[Federal Register Volume 78, Number 125 (Friday, June 28, 2013)]
[Proposed Rules]
[Pages 38878-38895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-15417]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 272

[Docket No. FRA-2008-0131, Notice No. 1]
RIN 2130-AC00


Critical Incident Stress Plans

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

ACTION: Notice of Proposed Rulemaking (NPRM).

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SUMMARY: FRA issues this proposed rule in accordance with a statutory 
mandate that the Secretary of Transportation require certain major 
railroads to develop, and submit to the Secretary for approval, 
critical incident stress plans that provide for appropriate support 
services to be offered to their employees who are affected by a 
``critical incident'' as defined by the Secretary. The NPRM proposes a 
definition of the term ``critical incident,'' the elements appropriate 
for the rail environment to be included in a railroad's critical 
incident stress plan, the type of employees to be covered by the plan, 
a requirement that a covered railroad submit its plan to FRA for 
approval, and a requirement that a railroad adopt and comply with its 
FRA-approved plan.

DATES: Written comments must be received by August 27, 2013. Comments 
received after that date will be considered to the extent possible 
without incurring additional delay or expense.
    FRA does not believe that a public, oral hearing will be necessary. 
However, if FRA receives a specific request for a public, oral hearing 
prior to July 29, 2013, FRA will schedule a hearing and publish a 
supplemental notice in the Federal Register to inform interested 
parties of the date, time, and location of any such hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2008-0131, 
Notice No. 1, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.Regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket 
name, and docket number or Regulatory Identification Number (RIN) for 
this rulemaking. Note that all comments received will be posted without 
change to http://www.Regulations.gov, including any personal 
information provided. Please see the discussion under the Privacy Act 
heading in the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.Regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, on the Ground 
level of the West Building, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program issues: Dr. Bernard J. 
Arseneau, Medical Director, Office of Railroad Safety, FRA, 1200 New 
Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-6232), 
[email protected]; or Ronald Hynes, Director, Office of Safety 
Assurance and Compliance, Office of Railroad Safety, FRA, 1200 New 
Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493-6404), 
[email protected]. For legal issues: Veronica Chittim, Trial 
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., 
Washington, DC 20950 (telephone: (202) 493-0273), 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Overview of Critical Incidents and Critical Incident Stress 
Plans
    A. Statutory Mandate and Authority To Conduct This Rulemaking
    B. Factual Background
III. Overview of FRA's Railroad Safety Advisory Committee (RSAC)
IV. RSAC Critical Incident Working Group
V. FRA's Approach to Critical Incident Stress Plans
VI. Section-by-Section Analysis
VII. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Executive Order 13175
    C. Regulatory Flexibility Act and Executive Order 13272
    D. Paperwork Reduction Act
    E. Environmental Impact
    F. Executive Order 13132, Federalism Implications

[[Page 38879]]

    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act Statement

I. Executive Summary

    This NPRM proposes a regulation that would require each Class I 
railroad, intercity passenger railroad, and commuter railroad to 
establish and implement a critical incident stress plan for certain 
employees of the railroad who are directly involved in, witness, or 
respond to, a critical incident. FRA seeks comment on all aspects of 
this proposal.
    Although FRA has never regulated critical incident stress plans, 
many railroads have had some form of critical incident stress plan in 
place for many years. This rulemaking responds to the Rail Safety 
Improvement Act of 2008 (Public Law 110-432, Div. A) (RSIA) mandate 
that the Secretary of Transportation establish regulations to define 
``critical incident'' and to require certain railroads to develop and 
implement critical incident stress plans.
    As discussed in detail below, FRA reviewed the applicable science 
and information received through the Railroad Safety Advisory Committee 
(RSAC), and as required by Congress, FRA proposes a definition for 
``critical incident'' and proposes a set of minimum standards for 
critical incident stress plans. This approach provides covered 
employees with options for relief following a critical incident, yet 
allows for substantial flexibility within the regulatory framework so 
that railroads may adapt their plans commensurate with their needs. The 
proposal defines a ``critical incident'' as either -- (1) An accident/
incident reportable to FRA under 49 CFR part 225 that results in a 
fatality, loss of limb, or a similarly serious bodily injury; or (2) A 
catastrophic accident/incident reportable to FRA under part 225 that 
could be reasonably expected to impair a directly-involved employee's 
ability to perform his or her job duties safely. The proposed set of 
minimum standards for critical incident stress plans include allowing a 
directly-involved employee to obtain relief from the remainder of the 
tour of duty, providing for the directly-involved employee's 
transportation to the home terminal (if applicable), and offering a 
directly-involved employee appropriate support services following a 
critical incident. The proposed rule would require each applicable 
railroad to submit its plan to FRA for approval.
    FRA has analyzed the economic impacts of this proposed rule against 
a ``status quo'' baseline that reflects present conditions (i.e. 
primarily what applicable railroads are already doing with respect to 
critical incident policy). Based on both RSAC meetings and discussions 
with the rail industry, FRA's analysis assumes that all railroads 
affected by the proposed rule currently have policies that include a 
critical incident stress plan, thereby reducing the costs of compliance 
associated with the proposed rule. In estimating these compliance 
costs, FRA included costs associated with training supervisors on how 
to interact with railroad employees who have been affected by a 
critical incident, employee training, counseling, and other support 
services, and costs associated with the submission of the critical 
incident stress plan to FRA for approval. FRA estimates that the costs 
of the proposed rule for a 20-year period would total $1,943,565. Using 
a 7 percent and a 3 percent discount rate, the total discounted costs 
will be $1,337,830 and $1,615,519, respectively.
    The proposed rule contains minimum standards for employee training, 
leave, counseling, and other support services. These standards would 
help create benefits by providing employees with knowledge, coping 
skills, and services that would help them: (1) Recognize and cope with 
symptoms of normal stress reactions that commonly occur as a result of 
a critical incident; (2) reduce their chance of developing a disorder 
such as depression, Post-Traumatic Stress Disorder (PTSD), or Acute 
Stress Disorder (ASD) as a result of a critical incident; and (3) 
recognize symptoms of psychological disorders that sometimes occur as a 
result of a critical incident and know how to obtain prompt evaluation 
and treatment of any such disorder, if necessary. FRA anticipates that 
implementation of the proposed rule would yield benefits by reducing 
long-term healthcare costs associated with treating PTSD, ASD, and 
other stress reactions; and costs that accrue either when an employee 
is unable to return to work for a significant period of time or might 
leave railroad employment due to being affected by PTSD, ASD, or 
another stress reaction. In addition, safety risk posed by having a 
person who has just been involved in a critical incident performing 
safety critical functions is also reduced. The majority of the 
quantifiable benefits identified by FRA's analysis are associated with 
railroad employee retention and a reduction of long-term healthcare 
costs associated with PTSD cases that were not treated appropriately 
after a critical incident. FRA expects that the proposed rule would 
decrease the number of employees who leave the railroad industry due to 
PTSD, ASD, or other stress reactions, as early treatment for potential 
PTSD cases following exposure to a critical incident would reduce both 
the likelihood of developing PTSD and the duration of PTSD or another 
stress reaction. The proposed rule would therefore increase the early 
identification of PTSD and provide more immediate healthcare to the 
cases that develop. FRA estimates that the present value of the 
quantifiable benefits for a 20-year period would total $2,630,000. 
Using a 7 percent and a 3 percent discount rate, the total discounted 
benefits would be $1,505,622 and $2,023,548, respectively. Overall, FRA 
finds that the value of the anticipated benefits would justify the cost 
of implementing the proposed rule. FRA seeks comments on all aspects of 
the economic impacts of its proposal.

II. Overview of Critical Incidents and Critical Incident Stress Plans

A. Statutory Mandate and Authority To Conduct This Rulemaking

    On October 16, 2008, the RSIA was enacted. Section 410 of the RSIA 
(Section 410) mandates that the Secretary of Transportation (Secretary) 
require ``each Class I railroad carrier, each intercity passenger 
railroad carrier, and each commuter railroad carrier to develop and 
submit for approval to the Secretary a critical incident stress plan 
that provides for debriefing, counseling, guidance, and other 
appropriate support services to be offered to an employee affected by a 
critical incident.'' See Section 410(a). RSIA mandates that the plans 
include provisions for relieving employees who are involved in, or who 
witness, critical incidents from their tours of duty, and for providing 
leave for such employees from their normal duties as may be necessary 
and reasonable to receive preventive services and treatment related to 
the critical incident. See Section 410(b). The Secretary is 
specifically required to define the term ``critical incident'' for 
purposes of this rulemaking. See Section 410(c). The Secretary has 
delegated his responsibilities under the RSIA to the Administrator of 
FRA. See 49 CFR 1.89(b). In the Section-by-Section Analysis below, FRA 
discusses how the proposed regulatory text addresses each portion of 
the Section 410 mandates. This proposed rule is also issued pursuant to 
FRA's general rulemaking authority at 49 U.S.C. 20103.
    As required by Section 410(c), within 30 days after enactment of 
the RSIA, FRA initiated action within the DOT to commence a rulemaking 
to define the

[[Page 38880]]

term ``critical incident.'' Additionally, as required by Section 
410(a), FRA consulted with the Department of Health and Human Services 
(HHS) and the Department of Labor (DOL) in preparing this proposed 
rule. Specifically, in addition to consulting with representatives of 
HHS and DOL, FRA provided those departments with an advance copy of 
this proposed regulation and requested input on FRA's approach. FRA has 
incorporated the suggestions provided by both HHS's Substance Abuse and 
Mental Health Services Administration (SAMHSA) and DOL's Wage and Hour 
Division.

