. 601 as including a small 
business concern that is independently owned and operated, and is not 
dominant in its field of operation. The U.S. Small Business 
Administration (SBA) has authority to regulate issues related to small 
businesses, and stipulates in its size standards that a ``small 
entity'' in the railroad industry is a for profit ``line-haul 
railroad'' that has fewer than 1,500 employees, a ``short line 
railroad'' with fewer than 500 employees, or a ``commuter rail system'' 
with annual receipts of less than seven million dollars. See ``Size 
Eligibility Provisions and Standards,'' 13 CFR part 121 subpart A. 
Additionally, section 601(5) defines as ``small entities'' governments 
of cities, counties, towns, townships, villages, school districts, or 
special districts with populations less than 50,000. SBA's ``size 
standards'' may be altered by Federal agencies, in consultation with 
SBA and in conjunction with public comment. Pursuant to that authority 
FRA has published a final statement of agency policy that formally 
establishes ``small entities'' or ``small businesses'' as being 
railroads, contractors and hazardous materials shippers that meet the 
revenue requirements of a Class III railroad as set forth in 49 CFR 
1201.1-1, which is $20 million or less in inflation-adjusted annual 
revenues, and commuter railroads or small governmental jurisdictions 
that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, 
codified at Appendix C to 49 CFR part 209. The $20 million limit is 
based on the Surface Transportation Board's revenue threshold for a 
Class III railroad carrier. Railroad revenue is adjusted for inflation 
by applying a revenue deflator formula in accordance with 49 CFR 
1201.1-1. FRA is using this definition for this rulemaking. This final 
rule applies to railroads.\8\ There are approximately 665 small 
railroads that would be affected by this final rule. FRA anticipates 
that most of the recording and reporting burdens imposed by this 
regulation will be borne by railroads that are not considered small, 
due to the decreased likelihood that a small railroad will experience 
an accident/incident necessitating such recording and/or reporting. For 
example, on average from 2005 through 2007, small railroads reported 
approximately 875 or nine percent of all reportable casualties, and 
only 294 or 10 percent of all reportable accidents/incidents.
---------------------------------------------------------------------------

    \8\ Note that FRA has not, unless specifically noted, updated 
the data used in this analysis from the Certification Statement for 
the NPRM. Adjustments were not made for this final certification 
because they would not significantly affect numerical estimates, 
would result in very few additional costs and would not change the 
outcome or results of the analysis.
---------------------------------------------------------------------------

    FRA also anticipates that the computer-related burdens will be 
borne by the larger railroads because the large railroads have chosen 
to retain their accident/incident records and reports electronically in 
their own systems. Large railroads also submit their accident/incident 
reports to FRA electronically via their own systems. Most small 
railroads complete their federally required accident/incident 
recordkeeping and reporting on a personal computer using FRA supplied 
Accident/Incident Report Generator (AIRG) software. This software 
allows railroads to send reports to FRA on a CD-ROM or to transmit the 
information to FRA over the Internet. FRA will send a free updated or 
new version of the AIRG software to any railroad that requests it. 
Other small railroads do not use a computer system for reporting. 
Accordingly, FRA does not anticipate that these burdens will be imposed 
on small entities.
    The factual basis for the certification that this final rule will 
not have a significant economic impact on a substantial number of small 
entities, is that the total cost incurred is far less than one percent 
of the annual average revenue for small railroads (approximately 
$47,000 each in 2006 (not discounted)). Total costs to small railroads 
due to this final regulation will be approximately $159 (not 
discounted) per railroad during the first year of the analysis. This 
burden is solely due to the time (3 hours each) for reporting officers 
to become acquainted with the revised FRA Guide. On an individual 
basis, FRA estimates that $159 is one percent or more of the annual 
operating revenues for less than one percent of all small railroads. 
FRA estimates the total cost for years 2 through 20 will be less than 
$100 for small railroads impacted (not discounted) per year, and that 
the small railroads will experience a positive net benefit for those 
years. Accordingly, FRA does not consider this impact to be 
significant. Nor does FRA anticipate that this regulation would result 
in long-term or short-term insolvency for any small railroad.

C. Paperwork Statement--Accident/Incident Reporting and Recordkeeping

    The information collection requirements in this final rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. 
The sections that contain the new and current information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                        Total
                                                             Total annual        Average time per       annual
       CFR Section--49 CFR         Respondent  universe        responses             response           burden
                                                                                                        hours
----------------------------------------------------------------------------------------------------------------
225.6--Consolidated Reporting--    718 railroads.......  4 requests..........  40 hours............          160
 New Requirements--Written
 Request by RR.
--Written agreements on            718 railroads.......  4 agreements........  2 hours.............            8
 subsidiaries.

[[Page 68900]]

 
--Notifications on changes to      718 railroads.......  1 notification + 1    1 hr. + 1 hr........            2
 subsidiaries and amended written                         agreement.
 agreement.
225.9--Telephone Reports--Certain  718 railroads.......  3,300 reports.......  15 minutes..........          825
 Accidents/Incidents and Other
 Events.
225.11--Reporting of Rail          718 railroads.......  3,600 forms.........  2 hours.............        7,200
 Equipment Accidents/Incidents
 (Form FRA F 6180.54).
225.12(a)--Form FRA F 6180.81--    718 railroads.......  1,600 forms.........  15 minutes..........          400
 Rail Equipment Accident/Incident
 Reports--Human Factor.
225.12(b)--Form FRA F 6180.78--    718 railroads.......  1,000 notices +       10 minutes + 3                367
 Part I Rail Equipment Accident/                          4,000 copies + 10     minutes.
 Incident Reports (Human Factor).                         copies.
225.12(c)--Rail Equipment          718 railroads.......  100 requests........  20 minutes..........           33
 Accident/Incident Reports--Human
 Factor--Joint Operations.
225.12(d)--Rail Equipment          718 railroads.......  20 attachments + 20   15 minutes..........           10
 Accident/Incident Reports--Human                         notices.
 Factor--Late Identification.
225.12(g)--Rail Equipment          718 railroads.......  75 statements.......  1.5 hours...........          113
 Accident/Incident Reports--Human
 Factor--Employee Supplement--
 Part II Form FRA F 6180.78.
225.12(g)(3)--Rail Equipment       RR Employees........  10 letters..........  2 hours.............           20
 Accident/Incident Reports--Human
 Factor--Employee Confidential
 Letter.
225.13--Late Reports.............  718 railroads.......  25 reports..........  1 hour..............           25
--Amended Rail Equipment Accident/ 718 railroads.......  50 amended rpts/40    1 hour + 3 minutes..           52
 Incident Reports.                                        copies.
225.18--Alcohol or Drug            718 railroads.......  80 reports..........  30 minutes..........           40
 Involvement.
--Appended Reports...............  718 railroads.......  5 reports...........  30 minutes..........            3
225.19--Highway-Rail Grade         718 railroads.......  2,880 forms.........  2 hours.............        5,760
 Crossing Accident/Incident
 Reports--Form FRA F 6180.57.
--Death, Injury, or Occupational   718 railroads.......  11,544 forms........  20 minutes..........        3,848
 Illness--(Form FRA F 6180.55a).
--Trespasser Fatalities (FRA F     718 railroads.......  486 forms...........  50 minutes..........          405
 6180.55a).
--New Requirement--Suicide/        718 railroads.......  608 forms...........  65 minutes..........          659
 Attempted Suicide Data (FRA F
 6180.55a).
225.21 Forms
--Form FRA F 6180.55--Railroad     718 railroads.......  8,616 forms.........  10 minutes..........        1,436
 Injury/Illness Summary.
--Form FRA F 6180.56--Railroad     718 railroads.......  718 forms...........  15 minutes..........          180
 Annual Report of Man Hours by
 State.
--Form FRA F 6180.98--Railroad     718 railroads.......  18,900 forms........  1 hour..............       18,900
 Employee--Injury and/or Illness
 Record.
--Form FRA F 6180.98--Copies.....  718 railroads.......  567 copies..........  2 minutes...........           19
--Form FRA F 6180.97--Initial      718 railroads.......  18,200 forms........  30 minutes..........        9,100
 Rail Equipment Accident/Incident
 Record.
--New Requirement--Suicide/        718 railroads.......  1 form..............  30 minutes..........            1
 Attempted Suicide Narrative--
 Form FRA F 6180.97.
--Form FRA F 6180.107--Alternate   718 railroads.......  300 forms...........  75 minutes..........          375
 Record for Illnesses Claimed To
 Be Work Related.
--Form FRA F 6180.39i--RR          654 Class I & II RR/  1,000 forms.........  90 minutes..........        1,500
 Accident Notification & Initial    55 Federal/State
 Investigation Report.              agencies/562
                                    inspectors.
--New Requirement--Form FRA F      718 railroads.......  950 forms...........  50 minutes..........          792
 6180.150--Highway User
 Statement--Sent Out by RRs to
 Potentially Injured Individuals.
--New Requirement--Form FRA        950 possibly injured  665 forms...........  45 minutes..........          499
 F6180.150--Highway User            individuals.
 Statement Return Responses by
 Persons.
225.25--Posting of Monthly         718 railroads.......  8,616 lists.........  16 minutes..........        2,298
 Summary.
225.27--Retention of Records--FRA  718 railroads.......  18,900 records......  2 minutes...........          630
 F 6180.98 (New Requirement).
--Form FRA F 6180.107............  718 railroads.......  300 records.........  2 minutes...........           10
--Monthly List of Employee         718 railroads.......  8,616 records.......  2 minutes...........          288
 Injuries.
--Form FRA F 6180.97 records.....  718 railroads.......  18,200 records......  2 minutes...........          607
--Records required under section   718 railroads.......  2,675 records.......  2 minutes...........           89
 225.12.
--New Requirement--Electronic      718 railroads.......  18 systems..........  120 hours...........        2,160
 Recordkeeping System
 Requirements and RR System
 Modifications.
225.33--Internal Control Plans--   718 railroads.......  25 amendments.......  14 hours............          350
 Amended.
225.35--Access to Records and      15 railroads........  400 lists...........  20 minutes..........          133
 Reports--Lists.
--Subsequent Years...............  4 railroads.........  16 lists............  20 minutes..........            5
225.37--Optical Media Transfers..  8 railroads.........  200 transfers.......  3 minutes...........           10
--Electronic Submissions--Form     718 railroads.......  2,400 forms.........  3 minutes...........          120
 FRA F 6180.55.
225.6--Consolidated Reporting--    718 railroads.......  4 requests..........  40 hours............          160
 New Requirements--Written
 Request by RR.
--Written agreements on            718 railroads.......  4 agreements........  2 hours.............            8
 subsidiaries.