B. Factual Background \1\
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    \1\ Much of this background information and review of the 
literature is derived from the independent final report prepared by 
FRA grantee, Dr. Richard Gist, in support of Grant FR-RRD-0024-11-
01, titled, ``Proposed Key Elements of Critical Incident 
Intervention Program For Reducing the Effects of Potentially 
Traumatic Exposure On Train Crews to Grade Crossing and Trespasser 
Incidents.'' See Docket No. FRA-2008-0131. Articles cited in this 
NPRM are available for viewing at FRA upon request.
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    Highway-rail grade crossing accidents and trespasser incidents 
along the railroad right-of-way are an unfortunate reality for 
employees in the railroad industry. Railroad work carries the risk that 
a covered employee will be directly involved in a critical incident, 
often outside the control of the railroad employees, which can lead to 
severe emotional and psychological distress, including Post Traumatic 
Stress Disorder (PTSD) and the more immediate Acute Stress Disorder 
(ASD).\2\ There are concerns about the impact of exposure to traumatic 
incidents on employees in safety-sensitive jobs, most notably engineers 
and conductors.
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    \2\ ASD is ``a mental disorder that can occur in the first month 
following a trauma. The symptoms that define ASD overlap with those 
for PTSD.'' ASD can lead to PTSD, but does not always. A ``PTSD 
diagnosis cannot be given until symptoms have lasted for one 
month.'' U.S. Department of Veterans Affairs, National Center for 
PTSD, available at http://www.ptsd.va.gov/public/pages/acute-stress-disorder.asp (last accessed January 28, 2013).
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    Until this proposed rule, a national, uniform approach to critical 
incident response in the railroad industry did not exist, with only a 
handful of States taking action through statutes or regulations to aid 
critical incident response in the railroad industry. With this proposed 
rule, FRA seeks to define the term ``critical incident'' in the 
railroad setting, which if met, would trigger the requirement that 
appropriate support services be offered to railroad employees affected 
by such incidents.
    PTSD and ASD can develop following any traumatic event that 
threatens personal safety or the safety of others, or causes serious 
physical, cognitive or emotional harm. While such disorders are most 
often initiated by a threat to one's life or the witnessing of brutal 
injury or traumatic death--in combat situations, for example, or during 
violent accidents or disasters--any overwhelming life experience can 
trigger the disorders, especially if the event is perceived as 
unpredictable and uncontrollable. Individuals exposed to traumatic 
events experience alterations in their neurologic, endocrine, and 
immune systems, which have been linked to adverse changes in overall 
health.\3\ These changes and symptoms can be ameliorated if treated 
appropriately, usually with psychotherapy and/or medications. However, 
PTSD and ASD often go undiagnosed, as few primary care providers 
routinely assess for it and more often than not, attribute the symptoms 
to less serious forms of depression, anxiety, and general emotional 
distress.\4\
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    \3\ In a study of 830 train drivers in Norway, the 48 percent of 
participants who had experienced at least one on-the-track accident 
reported considerably more health problems than those who reported 
no such exposure. Their symptoms included musculoskeletal, 
gastrointestinal, and sleep pattern issues and continued from the 
incident to the time of the study (for some participants up to ten 
years). This study also revealed that the more pronounced initial 
reactions to on-the-track accidents, the more severe and persistent 
were the health complaints post-exposure. Vatshelle, A. & Moen, B.E. 
(1996). Serious on-the-track accidents experienced by train drivers: 
Psychological reactions and long-term health effects. Journal of 
Psychosomatic Research, 42(1), 43-52. See also Wignall, E.L., 
Dickson, J.M., Vaughan, P., Farrow, T.F.D., Wilkinson, I.D., Hunter, 
M.D., & Woodruff, P.W.R. (2004). Smaller hippocampal volume in 
patients with recent-onset posttraumatic stress disorder. Biological 
Psychiatry, 56(11), 832-836.
    \4\ Gerrity M.S., Corson, K., & Dobscha S.K. (2007). Screening 
for posttraumatic stress disorder in Veterans' Affairs primary care 
patients with depression symptoms. Journal of General Internal 
Medicine, 22(9), 1321-1324.
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    In recent years approximately 2,500 highway-rail crossing accidents 
and 900 casualties to persons trespassing on railroad property 
(trespassers) have occurred in the United States annually. Each one of 
these incidents, as well as other traumatic events such as railroad 
accidents or incidents resulting in serious injury or death to railroad 
employees, hold potential for causing ASD, PTSD, or other health and 
safety-related problems, in any railroad employee who is present. Some 
locomotive engineers and conductors have had the misfortune of 
experiencing multiple potential PTSD/ASD-invoking events over the 
course of their careers.\5\
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    \5\ The Associated Press, Fatal Collisions Traumatize Nation's 
Train Engineers, August 14, 2009. Saed Hindash, The Star-Ledger. 
Death by Train. June 18, 2009. http://www.nj.com/insidejersey/index.ssf/2009/06/death_by_train.html (``Over a 40-year career, 
the average engineer will be involved in five to seven incidents, 
says Darcy, who has had seven fatalities.'').
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    Exposure of railroad employees, particularly locomotive engineers 
and conductors, to prototypical potentially traumatic exposures is well 
established. Incursion events, such as vehicular accidents at highway-
rail grade crossings and pedestrian incursions onto the railroad right-
of-way (frequently as a method of suicide) often involve fatalities and 
the injuries sustained may be gruesome. Locomotive engineers and 
conductors, because of their proximity to the accident scene, must 
often tend to the injured and secure the scene, compounding the extent 
and the duration of exposure. In particular, locomotive engineers may 
be alone in the cab when an on-the-track accident occurs. Further, 
train crews are required to report the incident, secure the train, and 
often leave the train and examine the victims. Crew members may even 
provide first aid if victims are alive, and wait, sometimes for long 
periods, for assistance or instructions.
    Systematic empirical studies of the health impact on railroad 
personnel of this kind of experience are limited. The best designed 
studies have been European and show clinically diagnosed PTSD in 7 to 
14 percent of those exposed. FRA has found no empirical studies of 
treatment efficacy and impact within the U.S. railroad population, 
presumably due to the relatively small population annually treated and 
the different locations and systems involved in railroad employees' 
identification and care.
    If left untreated, mental health conditions carry significant costs 
for employers in the form of ``presenteeism,'' when employees come to 
work, but have lowered productivity.\6\ Presenteeism can have 
catastrophic safety consequences for railroads. Symptoms such as sleep 
difficulties, trouble concentrating, hypervigilance and exaggerated 
sensory reactions--often leading sufferers to misuse alcohol to reduce 
the stress--compromise workers' safety at work and the safety of 
others, and lower

[[Page 38881]]

employees' productivity on the job. One study revealed that employees 
are more likely to engage in workplace presenteeism than calling in 
sick (absenteeism).\7\
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    \6\ Kessler, R.C. (2000). Posttraumatic stress disorder: The 
burden to the individual and society. Journal of Clinical 
Psychiatry, 61(suppl. 5), 4-12. Kessler, R.C., & Greenberg, P.E. 
(2002). The economic burden of anxiety and stress disorders. In K.L. 
Davis, D. Charney, J.T. Coyle, & C. Nemeroff (Eds.), 
Neuropsychopharmacology: The Fifth Generation of Progress. 
Philadelphia: Lippincott, Williams & Wilkins. Pilette, P.C. (2005). 
Presenteeism and productivity: Two reasons employee assistance 
programs make good business cents. Annals of the American 
Psychotherapy Association, 8(1), 12-14.
    \7\ Caverley, N., Cunningham, J.B., & MacGregor, J.M. (2007). 
Sickness presenteeism, sickness absenteeism, and health following 
restructuring in a public service organization. Journal of 
Management Studies, 44(2), 304-319.
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    Most major railroads have plans to provide their employees with 
assistance and intervention following traumatic events. Most of these 
programs have been in existence for a number of years, usually as part 
of a railroad's ``Employee Assistance Program'' (EAP). The descriptions 
of interventions, timing, and delivery in these programs are often 
``transplanted'' from programs created for fire, rescue, and emergency 
services personnel in the 1980s and 1990s. These approaches, 
particularly those built around ``critical incident stress debriefing'' 
and related interventions, have come under increasing scrutiny as 
independent research has reported such interventions to not be helpful 
in certain situations and even to paradoxically inhibit the natural 
recovery of certain vulnerable participants. Accordingly, most 
authoritative guidelines now caution against the routine application of 
these approaches and some now list them as directly contraindicated.
    While there are variations among railroads' existing programs, 
there are also substantial similarities reflected with respect to 
critical elements mandated by statute.\8\ For example, many railroads 
provide assistance and intervention following critical incidents, often 
through the use of the railroad's EAP. The majority of existing plans 
allow for immediate relief from duty upon request for the remainder of 
the tour of duty, as well as transportation to the home terminal for 
affected employees. Finally, many plans allow for additional leave 
following the tour of duty upon request, often involving contact with 
occupational medicine or EAP representatives.\9\ Therefore, several of 
these common elements are incorporated into this proposed rule.
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    \8\ The Association of American Railroads (AAR) provided a 
matrix to the RSAC Critical Incident Working Group (CIWG) 
summarizing key characteristics of programs as submitted by nine 
member railroads. Several railroads also submitted their current 
policies regarding critical incidents in the workplace.
    \9\ Unpaid, job-protected leave under the Family and Medical 
Leave Act (FMLA) may be available to an employee involved in a 
critical incident. FMLA leave may be considered where an eligible 
employee of a covered employer suffers a serious health condition as 
a result of the incident. For additional guidance on the FMLA, 
please contact the United States Department of Labor or visit 
www.dol.gov.
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III. Overview of the RSAC

    In March 1996, FRA established RSAC, which provides a forum for 
developing consensus recommendations to the Administrator of FRA on 
rulemakings and other safety program issues. 61 FR 9740 (Mar. 11, 
1996). RSAC's charter under the Federal Advisory Committee Act (Pub. L. 
92-463) was most recently renewed in 2012. 77 FR 28421 (May 14, 2012).
    RSAC includes representation from all of FRA's major stakeholders, 
including railroads, labor organizations, suppliers and manufacturers, 
and other interested parties. An alphabetical list of RSAC members 
includes the following:

AAR;
American Association of Private Railroad Car Owners (AAPRCO);
American Association of State Highway and Transportation Officials 
(AASHTO);
American Chemistry Council (ACC);
American Petroleum Institute (API);
American Public Transportation Association (APTA);
American Short Line and Regional Railroad Association (ASLRRA);
American Train Dispatchers Association (ATDA);
Association of Railway Museums (ARM);
Association of State Rail Safety Managers (ASRSM);
Brotherhood of Locomotive Engineers and Trainmen (BLET);
Brotherhood of Maintenance of Way Employes Division (BMWED);
Brotherhood of Railroad Signalmen (BRS);
The Chlorine Institute, Inc.;
Federal Transit Administration (FTA);*
The Fertilizer Institute;
High Speed Ground Transportation Association;
Institute of Makers of Explosives;
International Association of Machinists and Aerospace Workers;
International Brotherhood of Electrical Workers (IBEW);
Labor Council for Latin American Advancement;*
League of Railway Industry Women;*
National Association of Railroad Passengers;
National Association of Railway Business Women;*
National Conference of Firemen & Oilers;
National Railroad Passenger Corporation (Amtrak);
National Railroad Construction and Maintenance Association (NRCMA);
National Transportation Safety Board (NTSB);*
Railway Passenger Car Alliance;
Railway Supply Institute;
Safe Travel America;
Secretaria de Comunicaciones y Transporte;*
Sheet Metal Workers International Association;
Tourist Railway Association Inc.;
Transport Canada; *
Transport Workers Union of America;
Transportation Communications International Union/BRC (TCIU);
Transportation Security Administration (TSA); and
United Transportation Union (UTU).
* Indicates associate, non-voting membership.

    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The task force then provides that information to the 
working group for consideration.
    If a working group comes to a unanimous consensus on 
recommendations for action, the proposal is presented to the full RSAC 
for a vote. If the proposal is accepted by a simple majority of RSAC, 
the proposal is formally recommended to FRA. FRA then determines what 
action to take on the recommendation. Because FRA staff members play an 
active role at the working group level in discussing the issues and 
options and in drafting the language of the consensus proposal, FRA is 
often favorably inclined toward the RSAC recommendation.
    However, FRA is in no way bound to follow the RSAC recommendation, 
and the agency exercises its independent judgment on whether the 
recommended rule achieves the agency's regulatory goal, is soundly 
supported, and is in accordance with policy and legal requirements. 
Often, FRA varies in some respects from the RSAC recommendation in 
developing the actual regulatory proposal or final rule. Any such 
variations would be noted and explained in the rulemaking document 
issued by FRA. If the working group or RSAC is unable to reach 
consensus on recommendations for action, FRA will proceed to resolve 
the issue through traditional rulemaking proceedings.

IV. RSAC Critical Incident Working Group

    The Critical Incident Task Force (Task Force) was formed as part of 
the Medical Standards Working Group, and its task statement (Task No. 
09-02) was accepted by RSAC on September 10, 2009. On July 2, 2010, FRA 
solicited bids for a grant to assess the current knowledge of post-
traumatic stress interventions and to advance evidence-based 
recommendations for controlling the risks associated with traumatic 
exposures in the railroad setting. On March 11, 2011, FRA awarded the 
grant to the National Fallen Firefighters

[[Page 38882]]

Foundation. On May 20, 2011, the Task Force was reformulated into an 
independent working group, the Critical Incident Working Group (CIWG). 
Task No. 09-02 (amended to reflect the new independent working group) 
specifies that the purpose of the CIWG is to provide advice regarding 
the development of implementing regulations for Critical Incident 
Stress Plans as required by the RSIA. The Task further assigns the CIWG 
to do the following: (1) Define what a ``critical incident'' is that 
requires a response; (2) review available data, literature, and 
standards of practice concerning critical incident programs to 
determine appropriate action when a railroad employee is involved in, 
or directly witnesses, a critical incident; (3) review any evaluation 
studies available for existing railroad critical incident programs; (4) 
describe program elements appropriate for the rail environment, 
including those requirements set forth in the RSIA; (5) provide an 
example of a suitable plan (template); and (6) assist in the 
preparation of an NPRM.
    The CIWG met on June 24, 2011; September 8-9, 2011; October 11-12, 
2011; and December 13, 2011. At the conclusion of the December 2011 
meeting, an informal task force was formed to consider the substantive 
agreements made by the CIWG and to draft regulatory language around 
those agreements for the CIWG's consideration and vote. The small task 
force presented the language to the full CIWG for an electronic vote on 
August 6, 2012. The CIWG reached a consensus on all but one item \10\ 
and forwarded a proposal to the full RSAC on August 21, 2012. RSAC 
voted to approve the CIWG's recommended text on September 27, 2012 and 
that recommended text provided the basis for this NPRM. While the CIWG 
did discuss a general template flow chart of a suitable critical 
incident stress plan, as recommended by the Grantee's Final Report, a 
specific model plan that could be adapted and adopted by railroads was 
not developed by the CIWG. Instead, the CIWG focused its efforts on the 
definition of critical incident and the program elements essential for 
the proposed regulatory text.
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    \10\ Consensus was not reached on the issue of whether a 
railroad should be required to provide labor organizations' general 
chairpersons (in addition to the international/national president of 
the labor organization) with a copy of a railroad's critical 
incident stress plan.
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    In addition to FRA staff, the members of the CIWG include the 
following:
    AAR, including members from BNSF Railway Company (BNSF), Canadian 
National Railway (CN), Canadian Pacific Railway (CP), CSX 
Transportation, Inc. (CSX), The Kansas City Southern Railway Company 
(KCS), Norfolk Southern Railway Company (NS), Northeast Illinois 
Regional Commuter Railroad Corporation (Metra), and Union Pacific 
Railroad Company (UP);
    Amtrak;
    APTA, including members from Greater Cleveland Regional Transit 
Authority; Long Island Rail Road (LIRR); MTA--Metro-North Railroad; and 
Southern California Regional Rail Authority (SCRRA);
    ASLRRA (representing short line and regional railroads);
    ATDA;
    BLET;
    BMWED;
    BRC/TCIU;
    BRS;
    NRCMA; and
    UTU.
    Staff from DOT's John A. Volpe National Transportation Systems 
Center attended all of the meetings of the CIWG and contributed to the 
technical discussions.
    FRA has greatly benefited from the open, informed exchange of 
information during the meetings. In developing this NPRM, FRA relied 
heavily upon the work of the CIWG.