[[Page 68901]]

 
--Notifications on changes to      718 railroads.......  1 notification + 1    1 hr. + 1 hr........            2
 subsidiaries and amended written                         agreement.
 agreement.
225.9--Telephone Reports--Certain  718 railroads.......  3,300 reports.......  15 minutes..........          825
 Accidents/Incidents and Other
 Events.
225.11--Reporting of Rail          718 railroads.......  3,600 forms.........  2 hours.............        7,200
 Equipment Accidents/Incidents
 (Form FRA F 6180.54).
225.12(a)--Form FRA F 6180.81--    718 railroads.......  1,600 forms.........  15 minutes..........          400
 Rail Equipment Accident/Incident
 Reports--Human Factor.
225.12(b)--Form FRA F 6180.78--    718 railroads.......  1,000 notices +       10 minutes + 3                367
 Part I Rail Equipment Accident/                          4,000 copies + 10     minutes.
 Incident Reports--(Human Factor).                        copies.
225.12(c)--Rail Equipment          718 railroads.......  100 requests........  20 minutes..........           33
 Accident/Incident Reports--Human
 Factor--Joint Operations.
225.12(d)--Rail Equipment          718 railroads.......  20 attachments + 20   15 minutes..........           10
 Accident/Incident Reports--Human                         notices.
 Factor--Late Identification.
225.12(g)--Rail Equipment          718 railroads.......  75 statements.......  1.5 hours...........          113
 Accident/Incident Reports--Human
 Factor--Employee Supplement--
 Part II Form FRA F 6180.78.
225.12(g)(3)--Rail Equipment       RR Employees........  10 letters..........  2 hours.............           20
 Accident/Incident Reports--Human
 Factor--Employee Confidential
 Letter.
225.13--Late Reports.............  718 railroads.......  25 reports..........  1 hour..............           25
--Amended Rail Equipment Accident/ 718 railroads.......  50 amended rpts/40    1 hour + 3 minutes..           52
 Incident Reports.                                        copies.
225.18--Alcohol or Drug            718 railroads.......  80 reports..........  30 minutes..........           40
 Involvement.
--Appended Reports...............  718 railroads.......  5 reports...........  30 minutes..........            3
225.19--Highway-Rail Grade         718 railroads.......  2,880 forms.........  2 hours.............        5,760
 Crossing Accident/Incident
 Reports--Form FRA F 6180.57.
--Death, Injury, or Occupational   718 railroads.......  11,544 forms........  20 minutes..........        3,848
 Illness--(Form FRA F 6180.55a).
--Trespasser Fatalities (FRA F     718 railroads.......  486 forms...........  50 minutes..........          405
 6180.55a).
--New Requirement--Suicide/        718 railroads.......  608 forms...........  65 minutes..........          659
 Attempted Suicide Data(FRA F
 6180.55a).
225.21 Forms
--Form FRA F 6180.55--Railroad     718 railroads.......  8,616 forms.........  10 minutes..........        1,436
 Injury/Illness Summary.
--Form FRA F 6180.56--Railroad     718 railroads.......  718 forms...........  15 minutes..........          180
 Annual Report of Man Hours by
 State.
--Form FRA F 6180.98--Railroad     718 railroads.......  18,900 forms........  1 hour..............       18,900
 Employee--Injury and/or Illness
 Record.
--Form FRA F 6180.98--Copies.....  718 railroads.......  567 copies..........  2 minutes...........           19
--Form FRA F 6180.97--Initial      718 railroads.......  18,200 forms........  30 minutes..........        9,100
 Rail Equipment Accident/Incident
 Record.
--New Requirement--Suicide/        718 railroads.......  1 form..............  30 minutes..........            1
 Attempted Suicide Narrative--
 Form FRA F 6180.97.
--Form FRA F 6180.107--Alternate   718 railroads.......  300 forms...........  75 minutes..........          375
 Record for Illnesses Claimed To
 Be Work Related.
--Form FRA F 6180.39i--RR          654 Class I & II RR/  1,000 forms.........  90 minutes..........        1,500
 Accident Notification & Initial    55 Federal/State
 Investigation Report.              agencies/562
                                    inspectors.
--New Requirement--Form FRA F      718 railroads.......  950 forms...........  50 minutes..........          792
 6180.150--Highway User Statement-
 Sent Out by RRs to Potentially
 Injured Individuals.
--New Requirement--Form FRA        950 possibly injured  665 forms...........  45 minutes..........          499
 F6180.150--Highway User            Individuals.
 Statement Return Responses by
 Persons.
225.25--Posting of Monthly         718 railroads.......  8,616 lists.........  16 minutes..........        2,298
 Summary.
225.27--Retention of Records--FRA  718 railroads.......  18,900 records......  2 minutes...........          630
 F 6180.98 (New Requirement).
--Form FRA F 6180.107............  718 railroads.......  300 records.........  2 minutes...........           10
--Monthly List of Employee         718 railroads.......  8,616 records.......  2 minutes...........          288
 Injuries.
--Form FRA F 6180.97 records.....  718 railroads.......  18,200 records......  2 minutes...........          607
--Records required under section   718 railroads.......  2,675 records.......  2 minutes...........           89
 225.12.
--New Requirement--Electronic      718 railroads.......  18 systems..........  120 hours...........        2,160
 Recordkeeping System
 Requirements and RR System
 Modifications.
225.33--Internal Control Plans--   718 railroads.......  25 amendments.......  14 hours............          350
 Amended.
225.35--Access to Records and      15 railroads........  400 lists...........  20 minutes..........          133
 Reports--Lists.
--Subsequent Years...............  4 railroads.........  16 lists............  20 minutes..........            5
225.37--Optical Media Transfers..  8 railroads.........  200 transfers.......  3 minutes...........           10
--Electronic Submissions--Form     718 railroads.......  2,400 forms.........  3 minutes...........          120
 FRA F 6180.55.
----------------------------------------------------------------------------------------------------------------


[[Page 68902]]

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. For information or a copy of the 
paperwork package submitted to OMB, contact Mr. Robert Brogan at 202-
493-6292 or Ms. Kimberly Toone at 202-493-6132 or via e-mail at the 
following addresses: [email protected]; [email protected].
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to the Office 
of Management and Budget, Office of Information and Regulatory Affairs, 
725 17th St., NW., Washington, DC 20503, attn: FRA Desk Officer. 
Comments may also be sent via e-mail to the Office of Management and 
Budget at the following address: [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this final rule between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication.
    FRA cannot 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 information collection requirements resulting from this 
rulemaking action prior to the effective date of this final rule. The 
OMB control number, when assigned, will be announced by separate notice 
in the Federal Register.

D. Federalism Implications

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132, ``Federalism'' (64 FR 
43255, Aug. 10, 1999), which requires FRA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects 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.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the proposed regulation. Where a regulation has federalism implications 
and preempts State law, the agency seeks to consult with State and 
local officials in the process of developing the regulation.
    FRA has determined that this final rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, nor on the distribution of power and 
responsibilities among various levels of government. In addition, FRA 
has determined that this final rule will not impose substantial direct 
compliance costs on State and local governments. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply. AAJ commented that FRA should delete any language in the 
preamble regarding the preemption of State common law claims. AAJ 
stated that, contrary to the agency's assertions, the Federal Railroad 
Safety Act of 1970 (FRSA) does not authorize the preemption of State 
common law claims. AAJ claimed that FRA regulations have never lawfully 
preempted State law claims. The petition also stated that Congress 
reiterated its intent to preserve State tort claims against negligent 
railroads. Finally, AAJ argued that agency rules must clearly follow 
the FRSA's limited preemption language, and that State common law 
should govern railroad safety issues.
    Although this final rule removes the preemption language previously 
contained in part 225, FRA notes that this part could have preemptive 
effect by the operation of law under the FRSA. See 49 U.S.C. 20106. 
Section 20106 provides that States may not adopt or continue in effect 
any law, regulation, or order related to railroad safety or security 
that covers the subject matter of a regulation prescribed or issued by 
the Secretary of Transportation (with respect to railroad safety 
matters) or the Secretary of Homeland Security (with respect to 
railroad security matters), except when the State law, regulation, or 
order qualifies under the ``essentially local safety or security 
hazard'' exception to Sec.  20106.
    In sum, FRA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132, and has 
determined that preparation of a federalism summary impact statement 
for this final rule is not required.

E. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and, where appropriate, that they be the basis for U.S. 
standards. This rulemaking is purely domestic in nature and is not 
expected to affect trade opportunities for U.S. firms doing business 
overseas or for foreign firms doing business in the United States.

F. Environmental Impact

    FRA has evaluated this final rule in accordance with its 
``Procedures for Considering Environmental Impacts'' (FRA's Procedures) 
(64 FR 28545; May 26, 1999) as required by the National Environmental 
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, 
Executive Orders, and related regulatory requirements. FRA has 
determined that this final rule is not a major FRA action (requiring 
the preparation of an environmental impact statement or environmental 
assessment) because it is categorically excluded from detailed 
environmental review pursuant to section 4(c)(20) of FRA's Procedures. 
See 64 FR 28547; May 26, 1999. Section 4(c)(20) reads as follows:

    Actions categorically excluded. Certain classes of FRA actions 
have been determined to be categorically excluded from the 
requirements of these Procedures as they do not individually or 
cumulatively have a significant effect on the human environment. * * 
* The following classes of FRA actions are categorically excluded: * 
* * Promulgation of railroad safety rules and policy statements that 
do not result in significantly increased emissions or air or water 
pollutants or noise or increased traffic congestion in any mode of 
transportation.

    In accordance with section 4(c) and (e) of FRA's Procedures, the 
agency has further concluded that no extraordinary circumstances exist 
with respect to this regulation that might trigger the need for a more 
detailed environmental review. As a result, FRA finds that this final 
rule is not a major Federal action significantly affecting the quality 
of the human environment.

[[Page 68903]]

G. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless 
otherwise prohibited by law, assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
(other than to the extent that such regulations incorporate 
requirements specifically set forth in law).'' Section 202 of the Act 
(2 U.S.C. 1532) further requires that ``before promulgating any general 
notice of proposed rulemaking that is likely to result in the 
promulgation of any rule that includes any Federal mandate that may 
result in expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more (adjusted 
annually for inflation) [$140.8 million in 2010] in any 1 year, and 
before promulgating any final rule for which a general notice of 
proposed rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and tribal 
governments and the private sector. This final rule would not result in 
the expenditure, in the aggregate, of $140.8 million or more in any one 
year, and thus preparation of such a statement is not required.

H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a 
Statement of Energy Effects for any ``significant energy action.'' 66 
FR 28355, May 22, 2001. Under the Executive Order, a ``significant 
energy action'' is defined as any action by an agency (normally 
published in the Federal Register) that promulgates or is expected to 
lead to the promulgation of a final rule or regulation, including 
notices of inquiry, advance notices of proposed rulemaking, and notices 
of proposed rulemaking: (1)(i) That is a significant regulatory action 
under Executive Order 12866 or any successor order, and (ii) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy; or (2) that is designated by the Administrator of the 
Office of Information and Regulatory Affairs as a significant energy 
action. FRA has evaluated this final rule in accordance with Executive 
Order 13211. FRA has determined that this final rule is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Consequently, FRA has determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.

I. Privacy Act

    Interested parties should be aware that anyone is able to search 
the electronic form of all comments received into any agency docket by 
the name of the individual submitting the comment (or signing the 
comment, if submitted on behalf of an association, business, labor 
union, etc.). To get more information on this matter and to view the 
Regulations.gov Privacy Notice go to http://www.regulations.gov/search/footer/privacyanduse.jsp. You may review DOT's complete Privacy Act 
Statement in the Federal Register published on April 11, 2000 (65 FR 
19477-78).

List of Subjects in 49 CFR Part 225

    Investigations, Penalties, Railroad safety, Reporting and 
recordkeeping requirements.

The Final Rule

    For the reasons discussed in the preamble, FRA amends part 225 of 
chapter II, subtitle B of Title 49, Code of Federal Regulations, as 
follows:

PART 225--[AMENDED]

0
1. The authority citation for part 225 continues to read as follows:

    Authority:  49 U.S.C. 103, 322(a), 20103, 20107, 20901-02, 
21301, 21302, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.


0
2. Section 225.1 is revised to read as follows:


Sec.  225.1  Purpose.

    The purpose of this part is to provide the Federal Railroad 
Administration with accurate information concerning the hazards and 
risks that exist on the Nation's railroads. FRA needs this information 
to effectively carry out its regulatory responsibilities under 49 
U.S.C. chapters 201-213. FRA also uses this information for determining 
comparative trends of railroad safety and to develop hazard elimination 
and risk reduction programs that focus on preventing railroad injuries 
and accidents. Any State may require railroads to submit to it copies 
of accident/incident and injury/illness reports filed with FRA under 
this part, for accidents/incidents and injuries/illnesses which occur 
in that State.


0
3. Section 225.3 is amended by revising the introductory text of 
paragraph (b) to read as follows:


Sec.  225.3  Applicability.

* * * * *
    (b) The Internal Control Plan requirements in Sec.  225.33(a)(3) 
through (a)(11) do not apply to--
* * * * *


0
4. Section 225.5 is amended as follows:
0
a. By adding definitions for ``discernable cause,'' ``event or 
exposure,'' ``injury or illness,'' ``railroad carrier,'' ``significant 
aggravation of a pre-existing injury or illness,'' and ``suicide 
data'';
0
b. By revising paragraphs (1) and (3) in the definition of ``accident/
incident''; and
0
c. By revising the definitions of ``accountable injury or illness,'' 
``accountable rail equipment accident/incident,'' ``event or exposure 
arising from the operation of a railroad,'' ``general reporting 
criteria,'' ``highway-rail grade crossing,'' ``new case,'' ``qualified 
health care professional,'' ``railroad,'' ``work environment,'' and 
``work-related.''
    The additions and revisions read as follows:


Sec.  225.5  Definitions.