V. FRA's Approach to Critical Incident Stress Plans

    In this NPRM, FRA proposes a definition for the term ``critical 
incident'' and proposes minimum criteria that must be addressed by each 
railroad's critical incident stress plan. The proposed regulatory text 
would allow a railroad to utilize its existing critical incident stress 
plan as a base, making modifications as necessary to ensure compliance 
with the minimum standards proposed in this NPRM. The proposed rule 
would provide each railroad with the opportunity to conform its 
critical incident stress plan's screening and intervention components 
to current best practices and standards for evidence-based care. This 
flexible, standards-based approach allows for innovation and plan 
modification in response to new scientific developments in this field.

VI. Section-by-Section Analysis

Subpart A--General

    Subpart A of the proposal contains the general provisions of the 
rule, including a statement of the rule's purpose, an application 
section, a statement of general duty, the critical incident stress plan 
coverage section, a definitions section that includes the central 
definition of a ``critical incident,'' and a statement pertaining to 
penalties. As discussed further in the definitions section, Sec.  
272.9, this proposal defines a ``critical incident'' as either--(1) An 
accident/incident reportable to FRA under 49 CFR Part 225 that results 
in a fatality, loss of limb, or a similarly serious bodily injury; or 
(2) A catastrophic accident/incident reportable to FRA under part 225 
that could be reasonably expected to impair a directly-involved 
employee's ability to perform his or her job duties safely.
Section 272.1 Purpose
    Proposed paragraph (a) of section 272.1 includes a formal statement 
of the rule's purpose. Proposed paragraph (b) of this section 
effectively explains that the proposed rule would set a minimum 
standard for critical incident stress plans and that the rule would not 
constrain a railroad from implementing a critical incident stress plan 
containing provisions beyond those proposed, provided that any 
additional provisions are not inconsistent with the rule.
Section 272.3 Application
    Consistent with Section 410(a), proposed section 272.3 provides 
that the requirements of this part only apply to each Class I railroad, 
including the National Railroad Passenger Corporation, each intercity 
passenger railroad, and each commuter railroad. However, FRA encourages 
other railroads to implement critical incident stress plans and 
procedures consistent with this proposed regulation. FRA understands 
that many Class II and Class III railroads that would not be subject to 
this rule in fact do have critical incident stress plans in place. FRA 
notes that critical incident stress plans would be particularly useful 
for Class II and Class III railroads that are located in geographical 
locations prone to critical incidents, such as those locations with a 
large number of highway-rail grade crossings.
Section 272.5 General Duty
    This proposed paragraph provides that a railroad subject to this 
part must adopt a written critical incident stress plan approved by the 
FRA under Sec.  272.103 and must comply with that plan. Should a 
railroad subject to this part make a material modification to the 
approved plan, the railroad is required to adopt the modified plan 
approved by the FRA under Sec.  272.103 and to comply with that plan as 
revised. As discussed in the section-by-section analysis of Sec.  
272.103 below, a material modification is a substantive change to a 
plan, not a

[[Page 38883]]

minor update such as an address or similar change.
Section 272.7 Coverage of a Critical Incident Stress Plan
    A large percentage of critical incidents occur where persons 
intentionally place themselves in front of a moving train (suicides) or 
drive around highway grade crossing warning signs, shortly before a 
train approaches, and a train crew is unable to stop the train in time 
to avoid hitting them. The crewmembers involved may be traumatized 
after such an event, even though there was nothing they could have done 
to prevent the collision. The purpose of this proposed rule is to 
effectuate the intent of the RSIA that train crews will be assisted 
following such events. After extensive discussions in the CIWG, FRA 
believes that other railroad-related accidents, such as those that 
occur in car shops, maintenance-of-way situations, or other non-main-
track locations involving railroad operations, should also be covered 
by this proposed regulation. This extension provides additional 
benefits, but with little additional cost, as many railroad critical 
incident stress plans already extend beyond the grade crossing and 
trespasser context. Thus, as explained below FRA intends in this 
proposal that railroads make use of these critical incident stress 
plans to aid directly involved employees in situations other than 
suicides and trespassers.
    To make it clear which railroad employees would be covered by this 
regulation, FRA is proposing language similar to the RSIA for safety-
related employees and similar to existing regulatory language 
pertaining to railroad employees who perform safety sensitive 
functions. See 49 U.S.C. 20102(4) (defining ``safety-related railroad 
employee'') and 49 CFR 209.303. As proposed, this part would cover 
railroad employees subject to the hours of services laws or regulations 
(49 U.S.C. 21103, 21104, 21105 or 49 CFR Part 228, subpart F), railroad 
employees that inspect, repair, or maintain railroad right-of-way or 
structures, and railroad employees who inspect, repair, or maintain 
locomotives, passenger cars, or freight cars, when directly involved in 
a critical incident.
    Thus, this regulation would include an employee who performs work 
covered under the hours of service laws or regulations, as well as an 
employee who performs work that is not typically subject to the hours 
of service laws, but during a tour of duty, performs work covered by 
the hours of service laws. This regulation would also cover employees 
who are responsible for inspecting, repairing, and maintaining the 
right-of-way of a railroad, such as a person who would be included in 
the definitions of ``roadway worker'' and ``railroad bridge worker'' 
found in 49 CFR 214.7. Also included would be railroad employees who 
inspect, install, repair, or maintain track, roadbed, and signal and 
communication systems of a railroad and railroad employees who inspect, 
repair, or maintain locomotives, passenger cars, or freight cars. 
Paragraph (c) of this section was adjusted from the consensus CIWG 
language to maintain consistency with 49 CFR Part 209, as suggested 
during the full RSAC meeting on September 27, 2012. The words 
``inspect, install, repair, or'' were added to the original phrase 
``[r]ailroad employees who maintain the right-of-way or structures.''
    In this manner, FRA proposes to cover other employees besides 
locomotive engineers and conductors who could be psychologically 
affected or even traumatized by a critical incident as a result of 
railroad operations. But, by including a coverage section that would be 
more limited than the entire field of railroad employees, FRA is 
reducing the costs to railroads while ensuring that those employees who 
could most benefit from the regulation are included. For example, a 
railroad track maintainer is welding track on a siding and sees a train 
collide with an automobile at a nearby highway-rail grade crossing. 
Since the track maintainer witnessed the incident while performing his 
or her job duties arising from railroad operations (maintaining track), 
as proposed, the maintainer would be covered by the rule. In contrast, 
a railroad administrative assistant who works in a railroad's 
headquarters building would not be specifically covered by this 
proposed regulation if he or she witnesses an injury in the office. 
Although FRA does not propose to cover office injuries or accidents, 
FRA encourages railroads to apply their critical incident stress plans 
in any situation where it could be beneficial to the railroad and its 
employees, even if this proposed regulation would not cover the 
particular situation at issue or the specific railroad employee 
involved.
Section 272.9 Definitions
    Proposed Sec.  272.9 defines a number of terms used in this 
proposed part. A few of these terms have definitions that are similar 
to, but may not exactly mirror, definitions of the same terms used 
elsewhere in FRA's regulations. Definitions may differ from those in 
other FRA regulations because a particular word or phrase used in the 
definition in another FRA regulation does not have context within this 
proposed part.
    FRA proposes to define the term accident/incident to mean an 
accident/incident that is reportable under FRA's accident/incident 
reporting regulations at 49 CFR Part 225 (Part 225). While 
substantially the same as the consensus CIWG definition, ``an accident 
or incident reportable under part 225 of this chapter,'' the phrasing 
was altered for clarity to say that accident/incident has the meaning 
assigned to that term by part 225 of this chapter.
    The definitions of Administrator and Associate Administrator are 
standard definitions used in other parts of this chapter of the Code of 
Federal Regulations. Consistent with its use in other parts of FRA's 
regulations, in this part, the term Associate Administrator means the 
Associate Administrator for Railroad Safety/Chief Safety Officer.
    FRA proposes to define Class I to have the same meaning as assigned 
to the term by the regulations of the Surface Transportation Board (49 
CFR Part 1201; General Instructions 1-1). This instruction states that 
for purposes of accounting and reporting, Class I railroads have 
``annual carrier operating revenues of $250 million or more after 
applying the railroad revenue deflator formula shown in Note A.'' Note 
A states that ``[t]he railroad revenue deflator formula is based on the 
Railroad Freight Price Index developed by the Bureau of Labor 
Statistics. The formula is as follows: Current Year's Revenues x (1991 
Average Index/Current Year's Average Index).'' This proposed definition 
of ``Class I'' is similar to the definitions of ``Class I'' found 
elsewhere in FRA's regulations. See, e.g., 49 CFR 217.4; 219.5; and 
244.9. See also 49 U.S.C. 20102(1).
    FRA proposes to define commuter railroad to mean a railroad, as 
described by 49 U.S.C. 20102(2), including public authorities operating 
passenger train service, that provides regularly-scheduled passenger 
service in a metropolitan or suburban area and commuter railroad 
service that was operated by the Consolidated Rail Corporation on 
January 1, 1979. In this manner, FRA proposes to mirror the 
applicability language in 49 CFR 239.3. See also 49 CFR Part 209, 
Appendix A.
    Railroads operated entirely by contract operators, such that the 
contractor organization itself meets the definition of a Class I 
railroad, intercity passenger railroad, or commuter railroad, would be 
subject to this rule. In these circumstances, FRA assumes that the 
contract operator would utilize the critical incident stress plan 
developed by the reporting railroad.

[[Page 38884]]

    FRA proposes to define critical incident to reflect the 
recommendations made by the CIWG. By limiting the definition of 
``critical incident'' to a subset of those accidents/incidents that are 
reportable under Part 225, FRA proposes to exclude from the definition 
all incidents that do not arise from the operation of the railroad. 
This language is consistent with the CIWG language, but was modified to 
replace ``accident/incident'' with ``accident/incident reportable to 
FRA under part 225 of this chapter'' to enhance the understanding of 
that term. To clarify FRA's position, FRA provides the following 
examples. If a train crewmember that is being transported in a van 
(i.e., the crewmember is in deadhead status and on duty) is directly 
involved in an accident/incident that results in a fatality, loss of 
limb, or a similarly serious bodily injury, that crewmember would be 
included in the scope of this proposed regulation, as that event arose 
from the operation of a railroad, and would be reportable under Part 
225. In contrast, if a deadheading crewmember riding in the van sees a 
motor-vehicle accident on a public highway that does not otherwise 
involve the van, this incident would not be an accident/incident 
arising from railroad operations nor would it be reportable under Part 
225, and thus would be excluded from the scope of the proposed 
definition of ``critical incident.'' While a reportable accident/
incident could cover many incidents that relate to railroad operations, 
this proposed definition of ``critical incident'' includes only an 
accident/incident that results in a fatality, loss of limb, or a 
similarly serious bodily injury or a catastrophic accident/incident 
reportable to FRA under part 225 of this chapter that could be 
reasonably expected to impair a directly-involved employee's ability to 
perform his or her job duties safely. Accordingly, minimal injuries in 
the railroad workplace would not be included in the scope of this 
proposed definition. Similarly, as explained below, ``near miss'' 
scenarios (i.e., situations which when seen in hindsight could have 
resulted in an accident, but did not) would not be included.
    Paragraph (1) of the definition is designed to reflect the presumed 
statutory intent to include an event that results in a fatality, loss 
of limb, or a similarly serious bodily injury. This element is intended 
to encompass the typical events that occur along the railroad right-of-
way, involving highway-rail grade crossing accidents and trespasser 
incursions that could affect a directly-involved employee. This element 
also includes events resulting from railroad operations such as those 
in a railroad shop where an employee witnesses a workplace accident 
that results in another person's death or extreme injury.
    Paragraph (2) of the definition expands the definition beyond an 
accident/incident leading to another person's actual physical harm, to 
include a catastrophic accident/incident reportable to FRA under part 
225 of this chapter that could be reasonably expected to impair a 
directly-involved employee's ability to perform his or her job duties 
safely. FRA understands this paragraph to mean an accident/incident 
that had the potential for catastrophic consequences (i.e., could have 
caused a fatality, loss of limb, or other similarly serious bodily 
injury), that could be reasonably expected to impair a directly-
involved employee's ability to perform his or her job duties safely. In 
this manner, a critical incident is intended to include an event, such 
as a serious derailment or accident that could have caused a fatality, 
loss of limb, or similarly serious bodily injury, but fortunately did 
not. The following examples are meant to clarify the meaning of the 
definition.