    As used in this part--
    Accident/incident means:
    (1) Any impact between railroad on-track equipment and a highway 
user at a highway-rail grade crossing. The term ``highway user'' 
includes automobiles, buses, trucks, motorcycles, bicycles, farm 
vehicles, pedestrians, and all other modes of surface transportation 
motorized and un-motorized;
* * * * *
    (3) Each death, injury, or occupational illness that is a new case 
and meets the general reporting criteria listed in Sec.  225.19(d)(1) 
through (d)(6) if an event or exposure arising from the operation of a 
railroad is a discernable cause of the resulting condition or a 
discernable cause of a significant aggravation to a pre-existing injury 
or illness. The event or exposure arising from the operation of a 
railroad need only be one of the discernable causes; it need not be the 
sole or predominant cause.
    Accountable injury or illness means any abnormal condition or 
disorder of a railroad employee that causes or requires the railroad 
employee to be examined or treated by a qualified health care 
professional, regardless of whether or not it meets the general 
reporting criteria listed in Sec.  225.19(d)(1) through (d)(6), and the 
railroad employee claims that, or the railroad otherwise has knowledge 
that, an event or exposure arising from the operation of the railroad 
is a discernable cause of the abnormal condition or disorder.

[[Page 68904]]

    Accountable rail equipment accident/incident means
    (1) Any derailment regardless of whether or not it causes any 
damage or
    (2) Any collision, highway-rail grade crossing accident/incident, 
obstruction accident, other impact, fire or violent rupture, explosion-
detonation, act of God, or other accident/incident involving the 
operation of railroad on-track equipment (standing or moving) that 
results in damage to the railroad on-track equipment (standing or 
moving), signals, track, track structures or roadbed and that damage 
impairs the functioning or safety of the railroad on-track equipment 
(standing or moving), signals, track, track structures or roadbed.
* * * * *
    Discernable cause means a causal factor capable of being recognized 
by the senses or the understanding. An event or exposure arising from 
the operation of a railroad is a discernable cause of (i.e., 
discernably caused) an injury or illness if, considering the 
circumstances, it is more likely than not that the event or exposure is 
a cause of the injury or illness. The event or exposure arising from 
the operation of a railroad need not be a sole, predominant or 
significant cause of the injury or illness, so long as it is a cause 
(i.e., a contributing factor).
* * * * *
    Event or exposure includes an incident, activity, or occurrence.
    Event or exposure arising from the operation of a railroad means--
    (1) With respect to a person who is not an employee of the 
railroad:
    (i) A person who is on property owned, leased, maintained or 
operated by the railroad, an event or exposure that is related to the 
performance of the railroad's rail transportation business; or
    (ii) A person who is not on property owned, leased, maintained or 
operated over by the railroad, an event or exposure directly resulting 
from one or more of the following railroad operations:
    (A) A train accident, a train incident, or a non-train incident 
involving the railroad; or
    (B) A release of a hazardous material from a railcar in the 
possession of the railroad or of another dangerous commodity that is 
related to the performance of the railroad's rail transportation 
business.
    (2) With respect to a person who is an employee of the railroad, an 
event or exposure that is work-related.
* * * * *
    General reporting criteria means the criteria listed in Sec.  
225.19(d)(1) through (6).
    Highway-rail grade crossing means:
    (1) A location where a public highway, road, or street, or a 
private roadway, including associated sidewalks, crosses one or more 
railroad tracks at grade; or
    (2) A location where a pathway explicitly authorized by a public 
authority or a railroad carrier that is dedicated for the use of non-
vehicular traffic, including pedestrians, bicyclists, and others, that 
is not associated with a public highway, road, or street, or a private 
roadway, crosses one or more railroad tracks at grade. The term 
``sidewalk'' means that portion of a street between the curb line, or 
the lateral line of a roadway, and the adjacent property line or, on 
easements of private property, that portion of a street that is paved 
or improved and intended for use by pedestrians.
    Injury or illness means an abnormal condition or disorder. Injuries 
include cases such as, but not limited to, a cut, fracture, sprain, or 
amputation. Illnesses include both acute and chronic illnesses, such as 
but not limited to, a skin disease, respiratory disorder, or poisoning. 
A musculoskeletal disorder is also an injury or illness. Pain is an 
injury or illness when it is sufficiently severe to meet the general 
reporting criteria listed in Sec.  225.19(d)(1) through (6).
* * * * *
    New case means a case in which either the injured or ill person has 
not previously experienced a reported injury or illness of the same 
type that affects the same part of the body, or the injured or ill 
person previously experienced a reported injury or illness of the same 
type that affected the same part of the body but had recovered 
completely (all signs and/or symptoms disappeared) from the previous 
injury or illness, and an event or exposure arising from the operation 
of a railroad discernably caused the signs and/or symptoms to reappear.
* * * * *
    Qualified health care professional is a health care professional 
operating within the scope of his or her license, registration, or 
certification. In addition to licensed physicians, the term includes 
members of other occupations associated with patient care and treatment 
such as chiropractors, podiatrists, physicians assistants, 
psychologists, and dentists.
    Railroad means a railroad carrier.
    Railroad carrier means a person providing railroad transportation.
* * * * *
    Significant aggravation of a pre-existing injury or illness means 
aggravation of a pre-existing injury or illness that is discernably 
caused by an event or exposure arising from the operation of a railroad 
that results in:
    (1) With respect to any person:
    (i) Death, provided that the pre-existing injury or illness would 
likely not have resulted in death but for the event or exposure;
    (ii) Loss of consciousness, provided that the pre-existing injury 
or illness would likely not have resulted in loss of consciousness but 
for the event or exposure; or
    (iii) Medical treatment in a case where no medical treatment was 
needed for the injury or illness before the event or exposure, or a 
change in the course of medical treatment that was being provided 
before the event or exposure.
    (2) With respect to a railroad employee, one or more days away from 
work, or days of restricted work, or days of job transfer that 
otherwise would not have occurred but for the event or exposure.
* * * * *
    Suicide data means data regarding the death of an individual due to 
the individual's commission of suicide as determined by a coroner, 
public police officer or other public authority or injury to an 
individual due to that individual's attempted commission of suicide as 
determined by a public police office or other public authority. Only 
the death of, or injury to, the individual who committed the suicidal 
act is suicide data. Therefore, casualties to a person caused by the 
suicidal act of another person are not considered suicide data.
* * * * *
    Work environment means the establishment and other locations where 
one or more railroad employees are working or present as a condition of 
their employment. The work environment includes not only physical 
locations, but also the equipment or materials processed or used by an 
employee during the course of his or her work, and activities of a 
railroad employee associated with his or her work, whether on or off 
the railroad's property.
    Work-related means related to an event or exposure occurring within 
the work environment. An injury or illness is presumed work-related if 
an event or exposure occurring in the work environment is a discernable 
cause of the resulting condition or a discernable cause of a 
significant aggravation to a pre-existing injury or illness. The causal 
event or exposure need not be peculiarly occupational so long as it 
occurs at work. For example, a causal

[[Page 68905]]

event or exposure may be outside the employer's control, such as a 
lightning strike; involve activities that occur at work but are not 
directly productive, such as horseplay; or involve activities that are 
not peculiar to work, such as walking on a level floor, bending down, 
climbing stairs or sneezing. Such activities, along with other normal 
body movements, are considered events. So long as the event or exposure 
occurred at work and is a discernable cause of the injury or illness, 
the injury or illness is work-related. It does not matter whether there 
are other or bigger causes as well, or that the activity at work is no 
different from actions performed outside work. If an injury is within 
the presumption of work-relatedness, the employer can rebut work-
relatedness only by showing that the case falls within an exception 
listed in Sec.  225.15. In cases where it is not obvious whether a 
precipitating event or exposure occurred at work or outside work, the 
employer must evaluate the employee's work duties and environment and 
decide whether it is more likely than not that an event or exposure at 
work was at least one of the causes of the injury of the injury or 
illness.