    Example 1:  A fuel tanker truck is blocking a grade crossing. 
The train crew cannot stop their approaching train in enough time to 
avoid striking the tanker truck. Although the accident could have 
caused serious injury or death to the driver of the tanker truck 
and/or to the train crew, it is learned later that the tanker truck 
was unoccupied and the tanker truck was not loaded with fuel. The 
accident/incident causes damage to the locomotive, the tanker truck, 
and nearby track structure, causing sufficient damage to exceed the 
dollar reporting threshold under 49 CFR 225.19(c) and thereby making 
the accident reportable under 49 CFR 225.11. This type of accident/
incident had the potential for catastrophic consequences (i.e., 
could have caused a fatality, loss of limb, or other similarly 
serious bodily injury), that could be reasonably expected to impair 
a directly-involved employee's ability to perform his or her job 
duties safely. Thus, this proposed rule intends to cover the 
employees involved in this type of event as the event would be 
considered a ``critical incident.''
    Example 2:  A train derails, and railroad employees who have 
been working alongside the track are in danger of being seriously 
hurt, but in fact, the employees are able to run to safety and avoid 
being harmed by the derailing equipment. The employees' legitimate, 
reasonable fear for their own safety may cause a negative stress-
reaction that could be reasonably expected to impair a directly-
involved employee's ability to perform his or her job duties safely. 
Therefore the event of running to save one's own life is included in 
the term ``critical incident'' and those directly involved employees 
are covered by this proposed rule. In contrast, if several freight 
cars derail, but there is no involvement of the train crew or a high 
risk of serious injury, that type of event will not fall under the 
definition of a critical incident.

    Additionally, this proposed rule does not directly apply to ``near 
miss'' scenarios. A ``near miss'' is an event, seen in hindsight, in 
which an accident could have occurred, but was narrowly avoided. For 
example, an automobile is rendered inoperable on the railroad tracks at 
a highway-rail grade crossing, but the automobile is able to get out of 
the way of the oncoming train, so that a collision is averted. While a 
``near miss'' event could cause a negative stress-reaction in the train 
crew in the example above, research demonstrates that such reaction 
would typically only occur in situations where, for example, an 
individual had been involved in a prior similar incident which had 
catastrophic consequences or there were other issues at play. FRA 
believes that such ``near miss'' issues should be handled by each 
railroad on an individual basis, as the applicable science does not 
appear to support including ``near miss'' scenarios in the rule 
generally. Although FRA requests comment on all aspects of this 
proposed rule, FRA specifically requests comment on this proposed 
definition of ``critical incident.'' In particular, FRA requests 
comment as to whether the proposed definition should contain explicit 
language excluding ``near miss'' scenarios.
    FRA proposes that a directly-involved employee mean a railroad 
employee covered in proposed Sec.  272.7 who falls into any of three 
stated subcategories: (1) Whose actions are closely connected to the 
critical incident; (2) who witnesses the critical incident in person as 
it occurs or who witnesses the immediate effects of the critical 
incident in person; or (3) who is charged to directly intervene in, or 
respond to, the critical incident (excluding railroad police officers 
or investigators who routinely respond to and are specially trained to 
handle emergencies). The first subcategory would include an employee 
covered under Sec.  272.7 whose actions are closely connected to the 
critical incident, such as the locomotive engineer or the conductor who 
operates the train that hits a car or pedestrian at a crossing. The 
second subcategory is an employee covered under Sec.  272.7 who is a 
witness to the critical incident, such as an employee who is working 
alongside the track when the highway-rail grade crossing collision 
occurs, and either sees the incident happen or

[[Page 38885]]

comes upon the casualties of the incident. The phrase ``witnesses . . . 
in person'' is intended to exclude employees who only hear about the 
accident/incident (such as over the radio) and are not otherwise 
directly involved in the accident/incident. The third subcategory would 
include an employee covered under Sec.  272.7 who is charged to 
directly intervene in, or respond to, the highway-rail grade crossing 
accident/incident, such as craft and supervisory employees who are 
called out to the scene. In this way, a first line or second line 
railroad supervisor, or a shop or other railroad employee who responds 
to a critical incident, is able to seek counseling and guidance as 
outlined in the critical incident stress plan if needed. Consistent 
with the intent of the CIWG, specific regulatory language was added to 
clarify that this definition is not intended to cover non-railroad 
emergency responders, such as emergency medical technicians, local 
police officers, or local firefighters. Nor is the proposed rule 
intended to cover railroad police officers and railroad investigators 
who routinely respond to such incidents and are specially trained to 
handle such emergency matters.
    FRA proposes to define FRA as the Federal Railroad Administration, 
1200 New Jersey Ave. SE., Washington, DC 20590.
    FRA proposes that home terminal mean an employee's regular 
reporting point at the beginning of the tour of duty.
    FRA proposes that intercity passenger railroad mean a railroad, as 
described by 49 U.S.C. 20102(2), including public authorities operating 
passenger train service, which provides regularly-scheduled passenger 
service between large cities. In this manner, FRA proposes to mirror 
the applicability language in 49 CFR 239.3. See also 49 CFR Part 209, 
Appendix A.
Section 272.11 Penalties
    Consistent with other FRA regulations, the proposed rule lists the 
penalties that may be imposed for noncompliance. This section provides 
minimum and maximum civil penalty amounts determined in accordance with 
49 U.S.C. 21301 and 21304 and the Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890, 28 U.S.C. 
2461, note, as amended by Section 31001(s)(1) of the Debt Collection 
Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321-373, April 
26, 1996.

Subpart B--Plan Components and Approval Process

    This subpart contains the basic components of the critical incident 
stress plan required by this proposed rule and the elements of the 
approval process. This proposed rule affords railroads considerable 
discretion in the administration of their critical incident stress 
plans.
Section 272.101 Content of A Critical Incident Stress Plan
    The objective of the regulation is to allow each railroad to 
utilize its existing critical incident stress plan (if any) as a base, 
making modifications as necessary to ensure compliance with the minimum 
standards proposed and to enhance conformity of the plan's screening 
and intervention components to current best practices and standards for 
evidence-based care. Each plan to be presented to FRA for review and 
approval should document that the railroad has taken sufficient steps 
to establish how each element of the plan can be satisfactorily 
executed in covered critical incidents.
    Proposed Sec.  272.101 would require that a railroad's critical 
incident stress plan contain at least provisions for carrying out the 
objectives described in paragraphs (a)-(g) of the section. Among these 
designated objectives are allowing a directly-involved employee to 
obtain relief from the remainder of the tour of duty, providing for the 
directly-involved employee's transportation to the home terminal (if 
applicable), and offering a directly-involved employee appropriate 
support services following a critical incident. The specific details of 
each plan may vary, but the plans must be consistent with this section.
    Under proposed paragraph (a) of the section, the plan must provide 
for ``[i]nforming each directly-involved employee as soon as 
practicable of the stress relief options that he or she may 
request[.]'' Paragraph (a) would require that a critical incident 
stress plan contain a provision that the railroad will notify directly-
involved employees as soon as it is practicable after the critical 
incident in question that they may choose to be relieved from the 
remainder of the tour of duty. Although all employees covered under 
Sec.  272.7 should already be cognizant of the opportunity to request 
relief following a critical incident, directly-involved employees must 
be reminded of this option for relief as soon as it is practicable 
after the occurrence of an incident. FRA's intent with this provision 
is to emphasize that an employee's opportunity for relief from service 
must be effectively communicated to covered employees. Of course, if a 
covered employee has been seriously injured and has already been 
relieved from duty for the remainder of the tour, it is not necessary 
to notify the employee of the opportunity to be relieved.
    FRA recommends that a typical plan specify an appropriate time to 
notify affected employees of the option to seek relief, such as, 
``employees must be notified at the incident site of their opportunity 
to be relieved.'' This reminder of the option to seek relief must be 
made during the early communications between the employee and the 
dispatcher and/or railroad management, before the employee has already 
continued on his or her tour of duty or much time has elapsed.
    Under proposed paragraph (b) of the section, the plan must provide 
for ``[o]ffering timely relief from the balance of the duty tour for 
each directly-involved employee, after the employee has performed any 
actions necessary for the safety of persons and contemporaneous 
documentation of the incident.'' In accordance with proposed paragraph 
(a), FRA would expect directly-involved employees to be informed of 
their opportunity for relief from service. Consistent with that 
notification, in accordance with proposed paragraph (b), employees that 
choose to avail themselves of that opportunity for relief must be 
relieved of duty in a timely fashion. A directly-involved employee may 
have to perform certain actions following a critical incident, such as 
rendering aid to injured persons, tending to important safety issues, 
securing the train, notifying appropriate personnel, and assisting in 
documenting the circumstances of the critical incident. FRA recommends 
that critical incident stress plans outline an instructive protocol 
that explains what tasks and responsibilities the employee is expected 
to perform following a critical incident. For example, this instructive 
protocol might establish the proper points of contact and other 
communication procedures (both within the organization and official 
emergency responders), identify tasks that must be completed, and 
describe how to evaluate the incident.
    While it may not be feasible to relieve employees within the first 
few minutes following a critical incident, relief should be provided as 
soon as possible. Directly-involved employees should be relieved in an 
efficient manner, without jeopardizing the safety of persons 
(themselves, other employees, and any victims of a critical incident, 
whether or