0
5. Section 225.6 is added to read as follows:


Sec.  225.6  Consolidated reporting.

    A parent corporation may request in writing that FRA treat its 
commonly controlled railroad carriers, which operate as a single, 
seamless, integrated United States rail system, as a single railroad 
carrier for purposes of this part.
    (a) The written request must include the following:
    (1) A list of the subsidiary railroads controlled by the parent 
corporation; and
    (2) An explanation as to how the subsidiary railroads operate as a 
single, seamless, integrated United States railroad system.
    (b) The request must be sent to the FRA Docket Clerk, Federal 
Railroad Administration, U.S. Department of Transportation, RCC-10, 
Mail Stop 10, West Building 3rd Floor, Room W31-109, 1200 New Jersey 
Avenue, SE., Washington, DC 20590. Each request received shall be 
acknowledged in writing. The acknowledgment shall contain the docket 
number assigned to the request and state the date the request was 
received.
    (c) FRA will notify the applicant parent corporation of the 
agency's decision within 90 days of receipt of the application.
    (d) If FRA approves the request, the parent corporation must enter 
into a written agreement with FRA specifying which subsidiaries are 
included in its railroad system, agreeing to assume responsibility for 
compliance with this part for all named subsidiaries making up the 
system, and consenting to guarantee any monetary penalty assessments or 
other liabilities owed to the United States government that are 
incurred by the named subsidiaries for violating Federal accident/
incident reporting requirements. Any change in the subsidiaries making 
up the railroad system requires immediate notification to FRA and 
execution of an amended agreement. Executed agreements will be 
published in the docket.


0
6. Section 225.7 is amended by revising paragraph (a) to read as 
follows:


Sec.  225.7  Public examination and use of reports.

    (a) Accident/Incident reports made by railroads in compliance with 
these rules shall be available to the public in the manner prescribed 
by part 7 of this title. Accident/Incident reports may be inspected at 
the U.S. Department of Transportation, Federal Railroad Administration, 
Office of Safety, West Building 3rd Floor, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Written requests for a copy of a report should be 
addressed to the Freedom of Information Act Coordinator, Office of 
Chief Counsel, Federal Railroad Administration, U.S. Department of 
Transportation, RCC-10, Mail Stop 10, West Building 3rd Floor, Room 
W33-437, 1200 New Jersey Avenue, SE., Washington, DC 20590, and be 
accompanied by the appropriate fee prescribed in part 7 of this title. 
To facilitate expedited handling, each request should be clearly marked 
``FOIA Request for Accident/Incident Report.'' For additional 
information on submitting a FOIA request to FRA see FRA's Web site at 
http://www.fra.dot.gov/us/foia.

* * * * *

0
7. Section 225.9 is amended by revising paragraph (a)(2)(iii) and (iv) 
to read as follows:


Sec.  225.9  Telephonic reports of certain accidents/incidents and 
other events.

    (a) * * *
    (2) * * *
    (iii) A fatality resulting from a train accident or train incident 
at a highway-rail grade crossing when death occurs within 24 hours of 
the accident/incident;
    (iv) A train accident resulting in damage (based on a preliminary 
gross estimate) of $150,000 or more to railroad and nonrailroad 
property; or

* * * * *

0
8. Section 225.11 is revised to read as follows:


Sec.  225.11  Reporting of accidents/incidents.

    (a) Each railroad subject to this part shall submit to FRA a 
monthly report of all railroad accidents/incidents described below:
    (1) Highway-rail grade crossing accidents/incidents described in 
Sec.  225.19;
    (2) Rail equipment accidents/incidents described in Sec.  225.19; 
and
    (3) Death, injury and occupational illness accidents/incidents 
described in Sec.  225.19.
    (b) The report shall be made on the forms prescribed in Sec.  
225.21 in hard copy or, alternatively, by means of optical media or 
electronic submission via the Internet, as prescribed in Sec.  225.37, 
and shall be submitted within 30 days after expiration of the month 
during which the accidents/incidents occurred. Reports shall be 
completed as required by the current FRA Guide. A copy of the FRA Guide 
may be obtained from the U.S. Department of Transportation, Federal 
Railroad Administration, Office of Safety Analysis, RRS-22, Mail Stop 
25 West Building 3rd Floor, Room W33-107, 1200 New Jersey Avenue, SE., 
Washington, DC 20590 or downloaded from FRA's Office of Safety Analysis 
Web site at http://safetydata.fra.dot.gov/officeofsafety/, and click on 
``Click Here for Changes in Railroad Accident/Incident Recordkeeping 
and Reporting.''


0
9. Section 225.12 is amended by revising paragraph (g)(3) to read as 
follows:


Sec.  225.12  Rail Equipment Accident/Incident Reports alleging 
employee human factor as cause; Employee Human Factor Attachment; 
notice to employee; employee supplement.

* * * * *
    (g) * * *
    (3) Information that the employee wishes to withhold from the 
railroad must not be included in this Supplement. If an employee wishes 
to provide confidential information to FRA, the employee should not use 
the Supplement form (part II of Form FRA F 6180.78, ``Notice to 
Railroad Employee Involved in Rail Equipment Accident/Incident 
Attributed to Employee Human Factor; Employee Statement Supplementing 
Railroad Accident Report''), but rather provide such confidential 
information by other means, such as a letter to the employee's

[[Page 68906]]

collective bargaining representative, or to the U.S. Department of 
Transportation, Federal Railroad Administration, Office of Safety 
Analysis, RRS-22, Mail Stop 25 West Building 3rd Floor, Room W 33-306, 
1200 New Jersey Avenue, SE., Washington, DC 20590. The letter should 
include the name of the railroad making the allegations, the date and 
place of the accident, and the rail equipment accident/incident number.

* * * * *

0
10. Section 225.15 is revised to read as follows:


Sec.  225.15  Accidents/incidents not to be reported.

    The following accidents/incidents are not reportable:
    (a) With respect to persons other than railroad employees. A 
railroad is not to report injuries that occur at highway-rail grade 
crossings that do not involve the presence or operation of on-track 
equipment, or the presence of railroad employees then engaged in the 
operation of a railroad;
    (b) With respect to railroad employees on duty. A railroad is not 
to report the following injuries to or illnesses of a railroad employee 
as Worker on Duty--Employee (Class A), if any of the conditions in this 
paragraph (b) are met. (These exceptions apply only to Worker on Duty--
Employee (Class A) and do not affect a railroad's obligation to report 
these injuries and illnesses as other types of persons (Employee Not On 
Duty (Class B); Passenger on Trains (Class C); Nontrespassers-On 
Railroad Property (Class D); Trespassers (Class E)), or a railroad's 
obligation to maintain a ``Railroad Employee Injury/Illness Record'' 
(Form FRA F 6180.98 or alternative railroad-designed form)).
    (1) The injury or illness occurred in or about living quarters and 
an event or exposure not arising from the operation of a railroad was 
the cause;
    (2) At the time of the injury or illness, the employee was present 
in the work environment as a member of the general public rather than 
as an employee; or
    (3) The injury or illness is caused by a motor vehicle accident and 
occurs on a company parking lot or company access road while the 
employee is commuting to or from work.
    (c) With respect to railroad employees on or off duty. A railroad 
is not to report the following injuries to or illnesses of a railroad 
employee, Worker on Duty--Employee (Class A) or Employee Not on Duty 
(Class B), if any of the following conditions in this paragraph (c) are 
met:
    (1) The injury or illness involves signs or symptoms that surface 
at work but result solely from a non-work-related event or exposure 
that occurs outside the work environment;
    (2) The injury or illness results solely from voluntary 
participation in a wellness program or in a medical, fitness, or 
recreational activity such as blood donation, physical examination, flu 
shot, exercise class, racquetball, or baseball;
    (3) The injury or illness is solely the result of an employee 
eating, drinking, or preparing food or drink for personal consumption. 
However, if the employee is made ill by ingesting food contaminated by 
workplace contaminants (such as lead), or gets food poisoning from food 
supplied by the employer, the case would be considered work-related and 
reported as either a Worker on Duty--Employee (Class A) or Employee Not 
on Duty (Class B) depending on the employees duty status;
    (4) The injury or illness is solely the result of an employee doing 
personal tasks (unrelated to their employment) at the establishment 
outside of the employee's assigned working hours;
    (5) The injury or illness is solely the result of personal 
grooming, self medication for a non-work-related condition, or is 
intentionally self-inflicted (except that for FRA reporting purposes a 
railroad shall not exclude an accountable or reportable injury or 
illness that is the result of a suicide or attempted suicide);
    (6) The illness is the common cold or flu (Note: contagious 
diseases such as tuberculosis, brucellosis, hepatitis A, or plague are 
considered work-related if the employee is infected at work); or
    (7) The illness is a mental illness. Mental illness will not be 
considered work-related unless the employee voluntarily provides the 
employer with an opinion from a physician or other licensed health care 
professional with appropriate training and experience (psychiatrist, 
psychologist, psychiatric nurse practitioner, etc.) stating that the 
employee has a mental illness that is work-related.
    (d) With respect to contractors and volunteers. A railroad is not 
to report injuries to contractors and volunteers that are listed in 
paragraphs (b) and (c) of this section. For purposes of this paragraph 
only, an exception listed in paragraphs (b) and (c) referencing ``work 
environment'' is construed to mean for contractors and volunteers only, 
on property owned, leased, operated over or maintained by the railroad.
    (e) With respect to rail equipment accidents/incidents. A railroad 
is not to report rail equipment accidents/incidents if the conditions 
in this paragraph are met. (This exception does not affect a railroad's 
obligation to maintain records of accidents/incidents as required by 
Sec.  225.25 (Form FRA F 6180.97, ``Initial Rail Equipment Accident/
Incident Record'')).
    (1) Cars derailed on industry tracks by non-railroad employees or 
non-railroad employee vandalism, providing there is no involvement of 
railroad employees; and
    (2) Damage to out of service cars resulting from high water or 
flooding (e.g., empties placed on a storage or repair track). This 
exception does not apply if such cars are placed into a moving consist 
and as a result of this damage a reportable rail equipment accident 
results.