[[Page 38886]]

not they are employees). If the directly-involved employees are waiting 
for an essential railroad official or a coroner to arrive on the scene, 
relief may not be feasible until such official arrives, but directly-
involved employees should not have to remain at a critical incident 
site for any time beyond what is necessary. FRA recognizes that bad 
weather or other circumstances could delay the safe transportation of 
employees. However, directly-involved employees must be relieved 
without delay to the extent practicable.
    FRA notes that not every employee will take advantage of the relief 
that must be offered. However, each plan must allow for the directly-
involved employee to request relief even if the employee initially 
stated after the event that he or she wished to continue on with the 
tour of duty. FRA expects the option to seek relief to remain available 
for the duration of the directly-involved employee's tour of duty.
    Finally, there are some instances where the immediate relief of an 
employee is not the most constructive aid. Many employees simply want 
to get to their home terminal without having to wait for the train to 
be re-crewed. Although relief must be offered to all directly-involved 
covered employees, and the railroad must not deny a request for relief, 
this part does not require an employee to avail him or herself to this 
option. If leave from the tour of duty were mandated by this part, it 
could hinder some instances where an employee's continuation of duty 
serves as a coping mechanism, which has been shown, at least in some 
instances, to provide certain benefits to the employee. However, FRA 
does not intend for this option to supersede a railroad's authority to 
decide that an employee should not continue his or her tour of duty and 
must be relieved for safety-reasons, for the well-being of the 
employee, or for other reasons.
    Under proposed paragraph (c) of the section, the plan must provide 
for ``offering timely transportation to each directly-involved 
employee's home terminal, if necessary.'' As outlined in proposed 
paragraph (b), FRA intends to convey with the proposed term ``timely 
relief'' that the directly-involved employee must be relieved as soon 
as practicable following the critical incident, provided that all 
essential tasks have been performed. Similarly, FRA understands that it 
may take some time to arrange and provide transportation to an 
employee's home terminal. Railroads must make a good faith, reasonable 
effort to transport directly-involved employees safely from the 
incident site as soon as possible after their request for such relief, 
with the understanding that this transportation may not be immediate (a 
directly-involved employee may need to wait for a van to arrive). 
Directly-involved employees must not, however, be required to remain at 
the critical incident site for any time beyond what is necessary.
    Under proposed paragraph (d) of the section, the plan must provide 
for ``offering counseling, guidance, and other appropriate support 
services to each directly-involved employee.'' For purposes of this 
paragraph, the statutory term ``appropriate support services'' means 
early and proximal intervention according to evidence-based standards. 
This interpretation allows providers to adapt their work as necessary, 
without any single, limiting approach being required.
    The railroad's plan should contain elements that have been 
demonstrated to help mitigate, attenuate, and limit stressful impacts 
as well as provide intervention and treatment after the fact. The 
phrase ``other appropriate support services'' is designed to be 
flexible to account for new approaches. Research shows that five basic 
principles hold a demonstrated positive impact on resiliency and 
resolution: (1) Restoring a sense of safety; (2) calming anxiety and 
agitation; (3) enhancing self-efficacy; (4) building connectedness; and 
(5) facilitating hope.\11\ As suggested by the Grantee's final report, 
railroad plans should consider an evidence-based approach to early 
assistance designed to facilitate resiliency and establish a basis for 
subsequent intervention based on systematic screening and stepped care 
employing evidence-based treatment as indicated. A series of well 
researched, public domain resources is available to support each step 
of early intervention and stepped care, including the following: (1) 
Several approaches have been developed around the principles of 
``psychological first aid,'' evidence-informed approaches to early 
interactions with those affected by potentially traumatic events 
intended to facilitate these basic principles (e.g., Psychological 
First Aid, a manual on early assistance developed by the National 
Center for Post Traumatic Stress Disorder (NCPTSD) and the Substance 
Abuse and Mental Health Services Administration (SAMHSA); \12\ Curbside 
Manner: Stress First Aid for the Street from the National Fallen 
Firefighters Foundation Everyone Goes Home project; Mental Health First 
Aid from the National Council for Behavioral Health Centers); (2) 
Trauma Screening Questionnaire, a 10-item quick screen with documented 
sensitivity, specificity, and efficiency to identify those for whom 
further assessment and treatment may be indicated; \13\ and (3) Web-
based approaches to clinician training to enable journeyman providers 
open access at little or no cost to training and consultation in 
evidence-based treatments for PTSD, anxiety, and depression.\14\
---------------------------------------------------------------------------

    \11\ Hobfoll, S.E., Watson, P.J., Bell, C.C., et al. (2007). 
Five essential elements of immediate and mid-term mass trauma 
intervention: Empirical evidence. Psychiatry, 70(4), 283-315.
    \12\ Brymer, M., Jacobs, A., Layne, C., Pynoos, R., Ruzek, J., 
Steinberg, A., Vernberg, E, & Watson, P. (2006). Psychological first 
aid: Field operations guide (2d. Ed.). National Center for PTSD. 
Available online at http://www.ptsd.va.gov/professional/manuals//manual-pdf/pfa/PFA_2ndEditionwithappendices.pdf. Accessed January 
2, 2013.
    \13\ Brewin, C.R., Rose, S., Andrews, B., Green, J., Tata, P., 
McEvedy, C., Turner, S., & Foa, E.B. (2002). Brief screening 
instrument for post-traumatic stress disorder. British Journal of 
Psychiatry, 181, 158-162.
    \14\ National Crime Victims Center, Trauma-Focused Cognitive-
Behavioral Therapy (2005) (Web training site accessible at http://tfcbt.musc.edu). National Crime Victims Center, Cognitive Processing 
Therapy (2009) (Web training site accessible at https://cpt.musc.edu).
---------------------------------------------------------------------------

    Taken together, these resources provide a foundation for the 
adaptation of any analogous existing railroad programs to meet current 
standards of care. For example, programs for fire and emergency medical 
services personnel have been substantially redesigned to be more 
consistent with empirical evidence respecting variability in individual 
reactivity and resilience; organizational roles in preparation, 
response, and recovery; and implementation of standards respecting 
screening, assessment, and specialty care.\15\ Similar adaptations are 
underway in other workplace settings.\16\
---------------------------------------------------------------------------

    \15\ Gist, R. & Taylor, V.H. (2008). Occupational and 
organizational issues in emergency medical services behavioral 
health. Journal of Workplace Behavioral Health, 23(3), 309-330. 
Gist, R., & Taylor, V.H. (2009). Prevention and intervention for 
psychologically stressful events. In R. Bass, J.H. Brice, T.R. 
Delbridge, & M.R. Gunderson (Eds.), Medical Oversight of EMS (Vol. 
2, pp. 386-396). Dubuque, IA: Kendall/Hunt Publishing.
    \16\ VandePol, B., Labardee, L., & Gist, R. (2006). The 
evolution of Psychological First Aid. Journal of Employee 
Assistance, 36, 18-20. VandePol, B., Labardee, L., Gist, R., & 
Braverman, M. (2006). Strategic specialty partnerships: Enabling the 
EAP for evidence informed best practices in workplace crisis 
response. In R.P. Maiden, R. Paul, & C. Thompson (Eds.), Workplace 
disaster preparedness, response, and management, pp. 119-131.
---------------------------------------------------------------------------

    FRA notes that the specific intervention element of ``critical 
stress debriefing'' in the scientific literature is contraindicated, as 
it has not been shown to be effective and may actually be harmful in 
some instances. ``Critical stress debriefing'' is an intervention

[[Page 38887]]

approach that requires a participant, through a formal interview 
process, to relive and discuss the traumatic experience, shortly 
following a traumatic event. The intent of ``critical stress 
debriefing'' is to resolve the emotional aftermath of the incident. 
According to current research, however, ``critical stress debriefing,'' 
the central intervention of most critical incident programs, shows no 
preventive efficacy and well-controlled studies suggests risk of 
impaired recovery for some participants, especially the most severely 
symptomatic.\17\ Thus, FRA interprets the RSIA requirement in Section 
410(a) that critical incident stress plans ``provide for debriefing, 
counseling, guidance, and other appropriate services'' to require 
services that provide effective, appropriate guidance and support, 
rather than requiring a rigid application of ``critical stress 
debriefing'' intervention methods. FRA expects that the questioning and 
investigatory purposes involved in ``debriefing'' will still occur as 
part of any response to a critical incident, but that the specific 
intervention element of ``critical stress debriefing'' will not be a 
component of a railroad's plan as an appropriate support service.
---------------------------------------------------------------------------

    \17\ McNally, R.J., Bryant, R.A., & Ehlers, A. (2003). Does 
early psychological intervention promote recovery from posttraumatic 
stress? Psychological Science in the Public Interest, 4(2).
---------------------------------------------------------------------------

    Further, by including ``appropriate support services'' in the 
regulatory text, mirroring the statutory text, it is not FRA's intent 
to assess or approve the clinical quality of services or providers. 
However, if a railroad's plan proposes to utilize a method that is 
shown to be contraindicated and may cause harm, the plan will not be 
approved. For example, if a plan requires ``critical stress 
debriefing,'' FRA will disapprove the plan, as this would not be an 
``appropriate support service.'' While volunteer ``peer-to-peer'' 
support services and psychoeducation services may be helpful, they lack 
direct empirical demonstrations of efficacy and, in some settings, have 
also raised concern.\18\ Thus, if a peer support program is utilized, 
it should follow specific protocols: it should complement but not 
supplant professional roles, the definition of roles and boundaries 
should be emphasized, and the relationship to occupational medicine 
and/or EAP should be specified in the plan.
---------------------------------------------------------------------------

    \18\ Lohr, J.M., Hooke, W., Gist, R., & Tolin, D.F. (2003). 
Novel and controversial treatments for trauma-related stress 
disorders. In S.O. Lilienfeld, S.J. Lynn, & J.M. Lohr (Eds.), 
Science and pseudoscience in clinical psychology (pp. 243-272). New 
York: Guilford Press.
---------------------------------------------------------------------------

    Under proposed paragraph (e) of the section, the plan must provide 
for ``[p]ermitting relief from the duty tour(s) subsequent to the 
critical incident, for an amount of time to be determined by each 
railroad, if requested by a directly-involved employee as may be 
necessary and reasonable[.]'' In this provision, FRA proposes that 
railroad plans address how much additional time off an employee 
affected by a critical incident may receive at the employee's option 
and what procedures must be followed in that event. Many railroads 
currently offer relief from the immediate tour of duty along with 
transportation to the employee's home terminal, then provide up to 
three days off along with consultation with an EAP, if any, and/or 
occupational medicine staff. This section would provide directly-
involved employees with an opportunity, away from the railroad 
environment, to cope with having experienced a critical incident. This 
is an amount of time to be determined by each railroad to allow for a 
reasonable amount of rest and time following a critical incident 
(without necessitating a clinical diagnosis). This proposed part is 
neutral on the amount of additional relief a railroad should permit 
beyond the tour of duty during which the critical incident occurred. 
The specific language in this proposal was modified from the RSAC-
approved language to include a qualifier on the requirement: ``for an 
amount of time to be determined by each railroad . . . as may be 
necessary and reasonable'' to add context and clarity on the intent of 
the provision.
    Under paragraph (f) of the section, the plan must provide for 
``[p]ermitting each directly-involved employee such additional leave 
from normal duty as may be necessary and reasonable to receive 
preventive services or treatment related to the incident or both.'' 
Beyond an initial ``coping'' period, as specified in paragraph (e), 
additional time must be provided to affected employees for preventive 
services and treatment as needed for the adverse effects of the 
critical incident. Many railroads' plans currently permit leave in 
addition to the duty tour(s) subsequent to the critical incident 
discussed in paragraph (e) if a clinical diagnosis supports the need to 
fulfill the employee's request. Paragraph (f) reinforces that each 
railroad's critical incident stress plan must provide for additional 
relief to be provided as necessary and reasonable to receive the 
preventive services or treatment related to the incident, as required 
by the RSIA.
    Under proposed paragraph (g) of this section, the plan must provide 
for ``[a]ddressing how the railroad's employees operating or otherwise 
working on track owned by or operated over by a different railroad will 
be afforded the protections of the plan.'' This proposal was not 
discussed specifically in the CIWG, but was added to ensure that 
situations where railroad employees operate or otherwise work on track 
owned by or operated over by a different railroad are addressed. FRA 
recognizes that there may be instances where a critical incident occurs 
while one railroad's employees are operating over another railroad's 
track. For example, if track maintainers employed by Railroad A witness 
a critical incident involving Railroad B's train, both Railroad A's 
track maintainers and Railroad B's train crew must be covered by an 
approved critical incident stress plan. In this example, provided that 
this proposed regulation applies to Railroad A, Railroad A's employees 
would logically be covered by Railroad A's critical incident stress 
plan, even if the critical incident did not specifically occur with 
Railroad A's equipment. As such, each railroad's plan must address how 
the critical incident stress plan would be implemented to account for 
situations where multiple railroads are involved.
Section 272.103 Submission of Critical Incident Stress Plan for 
Approval by FRA
    FRA encourages railroads to which this part would apply and labor 
organizations representing employees to whom this part would apply to 
discuss the railroad's proposed critical incident stress plan prior to 
formal submission of the plan to FRA for approval. This collaborative 
discussion should help ensure that plans are drafted and adapted to 
meet the needs of all potentially affected by the plan. This proposed 
section envisions that at a minimum, potentially-affected employees 
would have an opportunity to comment and to discuss the contents of the 
plan at an early stage, prior to implementation. Because collaborative 
efforts will likely benefit railroad employees and railroad management, 
each railroad required to submit a critical incident stress plan should 
aspire to consult with, employ good faith, and use its best efforts to 
reach agreement with all of its covered employees on the contents of 
the plan. However, such endeavors would not be required by this 
proposed regulation.
    In paragraphs (b) and (c) of this section, the railroad must 
provide the international/national president of any non-profit employee 
labor organization representing a class or craft of the railroad's 
employees subject to this part with a copy of the railroad's critical