Sec.  225.17  [Amended]


0
11. Section 225.17 is amended by removing paragraph (d).
0
12. Section 225.18 is added to read as follows:


Sec.  225.18  Alcohol or drug involvement.

    (a) In preparing Form FRA F 6180.54, ``Rail Equipment Accident/
Incident Report,'' under this part, the railroad shall make such 
specific inquiry as may be reasonable under the circumstances into the 
possible involvement of alcohol or drug use or impairment in such 
accident or incident. If the railroad comes into possession of any 
information whatsoever, whether or not confirmed, concerning alleged 
alcohol or drug use or impairment by an employee who was involved in, 
or arguably could be said to have been involved in, the accident/
incident, the railroad shall report such alleged use or impairment as 
provided in the current FRA Guide. If the railroad is in possession of 
such information but does not believe that alcohol or drug impairment 
was the primary or contributing cause of the accident/incident, then 
the railroad shall include in the narrative statement of such report a 
brief explanation of the basis of such determination.
    (b) For any train accident within the requirement for post-accident 
testing under Sec.  219.201 of this chapter, the railroad shall append 
to the Form FRA F 6180.54, ``Rail Equipment Accident/Incident Report,'' 
any report required by 49 CFR 219.209(b) (pertaining to failure to 
obtain samples for post-accident toxicological testing).
    (c) For any train or non-train incident, the railroad shall provide 
any available information concerning the possible involvement of 
alcohol or drug use or impairment in such accident or incident.

[[Page 68907]]

    (d) In providing information required by this section, a railroad 
shall not disclose any information concerning use of controlled 
substances determined by the railroad's Medical Review Officer to have 
been consistent with 49 CFR 219.103.


0
13. Section 225.19 is amended by revising paragraph (d) to read as 
follows:


Sec.  225.19  Primary groups of accidents/incidents.

* * * * *
    (d) Group III--Death, injury, or occupational illness. Each death, 
injury, or occupational illness that is a new case and meets the 
general reporting criteria listed in paragraphs (d)(1) through (6) of 
this section shall be reported to FRA on Form FRA F 6180.55a, 
``Railroad Injury and Illness Summary (Continuation Sheet)'' if an 
event or exposure arising from the operation of a railroad is a 
discernable cause of the resulting condition or a discernable cause of 
a significant aggravation to a pre-existing injury or illness. The 
event or exposure arising from the operation of a railroad need only be 
one of the discernable causes; it need not be the sole or predominant 
cause. The general injury/illness reporting criteria are as follows:
    (1) Death to any person;
    (2) Injury to any person that results in:
    (i) Medical treatment;
    (ii) Significant injury diagnosed by a physician or other licensed 
health care professional even if it does not result in death, medical 
treatment or loss of consciousness of any person; or
    (iii) Loss of consciousness;
    (3) Injury to a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer; or
    (iii) Significant injury diagnosed by a physician or other licensed 
health care professional even if it does not result in death, medical 
treatment, loss of consciousness, a day away from work, restricted work 
activity or job transfer of a railroad employee;
    (4) Occupational illness of a railroad employee that results in:
    (i) A day away from work;
    (ii) Restricted work activity or job transfer;
    (iii) Loss of consciousness; or
    (iv) Medical treatment;
    (5) Significant illness of a railroad employee diagnosed by a 
physician or other licensed health care professional even if it does 
not result in death, a day away from work, restricted work activity or 
job transfer, medical treatment, or loss of consciousness;
    (6) Illness or injury that:
    (i) Meets the application of any of the following specific case 
criteria:
    (A) Needlestick or sharps injury to a railroad employee;
    (B) Medical removal of a railroad employee;
    (C) Occupational hearing loss of a railroad employee;
    (D) Occupational tuberculosis of a railroad employee;
    (E) Musculoskeletal disorder of a railroad employee if this 
disorder is reportable under one or more of the general reporting 
criteria; or
    (ii) Is a covered data case.

* * * * *

0
14. Section 225.21 is amended by revising the introductory text and 
paragraph (j) and adding paragraph (k) to read as follows:


Sec.  225.21  Forms.

    The following forms and copies of the ``FRA Guide for Preparing 
Accident/Incident Reports'' may be obtained from the U.S. Department of 
Transportation, Federal Railroad Administration, Office of Safety 
Analysis, RRS-22, Mail Stop 25 West Building 3rd Floor, Room W33-107, 
1200 New Jersey Avenue, SE., Washington, DC 20590 or downloaded from 
FRA's Office of Safety Analysis Web site at http://safetydata.fra.dot.gov/officeofsafety/, and click on ``Click Here for 
Changes in Railroad Accident/Incident Recordkeeping and Reporting.''
* * * * *
    (j) Form FRA F 6180.107--Alternative Record for Illnesses Claimed 
to be Work-Related. Form FRA F 6180.107 or an alternative railroad-
designed record may be used by a railroad in lieu of Form FRA F 
6180.98, ``Railroad Employee Injury and/or Illness Record'' (described 
in paragraph (h) of this section), to record each illness claimed by an 
employee to be work-related that is reported to the railroad for which 
there is insufficient information for the railroad to determine whether 
the illness is work-related. This record shall be completed and 
retained in accordance with the requirements set forth in Sec.  225.25 
and Sec.  225.27.
    (k) Form FRA F 6180.150--Highway User Injury Inquiry Form.--Form 
FRA F 6180.150 shall be sent to every potentially injured highway user, 
or their representative, involved in a highway-rail grade crossing 
accident/incident. If a highway user died as a result of the highway-
rail grade crossing accident/incident, a railroad must not send this 
form to any person. The railroad shall hand deliver or send by first 
class mail the letter within a reasonable time period following the 
date of the highway-rail grade crossing accident/incident. The form 
shall be sent along with a cover letter and a prepaid preaddressed 
return envelope. The form and cover letter shall be completed in 
accordance with instructions contained in the current ``FRA Guide for 
Preparing Accident/Incident Reports.'' Any response from a highway user 
is voluntary and not mandatory. A railroad shall use any response from 
a highway user to comply with part 225's accident/incident reporting 
and recording requirements.


0
15. Section 225.25 is amended by revising paragraphs (a), (b)(6) and 
(b)(28), (e)(28), and (i), and by adding paragraph (j) to read as 
follows:


Sec.  225.25  Recordkeeping.

    (a) Each railroad shall maintain either the Railroad Employee 
Injury and/or Illness Record (Form FRA F 6180.98) or an alternative 
railroad-designed record as described in paragraph (b) of this section 
of all reportable and accountable injuries and illnesses of its 
employees for each railroad establishment where such employees report 
to work, including, but not limited to, an operating division, general 
office, and major installation such as a locomotive or car repair or 
construction facility.
    (b) * * *
    (6) Employee identification number;
* * * * *
    (28) The railroad shall identify the preparer's name; title; 
telephone number with area code; and the date the record was initially 
signed/completed.
* * * * *
    (e) * * *
    (28) Date the record was initially signed/completed.
* * * * *
    (i) Claimed Occupational Illnesses. (1) Each railroad may maintain 
a Form FRA F 6180.107, ``Alternative Records for Illnesses Claimed to 
be Work-Related,'' or an alternate railroad-designed record as 
described in paragraph (j) of this section, in place of Form FRA F 
6180.98, ``Railroad Employee Injury and/or Illness Record,'' only for 
those claimed occupational illnesses for which the railroad has not 
received information sufficient to determine whether the occupational 
illness is work-related.
    (2) Each railroad shall enter each illness claimed to be work-
related on the appropriate record, as required by paragraph (i)(1) of 
this section, as early as practicable, but no later than seven working 
days after receiving information or acquiring knowledge that an 
employee is claiming they have incurred an occupational illness.

[[Page 68908]]

    (3) When a railroad does not receive information sufficient to 
determine whether a claimed occupational illness case is accountable or 
reportable, the railroad shall make a good faith effort to obtain the 
necessary information by December 1 of the next calendar year.
    (4) Within 15 calendar days of receiving additional information 
regarding a claimed occupational illness case, each railroad shall 
document receipt of the information, including date received and type 
of document/information received, in narrative block 19 of Form FRA F 
6180.107, ``Alternative Record for Illnesses Claimed to be Work-
Related.''
    (5) Within 45 calendar days of receiving additional information 
regarding a claimed occupational illness, each railroad shall re-
evaluate the claimed occupational illness to determine work-
relatedness, taking into account the new information, and document any 
findings resulting from the re-evaluation in narrative block 19 of Form 
FRA F 6180.107, ``Alternative Record for Illnesses Claimed to be Work-
Related.''
    (6) For any claimed occupational illness case determined to be 
accountable or reportable, each railroad shall:
    (i) Complete a Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record'' or alternative railroad-designed form within seven 
days of making such determination;
    (ii) Retain the Form FRA F 6180.98, ``Railroad Employee Injury and/
or Illness Record,'' in accordance with Sec.  225.27; and
    (iii) Report the occupational illness, as applicable, in accordance 
with Sec.  225.11.
    (7) For any claimed occupational illness case determined not to be 
accountable or reportable, each railroad shall include the following 
information in narrative block 19 of Form FRA F 6180.107, ``Alternative 
Record for Illnesses Claimed to be Work-Related'' or alternative 
railroad-designed form:
    (i) Why the case does not meet reporting criteria;
    (ii) The basis upon which the railroad made this determination; and
    (iii) The most authoritative information the railroad relied upon 
to make the determination.
    (8) Although Form FRA 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related'' (or the alternate railroad-designed form), 
may not include all supporting documentation, such as medical records, 
the alternative record shall note the custodian of those documents and 
where the supporting documents are located so that they are readily 
accessible to FRA upon request.
    (j) An alternative railroad-designed record may be used in lieu of 
the Form FRA F 6180.107, ``Alternative Record for Illnesses Claimed to 
be Work-Related.'' Any such alternative record shall contain all of the 
information required on the Form FRA F 6180.107. Although this 
information may be displayed in a different order from that on Form FRA 
F 6180.107, the order of the information shall be consistent from one 
such record to another such record. The order chosen by the railroad 
shall be consistent for all of the railroad's reporting establishments. 
Railroads may list additional information in the alternative record 
beyond the information required on Form FRA F 6180.107. The alternative 
record shall contain, at a minimum, the following information:
    (1) Name of Reporting Railroad;
    (2) Case/Incident Number;
    (3) Employee's Name (first, middle, last);
    (4) Employee's Date of Birth (mm/dd/yy);
    (5) Employee's Gender;
    (6) Employee Identification Number;
    (7) Date Employee was Hired (mm/dd/yy);
    (8) Employee's Home Address (include street address, city, State 
and Zip code);
    (9) Employee's Home Telephone Number (with area code);
    (10) Name of Facility Where Railroad Employee Normally Reports to 
Work;
    (11) Location, or Last Know Facility, Where Employee Reports to 
Work;
    (12) Job Title of Railroad Employee;
    (13) Department to Which Employee is Assigned;
    (14) Date on Which Employee or Representative Notified Company 
Personnel of Condition (mm/dd/yy);
    (15) Name of Railroad Official Notified;
    (16) Title of Railroad Official Notified;
    (17) Nature of Claimed Illness;
    (18) Supporting Documentation;
    (19) Custodian of Documents (Name, Title, and Address);
    (20) Location of Supporting Documentation;
    (21) Narrative;
    (22) Preparer's Name;
    (23) Preparer's Title;
    (24) Preparer's Telephone Number (with area code); and
    (25) Date the record was initially signed/completed (mm/dd/yy).


0
16. Section 225.27 is amended by revising paragraph (a) and adding 
paragraphs (c) and (d) to read as follows:


Sec.  225.27  Retention of records.

    (a)(1) Five-year retention period. Each railroad shall retain the 
following forms for at least five years after the end of the calendar 
year to which they relate:
    (i) Form FRA F 6180.98, ``Railroad Employee Injury and/or Illness 
Record;''
    (ii) Form FRA F 6180.107, ``Alternative Record for Illnesses 
Claimed to be Work-Related;''
    (iii) Monthly List of Injuries and Illnesses required by Sec.  
225.25; and
    (iv) Form FRA F 6180.150, ``Highway User Injury Inquiry Form.''
    (2) Two-year retention period. Each railroad shall retain the 
following forms for at least two years after the end of the calendar 
year to which they relate:
    (i) Form FRA F 6180.97, ``Initial Rail Equipment Accident/Incident 
Record,'' required by Sec.  225.25;
    (ii) The Employee Human Factor Attachments (Form FRA F 6180.81, 
``Employee Human Factor Attachment'') required by Sec.  225.12, that 
have been received by the railroad;
    (iii) The written notices to employees required by Sec.  225.12 
(Part I of Form FRA F 6180.78, ``Notice to Railroad Employee Involved 
in Rail Equipment Accident/Incident Attributed to Employee Human 
Factor; Employee Statement Supplementing Railroad Accident Report''), 
that have been received by the railroad; and
    (iv) The Employee Statements Supplementing Railroad Accident 
Reports described in Sec.  225.12(g) (Part II of Form FRA F 6180.78, 
``Notice to Railroad Employee Involved in Rail Equipment Accident/
Incident Attributed to Employee Human Factor; Employee Statement 
Supplementing Railroad Accident Report''), that have been received by 
the railroad.
* * * * *
    (c) Each railroad shall retain the original hard copy of each 
completed and signed Form FRA F 6180.55, ``Railroad Injury and Illness 
Summary,'' that the railroad submits to FRA on optical media (CD-ROM) 
or electronically via the Internet to [email protected] for at 
least five years after the calendar year to which it relates. If the 
railroad opts to submit the report to FRA electronically via the 
internet, the railroad must also retain a hard copy print out of FRA's 
electronic notice acknowledging receipt of the railroad's submission 
for a period of five years after the calendar year to which the report 
acknowledged relates.
    (d) Railroads may retain accident/incident records as required by 
paragraphs (a) and (b) of this section in hard copy format or in 
electronic format. After October 31, 2011,