[[Page 38888]]

incident stress plan and any material modification thereof. This 
requirement is intended to be consistent with other proposed and final 
FRA regulations, such as the NPRM on training standards (77 FR 6412, 
Feb. 7, 2012) and the final rule on conductor certification (76 FR 
69802, Nov. 9, 2011). FRA encourages the union officials to distribute 
the notice broadly within each organization, so that all covered 
employees are made aware of the elements of the railroad's plan.
    FRA notes that some members of the CIWG expressed their wish that 
this part require each railroad to notify not only the international/
national president, but also the general chairpersons, of any non-
profit employee labor organization representing a class or craft of the 
railroad's employees subject to this part. The issue of whether to 
require notification of the general chairpersons (in addition to the 
international/national president) was a point of contention in the 
CIWG, and a consensus was not reached. Labor representatives argued 
that general chairpersons are the designated collective bargaining 
representatives, and in many cases, the international/national 
presidents do not have standing on railroad property. For these 
reasons, labor representatives believe notifications should be sent to 
the general chairpersons because each plan is an on-property issue 
unique to each railroad and because a railroad would not be unduly 
burdened by contacting the relevant general chairpersons.
    In response, railroad representatives and AAR argue that nothing in 
the RSIA requires that each railroad send a copy of its plans to each 
general chairperson, and they do not want to set a precedent that might 
be cited in a future rulemaking. Prior FRA regulations have required 
informing only the international/national presidents, rather than 
general chairpersons. Railroad and AAR representatives expressed the 
view that it would be less burdensome for each railroad to notify a 
single person at each organization, who can then pass along the 
information to the most relevant persons. There are many general 
chairpersons in each organization,\19\ which would add to the cost of 
compliance of the proposed rule, if FRA proposed to require each 
railroad to notify general chairpersons directly. FRA notes that the 
recent publication of the System Safety Program NPRM, 77 FR 55372 
(Sept. 7, 2012), includes a consultation requirement, in proposed Sec.  
270.102(b)(4), and ``a service list containing the names and contact 
information for the international/national president and general 
chairperson of any non-profit employee labor organization representing 
a class or craft of the railroad's directly affected employees.'' The 
RSIA mandate for system safety and risk reduction programs specifically 
required consultation. The RSIA mandate for critical incident stress 
plans does not. FRA seeks comments on this issue.
---------------------------------------------------------------------------

    \19\ For example, one organization for a Class I railroad has as 
many as 40 general chairpersons. AAR states that on BNSF, CSX, NS, 
and UP, there are 154 general chairpersons. During the RSAC process, 
AAR indicated its intent to provide cost estimates related to this 
issue during this NPRM's comment period.
---------------------------------------------------------------------------

    The proposal contemplates that railroads may submit existing 
critical incident stress plans to FRA for approval that have previously 
been established through any applicable collective bargaining 
agreement. However, FRA proposes that, in order to satisfy the eventual 
final rule, any preexisting critical incident stress plan would have to 
contain all prescribed elements of the plan as set forth in the 
regulation, and such a plan would have to be submitted to FRA pursuant 
to this section for review. Thus, FRA would approve critical incident 
stress plans previously vetted through the collective bargaining 
agreement process, provided that those plans meet the criteria 
specified in the final regulation. As proposed, FRA's regulation would 
constitute a minimum standard and would not negate any higher standards 
set by a collective bargaining agreement.
    Under paragraph (e) of proposed Sec.  272.103, ``[a]fter FRA's 
initial approval of a railroad's critical incident stress plan, if the 
railroad makes a material modification of the plan, the railroad shall 
submit to FRA for approval a copy of the plan as it has been revised to 
reflect the material modification within 30 days of making the material 
modification.'' The plan should be reviewed periodically for 
effectiveness and updated when it is prudent to do so. When material 
modifications are made, the railroad must submit the materially 
modified plan to FRA for approval. ``Material modification'' refers to 
substantive changes made to the plan, and is not intended to refer to 
minor updates, such as address modifications, or the like.
    Under paragraph (f) of proposed Sec.  272.103, ``[u]pon FRA 
approval of a railroad's critical incident stress plan and any material 
modification of the critical incident stress plan, the railroad must 
make a copy of the railroad's plan and the material modification 
available to the railroad's employees identified in Sec.  272.7.'' This 
paragraph is intended to ensure that all relevant employees of the 
railroad are aware of the railroad's critical incident stress plan and 
the specific requirements of the plan. For a railroad to implement its 
critical incident stress plan so as to fulfill the objective of the 
plan, which is to aid employees who experience critical incidents, all 
relevant employees of the railroad, from managers at headquarters to 
employees at the local level, must be made aware of the railroad's 
critical incident stress plan and the specific requirements of the plan 
and must be trained on how to implement the requirements of the plan 
relevant to the employee.\20\
---------------------------------------------------------------------------

    \20\ FRA intends that any training requirements for implementing 
these plans would be covered by the new training regulation, 49 CFR 
Part 243. FRA would expect all railroad plans to provide for 
training to employees and supervisors concerning what each covered 
employee should do following a critical incident.
---------------------------------------------------------------------------

    Under paragraph (g) of proposed Sec.  272.103, ``[e]ach railroad 
subject to this part must make a copy of the railroad's plan available 
for inspection and reproduction by the Federal Railroad 
Administration.'' This section addresses FRA's specific authority to 
inspect and enforce the proposed regulation, as is stated in other FRA 
regulations.
Section 272.105 Option To File Critical Incident Stress Plan 
Electronically
    This section proposes the option for each railroad to which this 
part applies to file any plan submissions electronically. FRA intends 
to create a secure document submission site and will need basic 
information from each railroad before setting up the user's account. 
The points of contact information in proposed paragraph (b) are 
necessary in order to provide secure access.
    Proposed paragraphs (c), (e), and (f) are intended to allow FRA to 
make the greatest use of an electronic database. It is anticipated that 
FRA may be able to approve or disapprove all or part of a critical 
incident stress plan and generate automated notifications by email to a 
railroad's points of contact. Thus, FRA wants each point of contact to 
understand that by providing any email addresses, the railroad is 
consenting to receive approval and disapproval notices from FRA by 
email. Railroads that allow notice from FRA by email would gain the 
benefit of receiving such notices quickly and efficiently.
    Proposed paragraph (d) is necessary to provide FRA's mailing 
address for those railroads that need to submit something in writing to 
FRA. For those railroads, requesting electronic submission, the

[[Page 38889]]

list of information specified in proposed paragraph (b) is required. 
Otherwise, those railroads that choose to submit printed materials to 
FRA must deliver them directly to the specified address. Some railroads 
may choose to deliver a CD, DVD, or other electronic storage format to 
FRA rather than requesting access to upload the documents directly to 
the secure electronic database; although this will be an acceptable 
method of submission, FRA would encourage each railroad to utilize the 
electronic submission capabilities of the system. Of course, if FRA 
does not have the capability to read the type of electronic storage 
format sent, FRA can reject the submission.
    Finally, FRA is considering whether to mandate electronic 
submission. FRA is strongly leaning toward finalizing this option 
because the agency will be devoting significant resources to develop 
the electronic submission process. It will be more costly for the 
agency to develop the electronic submission process and have to upload 
written submissions into the electronic database itself. FRA expects 
that there are few, if any, railroads who do not have Internet access 
and an email address, or who cannot otherwise meet the minimum 
requirements for electronic submission. FRA requests comments on 
whether mandatory electronic submission is objectionable to any 
railroad.
Appendix A to Part 272--Schedule of Civil Penalties
    In the final rule, Appendix A will contain a detailed penalty 
schedule similar to that FRA has issued for most of its existing rules. 
Because such penalty schedules are statements of policy, notice and 
comment are not required prior to their issuance. See 5 U.S.C. 
553(b)(3)(A). Nevertheless interested parties are invited to submit 
their views on what penalties may be appropriate.

VII. Regulatory Impact and Notices

A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures and determined to be non-significant under both 
Executive Orders 12866 and 13563 and DOT policies and procedures. See 
44 FR 11034, February 26, 1979. FRA has prepared and placed in the 
docket a Regulatory Impact Analysis (RIA) addressing the economic 
impact of this proposed rule. As part of the RIA, FRA has assessed the 
quantitative costs and benefits from the implementation of this 
proposed rule.
    The purpose of the proposed rule is to enhance safety by mandating 
that certain railroads (each Class I railroad, intercity passenger 
railroad, and commuter railroad) have a critical incident stress plan 
intended to mitigate the long-term negative effects of critical 
incidents upon railroad employees. Specifically the proposal would help 
ensure that every railroad employee covered by the rule who works for 
these railroads and who is affected by a critical incident can receive 
the support services needed.
    The Railroad Safety Advisory Committee (RSAC) formed a working 
group to provide advice and recommendations on the regulatory matters 
involving critical incident stress plans.\21\ Based on both RSAC 
meetings and discussions with the rail industry, FRA's analysis in the 
RIA assumes that all railroads affected by the proposed rule currently 
have policies that include a critical incident stress plan, thereby 
reducing the costs of compliance associated with the proposed rule. FRA 
requests comments on this assumption.
---------------------------------------------------------------------------

    \21\ This RSAC working group reached consensus on all items but 
one: whether a railroad should be required to provide its critical 
incident stress plan to the general chairperson of a labor 
organization, in addition to the organization's international/
national president.
---------------------------------------------------------------------------

    FRA's analysis follows DOT's revised ``Guidance on the Economic 
Value of a Statistical Life in US Department of Transportation 
Analyses,'' published in March 2013. Based on real wage growth 
forecasts from the Congressional Budget Office, DOT's guidance 
estimates that there will be an expected 1.07 percent annual growth 
rate in median real wages over the next 20 years (2013-2033) and 
assuming an income elasticity of 1.0 adjusts the Value of Statistical 
Life (VSL) in future years in the same way. Real wages represent the 
purchasing power of nominal wages. VSL is the basis for valuing avoided 
casualties. FRA's analysis further accounts for expected wage growth by 
adjusting the taxable wage component of labor costs. Other non-labor 
hour based costs and benefits are not impacted. FRA estimates that the 
costs of the proposed rule for a 20-year period would total $1.9 
million, with a present value (PV, 7%) of $1.3 million and (PV, 3%) of 
$1.6 million. In estimating these compliance costs, FRA included costs 
associated with training supervisors on how to interact with railroad 
employees who have been affected by a critical incident, additional 
costs associated with greater use of Employee Assistance Programs, and 
costs associated with the submission of critical incident stress plans 
to FRA. FRA also estimates that the quantifiable benefits of the 
proposed rule for a 20-year period would total $2.6 million, with a 
present value (PV, 7%) of $1.5 million and (PV, 3%) of $2.0 million. 
FRA is confident that potential benefits of the proposed rule would 
exceed the total costs.

             Table 1--20-Year Costs for Proposed Rulemaking
------------------------------------------------------------------------
                                           Present value   Present value
                                            (7 percent)     (3 percent)
------------------------------------------------------------------------
Training................................      $1,135,685      $1,342,391
Submission of Critical Incident Stress           114,266         153,415
 Plans for approval by FRA..............
EAP Specialist..........................          87,879         119,713
                                         -------------------------------
    Total...............................       1,337,830       1,615,519
------------------------------------------------------------------------

    The RIA also explains the likely benefits of this proposed rule, 
providing quantified estimates of the benefits where feasible. The 
proposed rule contains minimum standards for employee training, leave, 
counseling, and other support services. These standards would help 
create benefits by providing employees with knowledge, coping skills, 
and services that would help them: (1) Recognize and cope with symptoms 
of normal stress reactions that commonly occur as a result of a 
critical incident; (2) reduce their chance of developing a disorder 
such as depression, Post-Traumatic Stress Disorder (PTSD), or Acute 
Stress Disorder (ASD) as a result of a critical

[[Page 38890]]

incident; and (3) recognize symptoms of psychological disorders that 
sometimes occur as a result of a critical incident and know how to 
obtain prompt evaluation and treatment of any such disorder, if 
necessary.
    Specifically, FRA anticipates that implementation of the proposed 
rule would yield benefits by reducing long-term healthcare costs 
associated with treating PTSD, ASD, and other stress reactions; and 
costs that accrue either when an employee is unable to return to work 
for a significant period of time or might leave railroad employment due 
to being affected by PTSD, ASD, or another stress reaction.
    The majority of the quantifiable benefits identified are associated 
with railroad employee retention and a reduction of long-term 
healthcare costs associated with PTSD cases that were not treated 
appropriately after a critical incident. FRA estimates that one-half of 
one percent of railroad employees who develop PTSD exit the railroad 
industry. According to this estimate, one railroad employee would leave 
the railroad industry due to PTSD every ten years. If an employee is 
unable to return to work, the railroad not only loses an experienced 
employee, but also must train a new employee. FRA expects that the 
proposed rule would decrease the number of new employees that have to 
be trained to backfill for those who leave the railroad industry due to 
PTSD, ASD, or other stress reactions, as early treatment for potential 
PTSD cases following exposure to a critical incident by reducing both 
the likelihood of developing and the duration of PTSD or another stress 
reaction. The proposed rule would also increase the early 
identification and treatment of PTSD thus reducing long-term healthcare 
costs. Overall, FRA finds that the value of the anticipated benefits 
would justify the cost of implementing the proposed rule.