[[Page 68909]]

accident/incident records, retained by railroads as required by 
paragraphs (a) and (b) of this section, in hard copy format or 
electronic format are subject to the following system requirements:
    (1) Design Requirements. Any electronic record keeping system used 
to retain a record required to be retained by this part shall meet the 
following design parameters:
    (i) The electronic record system shall be designed such that the 
integrity of each record is retained through appropriate levels of 
security such as recognition of an electronic signature, or other 
means, which uniquely identify the initiating person as the author of 
that record. No two persons shall have the same electronic identity;
    (ii) The electronic system shall ensure that each record cannot be 
modified, or replaced, once the record is submitted to FRA;
    (iii) Any amendment to a record shall be electronically stored 
apart from the record which it amends. Each amendment to a record shall 
uniquely identify the person making the amendment and the date the 
amendment was made;
    (iv) The electronic system shall provide for the maintenance of 
reports as originally submitted to FRA without corruption or loss of 
data; and
    (v) Policies and procedures must be in place to prevent persons 
from altering electronic records, or otherwise interfering with the 
electronic system.
    (2) Accessibility and availability. Any electronic record system 
used to create, maintain, or transfer a record required to be 
maintained by this part shall meet the following access and 
availability parameters:
    (i) Paper copies of electronic records and amendments to those 
records that may be necessary to document compliance with this part 
shall be provided to any representative of the FRA or of a State agency 
participating in investigative and/or surveillance activities under 
part 212 of this chapter or any other authorized representative for 
inspection and photocopying upon request in accordance with Sec.  
225.35; and
    (ii) Paper copies provided to FRA or of a State agency 
participating in investigative and/or surveillance activities under 
part 212 of this chapter or any other authorized representative shall 
be produced in a readable text format and all data shall be identified 
by narrative descriptions (e.g., ``accident/incident number,'' ``number 
of days away from work,'' ``date of occurrence,'' etc.).


0
17. Section 225.33 is amended by revising paragraph (a)(11) to read as 
follows:


Sec.  225.33  Internal Control Plans.

    (a) * * *
    (11) In the case of the Form FRA F 6180.107 or the alternate 
railroad-designed form, a statement that specifies the name(s), 
title(s) and address(es) of the custodian(s) of these records, all 
supporting documentation, such as medical records, and where the 
documents are located.

* * * * *

0
18. Section 225.37 is revised to read as follows:


Sec.  225.37  Optical media transfer and electronic submission.

    (a) A railroad has the option of submitting the following reports, 
updates, and amendments by way of optical media (CD-ROM), or by means 
of electronic submission via the Internet:
    (1) The Rail Equipment Accident/Incident Report (Form FRA F 
6180.54);
    (2) The Railroad Injury and Illness Summary (Form FRA F 6180.55);
    (3) The Railroad Injury and Illness Summary (Continuation Sheet) 
(Form FRA F 6180.55a);
    (4) The Highway-Rail Grade Crossing Accident/Incident Report (Form 
FRA F 6180.57); and
    (5) The Employee Human Factor Attachment (Form FRA F 6180.81) (the 
Employee Human Factor Attachment must be in .pdf or .jpg format only).
    (b) Each railroad utilizing the optical media option shall submit 
to FRA a computer CD-ROM containing the following:
    (1) An electronic image of the completed and signed hard copy of 
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or 
.jpg format only; and
    (2) The completed accident/incident report submissions.
    (c) (1) Each railroad utilizing the electronic submission via the 
Internet option shall submit to FRA at [email protected]:
    (i) An electronic image of the completed and signed hard copy of 
the Railroad Injury and Illness Summary (Form FRA F 6180.55) in .pdf or 
.jpg format only; and
    (ii) The completed accident/incident report submissions.
    (2) FRA will provide to the railroad an electronic notice 
acknowledging receipt of submissions filed electronically via the 
Internet.
    (d) Each railroad employing either the optical media or electronic 
submission via the Internet option, shall submit its monthly reporting 
data for the reports identified in paragraph (a) of this section in a 
year-to-date file format as described in the FRA Guide.
    (e) A railroad choosing to use optical media or electronic 
submission via the internet must use one of the approved formats 
specified in the Companion Guide. FRA will reject submissions that do 
not adhere to the required formats, which may result in the issuance of 
one or more civil penalty assessments against a railroad for failing to 
provide timely submissions of required reports as required by Sec.  
225.11.


0
19. Section 225.41 is added to read as follows:


Sec.  225.41  Suicide Data.

    FRA does not include suicide data (as defined in Sec.  225.5) in 
its periodic summaries of data on the number of injuries and illnesses 
associated with railroad operations. FRA will maintain suicide data in 
a database that is not publicly accessible. Suicide data will not be 
available on FRA's Web site for individual reports or downloads. 
Suicide data will be available to the public in aggregate format on 
FRA's Web site and via requests under the Freedom of Information Act.


0
20. Appendix A to part 225 is revised to read as follows:

         Appendix A to Part 225--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                               Willful
                  Section \2\                    Violation    Violation
------------------------------------------------------------------------
225.6: Failure to comply with consolidated           $2,500       $5,000
 reporting requirements.......................
225.9:
    (1) Failure to report.....................        2,500        5,000
    (2) Failure to immediately report.........        1,000        2,000
    (3) Failure to accurately report..........        1,000        2,000

[[Page 68910]]

 
225.11:
    (1) Failure to report accident/incident...        2,500        5,000
        (a) Highway-rail grade crossing.......
        (b) Rail Equipment....................
        (c) Death, Injury, or occupational
         illness..............................
    (2) Report is incomplete..................        1,000        2,000
225.12: Failure to file Railroad Employee             2,500        5,000
 Human Factor form............................
    (a) Failure to file Railroad Employee
     Human Factor Attachment correctly:
        (1) Employee identified...............        2,500        5,000
        (2) No employee identified............        1,000        2,000
    (b)
        (1) Failure to notify employee                2,500        5,000
         properly.............................
        (2) Notification of employee not              2,500        5,000
         involved in accident.................
    (c) Failure of employing railroad to              1,000        2,000
     provide requested information properly...
    (d)
        (1) Failure to revise report..........        2,500        5,000
        (2) Failure to notify after late              2,500        5,000
         identification.......................
    (f) Submission of notice if employee dies         2,500        5,000
     as result of the reported accident.......
    (g) Willfully false accident statement by   ...........        5,000
     employee.................................
225.13:
    (1) Failure to Late reports...............        2,500        5,000
    (2) Failure to Review Employee Statement..        2,500        5,000
    (3) Failure to Amend Report...............        1,000        2,000
225.18: Alcohol or drug involvement...........        2,500        5,000
225.23: Joint operations......................        (\1\)        (\1\)
225.25:
    (1) Recordkeeping.........................        2,500        5,000
    (2) Failure to post list..................        1,000        2,000
    (3) Posting Prohibited Information........        1,000        2,000
    (4) Missing fields........................        1,000        2,000
225.27:
    (1) Failure to retain records.............        1,000        2,000
    (2) Failure to retain electronic receipt..        1,000        2,000
    (3) Failure to comply with electronic             1,000        2,000
     recordkeeping requirements...............
    (4) Failure to provide access to records..        1,000        2,000
225.33:
    (1) Failure to adopt Internal Control Plan        2,500        5,000
     or more than two missing/outdated/
     incorrect components.....................
    (2) Internal Control Plan with less than          1,000        2,000
     three missing/outdated/incorrect
     components...............................
    (3) Failure to comply with Internal               2,500        5,000
     Control Plan.............................
    (4) Failure to comply with the                    2,500        5,000
     intimidation/harassment policy in
     Internal Control Plan....................
    (5) Failure to comply with requirements           2,500        5,000
     associated with Form FRA F 6180.150......
225.35: Access to records and reports.........        2,500       5,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A. A failure to comply with Sec.   225.23
  constitutes a violation of Sec.   225.11. For purposes of Sec.  Sec.
  225.25 and 225.27 of this part, each of the following constitutes a
  single act of noncompliance: (1) A missing or incomplete log entry for
  a particular employee's injury or illness; or (2) a missing or
  incomplete log record for a particular rail equipment accident or
  incident. Each day a violation continues is a separate offense.
\2\ The penalty schedule uses section numbers from 49 CFR part 225. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.


    Issued in Washington, DC, on October 6, 2010.
Joseph C. Szabo,
Administrator, Federal Railroad Administration.
[FR Doc. 2010-27641 Filed 11-8-10; 8:45 am]
BILLING CODE 4910-06-P