            Table 2--20-Year Benefits for Proposed Rulemaking
------------------------------------------------------------------------
                                           Present value   Present value
                                            (7 percent)     (3 percent)
------------------------------------------------------------------------
Reduction in Long-term Healthcare Costs.      $1,445,288      $1,953,784
Retention of Employees (reduced                   60,334          69,764
 backfilling costs).....................
                                         -------------------------------
    Total...............................       1,505,622       2,023,548
------------------------------------------------------------------------

B. Initial 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. FRA developed the proposed rule in accordance with Executive 
Order 13272 (``Proper Consideration of Small Entities in Agency 
Rulemaking'') and DOT's procedures and policies to promote compliance 
with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure 
potential impacts of rules on small entities are properly considered.
    The Regulatory Flexibility Act requires an agency to review 
regulations to assess their impact on small entities. An agency must 
prepare an initial regulatory flexibility analysis (IRFA) unless it 
determines and certifies that a rule, if promulgated, would not have a 
significant economic impact on a substantial number of small entities 
(SEIOSNOSE). FRA has not determined whether this proposed rule would 
have a SEIOSNOSE. Therefore, FRA is publishing this IRFA to aid the 
public in commenting on the potential small business impacts of the 
requirements in the proposed rule. FRA invites all interested parties 
to submit data and information regarding the potential economic impact 
on small entities that would result from the adoption of the proposed 
rule. FRA will consider all comments received in the public comment 
process when making a final determination.
    The proposed rule would apply to each Class I railroad, intercity 
passenger railroad, and commuter railroad as defined by this part. 
Based on information currently available, FRA estimates that no small 
entities would be required to create a critical incident stress plan, 
and therefore, no small business would be negatively impacted by the 
proposed rule. FRA estimates that the total cost of the proposed rule 
for the railroad industry over a 20-year period would be $1,943,565, 
with a present value (PV, 7) of $1,337,830 and (PV, 3) of $1,615,519. 
Based on information currently available as noted above, FRA estimates 
that zero percent of the total railroad costs associated with 
implementing the proposed rule would be borne by small entities. The 
total regulatory cost in the RIA for this proposed rule is the basis 
for the estimates in this IRFA, and the RIA has been placed in the 
docket for public review. It provides extensive information about the 
total costs of the proposed regulation.
    Based on the railroad reporting data from 2011, there are 719 Class 
III railroads. Due to the applicability of the proposed rule, however, 
none of these railroads would be impacted. The railroad reporting data 
also shows that there are 30 intercity passenger and commuter 
railroads.\22\ Although two of these railroads are considered small 
entities, they do not fall within the proposed rule's definition of a 
``commuter railroad,'' which means a railroad, as described by 49 
U.S.C. 20102(2), including public authorities operating passenger train 
service, that provides regularly-scheduled passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979. 
Therefore FRA finds that there are 28 intercity passenger and commuter 
railroads that will incur additional costs by the proposed rule. FRA 
requests comments on the finding that no small entities would be 
impacted by this proposed regulation.
---------------------------------------------------------------------------

    \22\ This total includes the Alaska Railroad, which is 
categorized as a Class II railroad.
---------------------------------------------------------------------------

    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
    (1) A description of the reasons why the action by the agency is 
being considered.
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule.
    (3) A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    (4) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.

[[Page 38891]]

    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
1. Reasons for Considering Agency Action
    This rulemaking responds to requirements in the Rail Safety 
Improvement Act of 2008 (RSIA) (Pub. L. 110-432, Div. A) that the 
Secretary of Transportation, as delegated to the Administrator of FRA 
(49 CFR 1.89(b)), establish regulations to define critical incident, 
and to require certain railroads to develop and implement critical 
incident stress plans.
    The purpose of this proposed rule is to enhance safety by mandating 
that railroads have a critical incident stress plan that may help 
mitigate the long-term negative effects of critical incidents upon 
covered railroad employees. One of the most important assets to the 
railroad industry is its labor force. The railroads spend significant 
resources training their workforces. Although all of the railroads 
potentially affected by the proposed rule have policies that include 
critical incident stress plans, the proposed rule would promote 
implementation as intended to every applicable employee covered by a 
critical incident stress plan and also ensure that all such plans meet 
certain minimum Federal requirements.
    After reviewing the critical incident stress plans of various 
railroads, FRA determined that the most cost efficient and beneficial 
way to help ensure implementation of the plan for railroad employees 
covered who witness a critical incident was to implement the 
requirements found in this proposed rule. FRA anticipates that the 
railroad industry will accept the proposed requirements.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of the proposed rule is to require each Class I, 
intercity passenger, and commuter railroad to develop a critical 
incident stress plan. This plan would cover every applicable railroad 
employee who witnessed a critical incident while working.
    Section 410 of RSIA requires the Secretary of Transportation, as 
delegated to the Administrator of the Federal Railroad Administration, 
to prescribe a regulation mandating that certain railroads develop and 
implement critical incident stress plans. A Railroad Safety Advisory 
Committee (RSAC) working group was formed and tasked to define a 
critical incident, which made sure that the railroad industry and labor 
unions were included in the rulemaking process. The working group 
reached a consensus on all but one item \23\ and forwarded a proposal 
to the full RSAC on August 21, 2012. The full RSAC voted to approve the 
working group's recommended text on September 27, 2012, and that 
recommended text provided the basis for this NPRM. This proposed 
regulation would be codified in Title 49, Code of Federal Regulations, 
part 272.
---------------------------------------------------------------------------

    \23\ Consensus was not reached on the issue of whether a 
railroad should be required to provide labor organizations' general 
chairpersons (in addition to the international/national president of 
the labor organization) with a copy of a railroad's critical 
incident stress plan.
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of Small Entities 
to Which the Proposed Rule Would Apply
    The universe of entities that must be considered in an IRFA 
generally includes only those small entities that are reasonably 
expected to be directly regulated by the proposed action. This proposed 
rule would affect Class I railroads (including the National Railroad 
Passenger Corporation (``Amtrak'')), intercity passenger railroads, and 
commuter railroads as defined in the scope of the proposed rule.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation.
    The Small Business Administration (SBA) stipulates in its size 
standards that the largest a railroad business firm that is ``for 
profit'' may be and still be classified as a ``small entity'' is 1,500 
employees for ``line haul operating railroads'' and 500 employees for 
``switching and terminal establishments.'' Additionally, 5 U.S.C. 
601(5) defines as ``small entities'' governments of cities, counties, 
towns, townships, villages, school districts, or special districts with 
populations less than 50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with the 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 49 CFR part 209, Appendix C. 
The $20 million-limit is based on the Surface Transportation Board's 
revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition of ``small entity'' for this rulemaking. Any comments 
received pertinent to its use will be addressed in the final rule.
Railroads
    FRA finds that there are 7 Class I and 28 intercity passenger and 
commuter railroads, including Amtrak and the Alaska Railroad, affected 
by this proposed rule. Amtrak, the Alaska Railroad, and the 7 Class I 
railroads are not considered to be small entities. All of the affected 
commuter railroads are part of larger public transportation agencies 
that receive Federal funds and serve major jurisdictions with 
populations greater than 50,000; based on the definition, therefore, 
they are not considered small entities.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
RIA, which has been placed in the docket for this rulemaking.
    As FRA believes that no small entities will be affected by this 
proposed rule, there would also be no cost impacts on small businesses. 
Railroads operated entirely by contract operators, such that the 
contractor organization itself meets the definition of a commuter 
railroad, Class I, or intercity passenger railroad, would be subject to 
this rule. In these circumstances, FRA assumes that the contract 
operator would utilize the critical incident stress plan developed by 
the reporting railroad. FRA will hold the reporting railroads 
responsible for defects or deficiency, not the contracted operators. 
Therefore, FRA does not expect that the proposed rule will

[[Page 38892]]

directly impact any contractors that are considered to be small 
entities.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is not aware of any relevant Federal rules that may duplicate, 
overlap, or conflict with the proposed rule.
    FRA invites all interested parties to submit comments, data, and 
information demonstrating the potential economic impact that would 
result from adoption of the proposals in this NPRM. FRA will consider 
all comments received in the public comment period for this NPRM when 
making a final determination of the rulemaking's economic impact on 
small entities.

C. Executive Order 13175

    FRA analyzed this proposed rule in accordance with the principles 
and criteria contained in Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments'').
    Because this rule does not significantly or uniquely affect tribes 
and does not impose substantial and direct compliance costs on Indian 
tribal governments, the funding and consultation requirements of 
Executive Order 13175 do not apply, and a tribal summary impact 
statement is not required.

D. Paperwork Reduction Act

    The information collection requirements in this proposed 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 information collection requirements 
and the estimated time to fulfill each requirement are as follows:

----------------------------------------------------------------------------------------------------------------
                                                            Total annual       Average time per    Total annual
           CFR Section             Respondent universe       responses             response        burden hours
----------------------------------------------------------------------------------------------------------------
    272.103 - RR Submission of     34 Railroads.......  34 modified plans..  16 hours...........             544
     Updated/Modified Existing
     Critical Incident Stress
     Plan.
    RR Copies of Updated Critical  34 Railroads.......  170 plan copies....  5 minutes..........           14.17
     Incident Stress Plans to 5
     Employee Labor Organizations.
    Rail Labor Organization        5 Labor              65 comments........  3 hours............             195
     Comments to FRA on RR          Organizations.
     Critical Incident Stress
     Plan.
    Rail Labor Organization that   5 Labor              65 certifications..  15 minutes.........              16
     Comment Copy has been served   Organizations.
     on Railroad.
    Copy to RR Employees of        170,000 Employees..  170,000 copies.....  5 minutes..........          14,167
     Updated/Modified Critical
     Incident Stress Plans.
    Copy to FRA Inspector Upon     34 Railroads.......  136 plan copies....  5 minutes..........           11.33
     Request of Critical Incident
     Stress Plan.
    272.105 - RR Request to FRA    34 Railroads.......  34 requests........  60 minutes.........              34
     for Electronic Submission of
     Critical Incident Stress
     Plan or Review of Written
     Materials.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone 
at 202-493-6137.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: [email protected]; [email protected].
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed 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. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

E. Environmental Impact

    FRA has evaluated this proposed 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 action 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. 
64 FR 28547, May 26, 1999. 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 final rule that 
might trigger the need for a more detailed environmental review. As a 
result, FRA finds that this

[[Page 38893]]

proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

F. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
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 
or the agency consults with State and local government officials early 
in the process of developing the 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 analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. If adopted, 
this proposed rule would not have a substantial direct effect on the 
States, on the relationship between the Federal government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. FRA has also determined that this 
proposed rule would not impose substantial direct compliance costs on 
State and local governments. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    Moreover, FRA notes that RSAC, which endorsed and recommended the 
majority of this proposed rule, has as permanent members, two 
organizations representing State and local interests: AASHTO and ASRSM. 
Both of these State organizations concurred with the RSAC 
recommendation made in this rulemaking. RSAC regularly provides 
recommendations to the Administrator of FRA for solutions to regulatory 
issues that reflect significant input from its State members. To date, 
FRA has received no indication of concerns about the federalism 
implications of this rulemaking from these representatives or from any 
other representatives of State government.
    However, this proposed rule could have preemptive effect by 
operation of law under 49 U.S.C. 20106 (Section 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 order 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 ``local safety or security hazard'' exception to 
Section 20106.
    In sum, FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. As 
explained above, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Section 20106. Accordingly, FRA has determined that 
preparation of a federalism summary impact statement for this proposed 
rule is not required.

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 the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) [currently $140,800,000] 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 proposed rule will not result 
in the expenditure, in the aggregate, of $140,800,000 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.'' See 
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant 
energy action'' is defined as any action by an agency 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 proposed rule in accordance with Executive Order 13211. FRA has 
determined that this proposed rule is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Consequently, FRA has determined that this final rule is not a 
``significant energy action'' within the meaning of the Executive 
Order.

I. Privacy Act Statement

    FRA wishes to inform all interested parties that anyone is able to 
search the electronic form of any written communications and comments 
received into any agency docket by the name of the individual 
submitting the document (or signing the document, if submitted on 
behalf of an association, business, labor union, etc.). Interested 
parties may also review DOT's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477) or visit 
http://www.regulations.gov/#!privacyNotice.

List of Subjects in 49 CFR Part 272

    Accidents, Critical incident, Penalties, Railroads, Railroad 
employees, Railroad safety, Safety, and Transportation.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B of Title 49 of the Code of Federal Regulations 
as follows:

0
1. Add a new part 272 to read as follows:

PART 272--CRITICAL INCIDENT STRESS PLANS

Subpart A--General
Sec.
272.1 Purpose.
272.3 Application.

[[Page 38894]]

272.5 General duty.
272.7 Coverage of a critical incident stress plan.
272.9 Definitions.
272.11 Penalties.
Subpart B--Plan Components and Approval Process
272.101 Content of a critical incident stress plan.
272.103 Submission of critical incident stress plan for approval by 
the Federal Railroad Administration.
272.105 Option to file critical incident stress plan electronically.
Appendix A to Part 272--Schedule of Civil Penalties


    Authority: 49 U.S.C. 20103, 20107, 20109, note; 28 U.S.C. 2461, 
note; 49 CFR 1.89; and Sec. 410, Div. A, Public Law 110-432, 122 
Stat. 4888.

Subpart A--General


Sec.  272.1  Purpose.

    (a) The purpose of this part is to promote the safety of railroad 
operations and the health and safety of railroad employees, especially 
those who are directly involved in a critical incident by requiring 
that the employing railroad offers and provides appropriate support 
services, including appropriate relief, to the directly-involved 
employees following that critical incident.
    (b) Nothing in this part constrains a railroad from implementing a 
critical incident stress plan that contains additional provisions 
beyond those specified in this rule (including provisions covering 
additional incidents or persons), provided that such additional 
provisions are not inconsistent with this rule.


Sec.  272.3  Application.

    This part applies to each
    (a) Class I railroad, including the National Railroad Passenger 
Corporation;
    (b) Intercity passenger railroad; or
    (c) Commuter railroad.


Sec.  272.5  General duty.

    A railroad subject to this part shall adopt a written critical 
incident stress plan approved by the Federal Railroad Administration 
under Sec.  272.103 and shall comply with that plan. Should a railroad 
subject to this part make a material modification to the approved plan, 
the railroad shall adopt the modified plan approved by the Federal 
Railroad Administration under Sec.  272.103 and shall comply with that 
plan, as revised.


Sec.  272.7  Coverage of a critical incident stress plan.

    The critical incident stress plan of a railroad subject to this 
part shall state that it covers, and shall cover, the following 
individuals employed by the railroad if they are directly involved (as 
defined in Sec.  272.9) in a critical incident:
    (a) Railroad employees who are subject to the hours of service laws 
at--
    (1) 49 U.S.C. 21103 (that is, train employees not subject to 
subpart F of part 228 of this chapter regarding the hours of service of 
train employees engaged in commuter or intercity rail passenger 
transportation);
    (2) 49 U.S.C. 21104 (signal employees); or
    (3) 49 U.S.C. 21105 (dispatching service employees);
    (b) Railroad employees who are subject to the hours of service 
regulations at subpart F of part 228 of this chapter (regarding the 
hours of service of train employees engaged in commuter or intercity 
rail passenger transportation);
    (c) Railroad employees who inspect, install, repair, or maintain 
railroad right-of-way or structures; and
    (d) Railroad employees who inspect, repair, or maintain 
locomotives, passenger cars, or freight cars.


Sec.  272.9  Definitions.

    As used in this part--
    Accident/incident has the meaning assigned to that term by part 225 
of this chapter.
    Administrator means the Administrator of the Federal Railroad 
Administration or the Administrator's delegate.
    Associate Administrator means the Associate Administrator for 
Railroad Safety and Chief Safety Officer of the Federal Railroad 
Administration or that person's delegate.
    Class I has the meaning assigned to that term by the regulations of 
the Surface Transportation Board (49 CFR Part 1201; General 
Instructions 1-1).
    Commuter railroad means a railroad, as described by 49 U.S.C. 
20102(2), including public authorities operating passenger train 
service, that provides regularly-scheduled passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979.
    Critical incident means either--
    (1) An accident/incident reportable to FRA under part 225 of this 
chapter that results in a fatality, loss of limb, or a similarly 
serious bodily injury; or
    (2) A catastrophic accident/incident reportable to FRA under part 
225 of this chapter that could be reasonably expected to impair a 
directly-involved employee's ability to perform his or her job duties 
safely.
    Directly-involved employee means a railroad employee covered under 
Sec.  272.7--
    (1) Whose actions are closely connected to the critical incident;
    (2) Who witnesses the critical incident in person as it occurs or 
who witnesses the immediate effects of the critical incident in person; 
or
    (3) Who is charged to directly intervene in, or respond to, the 
critical incident (excluding railroad police officers or investigators 
who routinely respond to and are specially trained to handle 
emergencies).
    FRA means the Federal Railroad Administration, 1200 New Jersey Ave. 
SE., Washington, DC 20590.
    Home terminal means an employee's regular reporting point at the 
beginning of the tour of duty.
    Intercity passenger railroad means a railroad, as described by 49 
U.S.C. 20102(2), including public authorities operating passenger train 
service, which provides regularly-scheduled passenger service between 
large cities.


Sec.  272.11  Penalties.

    (a) Civil penalties. A person who violates any requirement of this 
part, or causes the violation of any such requirement, is subject to a 
civil penalty of at least $650 and not more than $25,000 per violation, 
except that: Penalties may be assessed against individuals only for 
willful violations, and, where a grossly negligent violation or a 
pattern of repeated violations has created an imminent hazard of death 
or injury to persons, or has caused death or injury, a penalty not to 
exceed $105,000 per violation may be assessed. Each day that a 
violation continues is a separate offense. See Appendix A to part 209 
for a statement of agency civil penalty policy.
    (b) Criminal penalties. A person who knowingly and willfully 
falsifies a record or report required by this part may be subject to 
criminal penalties under 49 U.S.C. 21311.

Subpart B--Plan Components and Approval Process


Sec.  272.101  Content of a critical incident stress plan.

    Each critical incident stress plan under this part shall include, 
at a minimum, provisions for--
    (a) Informing each directly-involved employee as soon as 
practicable of the stress relief options that he or she may request;
    (b) Offering timely relief from the balance of the duty tour for 
each directly-involved employee, after the employee has performed any 
actions

[[Page 38895]]

necessary for the safety of persons and contemporaneous documentation 
of the incident;
    (c) Offering timely transportation to each directly-involved 
employee's home terminal, if necessary;
    (d) Offering counseling, guidance, and other appropriate support 
services to each directly-involved employee;
    (e) Permitting relief from the duty tour(s) subsequent to the 
critical incident, for an amount of time to be determined by each 
railroad, if requested by a directly-involved employee as may be 
necessary and reasonable;
    (f) Permitting each directly-involved employee such additional 
leave from normal duty as may be necessary and reasonable to receive 
preventive services or treatment related to the incident or both; and
    (g) Addressing how the railroad's employees operating or otherwise 
working on track owned by or operated over by a different railroad will 
be afforded the protections of the plan.


Sec.  272.103P  Submission of critical incident stress plan for 
approval by the Federal Railroad Administration.

    (a) Each railroad subject to this part shall submit to the Federal 
Railroad Administration, Office of Railroad Safety, 1200 New Jersey 
Avenue SE, Washington, DC 20590, for approval, the railroad's critical 
incident stress plan no later than 12 months after the effective date 
of the final rule.
    (b) Each railroad subject to this part shall--
    (1) Simultaneously with its filing with FRA, serve, either by hard 
copy or electronically, a copy of the submission filed pursuant to 
paragraph (a) of this section or a material modification filed pursuant 
to paragraph (e) of this section on the international/national 
president of any non-profit employee labor organization representing a 
class or craft of the railroad's employees subject to this part; and
    (2) Include in its submission filed pursuant to paragraph (a) of 
this section or a material modification filed pursuant to paragraph (e) 
of this section a statement affirming that the railroad has complied 
with the requirements of paragraph (b)(1) of this section, together 
with a list of the names and addresses of the persons served.
    (c) Not later than 90 days after the date of filing a submission 
pursuant to paragraph (a) of this section or a material modification 
pursuant to paragraph (e) of this section, a labor organization 
representing a class or craft of the railroad's employees subject to 
this part, may file a comment on the submission or material 
modification.
    (1) Each comment shall be submitted to the Associate Administrator 
for Railroad Safety/Chief Safety Officer, FRA, 1200 New Jersey Avenue 
SE., Washington, DC 20590; and
    (2) The commenter shall certify that a copy of the comment was 
served on the railroad.
    (d) A critical incident stress plan is considered approved for 
purposes of this part if and when FRA notifies the railroad in writing 
that the critical incident stress plan is approved, or 120 days after 
FRA has received the railroad's critical incident stress plan, 
whichever occurs first.
    (e) After FRA's initial approval of a railroad's critical incident 
stress plan, if the railroad makes a material modification of the 
critical incident stress plan, the railroad shall submit to FRA for 
approval a copy of the critical incident stress plan as it has been 
revised to reflect the material modification within 30 days of making 
the material modification.
    (f) Upon FRA approval of a railroad's critical incident stress plan 
and any material modification of the critical incident stress plan, the 
railroad must make a copy of the railroad's plan and the material 
modification available to the railroad's employees identified in Sec.  
272.7.
    (g) Each railroad subject to this part must make a copy of the 
railroad's plan available for inspection and reproduction by the FRA.


Sec.  272.105  Option to file critical incident stress plan 
electronically.

    (a) Each railroad to which this part applies is authorized to file 
by electronic means any critical incident stress plan submissions 
required under this part in accordance with the requirements of this 
section.
    (b) Prior to the railroad submitting its first critical incident 
stress plan submission electronically, the railroad shall provide the 
Associate Administrator with the following information in writing:
    (1) The name of the railroad;
    (2) The names of two individuals, including job titles, who will be 
the railroad's points of contact and will be the only individuals 
allowed access to FRA's secure document submission site;
    (3) The mailing addresses for the railroad's points of contact;
    (4) The railroad's system or main headquarters address located in 
the United States;
    (5) The email addresses for the railroad's points of contact; and
    (6) The daytime telephone numbers for the railroad's points of 
contact.
    (c) A railroad that electronically submits an initial critical 
incident stress plan, informational filing, or new portions or 
revisions to an approved critical incident stress plan required by this 
part shall be considered to have provided its consent to receive 
approval or disapproval notices from FRA by email.
    (d) A request for electronic submission or FRA review of written 
materials shall be addressed to the Associate Administrator for 
Railroad Safety/Chief Safety Officer, Federal Railroad Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590.
    (e) FRA may electronically store any materials required by this 
part regardless of whether the railroad that submits the materials does 
so by delivering the written materials to the Associate Administrator 
and opts not to submit the materials electronically.
    (f) A railroad that opts not to submit the materials required by 
this part electronically, but provides one or more email addresses in 
its submission, shall be considered to have provided its consent to 
receive approval or disapproval notices from FRA by email or mail.

Appendix A to Part 272--Schedule of Civil Penalties

    A civil penalty may be assessed against an individual only for a 
willful violation. The Administrator reserves the right to assess a 
penalty of up to $105,000 for any violation where circumstances 
warrant. See 49 U.S.C. 21301, 21304 and 49 CFR part 209, Appendix A.

    Issued in Washington, DC, on June 11, 2013.
Joseph C. Szabo,
Administrator.

[FR Doc. 2013-15417 Filed 6-27-13; 8:45 am]
BILLING CODE 4910-06-P